In split rulings in two separate cases, Ninth U.S. Circuit Court of Appeals judges Eric C. Tung and Kenneth Kiyul Lee, both appointed by President Donald Trump, found that nearby apartment residents have no constitutional right to be free from exposure to chemical agents released when federal law enforcement used tear gas and other devices to disperse protesters. The panel also held that federal agents do not need to wait until they or others face an "imminent threat of physical harm" before using nonlethal force to break up disruptive crowds.

The first case was brought by residents of Gray's Landing, a 209-unit affordable housing complex near the ICE facility, and its owner, REACH Community Development. They sued the federal government, arguing that the heavy use of tear gas against protesters over the past year had drifted into their apartments and sickened tenants.

On March 6, U.S. District Judge Amy M. Baggio ordered federal agents to stop launching tear gas that could waft into Gray's Landing unless they faced an imminent deadly threat. She found that agents showed "deliberate indifference" based on the volume of chemical munitions used during protests against President Donald Trump's mass deportation campaign and that they violated residents' constitutional right to "bodily integrity." The appeals court stayed the order shortly afterward.

In a 2-1 ruling, the appellate majority held that the tenants had no constitutional due-process right to be free from chemical exposure. Judge Tung wrote that no such right is expressly written in the U.S. Constitution or recognized by any other court or authority. He noted that tear gas has long been a common less-lethal tool used to disperse crowds that have become disruptive.

The majority also rejected the plaintiffs' argument that they needed only to show the government's conduct "shocks the conscience." Tung wrote that applying a "shocks-the-conscience test" without grounding it in established legal history would be "an open invitation for courts to invent law: one judge's shock is another judge's expectation."

In a separate but related 2-1 ruling, the panel addressed a lawsuit filed by a handful of protesters and independent video journalists. U.S. District Judge Michael H. Simon found on March 9 that the Department of Homeland Security operated under what amounted to an unwritten policy of using excessive force against protesters, writing that agents' actions inhibited "the exercise of constitutional rights to free speech and a free press." Simon's injunction curbed agents' use of crowd-control weapons but still allowed their use when agents faced specific, imminent threats of physical harm.

The appellate majority reversed Simon's decision.

"Law enforcement officers may use nonlethal force to clear crowds and restore order, and they need not wait until they face an imminent threat of physical harm," Circuit Judge Kenneth Kiyul Lee wrote for the majority.

The majority also found that the court record failed to show that federal agents retaliated against protesters for exercising their First Amendment rights.

Circuit Judge Ana de Alba, a Biden appointee and the third member of the panel, wrote dissents in both cases.

In the Gray's Landing case, she argued that nearby residents needed only to meet the "shocks the conscience" standard, rather than prove an explicit constitutional right, to obtain restrictions on federal agents' use of tear gas.

"Supreme Court and our own decisions are not so clear on the question of what standard we should apply in such cases," de Alba wrote in her dissent. "But a survey of the relevant authorities leads me to conclude that we should apply only the shocks-the-conscience standard to determine whether substantive due-process rights were violated in executive-action cases."

In the protesters' case, de Alba agreed in part with the appellate majority but otherwise dissented. She argued that testimony from protesters and journalists, along with video evidence, supported Judge Simon's finding that "federal agents' use of force was motivated by an attempt at retaliation in many instances." She also noted that federal agents were not "fired or reprimanded despite repeated instances" of First Amendment-related retaliation.

De Alba wrote that she would have upheld Simon's order barring agents from firing munitions "at the head, neck, or torso of any person, unless lethal force was legally justified"—though she agreed that three of his other restrictions were too broad. The Simon orders she agreed were too broad were his prohibitions on federal agents using chemical or projectile munitions "unless the specific target . . . poses an imminent threat of physical harm" and containment spray "unless the specific target . . . exhibits, at a minimum, active resistance," as well as Simon's requirement that federal agents' uniforms carry more visible and unique identification markings.

The three-judge appellate panel heard the government's appeals in July, after staying Simon's and Baggio's orders earlier in the year.

Gray's Landing residents, the property owner and their legal team at Democracy Forward said they were dismayed by the ruling.

"This case has always been about the safety and well-being of the people who live at Gray's Landing," they said in a joint statement. "While we are disappointed by today's outcome, we remain committed to supporting residents, advocating for their safety and ensuring their experiences are not forgotten. The litigation drew significant public attention to the impacts experienced by residents living next to the ICE facility and highlighted broader concerns about how law enforcement and crowd-control activities can affect neighboring communities."

Skye Perryman, president and CEO of Democracy Forward, said the appellate ruling leaves Gray's Landing residents without the protections they deserve. "We are grateful to our brave clients who showed up in court for their community, and we remain committed to using every tool democracy provides to protect people's rights, safety and dignity," she said.

Kelly Simon, legal director of the ACLU of Oregon, which represented the protesters and journalists who sued the government, said by email: "The right to protest and a free press have been cherished freedoms in this country, and this decision fails to protect those freedoms. We are exploring all options and will continue to fight for Oregonians' rights to protest peacefully free from government violence."