Judge orders federal agents to curb use of force and tear gas at ICE facility

Federal agents may not use chemical or projectile munitions, including rubber bullets, or other less-lethal weapons against protesters outside the ICE facility unless there is "imminent threat of physical harm," according to a temporary restraining order issued by U.S. District Court Judge Michael Simon on Tuesday, Feb. 3.

Judge Simon issued the ruling in a putative class-action lawsuit filed by a group of protestors and journalists who say federal agents assaulted and tear-gassed them without justification at protests last year while they were attempting to exercise their constitutional right to peaceful protest.

"In a well-functioning constitutional democratic republic, free speech, courageous newsgathering, and nonviolent protest are all permitted, respected, and even celebrated," Judge Simon wrote. "In an authoritarian regime, that is not the case. Our nation is now at a crossroads... 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."

Mayor Keith Wilson lifted up the court's ruling as an indictment of the Trump administration's authoritarian tactics in Portland.

"Today's ruling confirms what we've said from the beginning. Federal agents have used unconscionable levels of force against a community exercising their constitutional right to free expression," Wilson said. "Portlanders will continue to show up, stand with our immigrant neighbors, and win through peace. 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.

Since the case was filed, the use of deadly force and tear gas by federal agents has only grown more contentious. In Minneapolis, the deaths of protesters Renee Good and Alex Pretti at the hands of federal agents prompted a national outcry. Last weekend, federal agents used tear gas against peaceful protesters, including children, at Portland's ICE facility, sparking outrage and condemnation from local leaders:

• Mayor Wilson to ICE: "Resign."
• Portland City Council condemns tear gas at protests

Oregon lawmakers today demanded that the federal Department of Homeland Security withdraw federal agents from Portland after tear-gassing peaceful protesters. And Portland City Council recently voted to impose a detention facility impact fee on facilities that release "chemical residues."

The putative class-action lawsuit was brought by five local residents represented by the American Civil Liberties Union. They include:

• Jack Dickinson, sometimes known as the "Portland Chicken," who regularly attends protests dressed in a chicken suit and an American flag, who says federal agents aimed and shot chemical munitions in his face.
• Laurie Eckman and Richard Eckman, a retired couple who live near the ICE facility. They say they were both gassed and shot with impact munitions. Richard is a U.S. Navy veteran who served during the Vietnam War. He uses a walker.
• Hugo Rios, a freelance photojournalist and U.S. Air Force veteran, who says agents riddled him with pepper balls while he was marked as "Press" and filming the protest.
• Mason Lake, a freelance video journalist and filmmaker, who says agents sprayed tear gas and bear spray while he was marked as "Press" and recording the event.

The plaintiffs claim the violence against them was not accidental. "Defendants are repeatedly deploying unnecessary, excessive and indiscriminate force against Plaintiffs and class members to retaliate against them for protesting against Defendants' immigration policies and trying to report on their violence against those who speak out. At the same time, they are allowing people who favor the administration's frightening and violent tactics behind their lines to record events."

The argument appears to have been persuasive to Judge Simon.

"The public interest in protecting First Amendment rights cannot be overemphasized," Judge Simon wrote. "Freedom of speech, including through political protest, is 'one of the chief distinctions that sets us apart from totalitarian regimes,'" he continued, quoting from a landmark 1949 free-speech ruling by the U.S. Supreme Court.