Protests Outside Portland ICE Facility Prompt Legal Action on Tear Gas Use

U.S. District Judge Michael H. Simon is set to rule on the legality of federal officers’ use of tear gas and less-lethal munitions against protesters outside the U.S. Immigration and Customs Enforcement (ICE) facility in Portland, Oregon. The judge’s decision will follow a weekend of significant protests and failed negotiations between U.S. Department of Homeland Security officials and attorneys representing demonstrators and journalists.

On March 1, 2024, a hearing was held where both sides were encouraged to reach an agreement regarding temporary restrictions on the use of chemical agents and munitions against passive protesters. This came as the protests intensified, with demonstrators gathering outside the ICE building, heavily impacted by tear gas deployed by federal officers.

The legal action stems from a lawsuit filed by protesters and journalists in January, supported by the American Civil Liberties Union (ACLU). The suit challenges the federal government’s response to ongoing protests that have been occurring since the summer of 2023, particularly after former President Donald Trump’s attempts to deploy National Guard troops to the city.

According to the plaintiffs’ legal representatives, Homeland Security officials have persistently refused to limit the use of chemical munitions against nonviolent protesters, who often engage in passive resistance. The lawyers argued that this approach contradicts U.S. Customs and Border Protection’s own use-of-force policy and precedents set by the 9th U.S. Circuit Court of Appeals.

In court filings, the plaintiffs cited a 2012 case from California, which established that failure to comply with an officer’s orders does not equate to active resistance warranting the use of force. They referenced a statement from Gregory Bovino, a former Customs and Border Patrol commander, indicating that agency policy restricts the use of chemical irritants to situations involving at least “active resistance.”

The protests have drawn a diverse crowd, including families and various community groups. On March 2, 2024, thousands marched to the ICE building, with notable participants like Jack Dickinson, known for his costumed appearances, and 84-year-old Laurie Eckman, who previously suffered injuries from police munitions. During the recent protests, Eckman was reportedly affected by tear gas despite her efforts to maintain distance from the confrontation zones.

Federal officers escalated their response during the protests, employing flash-bang grenades and tear gas. Reports indicated that some officers fired munitions from elevated positions, further complicating the situation for demonstrators. The Department of Justice’s lawyer, Andrew Warden, expressed skepticism about reaching an agreement with the protesters’ lawyers, stating that there remains a significant divide on the issue.

The proposed terms from Homeland Security included requirements for officers to issue verbal warnings before using force and to provide a reasonable opportunity for compliance. They also specified that less-lethal munitions may be used only when deemed “objectively reasonable and necessary,” and not for targeting individuals unless they pose an assaultive threat.

Despite these conditions, ACLU attorneys sought stricter prohibitions against the use of less-lethal munitions, arguing for restrictions aimed solely at addressing imminent threats and preventing intentional targeting of vulnerable areas such as the head or torso. They also expressed concerns about liability for injuries resulting from incidental exposure to crowd control devices.

During Monday’s arguments before Judge Simon, attorney Matthew Borden emphasized the need for immediate intervention, citing instances of children and elderly individuals being exposed to tear gas. He urged the judge to issue a temporary restraining order to limit the use of force at the protests.

Warden countered that any relief provided by the court should be narrowly focused, addressing only the specific circumstances of named plaintiffs rather than extending to broader concerns. Judge Simon indicated that his ruling would likely be confined to the protests at the Portland ICE facility, with a decision expected on Tuesday.

As the situation continues to develop, the outcome of this legal battle could set significant precedents regarding the use of force by federal authorities in response to civil protests.