Federal agents must limit tear gas for now at protests outside Portland ICE building, judge says

PORTLAND, Ore. — A judge in Oregon on Tuesday temporarily restricted federal officers from using tear gas at protests at the U.S. Immigration and Customs Enforcement building in Portland, just days after agents launched gas at a crowd of demonstrators including young children that local officials described as peaceful.

U.S. District Judge Michael Simon ordered federal officers to not use chemical or projectile munitions unless the person targeted poses an imminent threat of physical harm. Simon also limited federal officers from firing munitions at the head, neck or torso ''unless the officer is legally justified in using deadly force against that person.''

Simon, whose temporary restraining order is in effect for 14 days, wrote that the nation "is now at a crossroads.''

''In a well-functioning constitutional democratic republic, free speech, courageous newsgathering, and nonviolent protest are all permitted, respected, and even celebrated,'' he wrote. ''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.''

Ruling follows a lawsuit filed by the ACLU of Oregon

The ruling came in response to a lawsuit filed by the ACLU of Oregon on behalf of protesters and freelance journalists covering demonstrations at the flashpoint U.S. Immigration and Customs Enforcement building.

The suit names as defendants the Department of Homeland Security and its head Kristi Noem, as well as President Donald Trump. It argues that federal officers' use of chemical munitions and excessive force is a retaliation against protesters that chills their First Amendment rights.

''The First Amendment protects speech and peaceful assembly — not rioting," spokesperson Tricia McLaughlin said in an emailed statement. ''DHS is taking appropriate and constitutional measures to uphold the rule of law and protect our officers and the public from dangerous rioters.''

Courts consider question of tear gas use

Judges elsewhere have also considered the issue of federal agents' use of chemical munitions against protesters, as cities across the country have seen demonstrations against the federal immigration enforcement surge.

Last month, a federal appeals court suspended a decision that prohibited federal officers from using tear gas or pepper spray against peaceful protesters in Minnesota who aren't obstructing law enforcement. An appeals court also halted a ruling from a federal judge in Chicago that restricted federal agents from using certain riot control weapons, such as tear gas and pepper balls, unless necessary to prevent an immediate threat. A similar lawsuit brought by the state is now before the same judge.

The Oregon complaint describes instances in which the plaintiffs — including a protester known for wearing a chicken costume, a married couple in their 80s and two freelance journalists — had chemical or ''less-lethal'' munitions used against them.

Jack Dickinson, who frequently attends protests at the ICE building in a chicken suit, has had munitions aimed at him while posing no threat, according to the complaint. Federal officers have shot munitions at his face respirator and at his back, and launched a tear-gas canister that sparked next to his leg and burned a hole in his costume, the complaint says.

Freelance journalists Hugo Rios and Mason Lake have similarly been hit with pepper balls and tear gassed while marked as press, the complaint says.

''Defendants must be enjoined from gassing, shooting, hitting and arresting peaceful Portlanders and journalists willing to document federal abuses as if they are enemy combatants,'' the complaint states. ''Defendants' actions have caused and continue to cause Plaintiffs irreparable harm, including physical injury, fear of arrest, and a chilling of their willingness to exercise rights of speech, press, and assembly.''

Local officials have also spoken out against use of chemical munitions. Portland Mayor Keith Wilson demanded ICE leave the city after federal officers used such munitions Saturday at what he described as a ''peaceful daytime protest where the vast majority of those present violated no laws, made no threat, and posed no danger to federal forces.''

''To those who continue to work for ICE: Resign. To those who control this facility: Leave,'' Wilson wrote in a statement Saturday night. ''To those who continue to make these sickening decisions, go home, look in a mirror, and ask yourselves why you have gassed children.''

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