Federal Judge Restricts Agents from Using Tear Gas at Protests in Portland

A federal judge on Feb. 3 ruled that federal agents must not use tear gas on protesters in Portland, Oregon, if they do not pose a threat of physical harm to agents.

U.S. District Judge Michael Simon said agents cannot deploy chemical or projectile munitions, such as tear gas and paintball guns, on people around the Immigration and Customs Enforcement building in Oregon’s largest city unless the target of the munitions “poses an imminent threat of physical harm to a law enforcement officer or other person.”

The judge also said that agents may not target people if doing so would endanger others who do not pose a threat of harm to a law enforcement officer or another person, and that munitions must not be used solely in response to trespassing, refusal to move, or refusal to obey an order to disperse.

“This ruling affirms that, in Oregon, we still love our neighbors and believe in the power of our constitutional freedoms, including the freedoms of assembly, speech, and the press, to build a better future for all of us,” Kelly Simon, legal director of the American Civil Liberties Union of Oregon, said in a statement.

The Department of Justice did not return a request for comment by publication time.

The American Civil Liberties Union sued the federal government in late 2025 over its response to protests outside the ICE building in downtown Portland. It later requested a temporary restraining order, alleging that federal officers had used tear gas and pepper spray on peaceful protesters

The government has not filed any documents in the case as of yet. In a hearing, officials said that they deployed munitions while enforcing the law and protecting federal property.

The judge said in his order that he was imposing a temporary restraining order as the case proceeds because protesters have been “directly targeted with force in the head and other areas of the body without warning and despite posing no threat nor creating a driveway obstruction.”

Even if the people who were targeted engaged in a crime, the government must still respect First Amendment rights, the judge said.

“A law enforcement officer may lawfully arrest a person when there is probable cause to believe that person has violated the law, assuming that the arrest is not a mere pretext for an improper retaliatory purpose. But ‘a failure to fully or immediately comply with an officer’s orders neither rises to the level of active resistance nor justifies the application of a non-trivial amount of force,’” he wrote, quoting from a ruling handed down in 2012 by a federal appeals court.

He noted that several protesters have described agents shooting munitions into nonviolent crowds and said that was “strong circumstantial evidence of Defendants’ intent to punish the crowd for their expression.”

The ruling came several days after Portland’s mayor called on federal agents to leave the city.
“Today, federal forces deployed heavy waves of chemical munitions, impacting a peaceful daytime protest where the vast majority of those present violated no laws, made no threat, and posed no danger to federal forces,” Portland Mayor Keith Wilson said in a Jan. 31 statement. “To those who continue to work for ICE: Resign. To those who control this facility: Leave.”