A federal appeals court on Tuesday handed the Trump administration a major win in the long-running fight over protests outside the Immigration and Customs Enforcement (ICE) building in south Portland, Oregon, wiping out court orders that had sharply limited when federal officers could use tear gas and pepper balls on crowds.
In two decisions released Nov. 10, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit sided 2-1 with the administration, vacating preliminary injunctions issued by two federal judges in Portland, as reported by KATU News.
The protesters’ case
The first case was brought by five plaintiffs, peaceful protesters and independent journalists, including Jack Dickinson, known locally as the “Portland Chicken.” They said they had been hit with tear gas or pepper balls when officers dispersed crowds near the ICE facility, and argued the government had targeted them in retaliation for exercising their First Amendment rights.
In March, U.S. District Judge Michael H. Simon issued a preliminary injunction barring federal agents from using non-lethal crowd-control munitions unless someone posed an imminent threat of physical harm. His order also required that ICE agents’ uniforms be altered to carry more conspicuous and unique identifying markings.
The Ninth Circuit panel, in an opinion written by Judge Kenneth K. Lee, threw that injunction out. The court said that under its precedent, law enforcement agents may use non-lethal force to clear crowds and restore order and do not have to wait until they face an imminent threat of physical harm.
The judges also found that the plaintiffs had not shown an unwritten policy, pattern or practice of First Amendment retaliation, and that the record did not support their claim that federal agents retaliated against them for their protests or reporting. KATU reported that the decision described those affected as “unfortunate collateral casualties” of efforts to manage unruly and sometimes violent crowds.
The panel went further, calling the injunction overbroad and unworkable. It said the order improperly protected not just the five named plaintiffs but anyone protesting or reporting at the facility, and that requiring federal agents’ uniforms to be redesigned was beyond the court’s power. The court also vacated a provisional class certification that had covered everyone who has protested, wants to protest, or will nonviolently protest against or report on Homeland Security activities.
The neighbors’ case
The second case was filed by Reach Community Development, which owns Gray’s Landing, an apartment complex near the ICE facility. Residents said tear gas fired by federal agents seeped into their homes and caused health problems. U.S. District Judge Amy Baggio had issued an injunction barring federal agents from using chemical munitions likely to reach the complex.
The Ninth Circuit vacated that injunction as well, ruling that neither longstanding tradition nor the text of the Constitution supports a substantive-due-process right to be free from the government’s use of crowd-control chemicals, even when neighbors are affected incidentally. The court noted that “such devices have long been a common tool of law enforcement to disperse crowds that have turned disruptive and violent.”
A sharp dissent
Judge Ana de Alba partly dissented. She agreed that three provisions of the protest injunction were overbroad but would have kept other parts in place, including a ban on officers firing munitions at a person’s head, neck or torso unless deadly force was legally justified.
What it means now
For now, the rulings mean federal officers at the Portland ICE facility can keep using non-lethal force under existing crowd-dispersal guidelines, and the broader class protections for demonstrators and observers no longer apply. The decisions follow more than a year of frequent and sometimes chaotic protests outside the building.