* The judge spent quite a bit of time talking about “credibility” of the federal defendants. She devotes an entire section to the topic. Here’s some of it…
With respect to this footage, Defendants specifically directed the Court to certain videos and timestamps “to aid the Court in its review of those videos.” Presumably, these portions of the videos would be Defendants’ best evidence to demonstrate that agents acted in line with the Constitution, federal laws, and the agencies’ own policies on use of force when engaging with protesters, the press, and religious practitioners. But a review of them shows the opposite—supporting Plaintiffs’ claims and undermining all of Defendants’ claims that their actions toward protesters, the press, and religious practitioners have been, as Bovino has stated, “more than exemplary.” The Court is mindful of the fact that, as Supervisory Border Patrol Agent Kristopher Hewson testified at the preliminary injunction hearing, BWC footage does not always reveal all the circumstances that agents face in the field. But given the extent of the footage in this case, submitted by both sides, the Court finds that, in many cases, video footage “evaporate[s] any factual disputes that would otherwise exist.”
For example, Defendants directed the Court to two videos of agents outside the Broadview facility the evening of September 19, 2025. In those videos, agents stand behind a fence preparing to leave the facility’s gates and disperse what Defendants described as an unruly mob. The cene appears quiet as the gate opens, revealing a line of protesters standing in the street holding signs. Almost immediately and without warning, agents lob flashbang grenades, tear gas, and pepper balls at the protesters, stating, “f*ck yea!”, as they do so, and the crowd scatters. This video disproves Defendants’ contentions that protesters were the ones shooting off fireworks, refusing orders, and acting violently so as to justify the agents’ use of force. … see also Axon_Body_4_Video_2025-09-27_2135_D01A37583 at 1:33:52–1:34:06 (agents admitting that explosions on September 27 were not “fireworks” shot off by protesters but rather “flashbangs”).
On September 26, 2025, video from an agent’s BWC shows a line of agents standing at least thirty feet away from protesters outside the Broadview facility on Harvard Street. … see also Doc. 172-11 at 8 (“[T]he crowd [ ] was approximately 30-40 feet away.”). Despite this distance, the agents start yelling “move back, move back” to the protesters and then shoot pepper balls and tear gas at them without any apparent justification. \While the agent wrote in his use of force report that protesters were “becoming increasingly hostile,” Doc. 172-11 at 7, the BWC video shows that the protesters were simply standing there when agents first deployed any force.
Defendants also highlighted an October 3, 2025 video, presumably to show that agents driving the streets faced constant danger from cars ramming them on purpose. But instead of leaving this impression, the video, which almost entirely consists of a view of the back seat of the car and some dialogue about how the agent’s “body cam is on” and he is “still recording,” suggests that the agent drove erratically and brake-checked other motorists in an attempt to force accidents that agents could then use as justifications for deploying force. This also calls into question Hewson’s testimony that motorists have rammed into agents every day during the operation. On October 4, 2025, in Brighton Park, Defendants directed the Court to BWC footage of an agent pushing a protester to the ground, with tear gas and pepper balls released thereafter The footage shows the agents allowing the protester they had tackled to the ground to stand up and then tackling him again, kneeling on his head or neck. Only after agents threw tear gas and pepper balls and pushed the protester to the ground did other protesters throw some bottles of water at the agents, which cannot support the agents’ use of force.
These are not the only inconsistencies and incredible representations in the record. While Defendants may argue that the Court identifies only minor inconsistencies, every minor inconsistency adds up, and at some point, it becomes difficult, if not impossible, to believe almost anything that Defendants represent. The Court discusses these inconsistencies in greater detail below, highlighting only a few here. For example, Hewson testified that people held shields with nails in them, but video demonstrates that at least some of these shields were merely pieces of cardboard, none of the shields had nails in them, and nothing warranted the aggression that the agents showed toward the protesters holding these shields. In Albany Park, agents wrote in their reports and DHS publicized that a bicyclist threw a bike at agents, but video from that event makes clear that agents actually took a protester’s bike and threw it to the side after they had deployed tear gas.
I’ve removed most of the citations from these excerpts to make it easier to read, but they’re in the original if you want to see them.
