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In Chicago, an intense debate is unfolding over the actions of federal agents during “Operation Midway Blitz,” with calls rising for an independent investigation. Yet, the push for a special prosecutor is encountering significant resistance from high-ranking officials.
Loevy & Loevy, a prominent law firm in Chicago, is at the forefront of this movement. They are advocating for a thorough examination of federal agents’ conduct during an immigration enforcement operation that took place last fall. The firm is raising serious allegations against U.S. Immigration and Customs Enforcement (ICE) agents, accusing them of employing excessive force and committing serious violations.
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According to Loevy & Loevy, the agents are accused of assaulting peaceful civilians, members of the clergy, and journalists. Additionally, the firm alleges that the agents illegally detained an elected official and others, used tear gas indiscriminately across neighborhoods, and shot multiple individuals, resulting in at least one fatality.
The law firm argues that appointing an independent special prosecutor is crucial to ensuring accountability within Cook County. They believe this step is necessary to address the alleged misconduct and uphold justice.
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However, Cook County State’s Attorney Eileen O’Neill Burke has expressed concerns about this approach. She contends that the push for a special prosecutor might complicate efforts to prosecute and secure convictions against federal agents accused of unlawful actions. This perspective adds another layer to the ongoing debate about how best to handle these serious allegations.
O’Neill Burke said in part, “The stakes are too high for us to get this wrong, and I will strenuously oppose this petition.”
Last month, her office outlined protocol for charging federal agents that would apply to cases involving a death, shooting, act of violence or use of force incident, related to federal immigration enforcement.
The call for appointing a special prosecutor to go after federal agents who may have committed crimes is an effort for accountability but it’s practically unheard of.
Any potential charges against agents during the Trump administration are expected to be fraught with legal challenges.
An incident from September is referenced by Loevy & Loevy in the call for a special prosecutor.
Silverio Viellagas Gonzales, a man who was living in the U.S. without legal permission, was shot and killed by immigration agents during enforcement operations in Franklin Park.
Body camera video from Franklin Park police officers captured some of the confusion about how accountability of the shooting would be handled.
One officer said, “So, do we handle the shoot?”
Another said, “Wouldn’t it be state’s, at a minimum?”
And then Mike Witz, the Franklin Park director of police said, “No, because it’s a federal shooting, you’re not going to investigate a federal officer.”
Local police did not investigate that federal shooting. Instead, the FBI responded, but when asked by the I-Team, was unable to provide details of the investigation, referring questions to the Department of Homeland Security.
That is one reason why civil rights attorneys are calling for a special prosecutor in Cook County.
“Presumably it is to create accountability here, but the odds are stacked against it,” said ABC7 Chicago Chief legal analyst Gil Soffer, who says it would be highly irregular for a judge to allow the appointment of a special prosecutor, especially when O’Neill Burke has created a protocol to hold ICE agents accountable, which includes a plan to preserve relevant evidence, which is just the start. “The biggest hurdle is the Supremacy Clause in the Constitution, which says, effectively that federal law trumps state law. What it means here is that a federal agent can’t successfully be prosecuted unless it’s shown that they acted objectively, unreasonably and outside the scope of their duties. They have this qualified immunity. Unless the state can clear that hurdle, they won’t be able to prosecute these defendants.”
That means the battle for accountability starts well before a jury could even be selected and centers on whether charges can be brought at all by a county prosecutor, special or otherwise. Soffer noted three main hurdles.
“The petition for a special prosecutor to succeed in the first instance, they’re not often granted. They require some sort of conflict or inability to perform the job on the part of the state’s attorney. If that hurdle is cleared, the immigration agent or agents would be able to say, ‘you can’t prosecute me. I have qualified immunity so long as I acted within the scope of my authority and I acted reasonably.’ On top of all that, a federal agent would have the right to force this action into federal court. So it’s charged there,” Soffer said.
That means state prosecutors would have to try any case against federal agents in front of a federal judge and jury.
That makes it an uphill battle on all fronts because, as seen in Minneapolis, federal investigators are not required to share evidence with local prosecutors to build a case and have not shared thus far.
The coalition of more than 200 elected officials, community organizations, attorneys and religious leaders plan to share more about their push at a news conference. That’s happening later this week.
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