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An appeals court has lifted restrictions on the use of tear gas and other “less-lethal” crowd control techniques on Portland’s South Waterfront, a shift that could empower federal agents to take more forceful response to protests in that area.
The decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals is the latest development in the ongoing saga that centers on protests at the area’s U.S. Immigration and Customs Enforcement facility. It comes days before “No Kings” protests against the Trump administration are scheduled across the nation, including in Portland.
For months, federal agents at the federally-leased building aggressively used tear gas and other munitions on protesters and observers. Many, including Portland Police Bureau members, observed that this force often seemed completely out of proportion to the scale of the threat.
Multiple suits were filed over the feds’ tactics, and outcry reached a fever pitch early this year, when federal agents tear gassed a crowd that included many children.
Days later, on Feb. 3, a federal judge severely restricted the Trump administration from using chemical or projectile munitions around facility.
The plaintiffs in that case, Dickinson v. Trump, are protesters and journalists who say the government is violating their constitutional First Amendment rights. (Among them is Jack Dickinson, aka the Portland Chicken.) U.S. District Judge Michael Simon’s order banned the use of the “less lethal” weapons except in situations of imminent danger. He extended that restriction with a March 18 ruling.
Meanwhile, another legal case was afoot. Reach Community Development v. US Department of Homeland Security is a suit filed by 12 residents of an affordable housing complex on the south waterfront called Gray’s Landing. They say the feds’ nearby use of chemical munitions had seeped into their homes and violated their rights. On March 6, the district court judge in that case, Amy Baggio, ruled in their favor, blocking feds in the area from using chemicals in quantities that likely to reach nearby Gray’s Landing. “Such use is prohibited unless it is determined to be necessary to address an imminent threat to life,” she wrote.
The Trump administration appealed. “The injunction irreparably injures the government and the public by impairing officers’ ability to control protests that have turned violent,” its attorneys wrote in one March 18 court filing.
Then came Wednesday’s order by the three-judge panel of the U.S. 9th Circuit Court of Appeals. The judges consolidated the two cases. And they paused both rulings for now.
Only two of the three members of that panel supported this outcome. The majority did not explain their reasoning in depth, but noted that the administrative stay “is intended to ”minimize harm while the court deliberates further.” They granted the Trump administration’s motion, they wrote, to “maintain the status quo” in the meantime.
The lone dissenter, Judge Ana de Alba, had a different definition of what it would mean to maintain the status quo. “The government has not demonstrated that an administrative stay is warranted,” de Alba wrote. “Nor does the government show a sufficient exigency to justify changing the status quo.”
Oral arguments for the appeals court case are set for April 7.