I’ve also partially redacted profanity.
The first factor for injunctive relief is likelihood of success. To meet this requirement, the “plaintiff must demonstrate that ‘its claim has some likelihood of success on the merits.’” […]
Protected Speech and Newsgathering
Speech
Second, even if some individuals have engaged in violent and unlawful acts, Plaintiffs here do not contend that the First Amendment protects these individuals. Perhaps recognizing that the First Amendment provides no protection for speech that constitutes true threats of violence or incitement of imminent lawless action, see Counterman v. Colorado, 600 U.S. 66, 74 (2023); Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969), Plaintiffs do not include individuals engaged in this behavior in the relief they seek. […]
The Court does not find any evidence that any of Plaintiffs engaged in unlawful or violent conduct, and the certified class expressly excludes individuals who did. […]
Newsgathering
(T) he First Amendment protects non-violent newsgathering. The record indicates that Plaintiffs Block Club Chicago (Doc. 22-20), Raven Geary (Doc. 22-17), Stephen Held (Doc. 22- 18), and Charles Thrush (Doc. 22-16) all wear clear press identification when reporting, do not engage in protests, and do not talk with (or to) federal officers unless to ask them journalistic questions. See also Doc. 22-19 ¶¶ 7, 16 (Colin Boyle); Doc. 22-22 ¶¶ 7, 10 (Shawn Mulcahy). The Court rejects Defendants’ implication that Plaintiffs are suggesting that members of the press should receive special treatment. Instead, “the Supreme Court has long recognized a qualified right of access for the press and public to observe government activities.” […]
Content-Based Discrimination Under Strict Scrutiny
The Court finds that Plaintiffs are likely to show that Defendants have restricted Plaintiffs’ speech, assembly, and press based on their content. Plaintiffs have been open and vocal about their dislike for Defendants’ actions, and, in return, Defendants have publicly announced their intention to target such protesters. Plaintiffs’ declarations and testimony at the preliminary injunction hearing clearly establish that protesters have gathered at the Broadview facility and around the Chicagoland area to non-violently express their views opposing Operation Midway Blitz. Plaintiffs’ declarations describe the specific language that protesters have used to voice their views opposing the government’s immigration enforcement efforts and tactics in Chicago. […]
Defendants contend that their actions are content-neutral because they have only expelled those engaged in violent and obstructive conduct, or those intermingled with such people. This assertion, however, ignores many examples in the record where Defendants restricted the speech or behavior of those who were not acting violently or obstructively. Tellingly, Defendants admit that they would treat pro-ICE and CBP demonstrators more favorably. Accordingly, the Court finds that Plaintiffs are likely to show that Defendants have placed content-based restrictions on Plaintiffs.
The Court agrees that Defendants have a compelling interest in the protection of federal property and personnel and enforcement of federal laws. (The Court questions, however, whether Defendants have the right to issue dispersal orders on non- federal property given that “the United States Constitution reserves the general police power to the states.”) Defendants argue that “the use of lawful, less-lethal crowd control devices” is narrowly tailored to achieve these goals, Doc. 173 at 57, and point to a declaration describing these devices as “the most effective method” that law enforcement has to push an “entire crowd back” from destroying property and blocking traffic, while claiming that such less lethal devices do not cause permanent harm, Doc. 35-4. Yet the Court does not find that Defendants will likely succeed in showing that their use of tear gas, pepper balls, and other less lethal force is sufficiently narrowly tailored to achieve these interests. […]
First Amendment Retaliation
To prevail on a First Amendment retaliation claim, Plaintiffs must ultimately show that
they “(1) [ ] engaged in activity protected by the First Amendment; (2) [ ] suffered a deprivation
that would likely deter First Amendment activity in the future; and (3) the First Amendment
activity was ‘at least a motivating factor’ in the Defendants’ decision to take the retaliatory
action.” […]
Despite Defendants’ attempts to paint all protesters as violent or disobedient, as discussed above, Plaintiffs have provided evidence that they engaged in newsgathering, religious exercise, and/or protesting, all activities protected by the First Amendment. Further, the evidence before the Court indicates that individuals have been hit with less lethal munitions, gassed, pepper sprayed, threatened with arrest for recording and observing, tackled, and had guns pointed at them… such actions “would likely deter a person of ordinary firmness from continuing to engage in protected activity,” (“Neither can Defendants meaningfully dispute that being subjected to rubber bullets, tear gas, pepper balls, and other crowd control weapons would deter individuals of ordinary firmness from continuing to engage in the protected activity.”) […]
