“The First Amendment does not protect vandalism, criminal trespass, or obstruction of law enforcement,” wrote Judge Kenneth Lee in the court’s decision.
The US Ninth Circuit Court of Appeals has ruled against a group of anti-ICE protesters, blocking a lower court judge's order that barred federal officers from using less-lethal munitions to disperse unruly crowds at the US Immigration and Customs Enforcement (ICE) facility in Portland, Oregon. The facility has been the site of ongoing violent demonstrations since June 2025.
The 2-1 panel decision, issued on Monday by judges Kenneth Lee, Eric Tung, and Ana de Alba, the last of whom dissented, states that protesters failed to show that federal officers deployed crowd-control munitions as a means of retaliation, rejecting the plaintiffs' arguments that their First Amendment rights were violated. The decision is a permanent administrative stay granted to the Department of Justice (DOJ) pending further appeal proceedings, in which the panel ruled that the Trump administration is "likely to succeed on the merits" of the case.
"The First Amendment does not protect vandalism, criminal trespass, or obstruction of law enforcement. Such unlawful acts, however, have been commonplace around the US Immigration and Customs Enforcement building in Portland over the past year," wrote Trump-appointed judge Kenneth Lee in the court's opinion.
"Numerous provocateurs—many wielding bats, shields, and strobe lights that disrupt vision—have hurled bricks, smashed security cameras, and blocked the driveway to prevent ICE cars from entering or exiting the building. In response, the government has used tear gas, pepper balls, and other non-lethal munitions to disperse the crowd," Lee continued. "Five plaintiffs sued the government, alleging that they are peaceful protesters who have been injured as a result of the crowd-control tactics. But they do not contend that they are collateral casualties caught in the crossfire—they claim that the government specifically targeted them in retaliation for exercising their First Amendment rights."
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The Appeals Court ruled that the plaintiffs, a group of Antifa-affiliated protesters and leftist self-declared independent journalists, failed to demonstrate that federal officers had the intent to retaliate against them, and/or that the federal government had an unwritten policy targeting them. "Much of the evidence shows the government trying to clear the entrance to the ICE facility in the face of unrest and an unruly crowd," the decision states.
On March 9, US District Court Judge Michael Simon issued a preliminary injunction barring federal law enforcement officers from deploying less-lethal rounds on protesters, unless there is an "imminent threat" to officer safety. This includes chemical or projectile munitions, such as tear gas, pepper balls, flash-bang grenades, rubber bullets, pepper or oleoresin capsicum spray, and other less-lethal weapons. The ruling followed a three-day evidentiary hearing.
The plaintiffs, led by Jack Dickinson, also known as the "Portland Chicken," claimed that federal officers were infringing on their First Amendment rights through the "unlawful" use of crowd control measures, which were meant to have a "chilling" effect on demonstrators to discourage them from returning to the ICE facility to protest, thus violating their rights through "retaliatory animus."
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"In any event, the district court's injunction is too broad," Lee continued. "Under the injunction, the government cannot use common crowd-control tactics even if people vandalize federal property or block the entrance to the building to thwart law enforcement. But such unlawful activities are not protected by the First Amendment, and thus the district court erred in handcuffing the government's ability to counter such illegal behavior."
Additionally, the appeals court ruled that Judge Simon "acted beyond [his] authority" in ordering a redesign of ICE agents' uniforms to have more "conspicuous and unique identifying markings" so protesters can identify them. Judge Lee asserted, "Federal courts are not the couture of law enforcement officers."
https://twitter.com/KatieDaviscourt/status/1941385431649845414?s=20
Since June 2025, the Portland ICE facility has been the site of clashes between federal officers and anti-ICE agitators, many of whom have a nexus to the Antifa terrorist organization. The facility has been the target of violent breaches and arson attacks, resulting in hundreds of arrests. More than 30 protesters have received serious federal charges, and some of them are facing decades in prison. Many have already been convicted.
The US Department of Justice (DOJ) maintains that crowd control measures are an appropriate response to violent crowds and that the Department of Homeland Security (DHS) has the authority to defend federal property and enforce federal law. Attorney John Bailey argued during the evidentiary hearing that such actions are necessary at the Portland ICE facility, as the building on Macadam Avenue has been frequently under siege by demonstrators, referring to some of them as "rioters and terrorists." Bailey contended that federal officers are facing threats at any given moment.
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