9th Circuit Lifts Portland ICE Protest Injunction

The Ninth Circuit Court of Appeals vacated a preliminary injunction in November 2026 that had restricted federal agents from using tear gas and pepper balls near the ICE facility in Portland, Oregon. The three-judge panel — Judges Kenneth K. Lee, Ana de Alba, and Eric C. Tung — ruled that the lower court overstepped its authority and that the five plaintiffs who sued had not shown a strong enough case to keep the injunction in place.

What the court decided — and why it matters

The original injunction, issued by U.S. District Judge Michael H. Simon, barred federal agents from using non-lethal crowd-control weapons unless someone posed an "imminent threat of physical harm." It also ordered ICE agents to wear uniforms with more visible identifying markings. The Ninth Circuit rejected both requirements. Writing for the majority, Judge Lee said that under existing legal precedent, law enforcement officers may use non-lethal force to clear crowds and restore order — they do not have to wait for an imminent physical threat first. The panel also ruled that ordering a redesign of federal agent uniforms was beyond the court's power.

The five plaintiffs — peaceful protesters and independent journalists who were exposed to tear gas or pepper balls — argued that federal agents targeted them specifically because of their First Amendment activity. The court disagreed. The panel found no evidence of an unwritten government policy to retaliate against protesters or journalists. Instead, the majority described the plaintiffs as "unfortunate collateral casualties" of efforts to control a crowd that, at times, included people throwing bricks, blocking ICE vehicles, and attacking officers. The provisional class certification — which would have covered anyone who protested or reported at the Portland ICE facility — was also vacated because the class did not meet the legal requirements under Rule 23 of the Federal Rules of Civil Procedure (the rules governing who can sue together as a group).

Judge de Alba partially dissented. She agreed that parts of the injunction were too broad, but she would have kept one specific protection in place: a ban on federal officers firing munitions at the head, neck, or torso of any person unless deadly force is legally justified. That protection did not survive the majority ruling.

What to do

• If you plan to attend protests near any ICE facility, understand that federal agents may now use tear gas or pepper balls to disperse crowds without waiting for an imminent physical threat — this is the legal standard the Ninth Circuit confirmed in November 2026.
• If you are an independent journalist covering immigration enforcement actions, document everything: your press credentials, your location, and any interactions with federal agents. This evidence matters if you later need to show you were targeted for your reporting rather than caught in crowd-control measures.
• If you believe federal agents specifically targeted you because of your speech or reporting — not just as part of general crowd dispersal — immigration and civil rights lawyers say you may still have a First Amendment claim, but you will need strong evidence of retaliatory intent. Consult a civil rights attorney to assess your specific situation.
• Follow updates from the ACLU of Oregon and People's Law Project, both of which represented plaintiffs in this case and may pursue further legal action.

What to do, step by step — see our guide “Your Rights During an ICE Encounter”.