Since June 2025, the Portland ICE facility has been the site of significant unrest, with hundreds of protests involving thousands of participants. While many protesters exercised their First Amendment rights peacefully, others engaged in unlawful conduct, including blocking the facility's driveway, vandalizing security cameras, throwing projectiles, and physically assaulting officers. In response, federal agents used tear gas, pepper balls, and other non-lethal munitions to disperse the crowds. Five plaintiffs, including protesters and journalists, sued the government, alleging that DHS officers specifically targeted them with excessive force in retaliation for their First Amendment activities. The district court issued a preliminary injunction that severely restricted the use of crowd-control devices, requiring an imminent threat of physical harm before deployment and mandating that officers wear uniforms with conspicuous identifying markings. The government appealed, seeking a stay of the injunction pending review.
The Ninth Circuit granted the stay, finding the government made a strong showing that it would likely succeed on the merits of its First Amendment retaliation claim. The court reasoned that the district court erred in its legal analysis by conflating the standard for dispersing unlawful conduct with the standard for physical harm. Citing Puente v. City of Phoenix, the court clarified that the First Amendment does not protect vandalism, criminal trespass, or obstruction of law enforcement. Officers are permitted to use non-lethal force in response to 'imminent lawlessness,' which includes threats to public safety, peace, or order, even if there is no immediate threat of physical harm to specific officers. The court found no evidence that the agents had the subjective intent to retaliate against the plaintiffs or that the government maintained an unwritten policy of retaliation. The record showed that the plaintiffs were collateral casualties in a chaotic effort to quell disorder rather than specific targets of animus. Furthermore, the court held the injunction was grossly overbroad. It improperly extended relief to non-parties, violating Article III limits established in Trump v. CASA, Inc. The district court also exceeded its authority by ordering a redesign of DHS uniforms, a remedy the court described as beyond the power of federal courts to fashion. Finally, the court noted the injunction was unworkable and dangerous, as it would force officers to rely on physical intervention in the face of violent crowds, increasing the risk of injury.
The government may immediately resume using non-lethal munitions to disperse crowds engaging in illegal conduct, such as trespassing and vandalism, at the Portland ICE facility. The stay halts the district court's proceedings pending the resolution of the appeal. The decision clarifies that federal officers have broader authority to use crowd-control tactics against unlawful behavior than previously interpreted by the district court, provided the force is objectively reasonable in the face of imminent lawlessness. The uniform redesign requirement is effectively nullified by the stay.