Judge limits federal officers’ use of crowd control munitions at Portland ICE building
A federal judge in Oregon has temporarily limited federal officers’ use of force on peaceful protesters outside the Immigration and Customs Enforcement building in Portland.
The decision Tuesday applies only outside the federal facility in Portland.
U.S. District Court Judge Michael Simon’s ruling blocks federal officers from using “chemical or projectile munitions,” including pepper balls, tear gas and other crowd control munitions “unless the specific target of such a weapon or device poses an imminent threat of physical harm to a law enforcement officer or other person.”
READ MORE
“Our nation is now at a crossroads,” Simon wrote in the 22-page temporary restraining order. “We have been here before and have previously returned to the right path, notwithstanding an occasional detour. 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 judge’s ruling also blocks federal officers from firing munitions or using weapons directed “at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person.”
In a statement, Assistant Secretary of Homeland Security Tricia McLaughlin agreed the constitution “protects speech and peaceful assembly - not rioting” and defended the actions of federal officers.
McLaughlin’s statement did not mention Portland or Simon’s order specifically.
“DHS is taking appropriate and constitutional measures to uphold the rule of law and protect our officers and the public from dangerous rioters,” McLaughlin said. “Despite these grave threats and dangerous situations our law enforcement [has] followed their training and used the minimum amount of force necessary to protect themselves, the public, and federal property.”
An attorney for the U.S. Department of Justice told Simon in court that Homeland Security officers are following their use-of-force policies.
In a statement, Portland Mayor Keith Wilson praised the judge’s ruling.
“Federal agents have used unconscionable levels of force against a community exercising their constitutional right to free expression,” Wilson said. “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 judge’s order comes after months of Homeland Security officers using tear gas and other chemical munitions on demonstrators.
Since protests began over the federal government’s stepped up immigration enforcement, some have been charged and pleaded guilty to crimes outside the ICE facility. But many others engaged in nonviolent protests, such as holding signs on public property, have also been harmed by federal officers’ use of force.
Over this past weekend, the use of force appeared to escalate. Protesters, including children and elderly people, were hit with tear gas when federal officers fired chemical munitions at a group of demonstrators blocking the immigration facility’s driveway on Saturday.
Videos, submitted as part of the court case, show uses of force at the ICE facility, including videos of the tear gas used on protesters Jan. 31. One video shows a child getting their eyes flushed out after being exposed.
While the restraining order is temporary, a separate federal judge may take up the question sooner. A lawsuit filed by tenants of the low-income apartment building nearby asked U.S. District Court Judge Amy Baggio to block the use of chemical munitions, such as tear gas, that impact their residences. The next hearing on that case is set for Feb. 13.
Simon has scheduled a hearing on the underlying lawsuit for March 2, where he’ll take testimony from witnesses. That evidence could form a basis for an injunction should the judge deem it necessary.
The case before Simon is led by the ACLU of Oregon, which argued in court filings that, since June, federal law enforcement officers have used “excessive force on peaceful protesters at and around the ICE Building.”
Some protesters stated in court filings that the use of tear gas and other chemical munitions makes them fearful of participating in peaceful demonstrations.
“This administration should hear our grievances and halt their barbaric treatment of our communities,” Jack Dickinson, also known as “the Portland Chicken,” who is the lead plaintiff in the lawsuit, said in response to Simon’s ruling. “Until then, I hope Portland will continue to show up and exercise our First Amendment rights. Our voices are needed most in times like now.”
In his order, Simon stated he would not hold Homeland Security officers liable if someone is incidentally exposed to a crowd control device.
“In a well-functioning constitutional democratic republic, free speech, courageous newsgathering, and nonviolent protest are all permitted, respected, and even celebrated. In an authoritarian regime, that is not the case,” Simon wrote.
