Seventh Circuit blocks order on feds’ use of force in Chicago

CHICAGO (CN) — A Seventh Circuit Court of Appeals panel on Wednesday called a federal judge’s preliminary injunction that restricts federal officers’ use of force in Chicago overbroad and temporarily blocked it, but the panel warned readers not to read too much into its order.

“[T]he 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 panel, which consisted of two Trump appointees and one Ronald Reagan appointee, wrote in the brief order. “Finally, the district court’s order is 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.”

U.S. District Judge Sara Ellis granted a preliminary injunction on Nov. 6 to a group of protesters, religious leaders and journalists over federal officers’ repeated use of excessive force toward protesters at a Broadview immigration processing facility. Ellis granted the group a temporary restraining order on Oct. 9, and it expired as the preliminary injunction went into effect.

Department of Justice attorneys moved to appeal Ellis’ preliminary injunction on Nov. 10 and called her order unworkable in practice in a 22-page motion for emergency stay. They pointed to 1983 Supreme Court case City of Los Angeles v. Lyons , which determined that the plaintiff Adolph Lyons lacked adequate standing to sue the Los Angeles Police Department over its use of choke holds. DOJ attorneys say, like in Lyons , plaintiffs in this case lack adequate standing to sue the Trump administration because they are unable to show a threat of further injury without speculation.

“The District Court emphasized what it viewed as an ‘ongoing and sustained pattern’ of alleged misuse of force by DHS officers. Those findings were, at minimum, overstated,” the DOJ said in its motion for emergency stay. “Regardless, as Lyons  makes clear, it is not enough to establish standing for prospective relief to show that allegedly improper conduct occurs ‘routinely’ or even pursuant to a government ‘policy.’”

One of the lawyers representing the group of protesters, journalists and clergy members could not be reached for comment. In their reply brief to the Justice Department’s motion for emergency stay, Steve Art with Loevy and Loevy said the DOJ failed to show the exigency that would require such a response from the Seventh Circuit.

“Administrative stays are rare and exceptional, but the government in this case and in many others increasingly argues that every single adverse ruling constitutes a five-alarm fire for which immediate appellate review is necessary," Art wrote in the brief.

The Seventh Circuit panel, which consisted of Trump appointees U.S. Circuit Judge Michael Scudder and U.S. Chief Judge Michael Brennan and Reagan appointee U.S. Circuit Judge Frank Easterbrook, concurred, in part, with Justice Department attorneys. The panel referenced Lyons in its brief order and said it’s an open question whether plaintiffs will face future harm, given that federal immigration officers, including controversial Border Patrol Commander Greg Bovino, have left Chicago.

“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, which could affect both the justiciability of this case and the propriety of injunctive relief,” the Seventh Circuit panel wrote in the order.

Ellis issued her November ruling after a lengthy preliminary injunction hearing, during which the Barack Obama appointee determined federal agents applied force indiscriminately and provided the court with unreliable evidence.

“I see little reason for the use of force that the federal agents are currently using,” she said before issuing her oral ruling granting plaintiffs a preliminary injunction.

The hearing featured testimony from multiple protesters and religious leaders, as well as a private deposition from Bovino, who said his agents’ use of force has been nothing short of exemplary.

Ellis previously chastised Bovino over violating her temporary restraining order when she ordered him to appear in her courtroom in October after he was seen throwing a tear gas canister into a Little Village crowd. At that hearing, Ellis ordered Bovino to give her daily reports of his immigration enforcement activities in Chicago, which the Seventh Circuit swiftly blocked and called an infringement on the separation of powers.

Bovino initially told Ellis that he threw the tear gas canister because a protester threw a rock at his head. However, in his private deposition, which was recorded after his appearance in Ellis’ courtroom, he couldn’t point to footage of the rock hitting him and later admitted that it was thrown at his head after he deployed the tear gas.

The panel ended its two-page order with a warning for readers: “Do not overread today’s order. Our concerns about the substantial overbreadth of the district court’s injunction lead us to stay it pending appeal, which we will expedite. But we have not concluded that preliminary relief is precluded. Acting on a very compressed timeline, the district court has developed voluminous and robust factual findings. Those findings may support entry of a more tailored and appropriate preliminary injunction that directly addresses the First and Fourth Amendment claims raised by these plaintiffs.”

Attorneys for the group of protesters, religious leaders and journalists have until Dec. 3 to file their reply briefs. A schedule for oral arguments of the case has not yet been set.

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