A pair of cases challenging how federal officers handle protesters outside the ICE facility in Portland went before an appeals court today. The issue: should there be limits on the use of tear gas?

“Okay, things are getting rather interesting with this Portland ICE facility tear gas case. Now, if you don’t know what’s going on, basically Homeland Security has been challenged in the courts that they have been using excessive tear gas at the Portland ICE facility in Portland.”

“I also watched the videos and I found them to be quite disturbing. Not all of them, of course, but a big majority of it. Hawkins declaration got a protester shot in the eye.”

“Okay. So, as of right now, Homeland Security, they are allowed to use tear gas. There are no restrictions as of right now at the Portland ICE facility. So, if federal agents feel the need to use tear gas against protesters or agitators who are crossing that line, no restrictions. But we are still in the middle of a legal battle to see whether or not there will be restrictions or limitations.”

“So I did some research on this topic and it turns out we can actually watch the most recent live stream as far as the back-and-forth and the arguments used as to whether or not Homeland Security can use tear gas. And here’s the thing: if Homeland Security loses these two cases, that could have broader implications as far as what Homeland Security can do at other federal facilities. If they’re trying to use tear gas to calm a situation down, they could also be accused of using excessive force.”

“So, before we dig into the appeals court, let’s first go over the basic details of the case so you guys have a foundation of what’s going on here. And real quick, make sure to please like this video. It helps out a ton. And if you are new here, make sure to please subscribe to my channel. We’ve been covering Portland and different sanctuary jurisdictions for a very long time now. I do my best to try and cover all the different sides here. So again, make sure to please subscribe. Here we go.”

“A pair of cases challenging how federal officers handle protesters outside the ICE facility in Portland went before an appeals court today. The issue: should there be limits on the use of tear gas?”

“Tim, these cases are important because they’ll shape how federal officers manage protests in Portland and potentially elsewhere around the country. Scenes like this — tear gas, pepper balls, and flashbang grenades outside the ICE building in Portland — were the focus of back-to-back hearings before the Ninth Circuit Court of Appeals.”

“Okay, so back-to-back hearings. Again, there are two separate hearings, but they have a lot of overlap as far as the elements of the case, mainly being excessive use of force and too much tear gas, how it’s affecting either protesters or residents who live across the street at the Portland ICE facility.”

“Homeland Security is arguing we need to use tear gas and pepper balls in certain situations because of how aggressive things are getting. On the flip side, protesters are arguing excessive use of force, and residents across the street are arguing we have tear gas coming into our apartment building. It’s affecting our livelihoods and us just trying to survive out here.”

“You heard plaintiffs’ counsel very straightforwardly admit that even if hundreds if not thousands of people are peacefully blocking the entrance and the surrounding streets of the ICE facility, there’s no possibility under their theory that crowd-control devices may be used.”

“And I have to stop here because we’ve been covering this case for a while and been covering Portland for a while now. This has always been the big divide from Homeland Security, the Trump administration, versus protesters and Portland. Just because people are standing there peacefully and they have a sign that says we want peace, but they’re still blocking the roadway, would that now turn into a not peaceful protest because federal operations cannot continue? So again, that is what’s being contested here and questioned.”

“Their view is the only thing officers can do is to wade out into the crowd and start arresting people if they don’t comply. And as the DHS declarations point out, that carries with it a significant risk of escalating the situation even further.”

“More importantly, the theory doesn’t even extend to people — hundreds if not thousands of people — who are vandalizing the property, trespassing on government property, trying to destroy government cars, cameras, fences. In one case, the Canton declaration indicates that a protester threw what appeared to be a smoke bomb onto the top of the ICE facility, which then caught fire.”

“These are damages to property, and it’s not at all clear that plaintiffs think that crowd-control devices may lawfully be used in those circumstances as well. And again, it makes quite clear that the First Amendment permits these devices to be used in a far broader range of circumstances than plaintiffs and the district court suggest. That indicates, at a minimum, that the injunction’s substantive terms are broad.”

