7th Circuit stays judge’s order restricting immigration agents’ use of riot control weapons

CHICAGO — The 7^th Circuit Court of Appeals has halted a federal judge’s order restricting immigration agents’ use of force — including riot control weapons like tear gas and pepper balls — against protesters, calling it “overbroad.”

In siding with the Trump administration, the three-judge panel ruled that U.S. District Judge Sara Ellis’ Nov. 6 preliminary injunction overstepped and “impermissibly” infringed on how the executive branch conducts law enforcement activity.

But Wednesday’s decision also warned not to “overread today’s order” and said that evidence brought to Ellis about federal agents’ use of force in the Chicago area over the last two months “may support entry of a more tailored and appropriate” injunction.

The ruling comes after this fall’s Chicago-focused “Operation Midway Blitz” immigration enforcement campaign quickly wound down late last week. U.S. Customs and Border Patrol Commander Gregory Bovino, the face of Operation Midway Blitz, has already moved on to Charlotte, North Carolina, and took many of his agents with him. On Friday, U.S. Department of Homeland Security personnel reportedly moved out of Naval Station Great Lakes near Waukegan, which was being used as a command center for Operation Midway Blitz.

Meanwhile, the U.S. Department of Defense is sending home the approximately 200 Texas National Guard troops who have been stationed at the U.S. Army Reserve Center near Joliet since early October. The Trump administration federalized the Texas guardsmen along with roughly 300 troops from Illinois in order to shield immigration agents from protesters, but a federal judge blocked their deployment, limiting the National Guard to training activities during the last six weeks.

And lawyers for the Trump administration told another federal judge on Tuesday that the U.S. Immigration and Customs Enforcement processing facility in Chicago’s near-west suburb of Broadview only had four detainees earlier this week. That figure was a stunning decline from early November testimony of former Broadview detainees who described holding rooms stuffed with hundreds of people. The overcrowding forced detainees to sleep on concrete floors or plastic chairs and led to filthy conditions like overflowing toilets.

But even as the Trump administration withdrew hundreds of agents from Chicago, DHS officials reportedly said they’d be back in the spring with even more manpower. Responding to that reporting, Ellis last week moved to schedule an early March trial to determine whether her preliminary injunction should be made permanent.

The 7^th Circuit’s two-page ruling chided Ellis for being “too prescriptive.”

“For example, it enumerates and proscribes the use of scores of riot control weapons and other devices in a way that resembles a federal regulation,” the three-judge panel wrote.

Ellis’ order restricted the use of tear gas, pepper balls, rubber bullets, flashbang grenades and tasers on protesters who don’t pose “an immediate threat to the safety of a law enforcement officer or others.” For protesters deemed true threats, the order required them to give at least two separate warnings loud enough for the crowd to hear and allow “reasonable time and opportunity” for compliance before the deployment of a riot control weapon.

It also includes a prohibition on chokeholds or other types of neck restraints unless absolutely necessary to stop someone from seriously injuring or killing another and requires agents display identifying star or badge numbers “conspicuously” in “two separate places” on their uniforms.

But the appeals judges — two of whom were appointed by Trump in his first term — wrote that Ellis’ order’s “practical effect is to enjoin all law enforcement officers within the Executive Branch.”

“Further, the order requires the enjoined parties to submit for judicial review all current and future internal guidance, policies, and directives regarding efforts to implement the order — a mandate impermissibly infringing on principles of separation of powers on this record,” the ruling said.

Wednesday’s decision is the second time the 7^th Circuit has rebuked Ellis in the course of the case. In late October, the appeals court blocked her order that would’ve required Bovino to show up to her courtroom every afternoon for a week to report on whether there were any violations of her temporary restraining order on riot control weapons.

Bovino still sat for hours of filmed deposition, some of which was played in court during a marathon hearing earlier this month showing use of force by agents, including the Border Patrol commander himself.

In delivering her preliminary injunction, Ellis said Bovino repeatedly lied during the deposition, including his eventual admission that he was not hit in the head with a rock before tossing canisters of tear gas into a crowd in Chicago’s Mexican immigrant-heavy Little Village neighborhood last month.

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Hannah Meisel

Hannah has been covering Illinois government and politics since 2014, and since then has worked for a variety of outlets from NPR affiliate stations to a startup newsletter. She’s a graduate of both the University of Illinois at Urbana-Champaign and the U of I’s Springfield campus, where she received an M.A. through the Public Affairs Reporting program and got her start reporting in the Capitol.