Ninth Circuit OVERTURNS Obama Judge’s Restrictions on ICE Agents Using Tear Gas Against Violent Portland Agitators — Says Federal Courts Cannot Handcuff Law Enforcement

The Trump administration scored a major legal victory Tuesday after a divided federal appeals court struck down sweeping restrictions imposed by an Obama-appointed judge on federal immigration officers responding to violent and disruptive protests outside an ICE facility in Portland, Oregon.

In a 2–1 decision, the U.S. Court of Appeals for the Ninth Circuit vacated a preliminary injunction that severely limited federal agents’ use of tear gas, pepper balls, flashbang grenades, and other nonlethal crowd-control weapons.

The court also rejected a requirement that federal officers modify their uniforms to display larger, more conspicuous identifying markings.

The ruling, issued in Dickinson v. Trump, represents a significant victory for President Donald Trump and the Department of Homeland Security in their ongoing battle over immigration enforcement and federal law enforcement authority.

The majority concluded that peaceful protesters enjoy constitutional protections, but those protections do not extend to vandalizing federal property, obstructing immigration officers, or interfering with lawful government operations.

In a sharply worded opinion, Circuit Judge Kenneth Lee wrote:

“The First Amendment cannot be a sword to justify vandalism of federal buildings, criminal trespass of government property, or obstruction of law enforcement.”

Lee, joined by Circuit Judge Eric Tung, rejected the lower court’s assumption that federal officers must wait until they face imminent physical danger before deploying nonlethal crowd-control weapons.

“The First Amendment shields the people from governmental suppression of their right to protest peacefully and speak freely. But the First Amendment cannot be a sword to justify vandalism of federal buildings, criminal trespass of government property, or obstruction of law enforcement — all of which have occurred frequently outside the U.S. Immigration and Customs Enforcement (ICE) office in Portland,” the majority wrote.

Agents “may use nonlethal force to clear crowds and restore order — they need not wait until they face ‘an imminent threat of physical harm.’”

The Ninth Circuit found that the district court had gone too far.

The appellate majority concluded that the injunction exceeded the permissible scope of judicial relief and improperly restricted lawful crowd-control operations.

The majority also determined that the plaintiffs had not demonstrated a likelihood of success on their claim that DHS maintained an unwritten policy of retaliating against First Amendment activity.

Importantly, the court did not conclude that every federal use of force at the Portland facility was justified. Rather, it found insufficient evidence to support the broad retaliation claim underlying the preliminary injunction.

The Ninth Circuit also vacated the district court’s provisional class certification, which had extended to individuals seeking to protest or report on DHS activities at the facility.

And the majority delivered a particularly pointed rebuke to the lower court’s attempt to dictate federal agents’ uniforms:

“Courts cannot be the couture of the executive branch.”

In other words, federal judges do not have unlimited authority to redesign law enforcement uniforms or dictate operational procedures simply because plaintiffs object to the way federal officers conduct their duties.

The decision is a major setback for the American Civil Liberties Union of Oregon and five plaintiffs who accused DHS agents of retaliating against “peaceful” protesters and independent journalists.

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