Summary
The U.S. Court of Appeals for the Ninth Circuit grants the federal government’s motion to stay a district court’s preliminary injunction governing the use of non-lethal crowd-control munitions at the Portland ICE facility. The court concludes that the government made a strong showing that it would likely succeed against the plaintiffs’ First Amendment retaliation claim because the plaintiffs had not established subjective retaliatory intent or an unwritten policy of retaliation. The court also holds that the injunction was overly broad and that the district court exceeded its authority by requiring redesign of DHS officers’ identifying markings.
Topics
Practice areas
Questions Presented
- Whether the government satisfied the Nken factors for a stay of the preliminary injunction pending appeal.
- Whether the plaintiffs were likely to succeed on their First Amendment retaliation claim based on alleged subjective retaliatory intent and an unwritten governmental policy, pattern, or practice of retaliation.
- Whether the preliminary injunction was overbroad because it extended relief beyond the named plaintiffs, was supported by an improperly certified provisional class, restricted crowd-control measures more broadly than First Amendment doctrine permits, and required redesign of federal officers' uniforms.
- Whether the district court proceedings should be stayed pending resolution of the appeal.
Holdings
- The government was entitled to a stay because it made a strong showing that it would likely succeed on the merits of the First Amendment retaliation claim and satisfied the remaining stay factors.
- The plaintiffs had not made a sufficient showing that the government defendants possessed subjective retaliatory intent or maintained an unwritten policy, pattern, or practice of First Amendment retaliation.
- The injunction was overbroad because it expressly applied to persons beyond the five named plaintiffs without a showing that such relief was necessary to provide complete relief to the plaintiffs before the court.
- The provisional class was improperly certified because the plaintiffs did not affirmatively establish Rule 23 commonality through evidence capable of resolving the class members' individualized First Amendment retaliation claims in one stroke.
- The injunction was overbroad because it permitted use of crowd-control munitions only when a specific target posed an imminent threat of physical harm, while First Amendment doctrine also permits crowd dispersal in response to imminent lawlessness, including disorder, traffic interference, trespass, and obstruction of law enforcement.
- The injunction's requirement that DHS officers' uniforms, vests, or helmets be redesigned with conspicuous and unique identifying markings exceeded the district court's authority because it was not sufficiently connected to the alleged First Amendment injury.
- The district court proceedings were stayed pending resolution of the government's appeal.
Key quotations
“The First Amendment enshrines the right of the people to peacefully protest our government’s policies. But the First Amendment does not protect vandalism, criminal trespass, or obstruction of law enforcement.” (1)
“law enforcement officers can still use non-lethal munitions to disperse a protesting crowd if there are “objectively reasonable grounds to conclude that there [is] a ‘clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order.’”” (14-15)
“there is no First Amendment right to criminally trespass, impede law enforcement efforts, block traffic, or vandalize government buildings.” (25-26)
“Federal courts cannot and should not superintend DHS officers’ day-to-day decision making because we “do not possess a roving commission” to “exercise general legal oversight of the . . . Executive Branch[].”” (30-31)
Factual background
Since June 2025, large and sometimes violent protests occurred outside the Portland Immigration and Customs Enforcement facility. Protesters at various events allegedly blocked the facility's driveway, trespassed, damaged federal property, attacked or obstructed officers, and used improvised weapons, while other protesters and journalists claimed to have been peaceful and exposed to pepper balls, pepper spray, tear gas, or other crowd-control devices. The district court found evidence supporting an unwritten policy or practice of retaliatory excessive force and entered a broad preliminary injunction limiting those tactics.
Procedural history
The plaintiffs sued the President, the DHS Secretary, and DHS, alleging an unwritten policy and practice of using non-lethal crowd-control munitions to retaliate against peaceful protesters and journalists for exercising First Amendment rights. After a temporary restraining order, extensive discovery, and a three-day evidentiary hearing, the district court entered a broad preliminary injunction limiting the use of crowd-control devices, restricting certain targeting, requiring uniform-identification modifications, and provisionally certifying a class. The district court denied the government's request for a stay, and the government sought relief in the Ninth Circuit.