Seventh Circuit Takes a Blowtorch to Order Issued by Abusive, Anti-ICE Chicago Judge
A panel of the Seventh Circuit Court of Appeals scorched a
Canadian-born, Obama-appointed judge for her heavy-handed and illegal
imposition of operating procedures on all federal officers operating in
Illinois. The majority opinion said the order imposed by Judge Sara
Ellis, "impermissibly infringes on separation of powers principles. It
effectively established the district court as the supervisor of all
Executive Branch activity in the city of Chicago." It also hinted that
her legal maneuvering was calculated to appear to dismiss an
unconstitutional order while preserving the ability of future litigants
to breathe new life into the suit.
The
case started with the violent protesters obstructing immigration
enforcement operations during “Operation Midway Blitz.” When they found
out that this was not going to be treated the same as the George Floyd
Memorial Riots and Looting Festival and that Border Patrol tactical
commander Greg Bovino's guys were more than willing to mix it up, the
communists and anarchists ran to mommy. (Unless otherwise noted, all blockquotes are from the court ruling.
In
early October 2025, a group of protesters and journalists sued a host
of federal defendants. They believed officers from Immigration and
Customs Enforcement (ICE), Customs and Border Protection (CBP), and the
Department of Homeland Security (DHS) violated their First and Fourth
Amendment rights by using tear gas and other chemical agents to break up
protests without justification. The district court agreed with the
plaintiffs and entered a sweeping preliminary injunction regulating all
federal immigration enforcement efforts districtwide. The government
promptly appealed that order.
To say the order was expansive is an understatement.
Three
days after plaintiffs filed this lawsuit, the district court entered a
sweeping temporary restraining order not limited to the Broadview
facility. It enjoined all law enforcement officers in the Northern
District of Illinois, as well as federal agencies and the Secretary of
the DHS, from using certain crowd control tactics and tools. It also
required the defendants to regularly inform the court of its efforts at
implementing the injunction.
One part of the order required Bovino to report to her daily to brief
her on his activities. I think the Department of Homeland Security
showed remarkable restraint in not telling Ellis to FOAD. Auguring
things to come, a panel of the Seventh Circuit immediately slapped down
that silliness.
First, it puts the court in the
position of an inquisitor rather than that of a neutral adjudicator of
the parties’ adversarial presentations. Second, it sets the court up as a
supervisor of Chief Bovino’s activities, intruding into personnel
management decisions of the Executive Branch. These two problems are
related and lead us to conclude that the order infringes on the
separation of powers.
Keenly aware that the Supreme Court had slapped down the ability of random judges to issue nationwide injunctions (see Big: Supreme Court Rules on Nationwide Injunctions in Birthright Citizenship Cases – RedState),
the demonstrators got a friendly judge to grant them class action
status. This meant that other demonstrators could be included as part of
the "class" of plaintiffs, and the judge could effectively create a
nationwide injunction on ICE tactics.
On
November 6, the district court granted the plaintiffs’ motion for a
preliminary injunction. Certifying the proposed class, the injunction
enjoined all federal law enforcement officials in Chicago, as well as
multiple federal agencies.
Two weeks after granting class
certification and preliminary relief, the district court issued a full
opinion. It contained over 170 pages of fact-finding, including many
incidents that did not involve named plaintiffs and occurred far beyond
the Broadview facility. The court also found that all the plaintiffs had
Article III standing to sue for injunctive relief and concluded they
were likely to succeed on the merits.
On the facts, the district
court found the government’s witnesses categorically not credible. This
tilted all the testimonial evidence in the case in the plaintiffs’ favor.
The
crunch point seems to have happened when the Seventh Circuit granted
the government's request for a stay of Judge Ellis's order. As Susie Moore noted, "In granting that request, the 7th Circuit was careful to note that it wasn't ruling out the propriety of some injunctive relief — merely determining that the injunction Ellis entered was overly broad."
Defendants
are likely to succeed on the merits. The preliminary injunction entered
by the district court is overbroad. 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. The
practical effect is to enjoin all law enforcement officers within the
Executive Branch. 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. 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.
The writing was sort of on the wall. The plaintiffs decided to fold
and preserve the possibility of relitigating rather than have the
Circuit Court rule that Ellis's order was unconstitutional nonsense.
But
the proceedings took an unexpected turn. In early December, the
plaintiffs informed us they had moved to dismiss the case with prejudice
before the district court...And the government did not oppose the
motion to dismiss.
Note the "with prejudice" requirement.
The
plaintiffs' request to dismiss the case and the defendants' agreement
should have ended the matter. But this is where Judge Ellis got cute. By
certifying a class, the named plaintiffs not only represented
themselves, but they also represented basically any other group of
commies and anarchists in the country who wanted to throw hands with
ICE. The dismissal "with prejudice" would prevent all those people from
pursuing their cases.
At the final hearing, the
district court dismissed the case. In doing so, the court deviated from
Rule 23 and the plaintiffs’ motion. It sua sponte de-certified
the class. Then the court dismissed the case without prejudice—even
though plaintiffs had asked for dismissal with prejudice. The
government returned to this court seeking to dismiss this appeal and
flagged these concerns. In many ways, the government submitted, the
district court did not “grant” the plaintiffs’ motion to dismiss at all
because it disregarded the terms of the plaintiffs’ motion. Still, the
government asked us to vacate the preliminary injunction and dismiss the
appeal.
These two decisions by Ellis meant that no one else was affected by
the dismissal of the case and that the plaintiffs could sue again in the
future and again be certified as a class. The intent seemed to be to
allow Ellis to make the same ruling again in the future, with the same
or different plaintiffs, and make the administration fight the same
fight again. Perhaps several times.
Ordinarily, an appeals court
would have considered the case moot as both sides wanted to end the
litigation. In this case, the Seventh Circuit was suspicious.
The
district court’s order may also spawn adverse legal consequences.
Because the district court dismissed this case without prejudice—against
the plaintiffs’ unopposed request for a dismissal with prejudice—any
class members or the lead plaintiffs could refile these claims tomorrow.
They could ask the district court to reinstate a near-identical
preliminary in junction, adopting the facts and legal reasoning from the
district court’s order.
So, this case is closed, at
least for now. ICE can go back to doing ICE business without worrying
about Judge Ellis. Other district judges in the Seventh Circuit are on
notice to follow the rules. Plus, they set a model for other courts of
appeal to draw on if they are confronted with the same shenanigans.
For decades, former presidents have been all
talk and no action. Now, Donald Trump is eliminating the threat from
Iran once and for all.
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