Videos and photos showing Border Patrol agents firing pepper balls and tear gas directly at protesters raise questions about if those actions violate the agency’s own use of force policies and a standing judge’s order seeking to limit their use.
Those on the receiving end argue they did.
Leigh Kunkel said it felt like her nose exploded.
She told NBC 5 Investigates she and her fiancé went to the ICE processing facility in Broadview on the morning of September 26 to protest the Trump administration’s increased immigration enforcement in Chicago.
She says when she saw agents begin to fire pepper balls at protesters, she used her camera to record video. As they stood behind the hood of a white van, Leigh and another photographer said they didn’t realize there were agents to their right.
That’s when Leigh said she was hit. Video posted to social media – and reviewed by NBC 5 Investigates – shows agents appearing to fire pepper balls in their direction.
“And I felt something hit me in the back of the head. I had been struck by a pepper ball,” she told NBC 5 Investigates. “I crouched down to see if I was bleeding. And while I was crouched… all of the sudden… my nose exploded.”
Videos and photos of the incident raise questions in the minds of protesters about if Border Patrol agents violated their own use of force policies by striking protesters in the head and back.
While it’s not immediately clear what the intent of the agents’ were, an NBC 5 Investgiates’ review of the Border Patrol use of force policy shows that when using compressed air launchers, “agents shall not intentionally target the head, neck, spine, or groin of the intended subject… unless the use of deadly force is reasonable.”
Leigh wasn’t the only one struck that weekend or since.
Days before her encounter, videos posted to social media show a local pastor being shot in the head near the driveway of the ICE processing facility on September 19.
On the same morning Leigh was struck, another protester’s back, witnesses say and photographs show, was riddled with bruises from what appeared to be pepper ball strikes.
NBC 5 Investigates asked both the Department of Homeland Security and Border Patrol for a response about if they viewed incidents from September 19 and September 26 as violations of their own use of force policy.
While a spokesperson did not directly address our questions, the agency did provide lengthy emailed response:
“The First Amendment protects speech and peaceful assembly – not rioting. DHS is taking reasonable and constitutional measures to uphold the rule of law and protect our officers. ICE officers are facing a nearly 1000% increase in assaults against them as they put their lives on the line to arrest murderers, rapists, and gang members.
ICE and CBP are trained to use the minimum amount of force necessary to resolve dangerous situations to prioritize the safety of the public and themselves. Our officers are highly trained in de-escalation tactics and regularly receive ongoing use of force training.
We remind peaceful protestors and members of the media to exercise caution. Being near unlawful activities in the field does come with risks – though our officers take every reasonable precaution to mitigate dangers to those exercising their protected First Amendment rights.
However, when faced with violence or attempts to impede law enforcement operations, our officers will take legal and necessary steps to ensure their own safety and that of bystanders, up to and including use of force.
Keep in mind that rioters and terrorists have opened fire on officers, thrown rocks, bottles, and fireworks at them, slashed the tires of their vehicles, and have destroyed multiple law enforcement vehicles. Others have chosen to ignore commands and have attempted to impede law enforcement operations and used their vehicles as weapons against our officers. Despite these grave threats and dangerous situations our law enforcement is put in they show incredible restraint in exhausting all options before any kind of non-lethal force is used.”
The concerns and questions over federal agents’ use of force come nearly two months into the Trump administration’s increased immigration enforcement effort here in the Chicago area.
A group of protesters, clergy and journalists currently suing the Trump administration have alleged in court filings that agents’ use of crowd control devices – like tear gas and pepper balls – have been improper and violated their constitution rights to assemble or document those protesting immigration enforcement efforts.
The federal judge overseeing that lawsuit, Sara Ellis, has raised concerns of her own that the temporary restraining order she filed on October 9 has not been followed.
She pointed to recent incidents that gave her concern — including an October 12 incident in Albany Park where one tear gas can was used and on October 14 in Chicago’s East Side neighborhood — where Border Patrol agents had been involved in a chase, a crash and later used tear gas on a crowd that gathered.
Earlier this week, Kyle Harvick, a top deputy official with Border Patrol testified that use of chemicals was justified in both instances due people locking arms and impeding agents from leaving in Albany Park or throwing objects at agents in the East Side incident.
Late Thursday afternoon, attorneys representing the protesters filed a motion – alleging they had “significant concerns” that Ellis’ order was being ignored. And they included a photograph and a link to a video which appears to show Border Patrol chief Gregory Bovino tossing a can of gas towards a crowd.
In a post to X on Friday, DHS confirmed that Bovino tossed the canister, writing that “A mob of RIOTERS shot at our agents with commercial artillery shell fireworks and struck Chief Greg Bovino in the head.”
And that, “riot control measures were deployed, including by Chief Bovino, and arrests were made. Agents properly used their training. The use of chemical munitions was conducted in full accordance with CBP policy and was necessary to ensure the safety of both law enforcement and the public.
A DHS press release indicated that several people were arrested during Thursday’s enforcement operation in Little Village.
On Friday, Ellis called for Bovino to appear in court on Tuesday for a status hearing. Another hearing on a preliminary injunction request is set for November 5. In between now and then, Bovino and two other top level immigration enforcement officials are expected to be deposed.
“For chemical irritants, it’s a poison. So, the more of it you get exposed to, the more you will have health issues…” said Dr. Rohini Haar, an emergency physician and professor at the University of California Berkeley.
Haar recently spoke to NBC 5 Investigates.
She co-authored this 2023 report that examined instances where more than 119,000 people around the world had been exposed to chemical agents – including tear gas and pepper spray – between 2015 and 2022.
While more than half (56%) described having pain or respiratory distress that resolved quickly — 19 people were permanently disabled; 14 died.
“Maybe you can wash it off and you feel better after a couple hours. But, A, that was unnecessary harm to begin with. B, some percentage of people, that’s not the case. They’re going to have serious harm,” Haar said.