The Trump administration will argue Tuesday before a federal appeals court that its agents should not be restricted from using crowd control weapons on protesters outside the U.S. Immigration and Customs Enforcement facility in Portland.
It’s a hearing that could dictate whether clouds of tear gas once again become a common sight at demonstrations in the city by striking down recently imposed legal guardrails around federal officers’ use of force on peaceful protesters.
Related: Watch the 9th Circuit hearing Tuesday at 10 a.m. PST
Since June, the ICE building has served as a gathering place for frequent protests against immigration enforcement and other policies of President Donald Trump.
At times, Department of Homeland Security officers have responded to demonstrators by saturating the southwest waterfront neighborhood with tear gas, pepper balls and flashbang grenades.
Since early February, federal judges have drastically limited DHS officers’ use of crowd control weapons in the area directly outside the Portland ICE building. Then, in late March, a three-judge panel from the U.S. Court of Appeals for the 9th Circuit agreed 2-1 to pause those orders after the Trump administration filed an emergency appeal.
The Tuesday hearing will decide whether to continue restricting tear gas or not.
The legal arguments set to play out in court spotlight the nature of tear gas and other forms of chemical crowd-control devices. Aerosolized irritants are indiscriminate, stinging the skin, eyes and noses of any person caught in their clouds.
A favorable decision for the Trump administration would allow federal officers to once again throw gas canisters at their own discretion, which they say they need to protect themselves and the facility.
Nonviolent protesters and tenants of a nearby apartment complex, however, worry that a return to unrestricted tear gas policies would cause them harm despite breaking no laws, exercising their Constitutional rights, or simply living nearby.
It was separate lawsuits from each of them — protesters and tenants — that initially restricted the tear gas. Both now hang in the balance at the appeals court.
Protesters and tenants
The appeals court combined the cases because of their shared result, but each relied on very different parts of the law.
The protesters’ case: A group of five peaceful protesters and independent journalists who attended demonstrations at the ICE facility argued Homeland Security officers indiscriminately used tear gas and other chemicals violating their First Amendment rights.
U.S. District Court Judge Michael Simon issued a preliminary injunction that greatly limited Homeland Security’s use of crowd control weapons – but still allowed federal officers to use them when faced with specific and imminent threats of physical harm.
In his ruling, Simon found that Homeland Security had what amounted to an unwritten policy to use excessive force on nonviolent protesters. Those actions, Simon wrote, chilled the “exercise of constitutional rights to free speech and free press.’”
The tenants’ case: The residents and owners of the Gray’s Landing apartment complex, which sits kitty-corner from the ICE facility, made an argument not of free speech but of public health. They said tear gas seeped into their homes so regularly that tenants went to bed with gas masks and used wet towels to block the gas from leaking through their windows and doors. The gas exacerbated pre-existing health conditions, they testified.
U.S. District Court Judge Amy Baggio, like Simon, restricted federal law enforcement’s tear gas. Her ruling found that federal officers used more gas than necessary and that the gas violated the tenants’ “bodily integrity.”
“Use of force reports indeed document unlawful behavior of certain protesters immediately present at the Portland ICE facility,” Baggio wrote in her preliminary injunction. “But the deployment of such copious amounts of chemical munitions is unjustified on the present record.”
Within days of the rulings, the Trump administration appealed both judges’ orders. Justice Department attorneys argued the restrictions were unlawful and dangerous.
“The injunction, quite literally, puts federal officers at the mercy of the wind,” Brenna Scully, an attorney with the Justice Department’s civil division wrote in court filings appealing the tenants’ case. Scully called the judge’s ruling “vague and unworkable.” Scully made similar arguments in court filings appealing the ACLU’s protester case to the 9th Circuit.
The 9th Circuit judges combined the two cases. Two of the three are judges appointed by Trump. The other, who dissented in the decision to pause the injunctions, was appointed by then-President Joe Biden.
Shifting tactics
Even though the 9th Circuit’s pause has allowed federal officers at the Portland ICE building to use tear gas without restrictions since March 25, they haven’t.
After the most recent “No Kings” demonstrations, hundreds of protesters headed to the Portland ICE building.
As evening fell, the event appeared to be shaping up similar to past demonstrations when federal officers liberally deployed tear gas.
Those clashes never quite materialized, however.
A handful of protesters forced open its security gate several times, but did not cross the threshold into the facility’s courtyard. Federal officers at the ICE building did not use tear gas the entire evening, despite the recent legal authority given, but made multiple arrests.
The evening demonstrations at the ICE building petered out after the Portland Police Bureau declared an unlawful assembly.
That March 28 protest appeared to be a significant shift in policing tactics on the part of federal law enforcement. It’s unclear whether the events marked a permanent change or a temporary one in advance of the 9th Circuit scrutinizing the conduct of federal officers at the Portland ICE building.