Finally, Plaintiffs have sufficiently suggested at this stage that they can meet the third element of this claim, that their First Amendment activities were motivating factors in Defendants’ conduct. Plaintiffs can establish proof of motive through either direct or circumstantial evidence, including “suspicious timing, ambiguous oral or written statements, or behavior towards or comments directed at other [people] in the protected group.” […]
Further, as detailed in the Court’s factual findings, agents have used excessive force in response to protesters’ and journalists’ exercise of their First Amendment rights, without justification, often without warning, and even at those who had begun to comply with agents’ orders…. The Court also does not find persuasive Defendants’ argument that the fact that agents refrained from using less lethal munitions in some situations where agents encountered protesters indicates a lack of retaliatory motive. Agents’ “use of indiscriminate weapons against all protesters—not just the violent ones—supports the inference that federal agents were substantially motivated by Plaintiffs’ protected First Amendment activity.” The record before the Court, therefore, suggests that Plaintiffs are likely to succeed on the merits of their First Amendment retaliation claim. […]
Free Exercise and RFRA
The First Amendment provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. “The Free Exercise Clause prohibits the government from ‘plac[ing] a substantial burden on the observation of a central religious belief or practice’ without first demonstrating that a ‘compelling governmental interest justifies the burden.’” […]
Under the RFRA’s burden-shifting framework, “[o]nce a RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his religious practice, the burden shifts to the government to justify the burden under strict scrutiny.” […]
Further, Plaintiffs argue that Defendants’ actions force the religious exercise sub-class to choose between their health and safety on the one hand or authentically practicing their faith on the other. […]
As discussed above, the Court recognizes that Defendants have a compelling interest in protecting federal property, personnel, and governmental functions. But even assuming this, the Court does not find it likely that the government can carry its burden to demonstrate that its unprovoked use of force against Rev. Black, Rev. Holcombe, Rev. Johnson, and others engaged in religious exercise is the least restrictive means of furthering this governmental interest. The record is replete with evidence of Defendants using less lethal force against religious personnel. As discussed, Defendants have targeted Rev. Black, visibly attired in clerical garb, with multiple pepper ball shots, including in the head, and have fired tear gas, pepper balls, and rubber bullets against religious groups praying and singing hymns. Certainly, less restrictive means exist to protect federal property, personnel, and governmental functions, particularly given the peaceful nature of Rev. Black’s, Rev. Holcombe’s, Rev. Johnson’s, Fr. Curran’s, and others’ exercise of their religion.
Accordingly, the Court finds that Rev. Black, Rev. Holcombe, Rev. Johnson, Fr. Curran, and the religious exercise sub-class have shown that they are likely to succeed on their RFRA claim.
Fourth Amendment
… Plaintiffs have shown a likelihood of success on their Fourth Amendment excessive force claim. Initially, Defendants argue that the proper standard is the Fourteenth Amendment shocks the conscience standard for substantive due process, not the Fourth Amendment, because agents have not seized any individuals. But the Court disagrees. A seizure occurs under the Fourth Amendment when an officer “by means of physical force or show of authority has in some way restrained the liberty of a citizen.” … “The appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context.” […]
In light of this evidence, the Court finds that Plaintiffs have made a strong showing that agents’ uses of force objectively manifested an intent to restrain or confine protesters. Defendants took direct aim at protesters, including at areas of the body that their own agency policies indicate should only be targeted if deadly force is authorized, suggesting an intent to incapacitate. […]
Under the Fourth Amendment, based on the record before it, the Court sees little justification for the extent of the use of force that federal agents have used against Plaintiffs and other peaceful protesters, journalists, and religious practitioners. Pointing guns, pulling out pepper spray, throwing tear gas, shooting pepper balls, and using other less lethal munitions do not appear to be appropriate uses of force in light of the totality of the circumstances.
