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Tear gas and other crowd control weaponry will continue to be fair game for federal agents to use at Portland’s U.S. Immigration and Customs Enforcement facility, following a 2–1 decision by a federal appeals court this week.
Portland area federal district courts had earlier this year restricted federal agents from using a range of crowed control tactics near the ICE facility, siding with plaintiffs who’d accused the feds of using disproportionate force during months of contentious anti-Trump administration protests in the area.
But the higher court now says those judges overstepped. The ruling is not a major surprise; the majority on the 9th U.S. Circuit Court of Appeals panel had already suspended the lower court injunctions. But the more durable Monday ruling from Judges Kenneth Lee and Eric Tung elaborated on their rationale.
At times citing Trump administration press releases as the basis for their account, the appellate judges, Trump appointees both, emphasized the aggressiveness and unruliness of protesters at ICE. The judges said the lower courts’ drew overly broad red lines, prohibiting federal agents from using common crowd control tactics even when crowds genuinely needed controlling.
Their ruling had technical aspects. But it also drew on explicitly subjective judgments: A lower court judge had urged, for example, that the appeals court review what he described as “unambiguous and disturbing” videos of alleged violent excesses by federal agents.
The appeals judges said they “reviewed dozens of video clips—and we come to a different conclusion.”
Meanwhile, the third member of the appellate panel, Judge Ana de Alba, saw the videos in a different light: footage of a federal officer shooting a projectile at a protester who was walking away, or shooting a projectile at people dancing the Cha Cha Slide, was indeed “unambiguous and disturbing,” she wrote. She cast the loan dissenting vote.
The majority’s ruling arrives less than a week before May Day protest events.
