Chicago's on a winning streak

But make no mistake: we shouldn't have to play at all.

On Monday, October 6, two major lawsuits were filed in the Northern District of Illinois. Both focused on Donald Trump’s increasingly authoritarian overtures in the Chicagoland area. Both sets of Plaintiffs requested Temporary Restraining Orders, short-term pretrial injunctions meant to preserve the status quo in advance of more formal hearings on preliminary injunctions or trial itself.¹ Both sets of Plaintiffs were successful. Let’s talk through those cases and take the wins, without losing sight of how abnormal it is that attorneys had to fight them in the first place.

Chicago Headline Club v. Noem

You may be aware that one of the key locations for Chicagoland protest is the ICE “processing facility” in Broadview, a Chicago suburb home to roughly 7000 residents.² The Broadview facility has been a hotspot for protest since the Obama administration, and protest picked up this summer following reports of people—including grandmothers—illegally held there for days at a time.

As peaceful protests grew, ICE and DHS employed brutal crowd control tactics, as they have around the country. Tear gas is used so liberally that a journalist friend who covered the Hong Kong protests in 2019 told me that one Saturday night he attended was more intense than anything he saw in Hong Kong. Pepper pellets are fired directly at protestors and at journalists, as are sponge grenades, all from a distance. Fencing has been erected, over the Broadview Fire Department’s objections, to make it totally impossible for protestors to get anywhere near the facility. Periodically, ICE will emerge, snatch protestors, and drag them into the facility, charging them with trumped-up federal offenses (at least some of which have been so flimsily supported that grand juries have refused to indict).

Chicago Headline Club v. Noem, a class action filed by a coalition including Loevy & Loevy, Protect Democracy and the ACLU of Illinois, challenges the excessive force used by ICE against peaceful protestors in Chicagoland. It includes a subclass of clergy plaintiffs and a number of journalist named plaintiffs, as well as everyday individual protestors who have been subject to ICE brutality as they attended Broadview protests. It alleges, among other things, violations of the First Amendment from both a general freedom of speech and free exercise of religion perspective, and violations of Fourth Amendment protections against excessive force and unreasonable searches and seizures.

On Thursday, October 9, Judge Sara Ellis entered a TRO severely limiting ICE’s ability to use force against peaceful protestors and requiring ICE agents to wear some form of identification.³

Illinois v. Trump

Also on Monday, the office of Illinois Attorney General Kwame Raoul filed a complaint that many are calling (I am calling) one of the all-time greats, requesting a TRO barring the federalization and deployment of the National Guard to Chicago. There’s a truly brilliant argument in there about the total incompatibility of the National Guard being necessary to support ICE and DHS’s own nonstop propaganda press releases about how successful ICE has been at murdering and disappearing people in Chicago.⁴ The whole thing is worth a read, and I think accessible to people without law degrees.

And also on Thursday,⁵ Judge April Perry ruled from the bench and indicated she would enter a TRO to temporarily enjoin the Trump administration from ordering the federalization and deployment of the National Guard of the United States in Illinois. The Chicago Sun-Times’ federal court reporter Jon Seidel shared some truly blistering (and accurate) commentary from Judge Perry about DHS’ non-existent credibility. Example: “I simply cannot credit [the Trump administration’s] declarations to the extent they contradict state and local law enforcement. … DHS’ perception of events are simply unreliable.”

Authoritarianism Check: He’s Still Flooding the Zone

I am very pleased with these results and impressed by the lawyering done by both Plaintiff teams!

That said!⁶ In a remotely functioning version of the American legal system, neither of these cases would have needed to be brought at all, because near-identical fact patterns have led to injunctions in other states. The Trump administration has been not-quite defying court orders for months, and we need to call it like it is.⁷

In the American system, only Supreme Court rulings are legally binding on every other court in the country. Cases related to federal law start in the relevant district courts, get appealed to circuit courts, and then get appealed to the Supremes. The issues at play in Chicago Headline Club and Illinois v. Trump have not been decided by the Supreme Court yet. But the issue of Trump federalizing the National Guard over a Governor’s objection is currently being addressed in both the Northern District of California and the District of Oregon. Both judges in those cases (including Judge Karin Immergut, a Trump appointee) have entered preliminary orders against Donald Trump. And the issue of excessive force against protestors as a Constitutional violation is in front the Central District of California—again, a preliminary injunction has been entered against the government in that case.

These decisions aren’t technically legally binding on the President nationwide. It is totally norm-defying, though, that the Trump administration is receiving these directives to halt unconstitutional action and then doing the exact same thing over again in other districts. It’s soft court order defiance, intended to neuter the power of the lower courts because he has the Supreme Court stacked, and it’s imperative that we discuss it as such.

Chicagoans can do anything! But they shouldn’t have to.

1. TROs are becoming increasingly common given the administration’s tendency to move at warp speed without judges directly forbidding them from doing so. I feel comfortable saying that historically, the preliminary injunction entered in Newsom v. Trump would have been sufficient to get the government to stop attempting to federalize the Guard in other states while the full suit is litigated. We aren’t in a norm-governed period of American history, but still worth naming. One of the battles we should be fighting is against normalization of this squishy court-order-defiance that the administration can claim isn’t actually defiance.

2. Many of the visceral images (finally) gaining steam in the broader Chicago coverage come from Broadview, including ICE throwing Congressional candidate and absolute homie Kat Abughazaleh as she sat in the road and pepper pelleting Presbyterian reverend and absolute homie David Black in the head as he prayed for them. I was arrested participating in civil disobedience at Broadview back in August. I cannot generally speak for Kat and David but can say that we have discussed at length our disappointment that coverage seems so focused on violence against white and white-passing protestors, as opposed to ICE keeping hundreds of people in a processing center without room to lie down, sufficient food (including failure to provide meals for 24 hours at a time), or access to medicine.

3. Because yes, these people are just brutalizing protestors masked, with no badge numbers or IDs. Are you awake? Are you paying attention? Did you sleep through your history classes?

4. One of the key issues under the Title 10 section the federal government is bad faith-edly hiding behind is whether or not ICE can execute the laws without the assistance of the military.

5. Several days after she should have, after refusing to enter the TRO at the Monday hearing but encouraging the government to hold off on deploying the Guard. Can’t believe it didn’t work. Word on the street is this was not a very respected decision among pretty much…everyone else in the courthouse. I will say I have been moved to forgive her in part by her questioning of the federal government’s attorney today, which included things like “does it matter if the feds started it” and the government saying “no.”

6. I am not a killjoy! I have a lot of joy, my life is very joyful! But when talking about law and politics I fear honesty is killjoy behavior these days!

7. There’s a Cohen family lore story of my older brother poking at my other older brother over and over and being told to stop and then responding, “I didn’t hit him, my hand hit him.” Presented without additional comment.