“And the second thing I just wanted to note was that plaintiffs’ presentation again and again depended on the assumption that the force used was excessive.”

“Okay, so that’s another very big contested point because some people might say if I push you away, that is excessive. For others they would say, well hey, you’re blocking the roadway, what else am I supposed to do? I’ve got to push you out of the way. A lot of times this comes up to interpretation, which is why I ask you guys to leave your comments because I am curious how you interpret it.”

“And that’s what we see a lot of, and really when the Trump administration blew this story up and everybody started paying attention to Portland. A lot of you probably noticed some people saw this as a complete joke, that this is nothing, it’s just a bunch of protesters. And on the flip side, the Trump administration was like, we might have to send in the National Guard.”

“Plaintiffs never cited the relevant use-of-force test in the First Amendment, and neither did the district court, which relied on the Fourth Amendment. And although plaintiffs provided a post hoc explanation, none of that explanation was present in the district court’s…”

“Counsel, is the First Amendment test imminent lawlessness, the clear and present danger test?”

“The test articulated in Puente, citing a number of other cases — I think the Supreme Court’s Claiborne decision and I think also the Collins decision from this court. Puente has a section describing when force may be used to disperse a crowd without transgressing the First Amendment. And I would direct your honor to that passage.”

“So even if, let’s say, we agree with you that there was imminent lawlessness that would have justified the use of the chemical munitions, can’t plaintiffs still show retaliatory intent? In other words, that’s a separate question, right, of subjective intent? Or is your position that once there’s imminent lawlessness, the First Amendment claim goes away? There’s no First Amendment claim anymore.”

“Your honor is right, and Puente makes this clear, by the way. Puente itself recognizes that in the specific context of the use of crowd-control devices, the First Amendment retaliation framework is a poor fit. We haven’t argued that they can’t bring a First Amendment retaliation claim because Puente addressed that claim and said, even assuming that such a claim may be brought, notwithstanding the objective test for when the First Amendment prohibits these devices from being used, plaintiffs still lose.”

“So, all we’re asking is for the court to follow a similar path here and recognize that in the circumstances where the district court appears to have a grave misunderstanding of what sorts of non-lethal crowd-control devices the government may use without transgressing the First Amendment, that undermines plaintiffs’ ability to succeed on the merits of their First Amendment retaliation claim.”

“And we’ve talked about this before on my channel as far as covering FPS, Federal Protective Services, who are in charge of that building and protecting the building. In fact, I think it was journalist Katie Daviscourt. She did a mini documentary talking about them and showcasing them, did some interviews, and FPS even said the hardest part about their job is not so much defending the building. It’s actually allowing for the protest to make sure we allow for the First Amendment right.”

“That is one of the greatest rights we have in the United States, and the FPS officer said we have to make that call. We cannot impede on that right. So when we have to push back, every single time we are at risk of doing that.”

“So keep that in mind. Even for FPS and the officer in charge, their interpretation is really the one at stake here, whether or not they’re making the right choice. And that’s what’s being argued here, that FPS has not been making the right choice.”

“Thank you, your honors. May it please the court. Kimberly Hutcherson on behalf of the plaintiffs. The district court found that under unified FPS command, defendants have an unwritten policy of using excessive force against non-violent, peaceful protesters at the Portland ICE building for the purpose of chilling the constitutional rights to free speech and the free press.”

“That factual finding was not clear error. It establishes the plaintiffs are likely to succeed on the merits of their First Amendment retaliation claim and that the equities and public interest weigh in favor of the injunction. The district court’s finding of irreparable harm in the form of First Amendment chill was also not clear error.”

“So it did not abuse its discretion in granting this injunction because the government has failed to show irreparable harm absent a stay, and in fact plaintiffs will suffer irreparable harm if the injunction is lifted. The government’s motion must be denied in its entirety.”

“At minimum, there’s no lawful basis for staying the other district court proceedings pending this appeal.”

