For the second time in a week, the Trump administration is appealing a decision by a federal judge in Oregon limiting the use of crowd control weapons outside the U.S. Immigration and Customs Enforcement facility in Portland.
Thick clouds of tear gas, deployed by federal immigration officers, fill the air hundreds of protesters, including children and elderly people, try to escape outside of the ICE building in Portland, Jan. 31, 2026.
Eli Imadali / OPB
On Monday, the Justice Department appealed a decision from U.S. District Court Judge Amy Baggio that restricts the use of tear gas and other chemical munitions at the Portland ICE facility. Baggio’s order sided with residents of an apartment complex across the street from the building, who sued, arguing the clouds of tear gas fired by federal officers regularly consumed their homes, violating their constitutional rights.
Then Tuesday, the Trump administration announced it was also appealing last week’s decision by U.S. District Court Judge Michael Simon, which found that Department of Homeland Security officers had an unwritten policy to use excessive force on nonviolent protesters, in part to chill their free speech rights.
Like Baggio’s order, Simon’s preliminary injunction drastically limits force directly outside the ICE building, but still allows federal officers to use crowd control measures when there’s an imminent and specific threat of physical harm to officers or another person. Simon’s ruling also grants preliminary class certification, meaning the decision applies to all nonviolent protesters and journalists outside the Portland ICE facility.
While the cases involve different legal protections outlined in the U.S. Constitution, their effect is largely the same, making the area outside the Portland ICE building a highly litigated, deeply contested intersection.
In both appeals, the Trump administration asked the U.S. Court of Appeals for the 9th Circuit to immediately block the orders.
Brenna Scully, an attorney with the Justice Department’s Civil Division argued on behalf of the federal government in court documents filed Wednesday that Judge Simon’s order goes too far.
“The district court entered a sweeping preliminary injunction that effectively prohibits the use of common crowd-control devices to disperse violent or disruptive crowds at the facility,“ Scully wrote.
The U.S. Supreme Court last year blocked district court judges from issuing nationwide injunctions, instead requiring any order be narrow in scope. Attorneys for protesters have argued Simon’s order complies because it applies directly outside the Portland ICE building, an area of roughly one square block.
Scully argued the order is “extremely dangerous to both federal officers and the public” because by limiting crowd control devices forces federal officers to use “’hands on tactics to manage breaches or remove individuals.’”
Roughly 40 people have been charged since June with crimes connected to activities outside the Portland ICE building. Thousands more have nonviolently protested.
Police experts who study crowd control tactics told OPB that tear gas can make a crowd more violent and officers less safe. They also said crowd control weapons don’t discriminate between constitutionally protected protests and criminal activity. If people are committing crimes during a protest, they said, those individuals should be arrested.
“The injunction effectively bars DHS officers from deploying crowd-control devices at the Portland ICE facility even when crowds obstruct federal-law enforcement activity, ignore lawful dispersal orders, threaten public safety, and trespass on or damage federal property,” Scully wrote. “The injunction applies even when crowds number in the hundreds or thousands.”
Demonstrators are represented in the case by a coalition of attorneys lead by the ACLU of Oregon.
“We look forward to continuing to advocate for protesters and press in Oregon to be free to exercise their First Amendment rights without fear of government retaliation and violence,” the nonprofit’s legal director Kelly Simon said in a statement Tuesday.
