PORTLAND, Ore. (CN) – Federal agents assigned to protect the U.S. Immigration and Customs Enforcement facility in Portland are in the clear about the use of chemical munitions and projectiles after a pair of Ninth Circuit rulings effectively blocked two court orders limiting such use of force.
In one in powerthe appeals court found that there is no such right to “bodily integrity” to be free from exposure to chemicals released when federal officers used tear gas and other chemicals to disperse crowds at the facility. IN othersthe court found that the order was too broad.
“Federal courts are not law enforcement officers,” wrote U.S. District Judge Kenneth Lee.
The same panel of judges handed down both rulings in cases involving the rights of protesters and bystanders near the ICE facility on the city’s South Waterfront. Separate federal judges issued orders limiting the use of chemical agents outside the facility, and the government appealed, appearing before a Ninth Circuit panel earlier this month.
Donald Trump appointees Lee and U.S. District Judge Eric Tung agreed with the government’s arguments in both cases, while U.S. District Judge Ana de Alba, a Joe Biden appointee, dissented.
A group of protesters and journalists sued Trump, the Department of Homeland Security and his former secretary Kristi Noem late last year, arguing that federal officers deployed tear gas, pepper spray and other munitions outside the ICE facility in retaliation for exercising First Amendment rights.
US District Judge Michael Simon, appointed by Barack Obama, issued a temporary restraining order in early February blocking federal immigration officers from deploying chemical munitions or shells.
Residents of a low-income apartment complex across the street from the ICE building also sued the federal government late last year, accusing federal agents of intentionally and repeatedly placing chemical munitions near the apartment complex, violating their right to bodily integrity by exposing them to airborne toxins.
Following one trial sessionU.S. District Judge Amy Baggio, a Biden appointee, sided with residents in early March and issued a preliminary injunction blocking federal agents from deploying crowd control devices in a way that would send the chemicals into the nearby low-income housing complex.
Three days later, Simon released a preliminary injunction blocking agents from using chemical munitions or projectiles unless they were legally justified in using deadly force against the target.
In the apartment dwellers case, the Ninth Circuit majority found that Baggio erred in holding that the plaintiffs had a due process right to bodily integrity.
“Neither the District Court nor the plaintiffs have provided any indication that the due process right they claim is found in our constitutional text or structure or is deeply rooted in our nation’s history and tradition,” Tung wrote.
The appeals court also found the order too broad and vague to be enforceable. According to the order, the government is ordered to deploy chemical munitions “in such quantities that” the chemicals are likely to reach the apartment complex.
“But how much is too much; whether the gas is ‘likely to reach’ the complex; this is all guesswork, and where a gas cloud travels will depend heavily on the weather,” Tung wrote. “The District Court’s order appears to assume federal control over the elements of nature. But the federal government has no more power to direct the winds than Cnut could command the tide.”
In her dissent, de Alba pushed back against that notion, writing the record reflects that the government understands the range of munitions it uses and that the argument is not simply about uncontrollable conditions.
“Indeed, it would be reckless if the government did not understand the impact of the munitions it used, especially given the evidence that exposure to such munitions can create serious adverse health effects,” de Alba wrote.
The residents involved in this case have issued a joint statement expressing their deep disappointment with the majority’s decision.
“No one should be forced to endure exposure to chemical weapons in their own home,” the plaintiffs said in a statement. “The Constitution protects the right of the people to the security, physical integrity and peaceful enjoyment of the land in which they live.”
In the Protesters and Journalists case, the Ninth Circuit majority also found the injunction too broad. It also found that the lower court made wrong legal assumptions.
“It has erroneously concluded that the five plaintiffs were likely to have been deliberately targeted for their First Amendment rights because it alleged that there was no valid reason for the government to use tear gas and other non-lethal munitions,” Lee wrote. “Once this basic — and erroneous — presumption is set aside, the court’s inference of intent to retaliate collapses.”
Instead, the Sinth Circuit concluded that it was more likely that the five plaintiffs were merely “rather unfortunate collateral victims during a chaotic effort to quell the disorder.”
Keeping the order in place, the majority concluded, would prevent federal agents from controlling crowds in the country even when the crowds are large and threaten public safety.
“This is not just unhelpful — it is also extremely dangerous to both federal officers and the public,” Lee wrote.
Dissenting again, de Alba wrote that she disagreed with the government’s theory of damages for the injunction.
“In light of the government’s compliance with the temporary restraining order, the government fails to show that the preliminary injunction is likely to impede the federal officers’ ability to “protect themselves and the Portland ICE facility from attack and disruption.”
Neither the protesters nor the journalists nor the federal government responded to a request for comment by press time.
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