Feds plan to use protest chants to prosecute Broadview ICE protesters — but balk at free speech defense

Federal prosecutors say the remaining members of the “Broadview Six” should be barred from making arguments about free speech rights when they go to trial next month — though the feds also plan to use protest chants caught on video as evidence against the group.

Prosecutors also argued there should be no references to the October shooting of Marimar Martinez by a Border Patrol agent in Chicago, nor of the fatal shootings this year of Renee Good and Alex Pretti by immigration authorities in Minnesota.

Meanwhile, defense attorneys asked U.S. District Judge April Perry to bar the feds from referring to their clients as “rioters,” “Antifa members” or “domestic terrorists.”

“They are inflammatory terms that carry strong political, social, and emotional connotations that risk unfairly biasing the jury against the defendants,” the defense attorneys wrote.

The arguments appeared in a series of motions filed Tuesday, five weeks ahead of the second federal trial to result from Operation Midway Blitz. Four people, including former congressional candidate Kat Abughazaleh, are accused of a conspiracy to impede a federal agent.

Also charged are Oak Park village trustee Brian Straw, 45th Ward Democratic committeeperson Michael Rabbitt and Andre Martin, a member of Abughazaleh’s campaign staff. The feds earlier this year dropped charges against two others originally indicted in the case.

Questions about free speech have swirled since a grand jury handed up that indictment in October, in the heat of the Trump administration’s aggressive deportation campaign last fall. Perry is still considering a defense request that she toss the conspiracy charge based on the First Amendment, which protects the freedom of speech, religion, assembly and the press.

Lawyers are next due back in Perry’s courtroom May 13. The trial is set to begin May 26.

All four of the remaining defendants are involved in local Democratic politics. U.S. Attorney Andrew Boutros insisted in an interview this month that politics have played no role in charging decisions made by his office.

Regardless, the feds have struggled to secure convictions against people charged with nonimmigration crimes tied to Midway Blitz. Out of 32 known defendants, one person has pleaded guilty. Twenty others have been cleared, and four others are on track to have their charges dismissed.

In the only other trial to result from Midway Blitz, a jury in January acquitted a man accused of a murder-for-hire plot aimed at then-U.S. Border Patrol Cmdr. Gregory Bovino.

Now a new jury could soon hear evidence revolving around events on the morning of Sept. 26, outside the U.S. Immigration and Customs Enforcement facility in Broadview. The four defendants are accused of joining a group that surrounded an ICE agent’s vehicle and pushed, scratched and otherwise damaged it.

Prosecutors say they plan to introduce “anti-ICE statements and chants” by the defendants and their co-conspirators heard by Broadview police and caught on video. They also said Broadview police heard the protesters discuss not letting “ICE cars through to their facility.”

“Such evidence will be introduced to show defendants’ motivation and purpose in joining the conspiracy,” Assistant U.S. Attorney William Hogan wrote Tuesday. “It demonstrates that the co-conspirators swarmed and impeded [the agent’s] vehicle because of his affiliation with ICE.”

Hogan wrote that defense attorneys should not be allowed to argue entrapment or seek jury nullification — a scenario in which jurors acquit the defendants even if prosecutors have proven their case. The prosecutor argued that references to the shootings of Martinez, Good and Pretti “would clearly invite jury nullification.”

Finally, he argued that Perry should be the jury’s “sole source of information on the law and the contours of the First Amendment.”

“There is no ‘protest immunity’ such that force or intimidation are shielded from prosecution by the First Amendment, and the defendants should not be allowed to improperly suggest that the jury can find, or consider, that they enjoy an immunity from prosecution under the Constitution where none exists,” Hogan wrote.