Top Border Patrol official no longer has to appear today before Chicago federal judge after appeals court ruling

By Devan Cole, Elizabeth Wolfe, CNN

(CNN) — Border Patrol commander Gregory Bovino will not have to appear before a Chicago federal judge Wednesday evening, after an appeals court halted the judge’s order requiring Bovino to provide daily court briefings on his agents’ immigration enforcement tactics in the Chicago area.

The surprise order came just hours before Bovino was meant to brief US District Judge Sara Ellis, who had told him Tuesday he must be in court every weekday for the next week as she considers reports that federal agents were not following her early October order to limit aggressive tactics and warn protesters and journalists before using tear gas and less-lethal munitions.

The Trump administration quickly pressed a federal appeals court to put her order on hold. In a Wednesday afternoon ruling, the Seventh Circuit Court of Appeals granted their request, meaning Bovino will not make a Wednesday court appearance.

The appeals court’s decision is intended to give the intermediate court time to review a request from the administration to completely scrap Ellis’ order

The Department of Homeland Security said in a statement it is “thrilled this act of judicial overreach has been paused.”

It is unclear whether Bovino will need to appear in court Thursday.

Ellis’ requirement, Department of Justice attorneys told the appeals court, “significantly interferes with the quintessentially executive function of ensuring the Nation’s immigration laws are properly enforced by waylaying a senior executive official critical to that mission on a daily basis.”

Bovino having to appear would be “irreparably harming the government,” Trump administration lawyers wrote in a court filing.

As the Trump administration carries out targeted immigration enforcement in several major US cities, Bovino has emerged as the on-the-ground face of “Operation Midway Blitz” in Chicago. The targeted operation has resulted in more than 3,000 arrests since it began in September, according to DHS.

But the operation has also drawn persistent protests outside the Immigration and Customs Enforcement facility in Broadview, just outside Chicago. While federal agents say threatening protest activity has led them to intensify their crowd control tactics, demonstrators argue their response is often disproportionate.

A group of protesters, local journalists and clergy members sued the Trump administration earlier this month, accusing federal agents of shooting pepper balls and tear gas at demonstrators without warning and unlawfully restricting the press.

Before the appeals court ruling, Bovino told Fox News he was anticipating the meetings with the judge.

“If she wants to meet with me every day, then she’s going to see, she’s gonna have a very good firsthand look at just how bad things really are on the streets of Chicago,” Bovino said on Fox’s “The Faulkner Focus” on Wednesday.

“I look forward to meeting with that judge to show her exactly what’s happening and the extreme amount of violence perpetrated against law enforcement here,” he added.

Bovino appeared before Ellis on Tuesday after the plaintiffs accused him of throwing a tear gas canister into a crowd of demonstrators without justification or warning – a characterization DHS has refuted.

Ellis’ restraining order, which applies to the entire Northern District of Illinois, blocks federal agents from using tear gas and less-lethal munitions on protesters unless there is an “immediate threat to safety.” It also requires clear warnings before these methods are used.

During Tuesday’s hearing, Ellis expressed concern that her order was not being followed. She cited videos of interactions between agents and crowds, which she said appeared to show agents firing gas without notice and with no apparent threat.

Though Bovino declined to comment on specific instances, he is likely to be asked about them directly during a deposition the judge is allowing the plaintiffs’ attorneys to hold on Thursday.

The judge provided guidance on how agents should comply with the order, including wearing body cameras to document interactions, wearing visible identification and providing clear warnings before deploying gas.

Ellis ordered that all use-of-force reports and body camera footage during those interactions for Operation Midway Blitz from September 2 through last Saturday be turned over to the court under seal by the end of this week.

A hearing to determine whether Ellis should convert her temporary restraining order into a longer-lasting preliminary injunction is scheduled for next week.

This story has been updated with additional information.

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