Cook County State’s Attorney Eileen O’Neill Burke is playing catch-up to her counterparts in other counties across the country. After significant pressure from critics and organizers, her office announced last week a new “Federal Immigration Enforcement Action Response Protocol” for responding to possible crimes committed by federal immigration agents.
“If a federal law enforcement agent commits a crime, my office will not hesitate to act, in accordance with state law,” O’Neill Burke said in a press release Thursday.
The protocol calls on local law enforcement agencies in Cook County to collect evidence of “a death, shooting, act of violence, or use of force incident related to federal immigration enforcement activity that may constitute a felony criminal act,” which the agencies can then present to the state’s attorney’s office. The protocol states the CCSAO won’t serve as the primary investigator in cases of potential misconduct by federal agents, but will consider relevant evidence local law enforcement agencies present to it in order to decide whether it supports criminally prosecuting a federal agent.
The protocol also outlines what legal issues Cook County prosecutors have to consider when deciding whether to file charges against federal agents, such as whether an accused agent can move the case to federal court, or if they can claim immunity under the U.S. Supremacy Clause, which enshrines federal law above state and local law.
David Shapiro, executive director of the MacArthur Justice Center, a national progressive legal group, said O’Neill Burke’s new protocol represents her catching up with other local prosecutors nationwide.
“There’s been so much of a push by many other local prosecutors, right? There’s the Fight Against Federal Overreach that has a whole bunch of local prosecutors,” Shapiro told The TRiiBE. “The Cook County State’s Attorney’s Office was relatively silent for a long time.”
The California Attorney General’s Office announced a similar policy in late January. The policy comes after off-duty ICE agent Brian Palacios shot and killed Keith Porter in Northridge, California on New Year’s Eve. The American Prospect reports multiple other people have been killed during immigration enforcement actions in California since the start of Trump’s second term.
The Hennepin County Attorney’s Office, based in Minneapolis, opened an online portal in January for the public to submit evidence relevant to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents killing 37-year-old Renee Nicole Good and 37-year-old Alex Pretti, respectively. Hennepin County Attorney Mary Moriarty similarly stated in January that her office “can and will” act within its authority to review any case presented to it for criminal charges, including in cases of potential state criminal violations by federal agents.
Three weeks before O’Neill Burke’s office announced the new protocol, prosecutors from multiple states also launched the Project for the Fight Against Federal Overreach (FAFO), a joint effort to investigate possible legal action against federal officials, agents and agencies. Participating prosecutors represent Minneapolis, Philadelphia, Austin, Dallas, Fairfax, multiple Virginia districts, and Pima County, AZ. Minneapolis, like Chicago and Los Angeles, was specifically targeted by the federal government for aggressive mass deportation campaigns.
“When federal agents exceed their lawful authority, local prosecutors have both the power and the duty to act,” Philadelphia District Attorney Larry Krasner, one of FAFO’s founders, said in a prepared statement in January. “The project exists to ensure that accountability is real, coordinated, and enforced through lawful institutions.”
Cook County’s new protocol enumerates more details on its proposed process for investigating federal agents than that issued by the California Attorney General’s Office, though attorney Sheila Bedi, who serves as chief strategy officer with Chicago Mayor Brandon Johnson’s office, said it’s not yet clear if the order will prove sufficient for holding federal agents accountable for their actions.
An ICE agent shot and killed Silverio Villegas González in Franklin Park last September. Border Patrol agent Charles Exum shot Marimar Martinez in Brighton Park in October. According to a joint investigation by The TRiiBE, Block Club Chicago, Cicero Independiente, the Investigative Project on Race and Equity, Invisible Institute, and the South Side Weekly, federal agents deployed chemical weapons dozens of times in the Chicago area during “Operation Midway Blitz.”
The state’s attorney’s office has thus far not publicly announced charges against any specific agent.
“What remains to be seen is how that will be implemented, and what that policy actually will mean for [Chicago] residents looking for some kind of justice based on the harm they suffered at the hands of federal agents,” Bedi said.
O’Neill Burke’s office said its legal team began working on the new protocol “months ago,” and that Illinois Attorney General Kwame Raoul had reviewed it. Raoul, in a statement emailed to The TRiiBE, affirmed his office had reviewed the protocol and “concur[s] with its conclusions and approach.”
However, prior to the new protocol’s announcement, O’Neill Burke faced criticism over her apparent lack of response to the abuses of federal immigration agents in the Chicago area throughout the Trump regime’s militarized immigration operations last fall. Local attorney Sheryl Weikal even filed a petition in the Circuit Court of Cook County on Jan. 30, calling for the appointment of a special prosecutor to investigate possible criminal abuses by ICE and CBP agents during Midway Blitz.
In her lawsuit, Weikal claims O’Neill Burke’s office has “taken no action whatsoever” in response to federal agents’ allegedly violating state law.
“There are only two possible reasons for this lack of response: either her office is unwilling to protect the people of Cook County, or it is unable to protect the people of Cook County,” Weikal wrote. “If the former, Attorney Burke should say so in response to this petition. If unable, a special prosecutor should and must be appointed.”
O’Neill Burke also denounced Mayor Johnson’s “ICE on Notice” executive order, signed on Jan. 31. The order directs Chicago police to “investigate and document alleged illegal activity by federal immigration agents and refer evidence of felony violations to the Cook County State’s Attorney’s Office for prosecution.”
O’Neill Burke responded by calling the order “wholly inappropriate,” with WTTW reporting earlier this month that she had told CCSAO employees in a memo that it “jeopardizes our ability to effectively prosecute and secure convictions when federal law enforcement agents have committed a crime.”
Bedi said she was not in a position to comment on the dissonance between O’Neill Burke’s response to Johnson’s order and CCSAO’s new protocol; the mayor’s office itself provided The TRiiBE with a statement stating Johnson’s executive order and O’Neill Burke’s office’s new protocol “are aligned facets of the same public safety framework.”
Raoul, in his own statement to The TRiiBE, seemed to defend O’Neill Burke’s earlier response to Johnson.
“I have disagreed with how President Trump has tried to direct [the] Department of Justice with regards to its prosecutions and investigations. I believe that it has unquestionably led to political prosecutions that are not based upon evidence obtained through independent investigations,” Raoul said. “It is no better for government chief executives at the local level to direct local prosecutors or law enforcement agencies.”
Weikal, meanwhile, told The TRiiBE she needed more time to review the new Cook County protocol and evaluate how it will impact the way she moves forward with her petition. She repeated calls for local officials to hold federal immigration agents responsible for their actions.
ICE activity has continued in the Chicago area throughout the winter, and Mayor Johnson has warned that another large immigration enforcement surge may be coming later this spring.
“I think this is a good step,” Weikal said of the new Cook County protocol. “But I still don’t necessarily see any concrete actions.”
