A federal appeals court ruled Tuesday that residents and businesses in Portland, Oregon, had no constitutional right to avoid exposure to chemical irritants such as tear gas deployed by federal officers protecting ICE’s facility in the city.
A lower court had ruled that the use of tear gas on protesters, which then wafted over to affect nearby homes and businesses, “shocks the conscience.”
But the 9th U.S. Circuit Court of Appeals, in a 2-1 decision, said that wasn’t enough. The residents needed to show the Constitution contained a substantive due process right to avoid the chemical irritants — and they failed to do so.
People were interested in these podcasts
“As discussed, the purported right to be free from exposure to gases released from non-lethal crowd-control devices in response to disruptive crowds is not deeply rooted in our nation’s history or tradition,” wrote Judge Eric C. Tung, a Trump appointee, for the majority.
He was joined by Judge Kenneth Lee, also a Trump appointee.
The case stemmed from particularly violent protests against U.S. Immigration and Customs Enforcement last year.
Federal officers, defending an ICE facility in Portland, resorted to using tear gas, smoke grenades and pepper balls against protesters.
Local residents said the chemicals would waft over to their homes.
“It should go without saying that, under our Constitution, the federal government may not knowingly release poison gas into the homes of citizens who are simply trying to go about their lives,” one group of plaintiffs argued.
U.S. District Judge Amy Baggio agreed, issuing a preliminary injunction earlier this year.
She said the use of chemical munitions met the “shocks the conscience” standard because federal officers showed such indifference to the local community and never justified the stern response.
Judge Tung said the appeals court didn’t ever get to the question of whether ICE’s behavior shocked the conscience.
But he said if it had, the government’s actions were likely justified because they were a response to protesters who lit the facility on fire, destroyed security cameras, aimed blinding lasers at officers’ eyes and pelted them with rocks, glass and metal.
“The deployment of non-lethal crowd-control devices to prevent violence from escalating and to protect federal property does not appear to us to shock the conscience,” he wrote.
Judge Ana de Alba, a Biden pick, dissented.
She said one deployment on Oct. 4, 2025, appeared to have little connection to the facility and instead occurred more than a block away, right in front of the Gray’s Landing community that many of the plaintiffs in the case call home.
She also noted that footage made its way into DHS social media posts.
“The government’s apparent deployment of chemical munitions for the purpose of social media content creation is particularly shocking,” Judge de Alba wrote.
The appeals court previously issued a hold on the lower court’s injunction.
Tuesday’s ruling erases the injunction.
The case now likely returns to the lower court for more proceedings.
Contact the author
Please read our comment policy before commenting.