Federal immigration enforcement officials overseeing the Trump administration’s ongoing “Operation Midway Blitz” in the Chicago area testified Monday that all uses of aggressive crowd control tactics on protesters in recent weeks have been justified.
The officials, who were ordered to appear in court, told U.S. District Judge Sara Ellis that no agents have violated internal use-of-force policies in clashes with protesters, nor had any been disciplined for it. They also said agents’ use of tear gas on members of the public was warranted in two incidents last week — despite the judge’s Oct. 9 temporary restraining order forbidding the use of chemical irritants on demonstrators.
Read more: Judge grants restraining order protecting protesters, journalists in Chicago-area clashes
Ellis questioned Customs and Border Patrol Deputy Incident Commander Kyle Harvick for two hours. Harvick said spontaneous protests by members of the public who happen to witness immigration enforcement actions can quickly become dangerous for agents.
“We have found that the longer we loiter on the scene and subjects come — if they’re just protesting our presence, that’s fine,” he said. “But if others come who are assaultive, it gets more and more dangerous.”
Ellis’ order prohibits immigration agents from using “riot control weapons” like tear gas without giving at least two separate warnings loud enough for the crowd to hear and allowing for “reasonable time and opportunity for individuals to voluntarily comply.”
The judge’s temporary restraining order defines a crowd dispersal order as a federal agent’s “lawful command ... for all persons to leave a designated area when three or more persons are committing acts of disorderly conduct that are likely to cause substantial harm.”
‘Profound concerns’
In an emergency hearing Thursday, Ellis told attorneys for the Trump administration that after seeing news about two separate incidents earlier in the week, she had “profound concerns” that her order wasn’t being followed.
On both Oct. 12 and Oct. 14, CBP agents deployed tear gas on protesters after the immigration enforcement actions attracted crowds in neighborhoods on Chicago’s Northwest Side and Southeast Side.
“I’m not blind,” she said.
Harvick said that on Oct. 12, residents linked arms to block CBP agents from arresting their neighbor, which Harvick described as “active resistance.”
“They were given lawful orders to get out of our way so we could depart and continue with our duties, which they disobeyed,” he said. “Multiple times.”
Harvick said CBP’s team lead at the scene made the call to deploy tear gas and that the crowd was warned to heed the agents’ dispersal orders before the canister was thrown toward protesters. One member of the crowd threw the canister back toward agents, he said.
When Ellis asked whether the protesters had thrown anything at the feds, Harvick said he was told objects were “thrown at some point” and CBP “vehicles were banged on.” According to reporting from Block Club Chicago, the agents left shortly after.
Harvick said his understanding of the incident relied on a discussion with that same team lead.
“When you spoke with him, did you have any concern that the requirements of the TRO were not being followed?” Ellis asked.
“I did not, your honor,” Harvick said.
“Can you tell me why you believed it was appropriate in that instance to release CS (tear) gas?” the judge asked.
“So first of all, that scene was an enforcement action,” Harvick said. “This wasn’t a planned protest ... If you’re at site of a planned protest, you’re equipped differently. You have helmet, a gas mask.”
In a separated incident on Oct. 14, Harvick said two people suspected of being undocumented immigrants struck a CBP vehicle in their own car, then drove away. Agents then pursued the vehicle, ending in a car crash.
The crowd that formed quickly after the crash grew violent, according to Harvick, throwing “eggs, bricks, metal objects ... I know one officer was struck in the head with an egg.” He also said the tires were slashed on two CBP vehicles and the rear window of one was broken.
In addition to the crowd’s negative response to immigration agents, Harvick said CBP needed the crowd to disperse as the accident was an active crime scene that needed to be preserved for investigation. Agents deployed tear gas three times because “the totality of circumstances” meant “it was becoming an unsafe environment” for agents, Harvick said.
Judge’s tone more muted
During the hours Ellis questioned Harvick and ICE Deputy Field Director Shawn Byers, the judge’s tone was far more muted than her tenor with Department of Justice attorneys last week. During Thursday’s emergency hearing, Ellis said, “The field director is going to explain to me why I am seeing images of tear gas being deployed and reading reports that there were no warnings given before it was deployed.” She was similarly stern in a virtual hearing Friday.
Ellis did become animated when she asked Harvick about an incident mentioned in a Chicago Tribune article published Sunday evening about Mt. Prospect residents interrupting a CBP operation. Just west of Mt. Prospect, in Rolling Meadows, a federal agent was seen pointing a weapon out of a truck window toward members of the public, according to the story.
“I guess what concerns me is an agent pointing a weapon at bystanders from an open window of a truck going by,” the judge said. “You could understand how I might be concerned, right? That might be a use of force that is not commensurate with any threat that the agents are getting from people passing by.”
Ellis also asked why immigration agents have often been photographed wearing bananas over their faces. After suggesting the fabric could mitigate tear gas, Harvick said it was to protect their identities.
“Mostly, your honor, it’s for doxing cases we’ve experienced for agents or their families,” he said.
Part of Ellis’ Oct. 9 order requires immigration agents equipped with body cameras to have them turned on during enforcement activities. But Monday’s hearing made clear that only CBP agents have body cameras; Byers told the judge that none of the ICE agents assigned to the Chicago area do. Under the Biden administration, Congress had started funding a program to equip all ICE agents with body-worn cameras, but the effort stalled after only two of the nation’s 25 field offices began using them, Byers testified.
Broadview clashes
Ellis asked Byers to take her through some of the clashes between immigration agents and protesters outside of ICE’s processing center in Broadview, which has been the scene of daily protests since Operation Midway Blitz began last month. Though attendance has been minimal on some days, when crowds have swelled, agents have deployed tear gas and pepper balls.
Byers said he hasn’t seen internal ICE reports about use of force on Broadview protesters, but he did challenge the “version of events circling on social media” about the Rev. David Black getting shot in the head with pepper balls on Sept 19. Black is one of the plaintiffs in the lawsuit that resulted in Ellis’ TRO.
“So you believe that the video or the photographs that have been distributed about that individual … that those images have been edited?” the judge asked.
“What’s not being shown is he was given multiple commands to remove himself from the property,” Byers replied.
He also said Oct. 3 was the last time agents deployed tear gas in Broadview.
Ellis extended her temporary restraining order until Nov. 6, the day after a hearing to change the order to a preliminary injunction. Before then, the civil rights and media attorneys who filed the lawsuit will depose three more Department of Homeland Security officials, including CBP Commander Greg Bovino.
Harvick told the judge unequivocally that that Bovino was in charge of Operation Midway Blitz. But Byers said ICE and CBP are “running parallel but independently”
“Siloes would be the best way to describe it,” he said.
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