Key Points

  • The Ninth Circuit vacated a preliminary injunction that barred several federal agencies from using tear gas to disperse demonstrators outside the Portland ICE facility.
  • The majority held that tenants of a nearby apartment complex have no substantive due process right to be free from exposure to gas from non-lethal crowd-control devices used against disruptive crowds.
  • The court held that a substantive due process challenge to executive action requires both conscience-shocking conduct and a carefully described right deeply rooted in the nation's history and implicit in the concept of ordered liberty.
  • Judge de Alba dissented, arguing that Martinez v. City of Oxnard and Brittain v. Hansen conflict and that the shocks-the-conscience standard alone should govern executive-action cases.
  • The majority did not decide whether the government's conduct shocked the conscience and did not address standing.

A divided federal appeals court on Nov. 10 threw out an order that had barred federal agents from using tear gas to disperse demonstrators outside an Immigration and Customs Enforcement facility in Portland, Oregon, holding that residents of an apartment complex across the street have no constitutional right to be shielded from the gas.

The 2-1 decision by a panel of the U.S. Court of Appeals for the Ninth Circuit vacated a preliminary injunction issued by U.S. District Judge Amy M. Baggio of the District of Oregon. Judge Eric C. Tung wrote the majority opinion, and Judge Kenneth K. Lee joined it. Judge Ana de Alba dissented.

The majority held that a plaintiff challenging an official's conduct must show both that the conduct "shocks the conscience" and that it violated a right deeply rooted in the nation's history and tradition.

The plaintiffs, including Reach Community Development and residents of the Gray's Landing apartments, sued the Department of Homeland Security and four other federal agencies on Dec. 5, 2025. Months before the Nov. 10 ruling, the same panel stayed the injunction. In the Nov. 10 opinion, Judge Tung wrote that the panel had then held that the tenants "lacked a substantive-due-process right to be free from being exposed to gas that wafted over to their complex." Judge Tung wrote that the plaintiffs had since "not unearthed any new historical material to dislodge our earlier conclusion."

In the stay order, the panel had found that non-lethal crowd-control devices "have long been a common tool of law enforcement to disperse crowds that have turned disruptive and violent."

On appeal, the tenants raised a new argument. Relying on County of Sacramento v. Lewis, a 1998 Supreme Court decision, they contended that challenges to executive action, unlike challenges to legislation, need not satisfy the historical test of Washington v. Glucksberg, which the Supreme Court reaffirmed in Dobbs v. Jackson Women's Health Organization.

"That argument is wrong," Judge Tung wrote. He read Lewis as placing a heavier burden on plaintiffs who challenge executive action, and he cited the Ninth Circuit's 2006 decision in Brittain v. Hansen, which held that "[i]t is not enough to allege conscience shocking action." The court held that "to succeed on a substantive-due-process challenge to executive action, a plaintiff must show both that the action shocks the conscience and that the action deprives a right that, carefully described, is deeply rooted in our Nation's history and implicit in the concept of ordered liberty."

Judge Tung wrote that the tenants' approach would revive the "freewheeling judicial policymaking" that Glucksberg and Dobbs ended. "A shocks-the-conscience test without any anchor in longstanding history is an open invitation for courts to make up law—one judge's expectation is another judge's shock," he wrote. He also noted that "nowhere in the Plaintiffs' briefs—or in the district court's opinion—is Dobbs ever mentioned. That omission tells us much."

Because the tenants failed the historical test, the majority did not decide whether the government's conduct shocked the conscience. It did observe that members of the crowd had barricaded officers inside the facility, set federal property on fire, thrown rocks, glass and metal at officers, and aimed high-powered lasers at agents' eyes. "The deployment of non-lethal crowd-control devices to prevent violence from escalating and to protect federal property does not appear to us to shock the conscience," Judge Tung wrote.

Judge de Alba wrote that "the majority too easily declares both the shocks-the-conscience standard and the fundamental-rights standard as applicable in executive-action cases." She would have applied the conscience test alone and upheld Judge Baggio's finding that the tenants were likely to win.

She argued that two lines of Ninth Circuit precedent clash. In Martinez v. City of Oxnard, a 2003 decision, the court said due process protects against state action that "either shocks the conscience or interferes with rights implicit in the concept of ordered liberty." "Martinez and Brittain are in conflict," she wrote, noting that normally "the proper course would be to cal[l] for an en banc panel to resolve the conflict." She concluded instead that the panel could follow Martinez, citing later cases that applied the conscience test alone.

The majority rejected that reading. "This is incorrect. There is no conflict," Judge Tung wrote, because Martinez never addressed whether a right must be historically rooted. He wrote that the dissent "expressly (and remarkably) refuses to follow" Brittain.

Judge de Alba then applied deliberate indifference, a standard under which, where actual deliberation is practical, an officer's deliberate indifference may suffice to shock the conscience. She recounted the district court's findings that officers deployed chemical munitions one and a half to two blocks from the facility on Oct. 4, 2025, and fired "no less than 85 chemical munitions" on Jan. 24, 2026, at least one of which struck Gray's Landing.

She wrote that a Gray's Landing staff member told officers on July 7, 2025, that the gas was poisoning residents, and that the staff member testified the officers laughed at her and joked that the munitions were "environmentally friendly." She also pointed to Homeland Security videos posted to Instagram showing gas clouds blocks from the facility. "The government's apparent deployment of chemical munitions for the purpose of social media content creation is particularly shocking," she wrote.

The case was argued July 10, 2026, in Pasadena, California. Stephen K. Wirth of Jacobson Lawyers Group PLLC argued for the tenants. Brenna H. Scully of the Appellate Staff of the Justice Department's Civil Division argued for the government.

The decision, in No. 26-1575, addresses only the preliminary injunction, which the panel ordered vacated. The majority did not reach the other injunction factors or the question of standing.