Protesters, clergy and media organizations made what appeared to be a strategic decision Tuesday to seek dismissal of the high-profile lawsuit that challenged the aggressive tactics of federal immigration agents in Chicago — before the case winds up in the hands of a skeptical appeals court panel.
It’s the same case that led to U.S. District Judge Sara Ellis’ historic order restricting the feds’ use of force during the campaign known as “Operation Midway Blitz.” The judge put limits on the feds’ use of tear gas and chokeholds, among other mandates.
But Ellis’ order has already been on hold for 13 days. And a three-judge panel from the 7th U.S. Circuit Court of Appeals has signaled its disagreement, calling the order “overbroad.” That’s because it restricts “an expansive range of defendants, including the President of the United States, the entire Departments of Homeland Security and Justice, and anyone acting in concert with them,” the panel said.
Now the move by the plaintiffs’ attorneys will likely short-circuit oral arguments before the appellate panel — and prevent it from handing down a ruling that could have tied the hands of lower-court judges like Ellis in the future.
In their three-page motion Tuesday, the plaintiffs’ lawyers wrote that Trump administration lawyers are expected to seek dismissal of their appeal in the 7th Circuit if Ellis agrees to the dismissal in her courtroom.
In a separate statement, plaintiffs’ attorney Steve Art of the Loevy & Loevy law firm said there was nothing more to be gained from the litigation.
“Because of the work of many Chicagoans, including the brave plaintiffs in this case, the brutality of Operation Midway Blitz was carefully documented for all to see, the constitutional rights of civilians across the region were vindicated, and the Trump administration’s justifications for its conduct were exposed as blatant lies,” Art said. “Judge Ellis’ powerful opinion stands as the final word in this case, and as a defining document of our time.”
Art and his colleagues have already used the lawsuit to secure court appearances and depositions from U.S. Border Patrol Cmdr. Gregory Bovino and other immigration officials, as well as the public release of a tranche of records and body-worn camera videos that documented the feds’ actions in Chicago.
The deportation campaign has ramped down in recent weeks, with Bovino and many of his agents leaving town shortly after Ellis entered her order. Still, a Homeland Security source told the Chicago Sun-Times that as many as 1,000 agents could return in March.
That’s four times the roughly 250 agents who hit the streets for this fall’s campaign.
A renewed campaign could generate new litigation, similar to the lawsuit brought in Ellis’ courtroom. Resistance to the feds’ deportation campaign already coalesced at the Dirksen Federal Courthouse this fall, where judges ruled against the Trump administration when it came to the deployment of the National Guard, conditions inside a holding facility in Broadview, and the policy of holding people in mandatory detention under a controversial reading of immigration law.
But no case seemed to garner quite as much attention as the case before Ellis, who famously read Carl Sandburg’s poem “Chicago” before handing down her preliminary injunction Nov. 6. The lawsuit became a vehicle for complaints about federal agents’ use of force, including the use of tear gas while children made their way to a Halloween parade.
Ellis also concluded that Bovino lied when he said he personally deployed tear gas in Little Village after being hit in the head with a rock.
The plaintiffs included media organizations such as the Chicago Headline Club, Block Club Chicago and the Chicago Newspaper Guild, which represents journalists at the Chicago Sun-Times.
Ellis’ order forbade agents from using “riot control weapons” against protesters or observers who posed no immediate threat, and without two warnings. It restricted the feds’ use of chokeholds, and it required agents to display identifying star or badge numbers “conspicuously” in “two separate places.”
Nearly two weeks later, the three-judge appellate panel made up of Judges Michael Brennan, Frank Easterbrook and Michael Scudder intervened and put Ellis’ order on hold. In doing so, it found the Trump administration was likely to succeed on the merits of an appeal.
Not only did it find Ellis’ order to be “overbroad,” it raised questions about whether the plaintiffs had standing to pursue the lawsuit. The panel cited the 1983 U.S. Supreme Court decision in City of Los Angeles v. Lyons, which found that a plaintiff must show a “real and immediate” threat of injury, not one that’s “conjectural” or “hypothetical.”
Turning to the case in Chicago, the 7th Circuit panel wrote on Nov. 19 that, “open questions remain whether plaintiffs have shown that the past harm they allegedly faced is likely to imminently happen to them in the future. … A fear that such harm will recur is insufficient, on its own, to show standing for injunctive relief. … And we are aware of public reporting suggesting that the enhanced immigration enforcement initiative may have lessened or ceased.”
The Trump administration stressed that argument in a brief filed last week with the 7th Circuit, insisting that most of the claims in the case “arise from a handful of incidents during protests at the Broadview facility in late September and early October.
“Those prior incidents, which occurred months ago, do not establish that plaintiffs are likely to face the ‘same events’ in the future … even assuming plaintiffs intend to ‘return to Broadview.’”
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.