U.S. Border Patrol Commander-at-Large Gregory Bovino no longer has to worry about a daily check-in with a federal judge, after an appeals court ruled Friday that the meetings would infringe on the separation of powers.
The 7th U.S. Circuit Court of Appeals had already put a temporary stop earlier this week to Bovino’s meetings with U.S. District Judge Sara Ellis. But the appeals court followed up with a fuller order Friday, siding with the Trump administration.
Ellis had told Bovino on Tuesday she wanted to meet with him every weeknight until Nov. 5. She wanted to discuss the events of each day, and whether agents were abiding by her orders while conducting the deportation campaign known as “Operation Midway Blitz.”
The appeals court, in an unsigned two-page order Friday, found that problematic for two reasons. First, it set Ellis up as an “inquisitor” rather than a “neutral adjudicator,” the court said. Second, it would have made Ellis “supervisor of Chief Bovino’s activities, intruding into personnel management decisions of the executive branch,” according to the court.
“These two problems are related and lead us to conclude that the order infringes on the separation of powers,” the appeals court concluded.
Ellis is presiding over a lawsuit about the feds’ treatment of protesters and journalists during the Trump administration’s deportation campaign. The lawsuit was brought by media organizations, including the Chicago Headline Club, Block Club Chicago and the Chicago Newspaper Guild, which represents journalists at the Chicago Sun-Times.
The judge earlier this month forbade federal agents from using gas and other “riot control” weapons without two warnings, or against people who pose no immediate threat. Then, last week, attorneys in the case accused Bovino of personally tossing tear gas into a crowd in Little Village without justification.
The Department of Homeland Security said agents were being threatened by “hostile” members of the crowd at the time, and that warnings were given before “riot control measures” were deployed.
Still, Ellis ordered Bovino into her courtroom Tuesday, triggering a high-profile hearing in which the Border Patrol boss spent about an hour on the witness stand.
Ellis warned that she didn’t want to see any of Bovino’s agents out and about and deploying tear gas on Halloween, especially near kids.
That didn’t stop Bovino from putting out a Halloween-themed post on X boasting that ICE is “Bringing out all the skeletons in illegal aliens’ closets.”
“No monsters, just superheroes,” Bovino wrote. “No costumes necessary. But maybe we’ll wear masks.”
The appellate court only undid Ellis’ order requiring Bovino to appear in her courtroom every weeknight. Still intact are other aspects, which mandated conspicuous identifiers on federal agents’ uniforms and required the feds to turn over use-of-force reports and body-worn camera footage dating back to Sept. 2.
Also left in place is Ellis’ order that Bovino obtain a body-worn camera by Friday. He admitted to the judge that he did not have one, nor had he been trained on its use, even though 99% of U.S. Customs and Border Protection agents here have them.
Neither the reporter nor editors who worked on this story — including some represented by the Newspaper Guild — have been involved in the lawsuit described in this article.