Key Points

  • The Ninth Circuit vacated a preliminary injunction restricting DHS officers' use of tear gas, pepper balls and other non-lethal munitions at the Portland ICE facility.
  • The majority held that under Puente v. City of Phoenix officers may disperse crowds in response to disorder, trespass or traffic obstruction, not only imminent threats of physical harm, and that the record did not show retaliatory intent or an unwritten retaliation policy.
  • The court held the injunction overbroad under Trump v. CASA because it protected non-parties, and held that ordering redesigned agent uniforms exceeded the district court's power.
  • The court vacated the provisional class, holding that Rule 23's evidentiary rigor applies to provisional classes and that the class lacked commonality and failed Rule 23(b)(2)'s indivisible-remedy requirement.
  • Judge de Alba, dissenting in part, would have upheld the ban on firing munitions at the head, neck or torso and the provisional class certification.

A divided federal appeals court on Nov. 10 vacated an order that had barred federal agents from using tear gas, pepper balls and other crowd-control weapons on protesters outside the U.S. Immigration and Customs Enforcement building in Portland, Oregon, unless someone posed an imminent threat of physical harm.

The 2-1 decision by the 9th U.S. Circuit Court of Appeals, written by Judge Kenneth K. Lee and joined by Judge Eric C. Tung, also threw out the trial court's provisional certification of a class of all people who nonviolently protest or report at the facility. It struck down a directive that agents' uniforms be redesigned with more visible identifying markings. Judge Ana de Alba dissented in part.

The ruling holds that federal officers may disperse a crowd in response to trespassing, blocked traffic and similar disorder, not only threats of physical harm. It also holds that a judge who certifies a class provisionally, to support emergency relief, must demand the same proof required for ordinary class certification. The panel had paused the injunction in an earlier stay order; the new opinion vacated it.

The suit was brought by five protesters and freelance journalists: Jack Dickinson, who wears a chicken suit to protests and is known as the Portland Chicken; Laurie and Richard Eckman; Hugo Rios; and Mason Lake. They sued President Donald J. Trump and the Department of Homeland Security, alleging that DHS officers shot, sprayed or gassed them under an unwritten policy of retaliating against peaceful protesters.

After discovery and a three-day evidentiary hearing, U.S. District Judge Michael H. Simon of the District of Oregon issued a preliminary injunction. It limited munitions to targets posing "an imminent threat of physical harm," banned firing them "at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person," restricted pepper spray, and directed the parties to confer on placing "conspicuous and unique identifying markings" on agents' uniforms.

Lee's opinion said at least 150 protests were staged at the facility between June 2025 and February 2026, and it described demonstrators who blocked the driveway, smashed security cameras and threw rocks and bricks at officers. Lee wrote that the plaintiffs "appear to be unfortunate collateral casualties of federal agents' efforts to quell an unruly and sometimes violent crowd."

The majority held that the plaintiffs were unlikely to succeed on their retaliation claim, which requires proof that officers acted because of the protected speech. Relying on the 9th Circuit's 2024 decision in Puente v. City of Phoenix, the court said officers may use non-lethal force when there is a "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order."

Lee rejected the dissent's focus on individual incidents. "If we airbrush away the surrounding unlawful activities, we are left with a sanitized portrait of only peaceful protestors," he wrote. Of the plaintiffs' videos, which the district court called "unambiguous and disturbing," Lee wrote, "We have reviewed the dozens of video clips—and we come to a different conclusion." The majority found no unwritten retaliation policy, noting that DHS's written policy forbids it.

The panel also held the injunction overbroad because it protected anyone protesting at the facility, not just the five plaintiffs, which the majority said conflicted with the Supreme Court's 2025 decision in Trump v. CASA limiting relief to the parties. "Talismanic incantation of 'complete relief' is not a free pass around CASA," Lee wrote. On the uniform order, he wrote, "Courts cannot be the couture of the executive branch."

On the class, the majority held that the plaintiffs failed to show commonality, the requirement that class members' claims turn on a shared question whose answer resolves them all. Lee wrote that "this demanding requirement applies equally to so-called provisional classes, even assuming that they are valid." The class, he wrote, swept in sidewalk sign-holders and vandals alike: "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."

The court added that the class failed Rule 23(b)(2), which allows a class seeking an injunction only when one order would give relief to every member. Because members were harmed differently or not at all, each would be entitled to "a different injunction or declaratory judgment" or none, the majority held. The panel did not decide the government's argument that the plaintiffs lacked standing to sue.

Judge de Alba agreed that the injunction's imminent-threat limit, the pepper-spray restriction and the uniform provision were overbroad, but she would have kept the ban on aiming at the head, neck or torso. "This prohibition protects essential First Amendment rights, and the district court did not abuse its discretion in issuing it," she wrote. She said the trial judge "relied on an avalanche of circumstantial evidence" of retaliatory intent.

Her dissent recounted testimony that Laurie Eckman, then in her eighties, was struck near her right temple during an Oct. 4, 2025 protest and later treated for a concussion. On the class question, de Alba wrote that the trial court certified the class "based on an unlawful practice of First Amendment retaliation that affects all the class members and is the glue holding the class together."

At the July 10 argument in Pasadena, California, Kimberly S. Hutchison of Singleton Schreiber LLP and Matthew B. Borden of BraunHagey & Borden LLP argued for the plaintiffs, and Michael Shih and Douglas C. Dreier of the Justice Department's Civil Division argued for the government. Jona J. Maukonen of the Office of the Oregon Attorney General appeared for the State of Oregon as amicus curiae.

The ruling leaves no preliminary injunction and no certified class in place in the district court case, No. 3:25-cv-02170-SI.