It’s been news here but I haven’t seen it in national news outlets so I’ll pass it along. The plaintiffs in the case filed against ICE for its use of anti-riot measures against protestors have moved to dismiss it. Jason Meisner reports at the Chicago Tribune:
In what appears to be a longer-term legal strategy, the plaintiffs in an injunction case limiting the use of force by immigration agents during Operation Midway Blitz on Tuesday abruptly moved to dismiss the underlying lawsuit in the midst of an appeal by the Trump administration.
In the request—which followed ominous signs from the 7th Circuit U.S. Court of Appeals—lawyers representing a consortium of media outlets and other plaintiffs said that Chicago’s immigration enforcement surge “has ended” for now, with no reports of unconstitutional behavior by agents in nearly a month.
If the dismissal is granted, it would effectively end a case that came to symbolize the havoc Midway Blitz caused in Chicago and led to U.S. District Judge Sara Ellis issuing a scathing ruling limiting the use of chemical munitions against journalists and protesters, among other restrictions.
In a statement Tuesday, the board for the Chicago Headline Club, the lead plaintiff in the case, claimed victory, saying that Border Patrol Cmdr. Gregory Bovinaud and his team of agents left town soon after Ellis’ injunction was entered on Nov. 8.
I can’t help but think that “longer-term legal strategy” is a remarkably rosy way of putting it. Several other possibilities come to mind.
One is that Judge Ellis had gotten out over her skis and her judgment had already been stayed by a three judge panel at the Court of Appeals. Might the plaintiffs have recognized that the decision was about to be struck down anyway and the precedent would be quite bad for them? If the case were being handled pro bono (which I suspect) it was about to become very expensive very quickly. Besides, since Operation Midway Blitz was already completed, they had already accomplished much of what they set out to accomplish—ICE leaving Chicago.
The government’s responsive filing this morning:
“After months of litigation, and just weeks after securing a sweeping preliminary injunction and a 233-page opinion justifying it—but after the Seventh Circuit unanimously put that injunction on hold and cast doubt on the legitimacy of this suit—Plaintiffs are seeking to throw in the towel. This is transparent procedural gamesmanship. To be sure, if Plaintiffs want to stop litigating and this Court grants their motion for dismissal with prejudice, that is beyond Defendants’ control. But this gambit should be seen for what it is.
“Notably, Plaintiffs are wrong to allege that Operation Midway Blitz has ended or that Defendants have ceased immigration enforcement activity in the Chicago area. It is standard for particular agents and teams to move around the country as operational needs change, but DHS’s enforcement activity in Chicago has not ended, and Defendants intend to continue their lawful activities in this jurisdiction. To the extent that the Court approves a dismissal with prejudice, the consequence will be that no named Plaintiff or member of the certified class will be permitted to bring substantially similar claims in the future. [citations omitted] This includes those members of the certified class who “will in the future non-violently demonstrate, protest, observe, document, or record at Department of Homeland Security immigration enforcement and removal operations in the
Northern District of Illinois.” ”
Generally, plaintiffs can dismiss their case with prejudice as a matter of right, but by doing so preclude any future action based on the same claim. Most of what is being argued is an attempt to characterize the claim to shape the battlefield space for any future action. Plaintiffs tell a story of success and practical considerations that lead them to believe they need go no further now that the Operation Midway Blitz has drawn down. This is at least implying their claim has been successfully resolved, so it wouldn’t bind a similar future claim. The government points out that the court certified a broad class of people in the Northern District of Illinois that are also bound to this litigation by the judge’s certification of the class. Also, the lawsuit wasn’t just brought against a particular operation, or against Defendant Bovino.
I don’t know that the judge will resolve which future claims are precluded, and leave that for when a future claim is filed.