A federal judge has temporarily barred federal agents from using chemical or projectile munitions against protesters outside Portland’s Immigration and Customs Enforcement facility unless there is an imminent threat of physical harm.
U.S. District Court Judge Michael Simon issued the temporary restraining order Tuesday, Feb. 3, in response to a putative class action lawsuit filed by protesters and journalists who say they were assaulted and tear-gassed by federal agents while exercising their constitutional rights during protests last year.
Under the order, federal agents may not deploy chemical agents, rubber bullets, or other less-lethal weapons unless an immediate danger exists. The order is set to remain in effect for two weeks, though the court may extend it.
Judge Simon sharply criticized the conduct alleged in the lawsuit and underscored the broader constitutional stakes involved.
“In a well-functioning constitutional democratic republic, free speech, courageous newsgathering, and nonviolent protest are all permitted, respected, and even celebrated,” Simon wrote. “In an authoritarian regime, that is not the case. Our nation is now at a crossroads. In helping our nation find its constitutional compass, an impartial and independent judiciary operating under the rule of law has a responsibility that it may not shirk.”
The lawsuit was brought by five Portland residents represented by the American Civil Liberties Union. The plaintiffs allege federal agents used excessive and indiscriminate force to retaliate against people protesting immigration policies and documenting law enforcement conduct.
Those plaintiffs include Jack Dickinson, sometimes known as the Portland Chicken, who says federal agents fired chemical munitions directly at his face. Laurie Eckman and Richard Eckman, a retired couple living near the ICE facility, say they were gassed and struck with impact munitions. Richard Eckman is a U.S. Navy veteran who served during the Vietnam War and uses a walker.
The suit also includes Hugo Rios, a freelance photojournalist and U.S. Air Force veteran, who says agents shot him with pepper balls while he was clearly marked as press and filming. Mason Lake, a freelance video journalist and filmmaker, says agents sprayed tear gas and bear spray while he was marked as press and recording events.
The plaintiffs argue the force used against them was intentional and punitive.
“Defendants are repeatedly deploying unnecessary, excessive and indiscriminate force against Plaintiffs and class members to retaliate against them for protesting against Defendants’ immigration policies and trying to report on their violence against those who speak out,” the lawsuit states. “At the same time, they are allowing people who favor the administration’s frightening and violent tactics behind their lines to record events.”
Judge Simon wrote that the public interest in protecting First Amendment rights could not be overstated, citing long-standing Supreme Court precedent. “Freedom of speech, including through political protest, is one of the chief distinctions that sets us apart from totalitarian regimes,” he wrote, quoting a 1949 U.S. Supreme Court decision.
Portland Mayor Keith Wilson praised the ruling, calling it a rebuke of the Trump administration’s approach to immigration enforcement protests in the city.
“Today’s ruling confirms what we’ve said from the beginning. Federal agents have used unconscionable levels of force against a community exercising their constitutional right to free expression,” Wilson said. “Portlanders will continue to show up, stand with our immigrant neighbors, and win through peace. Peaceful civic participation isn’t a
threat, and these new restrictions on federal agents are an important first step in ending the violence and harm we’ve witnessed in our community.”
The ruling comes amid growing controversy over the actions of federal agents nationwide. In Minneapolis, the deaths of protesters Renee Good and Alex Pretti during encounters with federal agents sparked national outrage. In Portland, the use of tear gas against peaceful protesters, including children, outside the ICE facility last weekend prompted condemnation from local leaders.
Oregon lawmakers have since demanded that the federal Department of Homeland Security withdraw federal agents from Portland. The Portland City Council also recently voted to impose a detention facility impact fee on facilities that release chemical residues.
The court will next consider whether to issue a preliminary injunction, which would impose longer-lasting restrictions. Judge Simon scheduled a hearing on that request for March 2.
