PORTLAND, Oregon — A divided panel of the U.S. Court of Appeals for the Ninth Circuit on Tuesday, November 10, vacated two preliminary injunctions that had restricted how federal officers may use tear gas, pepper balls and other chemical munitions outside the U.S. Immigration and Customs Enforcement (ICE) facility in Portland. Both rulings were 2-1, both are published opinions — which makes them binding precedent across the nine-state Ninth Circuit — and both leave the underlying lawsuits alive in the district court below.
Source: Bloomberg Law
In the first case, Dickinson v. Trump (No. 26-1609), Circuit Judge Kenneth K. Lee, joined by Circuit Judge Eric C. Tung, held that protesters and independent journalists who sued over crowd-control tactics outside the facility were unlikely to win their claim that officers used munitions to retaliate against protected speech. In the second, REACH Community Development v. DHS (No. 26-1575), Judge Tung wrote for the majority that residents of the apartment complex next door have no substantive due process right to be free from crowd-control chemicals. Circuit Judge Ana de Alba dissented in part in Dickinson and in full in REACH.
How the cases got here
The ICE facility in South Portland has been the site of sustained protest since June 2025. The court record cited in coverage of the rulings counts at least 150 demonstrations at the facility between June 2025 and February 2026, some drawing several thousand people. Federal officers with the Department of Homeland Security (DHS) repeatedly used tear gas, pepper balls and other non-lethal munitions to disperse crowds, according to the lawsuits.
In Dickinson, five protesters and independent journalists alleged that officers fired tear gas and pepper balls to punish protected speech. U.S. District Judge Michael H. Simon granted a temporary restraining order in February 2026 and, on March 9, a preliminary injunction with a provisionally certified class of nonviolent protesters and reporters. That order barred munitions unless someone posed an imminent threat of physical harm, and required officer uniform markings. The same appellate panel stayed that injunction on April 27 while the appeal proceeded, and heard argument on both appeals on July 10 in Pasadena.
In REACH, the plaintiffs are residents of Gray's Landing, a 209-unit affordable-housing complex roughly 100 feet — kitty-corner — from the ICE facility, and its owner, REACH Community Development. They said gas repeatedly drifted into their homes. Their lawyers at Democracy Forward say residents, including children, seniors, veterans and people with disabilities, reported chemical agents seeping into apartments, hallways and common areas, causing respiratory distress, chest pain and panic attacks, and that some residents sealed their homes and wore gas masks indoors. U.S. District Judge Amy M. Baggio issued an injunction in early March barring officers from deploying tear gas, smoke grenades, pepper balls and other agents in ways likely to reach the complex; a Ninth Circuit motions panel later paused it during the appeal.
Source: Democracy Forward (plaintiffs' counsel)
What the majority said
Judge Lee wrote that the district court applied the wrong standard by requiring an imminent threat of physical harm before officers could use non-lethal munitions. Relying on the circuit's 2024 decision in Puente v. City of Phoenix, the majority held that officers may respond to imminent lawlessness and to the character of a demonstration as a whole. Peaceful protesters caught in the response were, in the opinion's words, “unfortunate collateral casualties” of efforts to control an unruly crowd rather than targets of retaliation, and the panel found no showing of an unwritten retaliatory policy, noting that DHS policy forbids retaliation. As Judge Lee put it in a passage quoted across Tuesday's coverage: “Law enforcement 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 Dickinson majority also held the injunction too broad: under the Supreme Court's decision in Trump v. CASA, it protected people who were not parties to the case, and the uniform-marking requirement exceeded the court's power, the panel said. It vacated the provisional class as well, finding it grouped peaceful sign-holders together with people who allegedly blocked the facility driveway or damaged the building, so the class failed the commonality and indivisible-relief requirements of Rule 23.
In REACH, Judge Tung applied the history-and-tradition test associated with Washington v. Glucksberg and Dobbs, holding that a right to be free from incidental exposure to crowd-control chemicals is not deeply rooted in the nation's history, and declining to treat the “shocks the conscience” test as enough on its own to establish a claim. “Plaintiffs would return us to a time before Glucksberg and Dobbs,” the opinion said. The residents' injunction was vacated outright.
Source: Ninth Circuit opinions, via Immigration Analytics
Judge Ana de Alba would have kept the ban on firing munitions at the head, neck or torso absent justification for deadly force, and would have upheld class certification in Dickinson; she read the video, testimony and expert evidence as supporting a likely finding of retaliation. In REACH she would have applied the conscience-shocking standard and found the residents likely to succeed, citing the district court's findings of widespread, planned deployment near the complex despite notice of harm to residents. Coverage of the rulings also summarised her dissents as arguing the evidence demonstrated serious misconduct by federal officers.
What the rulings do — and do not — decide
The decisions do not address anyone's immigration status, and they are rulings on preliminary relief, not final judgments: both lawsuits return to the District of Oregon, before Judges Simon and Baggio, though the appellate holdings on the law will constrain what relief is available there. Because the opinions are published, their reasoning — the Puente “whole demonstration” framing for retaliation claims, and the Rule 23 scepticism toward protest classes — now binds district courts across the Ninth Circuit's nine Western states when they are asked to supervise federal enforcement operations at ICE sites and other federal facilities.
The plaintiffs in REACH responded jointly through their counsel: “We are disappointed by the court's decision and the outcome of this case… While the court has ruled against our claims, nothing changes the experiences of the families, children, seniors, veterans, and people with disabilities who came forward to tell their stories.” They said they remain committed to supporting the residents and advocating for their safety. DHS had not, in the coverage reviewed, issued a separate statement on Tuesday's rulings beyond the government's litigation position.
What happens next
The losing plaintiffs can ask the same panel to rehear the cases or seek rehearing before a larger en banc panel of the Ninth Circuit; under the federal appellate rules, such petitions are generally due within 45 days when a federal agency is a party. The government, for its part, keeps the practical position it has held since the April stay: no court order currently limits munitions at the Portland facility to imminent-threat situations. For readers who follow immigration enforcement — including Punjabi and other immigrant families across the U.S. West who have watched protests and counter-protests at ICE buildings — the rulings set the legal ground rules for how those demonstrations may be policed while the wider enforcement debate continues in Congress and in the courts.