Two of three federal appeals court judges decided Monday that federal agents at Portland’s Immigration and Customs Enforcement facility should not be restricted in their use of force and munitions against protesters and journalists.
In a ruling covering two separate cases against the federal government, 9th Circuit Court of Appeals Judges Eric Tung and Kenneth Lee — both Trump appointees — also decided that nearby residents at an affordable apartment complex have “no such right” under the U.S. Constitution “to be free of exposure to chemicals that were released when federal law enforcement officers used tear gas and other non-lethal devices to disperse the crowds.”
Judge Ana de Alba, a Biden appointee and the third member of the panel, dissented, arguing the government had not succeeded in making the case that it suffered irreparable harm from lower court orders temporarily restricting agents’ use of force and munitions against crowds at the facility.
It’s the second time Tung and Lee have temporarily overturned lower court orders that had temporarily blocked such uses of force while the two court cases against the federal government were pending.
Plaintiffs in those two cases, Dickinson v. Trump and Reach Community Development, et al. v. United States Department of Homeland Security, et al, allege federal agents at the Portland ICE facility targeted protesters and journalists who posed no threat to officers, and have caused irreparable medical harm to nearby residents who cannot escape chemicals and smoke seeping into their homes. Lawyers for the federal government have argued the building was “under siege” and the munitions “are a critical defensive law enforcement tool.”
Officers used such munitions for months outside the ICE facility, where groups of largely peaceful protesters have been demonstrating since June. The protests escalated during the fall following President Donald Trump’s attempt to deploy National Guard troops to the city. Concern about officers’ conduct rose again in late January, when they deployed massive amounts of tear gas at a Saturday afternoon march organized by labor unions and attended by children, seniors and people with disabilities.
The judges earlier this month heard arguments from lawyers representing the federal officers, as well as lawyers representing the Gray’s Landing residents, and the journalists and protesters, and all three seemed disturbed by videos of officers’ conduct and skeptical that such force was warranted.
Nevertheless, Lee, writing for the majority, said that the temporary restrictions on federal agents’ use tear gas, pepper balls, smoke grenades and other less-lethal munitions against crowds at the facility “would cause those officers to hesitate (i.e., to be ‘more selective’) before entering the fray to enforce federal law.”
In her dissent, de Alba said the federal government had been able to defend the facility without issue while the temporary restraining orders were in effect, that lawyers for the plaintiffs had clearly shown nearby residents experienced detrimental medical conditions and that officers deployed excessive force on crowds in part for government social media accounts.
“Moreover, the government’s argument is remarkable given the district court’s uncontested findings that federal officers’ large-scale deployment of chemical munitions was often deliberate and in situations where its use appeared disconnected from any law enforcement purpose,” she wrote.
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