Ninth Circuit Overturns Injunctions on Crowd-Control Weapons at Portland ICE Facility

The U.S. Court of Appeals for the Ninth Circuit issued two 2-1 decisions on April 27 2026 that vacated the district courts’ injunctions limiting tear gas, flash-bangs and pepper balls outside Portland’s ICE building. The panel said the lower courts “erred in handcuffing the government’s ability to counter unlawful behavior,” restoring unrestricted use of non-lethal munitions when officers deem a physical threat imminent.

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In March 2026, Judge Michael Simon limited crowd-control weapons to imminent threats in a case filed by five protesters, journalists and the ACLU of Oregon. Tenants of Gray’s Landing, represented by REACH Community Development, sued after Judge Amy Baggio found officers knowingly exposed them to harmful chemicals. The Justice Department appealed both orders. The district courts had also required officers to avoid chemical deployment that could affect nearby residents. Protests typically drew about 500 participants, and the appellate panel reviewed eight sworn video depositions.

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The Ninth Circuit panel comprised Judges Eric Tung and Kenneth Lee (Trump appointees) and Judge Ana de Alba (Biden appointee). Plaintiffs included protesters, journalists, the ACLU of Oregon and Gray’s Landing tenants. The Department of Homeland Security, via its Federal Protective Service, defended the use of crowd-control weapons.

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The Justice Department said the injunctions created a dangerous situation that cut off essential crowd-control tools. The majority opinion warned that blocking the ICE entrance is not First-Amendment protected.

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Gray’s Landing tenants’ attorneys called the ruling “deeply disappointing,” saying it removes critical health protections. Judge Tung dismissed the claim as a “NIMBY” grievance lacking constitutional basis.

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The appellate court found no evidence of an “unwritten policy” or retaliation, contradicting the district court’s finding of excessive force. Whether tear-gas reached Gray’s Landing remains undocumented.

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• “No such right exists in the Constitution,” — Judge Eric Tung

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• “Much of the evidence shows the government trying to clear the entrance to the ICE facility in the face of unrest and an unruly crowd,” — Judge Kenneth Lee

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• “We are deeply disappointed by the court’s decision to eliminate critical protections for the residents of Gray’s Landing,” — Attorneys for Gray’s Landing tenants

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• “Our founding document does not address neighborhood grievances concerning unwanted smells and gas – no matter how unpleasant those may be,” — Judge Eric Tung

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The Gray’s Landing coalition may seek rehearing before a larger Ninth Circuit panel or petition the U.S. Supreme Court. The ACLU of Oregon said it will pursue further legal challenges. Federal agencies are expected to keep using tear gas in future ICE protests pending additional review.

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