Groups petition for special prosecutor to investigate fed actions during 'Operation Midway Blitz'

CHICAGO (WLS) -- There's an effort to get a special prosecutor appointed to investigate federal agents' actions during "Operation Midway Blitz," but there's some high-level pushback.

Chicago law firm Loevy & Loevy is leading the charge, calling for a special prosecutor to investigate federal agents' use of force while conducting immigration enforcement last fall.

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The firm claims U.S. Immigration and Customs Enforcement agents committed assault and battery against peaceful civilians, members of the clergy and reporters; illegally kidnapped and detained an elected official and others; tear-gassed entire neighborhoods; and shot multiple people, killing at least one.

They said "An independent, special prosecutor is essential to ensure that there is accountability in Cook County."

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In response to the group's demands, Cook County State's Attorney Eileen O'Neill Burke said the petition for a special prosecutor would only make it more difficult to prosecute and convict federal agents accused of breaking the law.

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.