During a videotaped deposition played in open court Wednesday, Border Patrol Chief Gregory Bovino said that federal immigration agents’ use of force during Operation Midway Blitz has been ”more than exemplary.”
That revelation came during a marathon hearing Wednesday as a group of protesters, journalists and clergy are challenging that assertion – suing the Trump administration over the uses of tear gas and pepper balls used on protesters and members of the community — alleging that they have been excessive and violated their constitutional rights.
They’re asking a federal judge to enter a preliminary injunction while their lawsuit continues.
More than a dozen witnesses testified Wednesday during the hearing that began at 8 a.m. and was expected to continue into Wednesday evening.
Those who testified included protesters and members of the Chicago-area community who said they have recorded video of immigration agents and were subjected to use of force.
At least two women testified that agents pointed their weapons at them when they recorded the agents at two separate incidents in October – one in Cicero and another in Edgewater.
A minister later testified that he had been shot in the head twice with pepper balls – and a total of seven times – while he was preaching among protesters at the ICE processing facility in Broadview on Sept. 19. David Black testified that he had not been given verbal warnings before he was shot.
An attorney for the government asked if Black was aware he was standing on federal property – and not the sidewalk – when he was struck.
”I don’t know where the line is,” Black said.
Black said the encounter made him fearful to participate in future protests, but that he continued to do so as he felt compelled by his faith. He also said he was fearful his church may be targeted.
An attorney for the government, Sarmad M Khojasteh, later asked him if he has “seen anything – do you know of one instance in the U.S. where someone who has filed a lawsuit against the Trump administration in connection with immigration enforcement has been abducted and disappeared?”
Black replied, ”Respectively, I’m trying not to be the first, counselor.”
During a portion of the hearing where the videotaped deposition of Bovino was played, he was asked directly about the incident in which Black was shot in the head with a pepper ball.
Bovino was asked by a plaintiff’s attorney if that was unacceptable and should not have happened.
“I don’t know what the use of force was here. I can’t make a judgement either way because I don’t know,” Bovino said.
An NBC 5 Investigates’ review of the Border Patrol’s use of force policy shows that agents ”shall not intentionally target the head, neck, spine, or groin of the intended subject, unless the use of deadly force is reasonable.”
It is not immediately clear what the agents’ intent was during that incident. Their identity wasn’t immediately clear.
During his opening remarks, Craig Futterman, an attorney for one of the plaintiffs, repeatedly quoted Border Patrol Chief Gregory Bovino saying, “You don’t want to get tear gassed, then don’t protest.”
“Your honor, this case cries out for a preliminary injunction,” he said.
Futterman argued that federal agents have repeatedly used tear gas and pepper spray against non-violent protesters, clergy or members of the press throughout the eight weeks since Operation Midway Blitz began – the Trump administration’s name for increased immigration enforcement operations in the Chicago area.
Attorneys for the group argue that agents’ use of force has infringed on their constitutional rights to assemble – or cover the protests – where demonstrators have voiced their opposition to the Trump administration’s immigration policies and the federal agents’ presence in the Chicago area.
And while acknowledging that some individuals may have slashed tires of agents’ vehicles or thrown objects, Futterman argued they’ve been met with “brutal violence” by the same federal government tasked with protecting their constitutional rights.
“This case is about retaliating against people because the defendants don’t like what they have to say,” Futterman said.
In response, Khojasteh told Judge Sara Ellis that she should “reject the notion that First Amendment sanitizes the violence” that agents have seen or experienced over the last several weeks, saying agents’ lives have been threatened.
He added the idea that “throwing rocks is non-violent resistance… this is nonsense.”
Wednesday’s hearing is expected to last at least five hours.
Ellis said she would issue a ruling on the request for a preliminary injunction within 14 days. It is also potentially possible that she could renew the temporary restraining order as the case moves forward.
Previously, Ellis had issued a temporary restraining order on Oct. 9 barring federal immigration agents from using tear gas or pepper spray on non-violent protesters or members of the community unless there is an imminent threat.
Ellis has expressed concern – and plaintiffs’ attorneys have argued – that federal agents have either ignored or violated that order by using canisters of tear gas or pepper balls during immigration enforcement arrests in Albany Park on Oct. 12; in Chicago’s East Side neighborhood on Oct. 14; and again within the past two weeks in Old Irving Park, Lakeview, Evanston and Little Village, including an incident in which Bovino admitted to throwing canisters of tear gas in Little Village during an immigration enforcement operation there.
The Department of Homeland Security initially posted to the social media platform X that Bovino used tear gas because he was struck by a firework shell. A spokeswoman later posted to X that it was a rock. And in interviews with network news reporters after the incident, Bovino said he was struck in the head by a rock.
During a hearing Tuesday afternoon, attorneys for the plaintiffs alleged that they plan to introduce evidence that Bovino lied about being struck by a rock. An attorney for the government said she wanted to push back hard against any implication that any of the government witnesses were lying.
A recent investigation by NBC 5 Investigates examined videos and photos posted to social media that raised questions about if Border Patrol agents’ use of force may have violated their own use of force policies. Those videos and photos show protesters who had been struck in the face or back by pepper balls leading to visible marks or bleeding.
Since Operation Midway Blitz began, DHS says they’ve arrested more than 1,800 people as of mid-October.
Ellis is expected to issue a ruling during an oral hearing at 10 a.m. Thursday.
There was some question about whether Ellis could renew a temporary restraining order as the case moves forward. Ellis said late Wednesday that the TRO expires at 11:30 a.m. Thursday.
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