Appeals court won’t revisit tear gas limits sought by residents near Portland ICE facility

Federal appeals judges on Thursday declined to reconsider a case recently decided by three of their peers that allows federal agents at the Portland Immigration and Customs Enforcement facility to use crowd control weapons on protestors without new restrictions. 

The decision by the 9th Circuit Court of Appeals not to relitigate the case comes in response to a request from residents and lawyers representing the housing nonprofit Reach Community Development, who asked for an “en banc” or “full court” review of a three-judge-panel’s decision. The residents, who live in a Reach low-income apartment complex near the Portland ICE facility, and who have been continuously exposed to tear gas and chemical munitions deployed against protestors by federal officers, lost their case against the federal government in April that was meant to restrict officers use of crowd control weapons.

In that case, 9th Circuit Judge Kenneth Lee and Judge Eric Tung, both Trump appointees, overturned a lower court order restricting federal officers’ use of force and chemicals. The third Judge, Ana de Alba, a Biden appointee, dissented.

Lee and Tung ruled that residents have no right under the U.S. Constitution to “be free of exposure to chemicals that were released when federal law enforcement officers used tear gas and other non-lethal devices to disperse the crowds.” Lawyers for the apartment complex residents had hoped that a majority of the 9th Circuit’s 29 judges would agree the case should be reheard and assign a new larger panel to deliberate on it. 

But the court on Thursday afternoon delivered a notice that none of the judges had agreed to rehear the case, effectively upholding Tung and Lee’s decision. A representative for Democracy Forward, a D.C-based nonprofit legal group that provided counsel in the case, did not immediately have any comment. A spokesperson for the U.S. Department of Homeland Security did not immediately provide any comment after requesting to review a copy of the decision. 

Since last summer, the Portland ICE facility has been the site of largely peaceful protests against increasingly aggressive federal immigration enforcement operations that have swept up children, legal residents and U.S. citizens. The protests grew following President Donald Trump’s attempted deployment of the National Guard to Portland and again after federal agents killed two U.S. citizens in Minnesota in January. Over the past few months, federal agents have used significantly less force against protesters, which have declined in number.

The federal government argued that it was deploying lawful crowd control measures against violent protesters, though it has only charged a fraction of the thousands of protesters at the site. Residents, however, disputed that framing in court hearings and said they have had persistent and harmful exposure to tear gas, pepper balls and smoke grenades. They said the excessive use of chemical munitions in the area that have seeped into their homes has left them traumatized and induced wheezing, migraines and hives. Some reported sleeping in their bathtubs and wearing gas masks to bed.