Federal judge allows Border Patrol chief to be deposed in case about use of chemical agents

A federal judge in Chicago said she will allow top officials, including Border Patrol Commander Gregory Bovino, to be deposed after chemical agents were deployed during immigration operations in Chicago, potentially violating a temporary restraining order she had put in place.

U.S. District Judge Sara Ellis, who was appointed by former President Barack Obama, held an emergency hearing Monday over possible violations stemming from two incidents, according to multiple reports.

Border Patrol official Kyle Harvick testified that agents used tear gas on Oct. 12 in Albany Park on the city’s North Side and again on Oct. 14 in the East Side neighborhood. Harvick argued the gas was deployed because those involved were not peacefully protesting but instead interfering with an active immigration enforcement operation.

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The deployment came after Ellis issued an Oct. 9 order that barred federal agents from using crowd control devices such as tear gas (CS gas) or pepper balls on protesters, journalists and clergy as long as there wasn’t a threat to others, per NBC Chicago.

Harvick told the court that protesters in Albany Park were “actively resisting” by locking arms and blocking Border Patrol agents from leaving and that agents issued a verbal warning before deploying the gas. In the East Side incident, Harvick said people in the crowd began throwing objects at agents before gas was deployed.

“Why was it appropriate to use CS gas at Albany Park?” Ellis asked.

Harvick replied, “That scene was an enforcement action. This wasn’t a protest.”

Ellis raised concerns about oversight and accountability as no agents had been disciplined for potential use-of-force violations. Harvick admitted that no disciplinary action had been taken since the operation, known as Operation Midway Blitz, began.

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Immigration and Customs Enforcement (ICE) Deputy Field Office Director Shawn Byers acknowledged he had not reviewed any use-of-force reports tied to an earlier September incident at the Broadview ICE Processing Center, even though his own Special Response Team (SRT) was involved.

Ellis reacted sharply to that response, saying she was “a little surprised” and had expected him to have reviewed those reports, given his supervisory position. She indicated that this lack of oversight helped lead her to broaden the inquiry up the chain of command to include Bovino, former ICE Chicago Field Office Director Russell Hott and CBP Deputy Chief Patrol Agent Daniel Parra, per Bloomberg Law.

Ellis also ordered officials to preserve all video evidence, including body-camera footage, even though ICE said some Broadview video may already have been overwritten. She also directed the expansion of body-camera use across both agencies.

The incidents occurred during Operation Midway Blitz, a joint immigration enforcement campaign by ICE and Border Patrol in the Chicago area aimed at apprehending criminal illegal immigrants and fugitives with prior deportation orders.

The hearing coincided with Illinois’ deadline to answer the Trump administration’s Supreme Court petition seeking to overturn limits on deploying the National Guard in the state.

On Monday, Illinois responded by arguing that the troop deployment violates Illinois’ sovereignty and that there is no credible evidence of an organized rebellion in Illinois. 

President Donald Trump has already deployed the National Guard to Los Angeles, Washington D.C., and Memphis, Tenn., to help curb violent crime. He has said the moves caused crime to plummet in those areas. 

Last week, the president floated the idea of invoking the Insurrection Act to tackle violent crime in Chicago and urged Illinois Gov. JB Pritzker to “beg for help” from the federal government.

The Insurrection Act of 1807 gives the president authority to deploy active-duty military or federalized National Guard troops inside the country in limited circumstances, such as to suppress civil disorder, rebellion or obstruction of federal law. It has been invoked about 30 times by roughly 10 presidents, most recently by George H. W. Bush during the 1992 Los Angeles riots, according to The Associated Press.