When federal agents strike, who — and what — protects us?
Earlier this month, federal agents in Elgin lobbed tear gas and fired pepper balls at unarmed protesters. A 3-year-old child was caught in the tear gas. State Sen. Cristina Castro, standing peacefully on a public street, was sprayed in the face. Seven people were treated for chemical irritant exposure. The agents tackled and detained a man while a crowd pleaded for them to stop, then they beat him up.
What 200 people witnessed in Elgin were clear violations of our First Amendment right to peacefully protest and our Fourth Amendment protection against excessive force. Federal agents have made the choice to violate our rights repeatedly, conducting similar operations across the country — in Chicago, Minneapolis, Raleigh, Charlotte, Portland and New Orleans.
In Chicago, a federal judge found that agents' repeated use of force “shocks the conscience” and restricted the agents from using riot control weapons unnecessarily, but noted that they “show[ed] no sign of stopping.” An appellate court subsequently ruled that the judge’s order was “overbroad,” acknowledging the constitutional violations were real but requiring narrower judicial language.
This is the gap where federal agents’ attack in Elgin occurred — and where Border Patrol will continue to operate.
The judiciary is paralyzed by separation-of-powers doctrines. Federal courts cannot move fast enough if they move at all. Congress moves slowly and has been paralyzed by partisan rancor.
But governors, mayors and police chiefs can — and should — act immediately.
Consider the contrast. When Minneapolis Police Chief Brian O’Hara learned of ICE operations targeting the Somali community, he issued a direct order: officers who witness federal agents using unlawful force against civilians must intervene or face termination. Chief O’Hara made clear his officers’ duty to protect all residents from unlawful violence, regardless of who commits it, and then increased police presence at Somali community centers.
Gov. Pritzker has issued words of support for immigrant communities, but words do not stop tear gas. Words do not protect 3-year-old children from smoke bombs.
When federal agents attack unarmed civilians, they are not enforcing any law — they are committing aggravated battery. Police officers have a clear duty under the law to intervene against unlawful force, to protect residents from violence, regardless of who commits it. That duty exists. That authority exists.
If Gov. Pritzker and mayors in Illinois are committed to protecting constitutional rights, they should follow Chief O’Hara’s lead and issue immediate directives for their police to intervene if they witness federal agents deploying tear gas, pepper spray, or other riot control weapons against unarmed civilians. Gov. Pritzker himself should make clear that state troopers have a duty to prevent constitutional violations or risk termination, period.
What happened in Elgin will happen again in Illinois and across the country — until and unless state and local leaders fill the void created by a judiciary unable to respond in real time and a federal executive determined to push past constitutional limits.
The duty to protect citizens from unlawful force does not vanish because unlawful force comes from a federal badge. A masked federal agent with a badge cannot suspend the Constitution.
The question is: Will our state and local leaders take action to protect their citizens when the federal government itself is the perpetrator or are they all talk?
• Robert Held is an attorney, U.S. Air Force veteran and member of the Board of Governors for the Chicago Council of Lawyers.