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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.”
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The order applies to the use of “kinetic impact projectiles, pepper ball or paintball guns, pepper or oleoresin capsicum spray, tear gas or other chemical irritants, soft nose rounds, 40mm or 37mm launchers, less lethal shotguns, and flashbang, Stinger, or rubber ball grenades.”
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 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 Department of Homeland Security said federal officers have “followed their training and used the minimum amount of force necessary to protect themselves, the public, and federal property.”
“The First Amendment protects speech and peaceful assembly — not rioting,” spokesperson Tricia McLaughlin said in an emailed statement in response to the ruling. “DHS is taking appropriate and constitutional measures to uphold the rule of law and protect our officers and the public from dangerous rioters.
Portland Mayor Keith Wilson said in a statement that the ruling “confirms what we’ve said from the beginning. Federal agents have used unconscionable levels of force against a community exercising their constitutional right to free expression.”
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.
In November, 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.
In October, 83-year-old Vietnam War veteran Richard Eckman and his 84-year-old wife Laurie Eckman joined a peaceful march to the ICE building. Federal officers then launched chemical munitions at the crowd, hitting Laurie Eckman in the head with a pepper ball and causing her to bleed, according to the complaint. With bloody clothes and hair, she sought treatment at a hospital, which gave her instructions for caring for a concussion. A munition also hit her husband’s walker, the complaint says.
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 the use of chemical munitions. 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.”
The protest was one of many similar demonstrations nationwide against the immigration crackdown in cities like Minneapolis, where in recent weeks, federal agents killed two people, Alex Pretti and Renee Good.
