Trump administration seeks continuation of tear gas use at Portland ICE facility

The Trump administration has petitioned the Ninth Circuit Court of Appeals to allow federal agents to continue using chemical munitions and tear gas at will outside the Immigration and Customs Enforcement (ICE) facility in Portland. Government attorneys requested the removal of usage restrictions imposed by two separate court orders, arguing that law enforcement has a legal right to resort to these methods to ensure security. Deputy Solicitor General Brenna Scully argued that the plaintiffs do not possess a fundamental right, rooted in U.S. history and tradition, to be protected from airborne toxic gases. Two separate lawsuits address the use of items such as tear gas grenades and pepper guns by federal agents against protesters and civilians. An appeals court panel, featuring a majority of Trump-appointed judges, convened to hear the claims and legal arguments in question.

The first lawsuit was filed by a group of protesters and journalists who claimed they were subjected to tear gas in retaliation for exercising their First Amendment free speech rights. Additionally, residents of a low-income housing complex across from the facility sued the federal government in 2025, alleging that agents deliberately fired chemical munitions into the apartment complex. The residents emphasized that they were exposed to harmful chemicals due to these actions, constituting a severe violation of their bodily integrity. District Court Judges Michael Simon and Amy Baggio issued injunctions and restrictive orders to prevent the dissemination of the munitions in order to protect civilians from being threatened. These decisions prohibited federal agents from using chemical gases unless there was legitimate cause requiring the use of deadly force for crowd control.

In late April, the Ninth Circuit Court suspended the enforcement of these injunctions issued in both lawsuits. Subsequently, the government argued that the lower court had invented a previously unrecognized 'new fundamental right' and imposed an overly broad ban in the residents' lawsuit. Prosecutors contended that law enforcement is tasked with balancing public safety interests and that the use of tear gas as a crowd control measure is not a conscience-shocking act. The government further rejected the accusations by asserting there was no concrete evidence in the lower court proving that the agents acted with intent to harm or exhibited deliberate indifference. Judges on the panel, however, questioned the government's arguments and law enforcement's right to exercise discretion from different angles.

During the hearing, Biden-appointed Circuit Judge Ana de Alba cast doubt on the government's security concerns by questioning why federal agents brought conservative social media phenomena to the area if the crowd situation around the ICE facility was truly that dangerous. Trump-appointed Judge Kenneth Lee raised allegations that protesters claimed gas was used merely for show in order to exaggerate the federal agents' perception of danger on social media. In response, government attorney Scully continued the defense by stating that the lower court made no definitive findings regarding these social media allegations. While discussing the potential devastation of gas use on civilians, Judge Lee broadened the issue to a wider constitutional framework, drawing various legal comparisons. This intense question-and-answer round demonstrated that the panel members were trying to understand the complex aspects of the case and the intentions behind the events.

Stephen Wirth, an attorney speaking on behalf of the plaintiffs, stated that the court must evaluate whether the law enforcement's actions shock the conscience, and asserted that the situation his clients were subjected to absolutely falls into this category. Wirth condemned the agents' actions, emphasizing that the government knowingly and repeatedly caused toxic chemicals to permeate innocent people's homes and bodies, resulting in irreparable damage. Representatives for the residents argued that while police had other crowd-dispersal tools available in the area, they chose to use massive amounts of tear gas immediately outside residential areas. The plaintiffs added that the evidence clearly shows police used gas repeatedly even in the absence of any threat, stating that this disproportionate force must be stopped. It is believed that this intensive legal appeal, presented by both sides in their own favor, will redefine sensitive balances in the country regarding deeply divisive issues such as police brutality, protester rights, and immigration policies.