President Donald Trump gestures as he boards Air Force One at Morristown Municipal Airport, in Morristown, N.J., Sunday, Aug. 2, 2026, en route to return to Washington (AP Photo/Jacquelyn Martin).
The Trump administration notched wins on Tuesday as a federal appellate court ruled in favor of Immigration and Customs Enforcement (ICE) in two closely related cases over the agency's use of force.
In the cases, protesters and journalists sued ICE after agents used tear gas, pepper spray and pepper balls to disperse crowds of demonstrators and onlookers near the ICE facility in Portland, Oregon.
Both cases came before the U.S. Court of Appeals for the 9th Circuit after district courts enjoined ICE and other agencies from using those methods to subdue protesters. In both cases, the same three-judge panel reversed the lower courts by drawing a line at the actions of the Portland-based anti-ICE protests.
"The First Amendment shields the people from governmental suppression of their right to protest peacefully and speak freely," U.S. Circuit Judge Kenneth K. Lee, who was appointed by President Donald Trump, wrote in a 34-page opinion. "But the First Amendment cannot be a sword to justify vandalism of federal buildings, criminal trespass of government property, or obstruction of law enforcement."
A similar dynamic played out in the 15-page opinion by U.S. Circuit Judge Eric C. Tung, another Trump appointee, who began by writing about protesters' "acts of lawlessness, including assaulting federal officers, and vandalizing and trespassing upon federal property."
In each case, a dissent was lodged by U.S. Circuit Judge Ana de Alba, a Joe Biden appointee.
The lengthier opinion, written by Lee, said that the plaintiffs in the case are "peaceful protesters and independent journalists who were exposed" to tear gas when they were on the periphery of the protest or otherwise caught up in the government's response to it.
The majority uses that distinction — between different kinds of demonstrators — to conclude the plaintiffs cannot proceed as a class.
The opinion elaborates:
[T]here is little in common between an Antifa provocateur who destroys the security camera at the ICE facility and a peaceful protester who holds a sign several hundred feet away on the public sidewalk. Simply put, the plaintiffs here have not shown the existence of common evidence that can resolve in "one stroke" the class members' claims that hinge on a wide array of facts. That is error.
The plaintiffs previously won relief at the district court level by arguing that their rights were violated when the government retaliated against them over their First Amendment right to protest.
In the preliminary injunction issued by the lower court, the judge barred the government from using "non-lethal crowd-control munitions unless someone 'poses an imminent threat of physical harm' to law enforcement or other persons," the panel summarized.
The 9th Circuit, however, found no retaliation, only incidental government violence.
"We are left with a more plausible explanation of events," Lee wrote. "[T]he five plaintiffs (out of hundreds of protesters) were not intentionally targeted for their First Amendment activity but were rather unfortunate collateral casualties during a chaotic effort to quell disorder."
In the shorter opinion, the majority faults the lower court for using an analysis that it says, in effect, established "a right to be free from exposure to tear-gas chemicals used by law enforcement officers as a means of crowd control."
To that end, the 9th Circuit said the plaintiffs failed to show such a "substantive-due-process" right was "deeply rooted in our Nation's history," and repeatedly referenced the U.S. Supreme Court opinion that overruled Roe v. Wade.
The majority chides the district court at length:
Plaintiffs would return us to a time before Glucksberg and Dobbs were decided, when Roe v. Wade put judges in the position of creating new rights rather than securing those rights established or recognized by our Constitution, when judges devised extra-constitutional rules that overrode legislative acts authorized by the will of the people or invalidated law-enforcement action long understood to be permissible. That we cannot do.
"The district court's preliminary injunction is vacated," Tung's opinion concludes.