Legal battle intensifies over appointing special prosecutor for alleged ‘Operation Midway Blitz’ abuses

CHICAGO — It could be months before a Cook County judge decides whether to appoint a special prosecutor to investigate and charge alleged abuses by federal agents during the Trump administration’s “Operation Midway Blitz” immigration enforcement campaign last fall.

But the legal fight over the demand for outside counsel intensified Tuesday in a court filing from Cook County State’s Attorney Eileen O’Neill Burke, who for weeks has maintained that her office only has limited authority to initiate investigations or prosecute federal agents.

“Petitioners are asking this Court to ignore the law and appoint a special prosecutor citing public outrage and the will of multiple political figures as support for their position,” the 24-page filing read.

Earlier this month, attorneys for a coalition of immigration advocates, religious leaders and elected officials filed a petition for the appointment of a special prosecutor to go after federal agents who may have violated people’s rights during the immigration enforcement surge. The filing followed weeks of public back-and-forth between the state’s attorney and those same advocates, who accused O’Neill Burke of “turning a blind eye to egregious acts of violence that federal agents … inflicted,” according to the coalition’s March 12 petition.

Tuesday’s filing quoted from a statement O’Neill Burke’s office circulated earlier this month, in which the state’s attorney said she was “horrified by the thuggish and inappropriate conduct of ICE (Immigration and Customs Enforcement) agents in Chicago, Minnesota and across the country.”

“But that horror does not mean that she — or any other prosecutor whether specially appointed or elected — can willfully violate the law,” the filing said. “Illinois law simply does not permit prosecutors to initiate criminal investigations and bring prosecutions because the general public and elected officials would like them to.”

Legal disagreements

In a news conference earlier this month announcing their petition filing, members of the coalition voiced their dissatisfaction with O’Neill Burke’s approach to alleged abuses by federal agents.

State Rep. Lilian Jiménez, D-Chicago, one of the elected officials who signed onto the petition, compared the lack of action from the Cook County state’s attorney’s office with that of the prosecutor in Minneapolis, where federal agents mounted an aggressive immigration enforcement campaign earlier this year. Two American citizens — Renee Good and Alex Pretti — were fatally shot by agents in January, both of whom inspired more protests against “Operation Metro Surge.”

“Does anybody know what’s happening in Hennepin County in Minnesota?” Jiménez asked. “Their prosecutor just announced 17 investigations. Their prosecutor just announced that one of the investigations is because federal agents threw a gas canister in a crowd. Does that sound familiar? That happened right here. It happened a few blocks away from my house. It happened in Little Village.”

Jiménez was referring to the incidents of tear gas deployment into crowds, including by then-U.S. Customs and Border Patrol Commander Gregory Bovino.

But O’Neill Burke maintains that as a local prosecutor, she’s limited in her ability to bring charges against federal agents, and that Illinois law prohibits local prosecutors from opening investigations without a specific request from local law enforcement.

Lawyers behind the push for a special prosecutor dismissed the state’s attorney’s explanations as excuses during that same March 12 Chicago news conference.

“Folks are tired of elected officials saying there’s obstacles, saying, ‘We can’t do this,’ saying, ‘Oh there’s all kinds of complications we have to deal with,’” attorney Steve Art of Chicago-based civil rights law firm Loevy & Loevy said. “People are tired of elected officials arguing with one another about who needs to bring charges, who needs to bring a case. … Nobody is talking about the obvious misconduct that happened and bringing prosecutions based on that obvious misconduct.”

But in her filing Tuesday, O’Neill Burke argued that if she — or a special prosecutor — were to bring charges without following proper protocol, those charges would face enormous risk of being thrown out on appeal, thus undermining the coalition’s accountability goals.

The state’s attorney pointed to a 2017 decision from the Illinois Supreme Court that upheld a judge’s decision to throw out evidence gathered during traffic stops orchestrated by a LaSalle County special investigator hired to investigate the flow of drugs on Interstate 80. According to the high court’s ruling, the traffic stop program was outside the scope of state law that provides for a special investigator or prosecutor.

“Investigating and charging a case simply to have it dismissed before trial … would bring no accountability for any criminal acts arising out of Operation Midway Blitz and does nothing to advance the public interest,” the filing said. “Put plainly, the relief Petitioners seek will only serve to thwart their purported goal of holding federal immigration officers accountable for criminal misconduct.”

Alleged abuses

Lawyers for the coalition and assistant state’s attorneys will argue their claims to Cook County Judge Erica Reddick on April 10. In their arguments, attorneys pushing for a special prosecutor will outline some of the alleged crimes perpetrated by federal agents.

They include the shooting of Marimar Martinez, a U.S. citizen, in October and the fatal shooting of undocumented immigrant Silverio Villegas Gonzalez in September. They also include assault, perjury and possible conspiracy, according to the coalition.

So much of what Art called “obvious misconduct” earlier this month was captured on video, the civil rights attorney said. And much of that video is already publicly available thanks to both social media and a major lawsuit his firm filed in October alleging agents violated the First Amendment rights of protesters, journalists and clergy outside of the U.S. Immigration and Customs Enforcement processing center in Chicago’s near-west suburb of Broadview.

The lawsuit yielded hundreds of hours of video — including from agents’ body cameras — of the immigration enforcement campaign. Other alleged abuses committed to video include Fourth Amendment violations like the wrongful arrests of U.S. citizens in immigration sweeps and violent confrontations between agents and Chicagoans.

But O’Neill Burke hit back at the petition’s references to that lawsuit, specifically targeting the Loevy & Loevy attorneys’ decision to voluntarily drop the case after the 7^th Circuit Court of Appeals signaled a willingness to pare down a federal judge’s order restricting federal agents’ ability to use riot control weapons on crowds.

The state’s attorney blamed the case’s end on “this experienced firm’s failure to take seriously a cornerstone principle of federal law,” which the filing said “played a significant role in the complete undoing of literally everything they supposedly sought to achieve” with the lawsuit.

“This lack of tactical competence yields precisely the result the State’s Attorney seeks to avoid in any potential Operation Midway Blitz prosecutions: meritorious claims being tossed out of court due to clear legal deficiencies which were readily ascertainable from the inception of the case,” the filing stated.

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