U.S. District Judge Sara Ellis
CHICAGO - A federal appeals court has blocked a Chicago federal district judge's order restraining ICE and Border Patrol officers from responding to and protecting themselves riotous responses to immigration enforcement operations, saying the Obama-appointed judge trespassed the constitutional separation of powers and went too far in entering an order that attempted to control virtually "all law enforcement officers in the Executive Branch," including the President of the United States himself.
On Nov. 19, a three-judge panel of the U.S. Seventh Circuit Court of Appeals delivered a rebuke to U.S. District Judge Sara Ellis over her handling of proceedings to this point in a dispute between pro-immigrant activists and journalists allied in court against federal immigration agencies under President Donald Trump.
The dispute centers on federal officers' treatment of so-called "protestors" who repeatedly sought to harass and disrupt federal immigration officers engaged in immigration raids and other enforcement actions.
On Nov. 6, Ellis grabbed headlines when she issued a preliminary injunction blocking federal agents associated with the now-ended "Operation Midway Blitz" and other immigration enforcement operations from using physical force or riot control weapons against the so-called "rapid response networks” of activists and others who routinely followed and harried immigration officers, or who gather outside the ICE processing facility in suburban Broadview to "protest" the federal actions.
Under the injunction, agents from Border Patrol and Immigration and Customs Enforcement (ICE) were forbidden from "issuing a crowd dispersal order" requiring the so-called protestors "to leave a public place that they lawfully have a right to be."
The order further barred the federal agents from using "riot control weapons," including non-lethal rounds like rubber bullets or bean bags; pepper spray; tear gas; and virtually all other crowd control weapons and munitions, against those who gather with the intent to protest, interfere with and potentially thwart immigration-related arrests.
Further, the order prohibited federal agents from "using hands-on physical force such as pulling or shoving to the ground, tackling, or body slamming" anyone "who is not causing an immediate threat of physical harm to others..."
The order also granted those claiming to be journalists the right to remain in an area undisturbed, even after an otherwise lawful dispersal order was given.
The ruling came at the conclusion of days of proceedings as part of an ongoing class action lawsuit launched by pro-immigrant activists, together with Chicago news organizations and trial lawyers who have made their name suing police, to win court orders blocking ICE from taking action against so-called "protestors" and activists who routinely seek to hamper and thwart federal immigration enforcement in the region.
The plaintiffs in the case have accused ICE of an unconstitutional "pattern of extreme brutality" amid a bid to "silence press and civilians."
Federal agents asserted the control measures were necessitated by aggressive and hostile actions from activists, protestors and members of so-called "rapid response teams" who routinely follow ICE patrols and have been documented to attempt to interfere with arrests.
A Justice Department attorney, for instance, told the judge during the hearing that the case is really about "to what extent does the freedom of speech protect people throwing rocks, bottles, trespassing, pinning down law enforcement, slashing tires, wielding weapons."
In her ruling, Ellis conceded activists and "protestors" had engaged in violent acts against ICE agents. But she said she believed federal agents' response "shocked the conscience" in acting against people who Ellis described as merely neighbors “who have shown up for each other.”
As she delivered the ruling from the bench, Ellis also notably read from the Carl Sandburg poem, "Chicago," emphasizing the line: “And having answered so I turn once more to those who sneer at this my city, and I give them back the sneer."
Ellis' editorial flourishes directed at the Trump White House in her ruling were not addressed by the appellate panel.
The panel included Seventh Circuit judges Michael B. Brennan, Frank H. Easterbrook and Michael Y. Scudder.
In their ruling brushing back Ellis, the appellate judges said they believed that the White House was likely to "succeed on the merits" of its appeal that Judge Ellis went much too far in blocking federal officers from carrying out anti-riot and crowd control actions and placing herself again in a position to review every decision and action carried out by immigration officers as the carried out their duties.
"The preliminary injunction entered by the district court is overbroad," the appellate judges wrote. "In no uncertain terms, the district court's order enjoins 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.
"... 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 judges further said they had concerns over the ability of activists and other anti-ICE and anti-Trump plaintiffs in the action, as well as the journalist plaintiffs, to show the order is even still needed.
"Open questions remain whether plaintiffs have shown that the past harm they allegedly faced is likely to imminently happen to them in the future," the judges said. "A fear that such harm will recur is insufficient, on its own, to show standing for injunctive relief."
The appellate judges, however, said their ruling does not necessarily stop Ellis from trying again, cautioning observers and others to "not overread today's order."
They noted Ellis "has developed voluminous and robust factual findings" in the case. But they said any further order may need to be "more tailored and appropriate."
