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 residents of a nearby apartment complex have no constitutional right to be free from exposure to chemicals released when federal law enforcement used tear gas and other nonlethal devices to disperse protesters. The majority also held that federal officers need not wait until they or others face an "imminent threat of physical harm" before using nonlethal force to clear 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 widespread use of tear gas against demonstrators over the past year had drifted into their apartments and made tenants ill.

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

In a 2-1 ruling, the appeals panel majority held that 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, and that tear gas has been a common less-lethal tool used to disperse crowds that have turned disruptive.

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

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

The appeals panel majority overruled Simon. "Law enforcement agents may use nonlethal force to clear crowds and restore order and 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 appellate panel, dissented in both cases. In the Gray's Landing case, she argued that residents only needed to meet the "shocks-the-conscience" standard, rather than prove an explicit constitutional right, to obtain restrictions on tear gas use.

"The Supreme Court's and our decisions are not so straightforward on the question of what standard we should apply in such cases," de Alba wrote. "Yet an exploration of the relevant authorities leads me to conclude that we should apply the shocks-the-conscience standard alone to determine whether substantive due-process rights were violated in executive-action cases."

In the protesters' case, de Alba concurred in part but otherwise dissented. She argued that testimony from protesters and journalists, along with video evidence, supported Simon's finding that federal officers' "use of force was motivated by retaliatory intent in many instances." She also noted that federal officers were not "discharged or reprimanded despite repeated instances" of First Amendment retaliation. De Alba wrote that she would have upheld Simon's order barring officers from firing munitions "at the head, neck, or torso of any person, unless deadly force was legally justified," though she agreed that three of his other restrictions were too broad.

The three-judge panel heard the government's appeal arguments in July after placing both Simon's and Baggio's orders on hold earlier in the year.

Democracy Forward, which represented Gray's Landing residents in their suit, said it was dismayed by the ruling.

"This case has always been about the safety and well-being of the people who live at Gray's Landing," the legal team said in a 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 brought significant public attention to the impacts experienced by residents living adjacent to the ICE facility and highlighted the broader concerns about how enforcement and crowd-control activities can affect neighboring communities."

The ruling marks a significant legal victory for the federal government as it continues its mass deportation campaign, and it leaves residents of the affordable housing complex without court-ordered protections against chemical exposure from nearby protests. The decision also sets a Ninth Circuit precedent that could shape how courts evaluate use-of-force claims in protest settings across the western United States.