“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in these cases?
Immigration and Customs Enforcement (ICE) agents used tear gas and other chemical weapons on protesters and others near their headquarters in Portland, Oregon.
What happened in these cases?
Two federal lawsuits were filed against ICE for their use of tear gas and other chemical agents during protests near their Portland office. One came from protesters and journalists involved in the protests. The other was by residents of a low-income housing complex across the street from the headquarters who maintained that the ICE agents were injuring them by “intentionally and repeatedly deploying” the tear gas and other noxious chemicals near their residence. A lower court blocked use of the chemicals in preliminary injunctions, and the cases went to the Ninth Circuit.
In November, Trump judges Kenneth Lee and Eric Tung issued 2-1 decisions finding for ICE in both cases. In Reach Community Development v US Department of Homeland Security. Tung wrote an opinion vacating the preliminary injunction order as to nearby residents, finding that the residents had no substantive due process right to be free from the effects of the tear gas and other chemical agents used to disperse crowds near their homes. In Dickinson v Trump, Trump judge Lee wrote an opinion vacating the preliminary injunction as to protesters and journalists, writing that the record “does not support” the claim that ICE agents retaliated against them for exercising First Amendment rights and that ICE agents can use “nonlethal force to clear crowds and restore order.” Biden judge Ana de Alba dissented in both cases.
Why did Judge deAlba dissent?
Judge deAlba strongly dissented in both cases. In the residents’ case, she wrote that the plaintiffs had submitted large amounts of evidence of deliberate indifference, such as a video released by DHS showing a large gas cloud covering the apartment complex. The record showed a “protracted failure to care” by the government, she stated, which amounted to “truly shocking “ indifference. She found “particularly shocking” the government’s deployment of chemical weapons for the purpose of generating social media content. As to the protesters’ case, she wrote that there was an “avalanche” of circumstantial and other evidence of retaliatory intent, that precedent supports their First Amendment rights, and that the injunction was proper as applied to ICE firing weapons at the “head, neck and torso” of protesters and journalists.
Why are these decisions harmful?
The two decisions by Trump judges Tung and Lee obviously harm the protesters, journalists, and nearby residents of ICE’s Portland headquarters by continuing to subject them to harmful tear gas and other chemical agents and absolving ICE of any liability. They also set troubling precedent concerning use of such weapons by ICE and other law enforcement, especially in the Ninth Circuit, which includes California, Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The decision also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.