Ninth Circuit Upholds Federal Use of Tear Gas at Portland ICE Facility
Court rules federal agents may use nonlethal crowd-control devices without proving imminent physical harm.
1Court Vacates Injunctions
A Ninth Circuit panel has vacated two preliminary injunctions that previously blocked federal officers from using tear gas at a Portland ICE facility. The court determined that plaintiffs were unlikely to succeed on the merits, ruling that federal agents possess the authority to use nonlethal force to clear crowds and restore order.
2Protesters and Journalists Challenge
Protesters and journalists argued that federal agents deployed chemical munitions in retaliation for their First Amendment activities. However, Judge Kenneth Lee stated the record does not support these claims. The court characterized the plaintiffs as collateral casualties of efforts to manage unruly crowds rather than targets of specific, retaliatory government actions.
3Residents Cite Bodily Integrity
Residents of a nearby low-income housing complex argued that repeated exposure to toxic gases violated their right to bodily integrity. The court rejected this, noting that no substantive due process right exists to be free from nonlethal crowd-control devices used during disruptive demonstrations, as such rights are not rooted in national tradition.
4High Frequency of Protests
Between June 2025 and February 2026, the Portland ICE facility experienced at least 150 separate protests. Some of these gatherings involved several thousand individuals. Federal agents tasked with protecting the site utilized tear gas and pepper balls to disperse crowds, citing the need to prevent violence and protect federal property.
5Legal Standards for Force
The majority opinion clarified that law enforcement agents are not required to wait until they face an imminent threat of physical harm before using nonlethal force. Judge Eric Tung wrote that deploying these devices to prevent violence from escalating does not shock the conscience, maintaining the government's operational flexibility during civil unrest.
6Dissenting Judicial Perspective
Judge Ana de Alba, a Biden appointee, dissented from both rulings. She argued that the injunction regarding the protesters should have been partially upheld to prohibit firing munitions at the head, neck, or torso. Regarding the residents, she cited evidence of deliberate indifference, noting that chemical clouds repeatedly engulfed the nearby apartment complex.
7Allegations of Indifference
In her dissent, Judge de Alba highlighted a video released by the Department of Homeland Security showing gas covering the residential area. She characterized the government's conduct as a protracted failure to care, suggesting that the use of munitions for social media content creation was particularly shocking to the judicial conscience.
8Future Legal Outlook
Skye Perryman, CEO of Democracy Forward, expressed deep disappointment with the ruling and confirmed that residents will continue their legal fight. The decision leaves the residents without the specific protections they sought against chemical pollution in their homes, marking a significant setback for those challenging federal crowd-control tactics in Portland.