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A divided Ninth Circuit panel on Nov. 10 threw out two Oregon injunctions that had restricted federal agents’ use of tear gas and other crowd-control munitions outside Portland’s ICE building.
The U.S. Court of Appeals for the Ninth Circuit on Tuesday, Nov. 10, 2026, vacated two preliminary injunctions issued by federal judges in Portland, Oregon, that limited how the Department of Homeland Security could police protests at the city’s U.S. Immigration and Customs Enforcement facility. In Dickinson v. Trump (No. 26-1609), Judge Kenneth K. Lee, joined by Judge Eric C. Tung, wrote that protesters and journalists were unlikely to win their First Amendment retaliation claim. In Reach Community Development v. DHS (No. 26-1575), Judge Tung wrote that neighboring apartment residents had no substantive due process right to be free from crowd-control chemicals. Judge Ana de Alba dissented in part in the first case and in full in the second. Both opinions are published, and so binding precedent in the circuit.
The decisions do not address anyone’s immigration status. Still, they matter to the immigration field because they set rules on how far district courts in nine Western states can go in supervising federal enforcement operations at ICE sites. The Dickinson opinion also leans on Trump v. CASA to limit relief to named plaintiffs, a theme that runs through immigration litigation since the Supreme Court restricted universal injunctions.
How the cases got here
Both suits grew out of months of protests outside the ICE building in South Portland. In Dickinson (D. Or. No. 3:25-cv-02170-SI), five protesters and independent journalists alleged that federal officers fired tear gas and pepper balls to punish protected speech. U.S. District Judge Michael H. Simon granted a temporary restraining order in February and, on March 9, 2026, a preliminary injunction plus provisional certification of a class of nonviolent protesters and reporters, according to the ACLU of Oregon’s case timeline. The order limited munitions to situations involving an imminent threat and required officer uniform markings.
In Reach (D. Or. No. 3:25-cv-02257-AB), the owner and residents of Gray’s Landing, an affordable-housing complex roughly 100 feet from the facility, said gas drifted into their homes. U.S. District Judge Amy M. Baggio issued an injunction in early March barring chemical munitions likely to reach the complex, Legal Newsline reported.
The same three-judge panel stayed the Dickinson injunction on April 27, 2026, and heard argument on both appeals on July 10 in Pasadena. Tuesday’s opinions resolve those appeals on the merits of the preliminary injunctions.
Dickinson: retaliation claim, overbreadth and the class
The majority held the district court applied the wrong standard by requiring an imminent threat of physical harm before officers could use non-lethal munitions. Relying on the circuit’s 2024 decision in Puente v. City of Phoenix, Judge Lee wrote that officers may respond to imminent lawlessness and to the character of a demonstration as a whole. Peaceful protesters caught in the response were, in the opinion’s words, “unfortunate collateral casualties” of efforts to control an unruly crowd, rather than targets of retaliation. The panel also found no showing of an unwritten retaliatory policy, noting that DHS policy forbids retaliation.
On remedy, the majority said the injunction was too broad under Trump v. CASA because it protected nonparties, and that the uniform-marking requirement exceeded the court’s power. It also vacated the provisional class, finding it failed Rule 23(a)’s commonality requirement and Rule 23(b)(2)’s requirement of indivisible relief, because it grouped peaceful sign-holders with people who allegedly blocked the driveway or damaged the building.
Judge de Alba would have kept the ban on firing munitions at the head, neck or torso absent justification for deadly force, and would have upheld class certification. She read the video, testimony and expert evidence as supporting a likely finding of retaliation.
Reach: no due process right against tear gas exposure
Judge Tung’s opinion applied the history-and-tradition test of Washington v. Glucksberg and Dobbs, holding that a right to be free from incidental exposure to crowd-control chemicals is not deeply rooted in the nation’s history. The majority declined to treat the “shocks the conscience” test as enough on its own to establish a claim against executive action, and did not decide whether the agents’ conduct met that test. “Plaintiffs would return us to a time before Glucksberg and Dobbs,” the opinion said. The injunction was vacated outright.
Dissenting, Judge de Alba would have applied the conscience-shocking standard and found the residents likely to succeed, citing the district court’s findings of widespread, planned deployment near the complex despite notice of harm to residents.
What it means in practice
- Litigators challenging ICE operations: In the Ninth Circuit, First Amendment retaliation claims over crowd control now face the Puente “whole demonstration” framing, and broad protective orders must be tied to named plaintiffs or a properly certified class.
- Class actions against DHS: The Rule 23 analysis signals skepticism of classes defined by participation in mixed protest activity, which may shape how advocates draft class definitions in other enforcement cases.
- Scope: These are rulings on preliminary relief, not final judgments. The underlying cases return to the District of Oregon, though the appellate holdings on the law will constrain what relief is available there.
Dates and decisions to watch
- Whether the plaintiffs seek panel or en banc rehearing; under the federal appellate rules, such petitions are generally due within 45 days when a federal agency is a party.
- Further proceedings before Judges Simon and Baggio in light of the opinions.
Related Immigration Analytics coverage
- ICE Attorney Access Suit Dropped in Oregon After Injunction Loss
- ICE Warrantless Arrests: Oregon Judge Finds Agency Broke His Order
This article is for general information and is not legal advice.
Sources
- Dickinson v. Trump, No. 26-1609, opinion — U.S. Court of Appeals for the Ninth Circuit, Nov. 10, 2026
- Reach Community Development v. DHS, No. 26-1575, opinion — U.S. Court of Appeals for the Ninth Circuit, Nov. 10, 2026
- Federal court strikes down injunctions limiting tear gas use near Portland ICE Facility — KATU, Nov. 10, 2026
- Dickinson v. Trump, stay order — Ninth Circuit via FindLaw, April 27, 2026
- No constitutional right to be ‘free from tear gas:’ Appeals court — Legal Newsline, April 2026
- Dickinson v. Trump timeline — ACLU of Oregon
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