Border Patrol Commander’s Got Some ‘Splaining To Do

Donald Trump’s military takeover of blue cities continues, though several federal judges are attempting to put a few speed bumps in their way. One such judge is U.S. District Court Judge Sara Ellis, who issued a temporary restraining order barring the use of certain tactics in federal law enforcement interactions with protestors and media. Should be pretty straightforward.

Unfortunately, U.S. Border Patrol commander Gregory Bovino was filmed throwing a canister of tear gas during a protest in Chicago’s Little Village neighborhood. As reported by CBS News:

In the video, Bovino can be seen in uniform, but no headgear, pulling out a canister of tear gas and tossing it into the crowd of protesters over the heads of other agents. As the camera begins to move away, he can be seen pulling another canister of tear gas off his belt.

Plaintiffs in the case — a group of journalists, protesters, and clergy suing the Trump administration — accuse Bovino of engaging in tactics on Judge Ellis’s list of no-nos.

The plaintiffs argue this violates “multiple paragraphs” of the court’s Oct. 9 order, which prohibits federal agents from arresting, threatening to arrest or using physical force against journalists unless there is probable cause to believe the individual has committed a crime. It also prohibits them from issuing crowd dispersal orders, without exigent circumstances, requiring people to leave a public place where they otherwise have a lawful right to be.

The order also prohibits federal agencies from using various types of riot control weapons, including tear gas and other kinds of noxious gas, as well as various kinds of “less-lethal” weapons and ammunition, unless there is an immediate safety threat.

And former Cook County prosecutor Brian Kolp witnessed the events, saying, “They deployed the smoke canister, the one I showed you a picture of, with no audible warning whatsoever.” Which would certainly seem to violate the judge’s order.

Now Bovino’s being asked to answer some questions about what exactly went down — the government was ordered to produce Bovino for an in-person hearing in front of Judge Ellis tomorrow. That’s in addition to the deposition Bovino’s already been ordered to sit for in the case. But if you’re expecting a mea culpa in the courtroom tomorrow, what with the video evidence and scores of witnesses, don’t. Already, Assistant Homeland Security Secretary Tricia McLaughlin defended the use of tear gas, saying, “Border Patrol agents were surrounded and boxed in by a group of agitators. Federal law enforcement issued multiple lawful commands and verbal warnings, all of which were ignored… Border Patrol had to deploy crowd control measures.”

Plus Bovino has taken quite the aggressive approach himself. Bovino says he was hit in the head with a rock, though the video notably does not capture that, nor does he appear to have viable injuries post-confrontation with protestors. And, when questioned about the incident, Bovino reportedly quipped, “Did Judge Ellis get hit in the head by a rock like I did this morning?”

“Maybe she needs to see what that’s like before she gives an order like that,” he continued.

Suggesting a federal judge needs to be hit in the head by a rock isn’t likely to make your cause sympathetic to said federal judge. And given the sharp increase in threats against federal judges — up 327% in the Trump II era — it feels like a pretty dangerous sentiment too.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].