The Trump administration is appealing a recent order by a federal judge in Oregon that restricts the use of tear gas and other chemical munitions near the U.S. Immigration and Customs Enforcement building in Portland.
What’s more, attorneys for the U.S. Department of Justice are asking the U.S. Court of Appeals for the 9th Circuit to block the order immediately. The move sets the stage for more legal drama over how federal law enforcement handles anti-deportation demonstrations.
In a 29-page motion Monday evening, Justice Department attorneys rebutted arguments that its regular use of chemical irritants at the facility have violated the constitutional rights of neighbors who live and operate the nearby Gray’s Landing apartment complex.
Those tenants sued over the repeated use of tear gas and other chemical munitions near their homes. They said the stinging gases crept into their apartments, clung to their clothes and furniture and degraded their quality of life. Some testified in court to wearing gas masks to sleep and attributed recent health issues to the chemicals.
In her March 6 order, U.S. District Court Judge Amy Baggio sided with the Gray’s Landing residents, and issued a preliminary injunction restricting the use of chemical munitions.
As they have argued throughout the litigation, Justice Department attorneys in their appeal blamed the proliferation of chemicals on the actions of protesters outside the ICE facility. The wafting chemicals into apartments is incidental, they argued, which isn’t illegal.
Baggio’s order would make it illegal to deploy tear gas near any home, Justice Department attorney Brenna Scully wrote, “because it is possible that residents may be affected as the aerosolized chemicals dissipate.”
Specifically, Baggio wrote that the environment created by the use of these crowd control devices violated the neighbors’ right to bodily integrity. She wrote that federal officers were indifferent to the consequences faced by neighbors.
Her order limited the use of chemical munitions to cases where federal law enforcement faced an immediate threat to their lives. She also mentioned the officers should try to avoid deploying the gas if it’s likely to float toward the apartment.
Scully, in the appeal, called Baggio’s order vague and unworkable.
“The injunction, quite literally, puts federal officers at the mercy of the wind,” Scully wrote.
Scully’s appeal also revisited a common contention from the Justice Department during the lawsuit: that the legal argument posed by the neighbors is a novel and broad interpretation of due process.
The neighbors’ attorneys argued that the gases in the apartments amounted to a nonconsensual violation. They drew comparisons to cases in which cities have ignored dangerous levels of lead in public drinking water.
Prior to Baggio’s ruling, a Justice Department attorney said that siding with the neighbors would be tacitly calling the tear gas use “akin to the Flint water crisis.” Such a ruling would be “an astounding holding,” Holt said.
Attorneys for the neighbors who live at the Gray’s Landing apartment building did not immediately respond to requests for comment. They had previously cheered Baggio’s ruling as showing that the tear gas use had been a “profound abuse of power.”
It wasn’t immediately clear from the filings how the Justice Department reconciled the fact that there is an entirely separate court order preventing federal law enforcement from using tear gas.
A separate legal case, spearheaded by demonstrators who said tear gas, pepper balls and other devices quelled their freedom of speech, led U.S. District Court Judge Michael Simon on March 9 to similarly restrict use of crowd control weapons. That order will also likely be appealed.
Attorneys for the Gray’s Landing tenants called out the Justice Department for failing to mention this separate order in their appeal.
“The government is independently bound by a different injunction in a different case that separately prohibits almost all uses of chemical munitions relevant here,” wrote attorney Stephen Wirth in a response Tuesday morning.
Wirth underscored that federal officers have been restricted from using chemical weapons since early February, when Simon first issued a temporary restraining order.
“The government’s motion does not identify a single instance during that period in which the (restraining order) or the preliminary injunction prevented officers from responding to a threat, compromised officer safety, or impaired operations at the Portland ICE facility in any way,” Wirth wrote. “The silence is telling.”
