A Justice Department lawyer warned Thursday that it’s “wrong” to assume the deportation campaign that hit Chicago this fall is over, even though U.S. Border Patrol Cmdr. Gregory Bovino and others have left town for other cities.
With a judge poised to dismiss the high-profile lawsuit that’s been used to challenge the feds’ aggressive actions during “Operation Midway Blitz,” that lawyer also tried to argue the move would foreclose future court claims if the campaign were to ramp up again.
U.S. District Judge Sara Ellis told her she was wrong.
The back-and-forth came in the first hearing in Ellis’ courtroom since lawyers who brought the lawsuit moved to dismiss it. They did so Tuesday after a 7th U.S. Circuit Court of Appeals panel signaled its disagreement with a preliminary injunction Ellis handed down last month.
That injunction put restrictions on the feds’ use of tear gas and chokeholds, among other mandates. The appeals panel — made up of Judges Michael Brennan, Frank Easterbrook and Michael Scudder — called it “overbroad” and has blocked it since Nov. 19.
If the appeals panel were to rule more conclusively on the merits of the injunction, that could tie the hands of Ellis or other lower-court judges in the future.
Ellis made no formal rulings Thursday, but she set a hearing on dismissal of the lawsuit for Jan. 8.
The case was brought by protesters, clergy and media organizations including the Chicago Headline Club, Block Club Chicago and the Chicago Newspaper Guild, which represents journalists at the Chicago Sun-Times.
The Sun-Times reported last month that, even though Bovino was leaving town, a Homeland Security source said 100 agents would be left behind to continue the campaign. The source also said 1,000 agents could return in March.
In a three-page filing ahead of the hearing in Ellis’ courtroom Thursday, Justice Department lawyers accused the plaintiffs of “seeking to throw in the towel” in a move that amounts to “transparent procedural gamesmanship.”
“This gambit should be seen for what it is,” they wrote.
They went on to say the plaintiffs were “wrong to allege that Operation Midway Blitz has ended.” And they insisted that dismissal of the lawsuit “with prejudice” — as sought by the plaintiffs — would mean “no named plaintiff or member of the certified class will be permitted to bring substantially similar claims in the future.”
The “certified class” includes anyone who “will in the future non-violently demonstrate, protest, observe, document, or record at Department of Homeland Security immigration enforcement and removal operations in the Northern District of Illinois.” Sub-classes include people who will engage in religious expression there or who will gather and report the news there.
During the hearing later Thursday, Justice Department lawyer Elizabeth Hedges repeated the warning that Operation Midway Blitz is not over. That prompted Ellis to press for details.
“Are you saying that Operation Midway Blitz, in the manner that it was operating in September and October and early November of this year, is that going to happen again?” Ellis asked “Or are you saying it’s not going to happen again?”
Hedges insisted that Homeland Security will continue “its lawful enforcement operations in Chicago to the extent necessary.” She added, “I’m not prepared to stand here and give positions on where an agent might be at any given time.”
Hedges also repeated the other claim from the feds’ filing, that a dismissal with prejudice would preclude future claims by anyone covered by the certified class.
Ellis disagreed.
“I think, with respect Ms. Hedges, that you are not correct on the law,” the judge told her, “and that the preclusive effect that you would hope to achieve with a dismissal with prejudice is not what you think it is.”
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.