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PORTLAND, Ore. — The U.S. Court of Appeals for the Ninth Circuit has overturned two preliminary injunctions restricting federal agents’ use of chemical munitions near Portland’s ICE building, including an order protecting nearby Gray’s Landing residents.
Tuesday’s rulings, issued November 10, came in separate cases brought by residents and property entities, and by peaceful protesters and independent journalists.
In the protesters’ and journalists’ case, five plaintiffs exposed to tear gas or pepper balls sued President Donald Trump and the U.S. Department of Homeland Security, claiming that the government targeted them for exercising their First Amendment rights.
The appeals panel said it had previously stayed the preliminary injunction pending appeal because the government had made a strong showing that it would likely succeed on the merits.
Reaffirming that holding, the majority vacated the preliminary injunction and provisional class certification. It found that the plaintiffs had not shown they were likely to succeed on their claim that federal agents retaliated against them for exercising their First Amendment rights.
The majority described the plaintiffs as “unfortunate collateral casualties” of federal agents’ efforts to quell an unruly and sometimes violent crowd.
Judge Ana de Alba partly dissented. She would have preserved the prohibition on firing munitions at a person’s head, neck, or torso unless deadly force was legally justified. The majority did not preserve that restriction.
The Court Rejects Gray’s Landing Residents’ Request for Protection
In the separate Gray’s Landing case, the panel also vacated the preliminary injunction sought by residents and property entities to protect them from chemical munitions entering their homes.
The majority held that they had not established a substantive-due-process right to be free from exposure to the government’s use of non-lethal crowd-control devices in response to disruptive demonstrations.
The court found that the plaintiffs had failed to satisfy the historical inquiry required for their claimed constitutional right. De Alba dissented in that case as well.
Gray’s Landing Residents Report Health Issues From Chemicals
According to the plaintiffs, residents of the 209-unit Gray’s Landing housing complex complained about chemicals infiltrating their apartments. Those affected included children, seniors, veterans, and people with disabilities.
They said chemicals used at the nearby ICE building seeped into apartments, hallways, and common areas, causing respiratory distress, chest pain, panic attacks, and other health issues.
Some residents said they sealed their homes and wore gas masks indoors to limit exposure.
The residents expressed disappointment with the court’s decision.
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