Facing appeals loss, activists withdraw suit that had frozen ICE

By Jonathan Bilyk | Legal Newsline
The Center Square

After winning a court order essentially forbidding federal immigration agents from responding with force against so-called “protestors” interfering with ICE operations and threatening federal agents in Illinois, attorneys representing journalists and anti-ICE activists have now decided to pull the plug on their lawsuit, rather than defend the order in the face of a potential loss on appeal.

On Dec. 2, the plaintiffs in the legal action filed a motion asking U.S. District Judge Sara Ellis to dismiss their lawsuit. If granted, the dismissal would be with prejudice, meaning that group of plaintiffs would be bound against reintroducing the same case later.

The unexpected withdrawal comes about a week after the Justice Department filed its opening brief in an appeal of an injunction Ellis had entered in early November.

In that appellate brief, the federal government had argued Ellis’ order represented an unconstitutional judicial overreach, in which they said the judge all but asserted the power to micromanage federal immigration enforcement operations in Chicago and beyond.

“What began as a complaint by a handful of journalists and protesters alleging that federal officers targeted them with crowd-control devices at a few protests in September and early October has transformed into an instrument for judicial micromanagement of federal law-enforcement operations,” the federal attorneys wrote in the appellate brief, filed Nov. 26.

“… The injunction turns the separation of powers on its head by installing the district court as the overseer of every crowd-control and use-of-force decision that law-enforcement officers make in the context of often ‘tense, uncertain, and rapidly evolving situations,’” the government wrote.

A week before the White House had filed the brief, however, the U.S. Seventh Circuit Court of Appeals had already signaled it was prepared to hand the administration of President Donald Trump a significant victory in the matter.

On Nov. 19, the Seventh Circuit had placed Ellis’ controversial order on pause, with Seventh Circuit judges indicating they believed the federal government was going to prevail on its claims that Ellis had overstepped her authority and violated the constitutional separation of powers by issuing an “overbroad” order.

Ellis had entered the order on Nov. 6, blocking federal agents associated with “Operation Midway Blitz” and other operations from using physical force or riot control weapons against the so-called “rapid response networks” of activists and others who the judge conceded routinely would follow and harass immigration officers as they carried out their duties in and around Chicago, or who gathered outside the ICE processing facility in suburban Broadview to “protest” the federal actions.

The injunction forbade agents from Border Patrol and Immigration and Customs Enforcement (ICE) from “issuing a crowd dispersal order” requiring the so-called protestors “to leave a public place that they lawfully have a right to be.”

The order further barred federal agents from using “riot control weapons,” including non-lethal rounds like rubber bullets or bean bags; pepper spray; tear gas; and virtually all other crowd control weapons and munitions, against those who gather with the intent to protest, interfere with and potentially thwart immigration-related arrests.

Further, the order prohibited federal agents from “using hands-on physical force such as pulling or shoving to the ground, tackling, or body slamming” anyone “who is not causing an immediate threat of physical harm to others…”

And the order also granted those claiming to be journalists the right to remain in an area undisturbed, even after an otherwise lawful dispersal order has been given.

The ruling came at the conclusion of days of proceedings as part of an ongoing class action lawsuit launched by pro-immigrant activists, together with Chicago news organizations and trial lawyers who have made their name suing police, to win court orders blocking ICE from taking action against so-called “protestors” and activists who routinely seek to hamper and thwart federal immigration enforcement in the region.

The plaintiffs in the case have accused ICE of an unconstitutional “pattern of extreme brutality” amid a bid to “silence press and civilians.”

In court, federal lawyers have asserted the control measures were necessitated by aggressive and hostile actions from activists, protestors and members of so-called “rapid response teams” who routinely follow ICE patrols and have been documented attempting to interfere with arrests.

In her ruling, Ellis conceded activists and “protestors” had engaged in violent acts against ICE agents. But she said she believed federal agents’ response “shocked the conscience” in acting against people who Ellis described as merely neighbors “who have shown up for each other.”

In her written ruling and in remarks from the bench, Ellis also notably quoted the Carl Sandburg poem, “Chicago,” emphasizing the line: “And having answered so I turn once more to those who sneer at this my city, and I give them back the sneer.”

After the federal government appealed, a Seventh Circuit three-judge panel swiftly intervened and blocked Ellis’ order from taking effect.

In an apparent rebuke of Ellis’ ruling, the panel said: “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.

“… 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.”

The activists and journalists have not responded the federal government at the Seventh Circuit.

Rather than push against those apparent headwinds, the plaintiffs appear to have opted instead to pull the plug on their legal action entirely.

In their motion to dismiss, the plaintiffs asserted they didn’t believe Ellis’ injunction was needed any longer, as federal agencies have ended “Operation Midway Blitz” and wound down the immigration enforcement surge in Chicago and Illinois, for now.

However, in announcing the withdrawal from the Chicago area, the Department of Homeland Security and federal agents in charge of “Midway Blitz” indicated ICE could return in force in the spring, perhaps as soon as March 2026.

In response to that indication, Ellis had indicated in court that she intended to continue enforcing and adjusting her orders in coming months, as needed, in favor of anti-ICE activists’ resistance, should ICE return.

However, instead of returning to Judge Ellis in the spring, should ICE again ramp up enforcement operations in the region, the plaintiffs said they believed it was best to end their legal action entirely now.

“With the Defendants no longer participating in Operation Midway Blitz, or other similar conduct under any moniker or other mission title in this District, this case is no longer needed to protect Class Members’ interests,” the plaintiffs said in their motion.

In their motion to dismiss, the activists’ and journalists’ lawyers also indicated the dismissal request is the result of a deal, of sorts, under which the White House would withdraw its appeal in exchange for the plaintiffs dismissing their lawsuit entirely, with prejudice.

As of Dec. 2, the Justice Department has not yet entered a motion to stay their appeal or seek to withdraw it.

Ellis has not yet ruled on the motion to dismiss.

Plaintiffs have been represented in the action by attorneys Steve Art and Jon Loevy and others with the firm of Loevy + Loevy, of Chicago; the Mandel Legal Aid Clinic of the University of Chicago Law School; the Protect Democracy Project, of Washington, D.C.; the Community Justice and Civil Rights Clinic of the Bluhm Legal Clinic, Northwestern University Pritzker School of Law, of Chicago; First Defense Legal Aid, of Chicago; and the Roger Baldwin Foundation of ACLU, of Chicago.