CHICAGO — The legal battle over how federal immigration agents can be investigated and charged by local prosecutors — namely Cook County State’s Attorney Eileen O’Neill Burke — won’t be resolved for a little while longer as a Cook County judge on Monday pushed off her scheduled ruling on whether to appoint a special prosecutor to oversee such cases.
As she began Monday morning’s hearing, Cook County Judge Erica Reddick noted that since she heard arguments over the special prosecutor petition last month, there had been a few related developments.
“Spoiler alert: There will not be a ruling today,” Reddick said.
First, a state panel appointed by Gov. JB Pritzker published a final report April 30 memorializing dozens of clashes between federal agents and both undocumented immigrants and U.S. citizens during the Trump administration’s Chicago-focused “Operation Midway Blitz” mass deportation campaign this past fall.
That same day, the Illinois State Police opened an investigation into the fatal shooting of Silverio Villegas González by an immigration officer in September. When the investigation is complete, the ISP plans to turn it over it to the state’s attorney’s office, which a Burke spokesperson confirmed will “play a supportive role in their investigation.”
Read more: Illinois State Police investigating fatal ICE shooting of Silverio Villegas González | Accountability Commission refers federal agents for investigation, possible prosecution for conduct last fall | State commission finds agent abuses were ‘greenlit by Washington’ for Operation Midway Blitz
Lawyers for the coalition of more than 400 petitioners, including elected officials and community leaders, behind the push for a special prosecutor want the dual developments to be included in the records the judge is weighing.
However, the judge lightly admonished Locke Bowman, one of the attorneys for the coalition, after he told her he couldn’t promise that he wouldn’t want the record supplemented again.
Reddick said she wasn’t precluding that possibility, “but please understand: This must come to an end.”
After a Friday deadline for Bowman and his colleagues’ latest legal filing, the judge will rule on May 21.
This week marks two months since the coalition filed its petition for a special prosecutor, ramping up an already contentious public pressure campaign for Burke’s office to investigate and charge federal immigration agents.
Read more: Mid-May ruling set for special prosecutor demand to investigate alleged ‘Operation Midway Blitz’ abuses | Legal battle intensifies over appointing special prosecutor for alleged ‘Operation Midway Blitz’ abuses
The state’s attorney has maintained her office has limited legal authority to do so without a request from law enforcement, which she has not yet received. She’s also repeatedly pointed to federal agents’ relative immunity from state prosecution under the U.S. Constitution’s supremacy clause and Illinois Supreme Court precedent as reasons to tread carefully so as not to risk any future case falling apart on appeal.
But in February, as the pressure to prosecute grew louder, Burke’s office put together guidelines for handling any future investigations of federal agents. The protocol, which was written with guidance from Illinois Attorney General Kwame Raoul, stipulates the state’s attorney’s Law Enforcement Review Unit can help investigate once a law enforcement agency “believes that there is sufficient evidence to support felony charging and is seeking felony review.”
‘It’s not a hypothetical’
On Monday, Reddick quizzed Assistant State’s Attorney Yvette Loizon on why the protocol only mentioned the possible investigation of use of force, and not nonviolent crimes like conspiracy and perjury. Both of those hypothetical charges were specifically named in the March 12 petition for a special prosecutor, though the judge objected to Loizon’s use of the word “hypothetical” in answering her question about whether the state’s attorney’s office would limit the scope of its investigations.
“It’s not a hypothetical,” Reddick said, interrupting Loizon, adding that if a law enforcement agency’s investigation finds facts supporting conspiracy or perjury charges, the state’s attorney’s office would then be faced with the question of whether to take it up.
After a tense back-and-forth, Loizon assured the judge that the state’s attorney’s office would dedicate resources to pursue such allegations if they turn up, though she said it would be unlikely they’d be alleged in a vacuum without also being connected to use of force charges.
Read more: Judge hesitant to grant dismissal of lawsuit over immigration agents’ use-of-force tactics in Chicago | Restrictions on federal immigration agents’ use of riot control weapons extended indefinitely
In a statement after the hearing, a spokesperson for Burke’s office reiterated that the state’s attorney “has repeatedly condemned the tactics used by the Trump administration and during Operation Midway Blitz.” Critics of the state’s attorney have accused her of being slow to action so as not to risk relationships within the Trump administration and funding for key priorities like gun violence, which they say is tantamount to the kind of conflict of interest that should trigger a special prosecutor appointment.
But Burke maintains that her concern is not seeing cases overturned on appeal, thus undermining efforts to investigate and prosecute federal agents’ alleged abuses.
“As we have argued in court, the CCSAO (Cook County State’s Attorney’s Office) must follow the law and the facts to protect the integrity of our prosecutions and ensure that any resulting conviction will stand,” Burke spokesperson Elyssa Cherney said, referencing a 2017 Illinois Supreme Court ruling limiting local prosecutors’ ability to open investigations without law enforcement. “The petition seeking a special prosecutor is frivolous, contains baseless allegations and gross misrepresentations of the law.”
State Rep. Norma Hernandez, D-Melrose Park, however, said Monday that it looks very different from the outside, especially in immigrant-heavy communities like those she represents in the near-west suburbs of Chicago.
“Our community should not have to organize this hard simply for our voices to be heard,” she told reporters outside Reddick’s courtroom. “The negligence and inaction of Cook County State Attorney Eileen Burke has only deepened that pain. When prosecutors refuse to act or investigate with urgency, they send a dangerous message to families: That justice depends on who you are and what community you come from.”
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