A federal judge on Tuesday issued a temporary order prohibiting federal officers at Portland’s U.S. Immigration and Customs Enforcement building from directing tear gas, pepper balls, rubber bullets or other munitions at people unless they pose a direct and immediate threat.
“The Court finds that the repeated shooting and teargassing of nonviolent protesters at the Portland ICE Building will likely keep recurring” against protesters and journalists, U.S. District Judge Michael H. Simon wrote in a 22-page opinion.
He noted that the “violence” by federal officers “is in no way isolated,” adding: ”Similarly, statements made by DHS (Department of Homeland Security) officials and senior federal executives show that the culture of the agency and its employees is to celebrate violent responses over fair and diplomatic ones.”
Simon’s ruling came in a case filed last year by demonstrators and freelance journalists who have accused federal officers of using excessive force against peaceful protesters outside the ICE building in the city’s South Waterfront neighborhood. The property has been the focal point of protests against President Donald Trump’s aggressive immigration enforcement since last June.
The public interest in protecting First Amendment rights cannot be overemphasized, the judge wrote.
“Freedom of speech, including through political protest, is one of the chief distinctions that sets us apart from totalitarian regimes,” the opinion said.
The judge’s order encompasses the area at and around the ICE building at South Macadam Avenue and Bancroft Street.
No officer may direct or use chemical or projectile munitions, including pepper-ball or paintball guns, pepper or oleoresin capsicum spray, tear gas, flash-bang grenades or other chemical irritants, rubber bullets or other less-lethal weapons against a person unless that individual poses an “imminent threat of physical harm” to a law enforcement officer or someone else, the judge ordered.
He also barred federal officers from firing any weapon or munition at the head, neck or torso of anyone, unless an officer is legally justified in using deadly force.
And he made it clear that federal officers may not use chemical munitions or other projectiles against those alleged to have trespassed or refused to obey an officer’s dispersal order at the ICE facility.
Simon opened his opinion with a sharp rebuke of the Trump administration.
“In a well-functioning constitutional democratic republic, free speech, courageous newsgathering, and nonviolent protest are all permitted, respected, and even celebrated,” he wrote. “In an authoritarian regime, that is not the case.”
“Our nation is now at a crossroad,” he continued. “We have been here before and have previously returned to the right path, notwithstanding an occasional detour. In helping our nation find its constitutional compass, an impartial and independent judiciary operating under the rule of law has a responsibility that it may not shirk.”
The judge set a hearing for March 2 on the protesters’ motion to turn his 14-day temporary order into a longer-lasting preliminary injunction.
A U.S. Homeland Security spokesperson responded to the ruling by appearing to equate the Portland demonstrations to rioting. Portland police have declared a riot at the site only once, in mid-June, over months of protests and have criticized the federal response as overzealous and inappropriate.
The demonstrations had mostly petered out until the administration tried — and failed — to send National Guard troops to the building last fall.
The Homeland Security official also seemed to balk at any restrictions.
“The First Amendment protects speech and peaceful assembly — not rioting,” Assistant Secretary Tricia McLaughlin said in a statement. “DHS is taking appropriate and constitutional measures to uphold the rule of law and protect our officers and the public from dangerous rioters.”
She reiterated that obstructing law enforcement officers is a federal crime and assaulting federal officers is a felony.
Simon’s order comes only days after federal officers fired tear gas and pepper balls and deployed flash-bang grenades into large crowds of protesters who gathered outside the ICE building.
On Saturday, a union-organized “Labor Against ICE” rally drew thousands, including many families with children, who marched to the building around 4 p.m. and were consumed by clouds of gas, moments after 15 to 20 people crossed the building’s property line and approached its security gate.
The next night, federal agents deployed tear gas on a crowd after a small group of protesters pounded on the plywood sides of the ICE facility and rattled its security gate.
Plaintiffs in the case include Jack Dickinson, known for wearing a chicken suit with an American flag to the protests, Laurie and Richard Eckman, a Portland couple in their 80s, and freelance journalists Mason Lake and Hugo Rios. They submitted videos of the force used during the weekend.
The judge said his order will not prevent officers from using “proportional force,” including such less-lethal weapons described in his decision, on anyone who poses an immediate threat of harm.
The federal officers also will not be liable for violating his order if a protester or another person is “incidentally exposed to a crowd-control device,” provided that the device is deployed in a way consistent with the order.
Simon last week had asked each side to negotiate a temporary agreement in lieu of a court order as he moved ahead to schedule a hearing on a preliminary motion to halt the use of chemicals and less-lethal munitions.
When the parties couldn’t agree, they returned Monday to argue before him.
Simon’s order picks up much of the proposal offered by attorneys for the American Civil Liberties Union of Oregon, which filed the suit on behalf of the demonstrators and freelance journalists.
They sought an order to prohibit Homeland Security officers from firing tear gas, flash-bang grenades, pepper balls and rubber bullets against passive demonstrators – or those trespassing or refusing to leave — unless someone poses an imminent threat. They also wanted to prevent officers from firing less-lethal munitions at people’s heads or torsos.
They submitted an assessment of ICE actions from former U.S. Customs and Border Protection Commissioner Gil Kerlikowske, who described what he called a “pervasive pattern” of inappropriate force used by federal officers at the ICE building.
Officers have failed to provide sufficient warnings before using force as required and have used force disproportionate to the danger faced, Kerlikowske said. Federal officers should not fire pepper balls or other munitions indiscriminately into crowds from the roof of the ICE building, he said.
Attorney Andrew Warden of the U.S. Justice Department had argued for an order that would allow officers to deploy less-lethal munitions when “objectively reasonable and necessary,” as defined by their agencies’ policies and after providing a verbal warning. That would include responding to trespassers and protesters refusing to move or obey an order.
Warden said the judge should address only the narrow circumstances of the five named plaintiffs. He also argued that some of the plaintiffs don’t have standing to seek future relief.
“Many of the plaintiffs can only speculate that harm will occur in the future,” he said.
To bolster his ruling, Simon cited Kerlikowske’s declaration and testimony from Portland police Cmdr. Franz Schoening, who said he was “startled” by some of the force he saw used by federal officers when he was a witness in a case last fall involving the threatened deployment of National Guard troops to Portland.
Simon also refused to narrow his temporary order to only the people who filed the suit.
“Were the Court only to enjoin Defendants from teargassing the named Plaintiffs, for example, airborne chemicals from Defendants’ use of gas against other protestors would continue to chill Plaintiffs’ First Amendment rights,” Simon wrote.
He also found evidence to support the claim that federal officers have engaged in retaliatory force without being held accountable for their actions.
He said he has seen “clear instances of excessive force,” including a federal officer shoving a protester forcefully to the ground that was captured by ICE’s own security cameras. It was deemed “inappropriate” and “not reasonable” by a Federal Protective Service deputy regional director, based on his testimony in the National Guard case in federal court in Portland last year. Yet it doesn’t appear that any officer was moved off the street or faced discipline, the judge wrote.
“Rather than reprimanding DHS violence against protesters, senior officials have publicly condoned it,” his ruling said.
“There is more than enough evidence to show that the Plaintiffs’ protected activities were at least a substantial or motivating factor in Defendants’ conduct at issue,” Simon wrote. “Thus, there also is more than enough evidence for the Court’s conclusion that Plaintiffs have shown a likelihood of success on the merits of their claim of First Amendment retaliation.”
The judge directed Homeland Security officials to provide a copy of his temporary restraining order or a comprehensive summary to all federal officers assigned to protect the ICE facility in Portland and then show him what they shared.
Simon’s order doesn’t explicitly say what will happen if an officer violates it, but plaintiffs likely would return to court and ask the judge to hold officers in contempt of his order and issue specific sanctions.
In 2020 during unrest after the police killing of George Floyd in Minneapolis, U.S. District Judge Marco A. Hernandez found Portland police in violation of his order barring police from firing less-lethal rounds and using pepper spray on people engaged in passive resistance.
As sanctions, Hernandez directed Portland police to investigate one particular officer’s use of force and restricted officers with the Police Bureau’s Rapid Response Team from using crowd-control launchers during protests until they completed further training and could “recognize and articulate a threat without speculating and before using less-lethal force.”
The five who filed the ACLU suit before Simon are seeking to turn their case into a class-action challenge, but the judge hasn’t formally classified it as such yet.
In July 2020 amid the city’s racial justice protests, Simon issued a restraining order that temporarily barred federal officers from using force, threats and dispersal orders against journalists or legal observers documenting the daily demonstrations. He extended it to a preliminary injunction, which was upheld by a federal appeals court.
