U.S. District Court Judge Sara Ellis isn’t pleased with U.S. Border Patrol commander Gregory Bovino. Bovino heads the Trump administration’s military presence in Chicago, Operation Midway Blitz, and there were some pretty serious allegations (and video!) that federal agents — and Bovino, specifically — violated a temporary restraining order issued by Ellis. A group of journalists, protesters, and clergy sued the Trump administration over the military occupation of Chicago, and Ellis issued a TRO limiting the tactics federal agents can use. Amongst the banned methods of riot control include the use of tear gas and other kinds of noxious gas unless there is an immediate safety threat. But then Bovino was caught on camera throwing canisters of tear gas into a crowd without any warnings or verbal orders to disperse.
Ellis did what she could at a subsequent hearing — that she demanded Bovino attend — to impress upon him the importance of, you know, *not* violating a court order. Judge Ellis was (rightfully) particularly concerned with the use of tear gas without appropriate warnings since it affected kids dressed in Halloween costumes, headed to a nearby parade. And Ellis ordered Bovino provide daily reports on his agents’ use of force in the city.
But that oversight never happened, thanks to the Seventh Circuit. In an unsigned order, they found the daily check-ins with Bovino meant Ellis was an “inquisitor” not a “neutral adjudicator.” And that the order made Ellis “supervisor of Chief Bovino’s activities, intruding into personnel management decisions of the executive branch.” As a result, the circuit court held, “These two problems are related and lead us to conclude that the order infringes on the separation of powers.”
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So… how’s the lack of oversight going?
Fucking fantastic.
Listen, even if the Seventh Circuit hadn’t laughed off the notion of oversight on bad faith actors with a demonstrated lack of respect for court orders, it’s likely this all would still have happened. Because, you know, bad faith actors with a demonstrated lack of respect for court orders. But the nation is spiraling towards authoritarianism, and Ellis’s order feels less like a separation of powers problem than a necessary check and balance.
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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].