A federal appeals court on Monday cleared the way for Department of Homeland Security officers to use tear gas, flash-bangs, and pepper balls outside the Immigration and Customs Enforcement facility in Portland, Oregon, striking down two lower-court injunctions that had tied officers' hands for weeks. The pair of 2-1 rulings from the U.S. Court of Appeals for the 9th Circuit dismantled restrictions that two federal district judges had imposed, and delivered a pointed rebuke to the legal reasoning behind them.

The decisions mark a clear win for federal law enforcement at a facility that has been the site of repeated, large-scale protests, and, the court found, a "months-long siege" that included vandalism, blocked entrances, and destruction of security cameras. For the officers stationed there, the rulings restore tools that the Justice Department argued were essential to maintaining order and protecting federal property.

For the protesters, the ACLU of Oregon, and the tenants of a nearby apartment complex who brought the suits, the rulings eliminate protections they had won just weeks earlier. Attorneys for the apartment residents said Monday evening they were "disappointed." The ACLU did not immediately comment.

What the lower courts did, and why the Ninth Circuit disagreed

The cases arrived at the appeals court on parallel tracks. In the first, protesters and independent journalists sued after DHS officers repeatedly deployed chemical munitions outside the Portland ICE building. U.S. District Court Judge Michael Simon found that Homeland Security had what amounted to an "unwritten policy" to use excessive force on demonstrators. In a March 9 order, Simon curbed officers' use of crowd control weapons, permitting them only when officers faced "specific and imminent threats of physical harm." He also wrote that the officers' actions chilled the "exercise of constitutional rights to free speech and free press."

In the second case, tenants of Gray's Landing, an apartment complex directly across the street from the ICE facility, and its operator, REACH Community Development, sued over tear gas drifting into their homes. U.S. District Court Judge Amy Baggio ruled on March 6 that federal officers knew the toxic clouds harmed tenants' health but deployed them anyway.

The Justice Department appealed both injunctions, arguing the lower courts had exceeded their authority and created what it called a dangerous situation by cutting officers off from crowd control tools they rely on. Justice Department attorneys called the Gray's Landing ruling "novel" and "unworkable."

The same three-judge panel heard both appeals. Judges Eric Tung and Kenneth Lee, both appointed by President Donald Trump, formed the majority in each case. Judge Ana de Alba, appointed by President Joe Biden, dissented both times.

The protesters' case: no 'unwritten policy' of retaliation

Judge Kenneth Lee, writing for the majority in the protesters' case, took direct aim at Judge Simon's reasoning. Lee wrote that Simon "incorrectly concluded" protesters were being targeted and that the evidence told a different story:

"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."

Lee acknowledged that "some individual incidents might indicate an arguably disproportionate use of force" but wrote they "alone do not amount to an unwritten policy of retaliation." He pointed to DHS's own written policies, which "expressly prohibit its officers from 'profil[ing], target[ing], or discriminat[ing] against any individual for exercising his or her First Amendment rights.'" Any officer who retaliates against protesters, Lee wrote, "would violate these policies."

The majority also faulted Simon for what it called an "erroneous legal assumption that law enforcement cannot use non-lethal munitions against protesters unless they pose imminent physical harm to the officers." That standard, the court found, was wrong. The pattern of lower courts imposing novel restrictions on federal enforcement has drawn increasing scrutiny, and the Ninth Circuit's language here left little room for ambiguity.

Lee drew a sharp line between lawful protest and criminal conduct. As he wrote in the ruling:

"There is little in common between an Antifa provocateur who destroys the security camera at the ICE facility and a peaceful protester who holds a sign several hundred feet away on the public sidewalk."

That distinction matters. The appeals court found that vandalizing federal property and blocking the entrance to the Portland ICE building "are not protected by the First Amendment." The court also ruled that Simon improperly granted class certification to the protesters, a procedural finding that could make it harder to bring similar suits in the future.

The apartment case: no constitutional right to be free from tear gas

The Gray's Landing case turned on a different question: whether nearby residents had a constitutional right not to be exposed to tear gas drifting from a federal law enforcement operation. Judge Tung's 17-page ruling answered with an unequivocal no.

"No such right exists in the Constitution. Nothing in our constitutional text or structure evinces such a right."

