Ninth Circuit clears feds to use tear gas at Portland ICE facility

In twin rulings, a conservative-majority appeals court tossed injunctions restricting tear gas use. A lone Biden-appointed judge dissented to both.PORTLAND, Ore. (CN) — A Trump-majority panel of the Ninth Circuit on Tuesday vacated two preliminary injunctions blocking federal law enforcement officers from using tear gas and other chemical munitions on crowds outside the Portland U.S. Immigration and Customs Enforcement facility.In both cases, the panel found the plaintiffs were unlikely to succeed on the merits.One challenge was filed by protesters and journalists who argued federal officers deployed tear gas, pepper balls and other munitions outside of the ICE facility in retaliation for the exercise of First Amendment rights.The other by residents of a low-income housing complex across the street from the ICE building accused federal agents of intentionally and repeatedly deploying chemical munitions near the apartment complex, violating their right to bodily integrity by exposing them to toxic airborne substances.“Simply put, plaintiffs lack a substantive due process right to be free from the government’s use of nonlethal crowd-control devices in response to disruptive demonstrations,” U.S. Circuit Judge Eric Tung, a Donald Trump appointee, wrote in the opinion for the case filed by residents.Lower courts previously blocked usage of the chemical munitions in both cases in February and March, but at the end of April, the Ninth Circuit issued twin rulings blocking the preliminary injunctions in both cases.Four months after both cases were argued, the majority reaffirmed its earlier orders.“Under our precedent, law enforcement agents may use nonlethal force to clear crowds and restore order — they need not wait until they face ‘an imminent threat of physical harm,’’’ U.S. Circuit Judge Kenneth Lee, a fellow Trump appointee, wrote in the journalists and protesters’ case.Lee said the record doesn’t support the protesters’ claim the agents retaliated against them for exercising their First Amendment rights.“Rather, the plaintiffs appear to be unfortunate collateral casualties of federal agents’ efforts to quell an unruly and sometimes violent crowd,” Lee wrote.Between June 2025 and February 2026, there were at least 150 protests at the Portland ICE facility, some drawing crowds of several thousand.Federal agents tasked with protecting the facility took to using tear gas and pepper balls to disperse crowds. The residents of the neighboring apartment complex argued the officers used excessive munitions, resulting in their homes filling with chemical irritants.But the Ninth Circuit majority was not convinced the residents had a protectable right to be free from exposure to tear gas, as no such substantive due process right has before been recognized.“The purported right to be free from exposure to gases released from non-lethal crowd-control devices in response to disruptive crowds is not deeply rooted in our nation’s history or tradition,” Tung wrote. “The deployment of non-lethal crowd-control devices to prevent violence from escalating and to protect federal property does not appear to us to shock the conscience.”Skye Perryman — president and CEO of Democracy Forward, the firm representing the residents — said the residents will continue their fight.“Last Tuesday, voters across the nation rejected the abuses of power and cruelty we have seen from our own government,” Perryman said. “We are deeply disappointed by this decision, which leaves Gray’s Landing residents without the protections they sought after chemical munitions deployed by federal agents repeatedly polluted their homes and disrupted their daily lives.”In the case brought by the protesters, the majority concluded the federal defendants were justified in their use of nonlethal munitions and the evidence lacked proof they targeted the plaintiffs.“Instead, the record reveals law enforcement’s response to a substantial degree of violence, obstruction of law enforcement, and unrest — with protesters repeatedly trespassing onto the ICE facility, blockading the facility’s gates, vandalizing federal property, and attacking federal officers,” Lee wrote.U.S. Circuit Judge Ana de Alba dissented to both majority holdings.While de Alba agreed with the majority that certain provisions of the injunction in the protesters’ case were overbroad, the Joe Biden appointee said the injunction should be upheld as to its prohibition of officers firing munitions at the head, neck and torso.For the residents’ case, de Alba found the plaintiffs submitted a tremendous amount of evidence to support their claim of deliberate indifference, such as a video posted by the U.S. Department of Homeland Security showing a large gas cloud covering the apartment complex.“Ultimately, the government had ‘extended opportunities to do better’ and instead demonstrated a ‘protracted failure even to care,’” de Alba wrote. “This ‘indifference is truly shocking.’ The government’s apparent deployment of chemical munitions for the purpose of social media content creation is particularly shocking.”The protesters did not respond to a request for comment before press time, nor did the federal defendants.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads