Judges’ restrictions on force, tear gas at Portland ICE protests thrown out on appeal

Key Points:

• A federal appeals panel overturned two Oregon district court orders that restricted federal officers’ use of tear gas and nonlethal force near the ICE building in Portland, ruling that residents have no constitutional right to be free from chemical exposure and that officers need not wait for an imminent threat before using force.
• The appeals court majority, in split 2-1 decisions, rejected claims that the government’s use of tear gas violated residents’ due process rights or that federal officers retaliated against protesters for exercising First Amendment rights.
• District judges had previously ruled that federal officers showed deliberate indifference by using excessive tear gas near a nearby affordable housing complex and that officers’ actions chilled free speech and press rights, imposing restrictions on crowd-control tactics.
• Judge Ana de Alba dissented in both cases, arguing that residents should only need to meet a “shocks-the-conscience” standard to restrict tear gas use and that evidence supported findings of retaliatory intent by officers against protesters and journalists.
• Advocacy groups representing residents and protesters expressed disappointment with the ruling and pledged to continue fighting for protections against excessive force and to uphold constitutional rights to protest and free press.