Tung characterized the tenants' claim as a "NIMBY" cause better suited for a tort claim, a state-law nuisance action, not a federal constitutional case. His language was blunt. The ruling stated that the Constitution "does not address neighborhood grievances concerning unwanted smells and gas, no matter how unpleasant those may be."

Justice Department attorneys had argued the lower court's injunction was unworkable in part because predicting where tear gas would drift was inherently speculative. Tung agreed: "All this is guesswork, and where a gas cloud travels will depend much on the weather." The federal government had also argued the injunction caused "irreparable harm" to its ability to maintain order. The appeals court's ruling in this case appears to have gone further than simply lifting the injunction, the judges appear to have tossed out the case altogether.

The ruling lands amid a broader pattern of appellate courts revisiting lower-court orders that restricted federal immigration enforcement, a dynamic that has played out across multiple circuits this year.

The dissent and the evidence left behind

Judge de Alba defended the conclusions of both district judges. In the protesters' case, she cited DHS's own use-of-force policy, which allows force only "when no reasonably effective, safe, and feasible alternative appears to exist." She noted that federal officers complied with a 28-day temporary restraining order "without any indication of problem or prejudice", suggesting, in her view, that the restrictions were workable.

De Alba also wrote that tear gas use was often "disconnected from any law enforcement purposes." Her dissent pointed to the record compiled during a three-day hearing before Judge Simon in March, which included sworn video depositions from Homeland Security officers, primarily with the Federal Protective Service. At least eight officers expressed confusion about actions protected by the First Amendment, proper crowd control tactics, and their own agency's use-of-force policies.

That testimony is worth noting. Officers who cannot articulate the boundaries of their own authority raise legitimate questions about training and accountability. But the majority found those individual incidents did not add up to a systemic policy of retaliation, and the Constitution, as the majority read it, did not require the sweeping restrictions the lower courts imposed.

Portland's long standoff

The rulings arrive after months of escalating confrontations outside the Portland ICE facility. On October 18, 2025, about 500 people gathered following the "No Kings 2.0" rally, and federal officers deployed tear gas, flash-bangs, and pepper balls against demonstrators described in contemporaneous accounts as nonviolent. On January 31, 2026, tear gas filled the air as hundreds of protesters, including children and elderly people, tried to flee. On March 28, 2026, hundreds more gathered outside the facility after the third "No Kings" rally.

Plaintiffs' evidence also described an October 4 response in which federal officers deployed tear gas across multiple city blocks with no clear justification, an incident that was omitted from official incident reports. The New York Post reported that the same Ninth Circuit, in a separate 2-1 ruling, allowed the administration to move forward with deploying National Guard troops to Portland after overturning another lower-court restraining order, finding that the president likely acted within his statutory authority when regular forces proved insufficient to execute federal law.

Taken together, the rulings represent a significant shift in the legal landscape around the Portland ICE facility. Federal officers who were operating under judicial restraints now face none. The Ninth Circuit has also recently blocked a California law that attempted to force ICE agents to show identification, part of a broader trend of appellate courts pushing back on state and local efforts to hamper federal immigration enforcement.

What comes next

Attorneys for the Gray's Landing tenants and REACH Community Development issued a statement Monday evening expressing their disappointment:

"We are deeply disappointed by the court's decision to eliminate critical protections for the residents of Gray's Landing."

Those attorneys retain the option to seek review from a broader panel of the Ninth Circuit or to petition the U.S. Supreme Court. Whether they will do so remains unclear. The ACLU of Oregon, which led the litigation in the protesters' case, did not immediately respond to a request for comment.

Meanwhile, the majority's language sends a signal that extends well beyond Portland. Judge Tung wrote that federal officers had been "tolerating a short-lived" inability to use tear gas while nonetheless facing the risk of violence. Judge Lee wrote that using "non-lethal force to disperse crowds engaging in unlawful behavior does not amount to an unwritten policy of retaliation but rather reflects law enforcement." The pace and intensity of federal immigration enforcement operations show no signs of slowing, and the legal architecture that might have constrained them in Portland has now been dismantled.

Federal officers tasked with protecting a building under siege asked for the tools to do their jobs. Two lower courts said no. The Ninth Circuit said the Constitution doesn't require law enforcement to stand there and take it, and that's a principle that shouldn't require an appellate ruling to understand.