The US Court of Appeals for the Ninth Circuit vacated on 10 November a preliminary injunction and provisional class certification that restricted federal agents’ use of non-lethal crowd-control munitions at the Portland ICE facility, in Dickinson v. Trump.
The panel of Judges Kenneth Lee, Ana de Alba and Eric Tung heard argument on 10 July. Judge Lee wrote for the court. Judge de Alba concurred in part and dissented in part.
The effect is that the order barring the use of such munitions unless someone poses an imminent threat of physical harm no longer stands, nor does the requirement that agents’ uniforms carry more conspicuous and unique identifying markings.
The five plaintiffs, Jack Dickinson (who is known as the Portland Chicken), Laurie Eckman, Richard Eckman, Hugo Rios and Mason Lake, are described as peaceful protesters and independent journalists who were exposed to tear gas or pepper balls. They allege the government specifically targeted them in retaliation for exercising their First Amendment rights.
The defendants are the President, the Secretary of Homeland Security and the Department of Homeland Security.
The district court, the US District Court for the District of Oregon, had entered the injunction and certified a class of all people who “have, desire to, or will nonviolently protest against or report on DHS activities”.
The Ninth Circuit had earlier acted on 27 April, when the same panel stayed the injunction pending appeal. That order said any relief must be tailored to the five plaintiffs only, and it also stayed the district court’s proceedings pending appeal. The panel cites that decision as Dickinson v. Trump, 174 F.4th 634.
In the new opinion the panel reaffirmed the stay order’s holding. It held that the plaintiffs have not shown they are likely to succeed on their First Amendment claim.
The panel said the district court erred in assuming “that the government can use non-lethal munitions only in response to the threat of imminent physical harm”. Under circuit precedent, it said, agents may use nonlethal force to clear crowds and restore order and need not wait for such a threat.
It also held that the plaintiffs have not shown an unwritten policy, pattern or practice of First Amendment retaliation, and that the record does not support their claim that agents retaliated against them.
The opinion records that at least 150 protests were staged at the facility between June 2025 and February 2026. Judge Lee wrote that the First Amendment “cannot be a sword to justify vandalism of federal buildings, criminal trespass of government property, or obstruction of law enforcement”. He described the plaintiffs as appearing to be “unfortunate collateral casualties” of efforts to quell an unruly and sometimes violent crowd.
On scope, the panel held the injunction overbroad because it gave relief not only to the five named plaintiffs but to anyone protesting or reporting at the facility. It also held the uniform-redesign requirement “beyond the court’s power”.
The panel separately held that the provisional class does not meet the commonality requirement of Rule 23. Even if commonality could be shown, it said, the class must be decertified because the plaintiffs cannot satisfy the indivisible-remedy requirement of Rule 23(b)(2).
The government had also argued that the plaintiffs lack standing to seek prospective relief. The opinion addresses that argument in a footnote, and the panel’s holdings do not rest on it.
Judge de Alba agreed that three provisions of the injunction are overbroad and otherwise dissented. She would uphold the injunction’s prohibition on federal officers firing munitions “at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person”. She would also hold that the district court did not abuse its discretion in finding that the proposed class met Rule 23’s commonality and indivisibility requirements.
The Oregon Attorney General and the City of Portland appeared as amici curiae.