Federal judge continues to restrict agents’ use of tear gas on protesters at Portland ICE facility

By Alex Baumhardt, Oregon Capital Chronicle

PORTLAND, Ore. -- A federal judge on Monday ordered federal officers at Portland’s Immigration and Customs Enforcement facility to continue to restrict their use of tear gas and less-lethal munitions against non-violent protesters, marking the second ruling in less than a week that has limited their use of chemical agents.

The officers are barred from deploying the crowd control devices unless officers are in imminent threat of physical harm, ruled U.S. District Judge Michael H. Simon, an Obama appointee, in a 30-page decision.

Federal agents have been repeatedly accused of using excessive force against crowds at the facility, including most recently in late January when they heavily gassed a crowd of nonviolent protesters during a union-led march that included children and seniors.

Simon in February issued a temporary order barring the indiscriminate use of the crowd control measures in the ongoing case Dickinson V. Trump. Simon on Monday also separately granted class-action status to the plaintiffs in the case, a group of freelance journalists and protestors represented by the Oregon branch of the American Civil Liberties Union, or ACLU, who in November sued President Donald Trump and the U.S. Department of Homeland Security. This means the ruling applies to all nonviolent protesters and journalists outside the Portland ICE building.

His latest order follows several days of testimony in the case last week. In it, Simon reiterated a strong condemnation of federal agents’ behavior at the ICE facility.

“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. Indeed, a democracy is only as strong as its tolerance for dissent,” he wrote. “Our nation is now at a crossroads.”

Simon also ordered the ACLU and federal lawyers to agree on standards for officers to clearly identify themselves at the building.

Simon’s decision comes just days after another federal judge also ruled against the federal government over its excessive use of tear gas around the facility. That case was brought by the residents of a nearby affordable housing complex that has been bombarded by tear gas, pepper balls and smoke grenades, releasing chemicals that infiltrate the building, exposing residents to a litany of medical issues.

In that case, U.S. District Judge Amy M. Baggio on Friday issued a preliminary order barring federal agents from using the chemical agents in a manner that could seep into the housing complex, unless the agents face an “imminent threat to life.”

Homeland Security officials did not immediately respond to a request for comment on Monday’s ruling. In court, federal lawyers have defended the agents’ use of tear gas as necessary, “to remove trespassers from federal property and prevent damage to the ICE facility.”

Ongoing restrictions

Federal agents continue to be restricted under Simon’s order from using chemical or projectile munitions unless the target of such weapons “poses an imminent threat of physical harm to a law enforcement officer or other person.”

Agents are not allowed to deploy munitions at the head, neck, or torso of any person, “unless the officer is legally justified in using deadly force against that person.” And agents are restricted from deploying munitions if doing so would endanger someone who poses no imminent threat of harm to law enforcement or other individuals.

Under the order, agents can no longer deploy chemicals and munitions for the purpose of simply moving the crowd from the building’s driveway, or refusing to move or refusing to obey a dispersal order, as has often happened during protests.

The list of munitions restricted under the order include kinetic impact projectiles, pepper ball or paintball guns, pepper or oleoresin capsicum spray, tear gas or other chemical irritants, soft nose rounds, 40mm or 37mm launchers, less lethal shotguns, and flashbang, Stinger, or rubber ball grenades.