A federal judge in Oregon on Monday placed new limits on federal agents’ use of tear gas and other crowd-control munitions during protests outside the U.S. Immigration and Customs Enforcement building in Portland.
U.S. District Judge Michael Simon issued a preliminary injunction in a lawsuit brought by the American Civil Liberties Union of Oregon on behalf of protesters and freelance journalists. The suit names the Department of Homeland Security and argues that officers’ use of chemical munitions amounts to retaliation that chills First Amendment rights.
The order followed a three-day hearing in which plaintiffs — including a demonstrator known for wearing a chicken costume, a married couple in their 80s and two freelance journalists — testified that federal officers used chemical spray and projectile munitions against them.
In his written opinion, Simon said video evidence submitted in court depicted officers spraying OC spray into the faces of protesters engaged in passive resistance and deploying tear gas and pepper-ball rounds into crowds.
JUDGE RULES FEDERAL AGENTS MUST LIMIT TEAR GAS AT PROTESTS NEAR PORTLAND ICE BUILDING
“Plaintiffs provided numerous videos, which were received in evidence and unambiguously show DHS officers spraying OC Spray directly into the faces of peaceful and nonviolent protesters engaged in, at most, passive resistance and discharging tear gas and firing pepper-ball munitions into crowds of peaceful and nonviolent protestors,” Simon wrote.
“Defendants’ conduct — physically harming protestors and journalists without prior dispersal warnings — is objectively chilling.”
The Department of Homeland Security has previously said that the agents have “followed their training and used the minimum amount of force necessary to protect themselves, the public, and federal property.”
A federal judge also ruled to restrict agents’ use of tear gas in a separate case brought by the residents of an affordable housing complex across the street from the ICE building.
This comes amid demonstrations across the country against President Donald Trump’s mass deportation agenda.
In his ruling, Simon barred agents from using chemical or projectile munitions such as pepper balls and tear gas unless someone poses an imminent threat of physical harm. He also instructed agents not to fire munitions at the head, neck or torso “unless the officer is legally justified in using deadly force against that person.”
Agents are also prohibited from the use of pepper spray against a group in an indiscriminate way that would affect bystanders. Additionally, they must only target people who are engaging in violent unlawful conduct or actively resisting arrest, or use it “as reasonably necessary in a defensive capacity.”
Simon said that trespassing, refusing to move and refusing to obey an order to disperse are acts of passive resistance, not active resistance.
The judge also granted provisional class certification, which means his order covers a broader group of all people who have peacefully protested or reported on demonstrations at the ICE building in recent months.
The preliminary injunction will remain in place while the lawsuit proceeds.
Last month, Portland Mayor Keith Wilson called on ICE to leave the city after federal officers deployed tear gas at a crowd of demonstrators outside the agency’s building. The mayor described the protests as peaceful and criticized federal officers’ use of pepper balls, flash-bang grenades and rubber bullets.
“Federal forces deployed heavy waves of chemical munitions, impacting a peaceful daytime protest where the vast majority of those present violated no laws, made no threat, and posed no danger to federal forces,” he said in a statement at the time.
“To those who continue to work for ICE: Resign. To those who control this facility: Leave,” he said, accusing federal officials of “trampling the Constitution.”