“Your honors have properly focused on the district court’s finding of this unwritten policy. As the basis for finding this policy from the highest unified command of FPS, I would point your honors to the Manavi case decided by this court.”

“FPS being Federal Protective Services. Keep in mind a lot of the reporting is always around ICE agents, Portland ICE facility, but the primary people we’re really focusing on, the people who are really defending that federal building, would be FPS, Federal Protective Services.”

“Which expressly found that a policy or custom of retaliation may be inferred from widespread practices of evidence of repeated constitutional violations and the absence of evidence that officers were disciplined or reprimanded.”

“While my friend on the other side points to supposed investigations into wrongful use of force, no officer has ever been spoken to about any of these instances that even the deputy regional director and the regional director himself acknowledged were inappropriate or deserved higher scrutiny.”

“And those are the examples of excessive force that the district judge examined through this video evidence and the review of the extensive record here. The government at most has indicated that when there is public scrutiny of an example of excessive force, they then open an investigation without ever notifying the particular officers involved there that their use of force was questionable.”

“Okay, so that is pretty much the basis of this argumentation: that we have clear-cut examples, according to her, of excessive use of force, and even when we have the clear-cut examples, there doesn’t seem to either be a black-and-white policy or investigations actually being done, again according to this argumentation.”

“Okay, so let me know how you guys feel about that. That is the case as to whether or not Homeland Security agents are using excessive force.”

“Now we’re going to move on to this case, the apartment building across the street. This is them challenging Homeland Security from using excessive tear gas as well. This is what DHS, the government, has to say. Here’s their opening argument.”

“The wind carries aerosolized chemicals after federal officers use chemical irritants to disperse protests near the ICE facility in Portland, Oregon. The district court recognized a novel theory of substantive due process, one that the court itself admitted had not been recognized before and one that the court did not conduct the requisite history-and-tradition analysis to identify.”

“That right is a right of bodily integrity free from non-consensual exposure to toxic airborne substances. Based on that right, the district court imposed a novel remedy that, under the court’s reasoning, would effectively prohibit police officers from ever using chemical irritants in an urban area because there’s a chance that the wind could carry the aerosolized chemicals and affect people downwind.”

“That remedy has no basis in law and we ask that the court stay the injunction.”

“Okay, so real quick, this case has a little detail you guys should probably know. Homeland Security can use tear gas under this judicial order. However, they cannot use the tear gas if it goes into the apartment building, which is literally right across the street, maybe about 200 feet.”

“Which is why she is arguing, the lawyer, what are they supposed to do if the wind just so happens to push the tear gas downwind into the building, but Homeland Security used the tear gas with the intention of doing the right thing? Who’s in the wrong? The federal agents or the wind?”

“And by the way, here’s my disclaimer. If you are new here, I was actually covering the Portland ICE facility protest not because of protesters and clashing, but for this specific apartment building. There were people inside of the building who were trying to call 911 because of loud noises and they were not getting their 911 calls responded to.”

“So, I started covering this story because I couldn’t believe this was happening and I want to be very careful as I report this. I am very sympathetic even for people who are getting tear gas inside of that building. But what it comes down to is who do you blame? The protesters who cross the line, or do you blame the federal agents who are using the tear gas?”

“Okay, let’s hear the counterargument.”

“Chemical irritants are a critical defense of law…”

“May it please the court.”

“Mr. Worth, whenever you’re ready.”

“Thank you, Judge Lee. May it please the court, Steven Worth, on behalf of plaintiffs. I want to start with the government’s claim of irreparable harm because that’s the threshold requirement on a motion to stay pending appeal and the government has not remotely carried its burden.”

“The government operated under restrictions on chemical munitions at this site for over eight weeks, first under the temporary restraining order, then under the preliminary injunction at issue here. And the record does not contain a single documented operational harm. Not a single incident when officers were unable to protect the facility or themselves.”

“And the government has put in no evidence that they are currently suffering, or were suffering before the administrative stay, any irreparable harm. The government’s harm is simply speculative, but plaintiffs’ harm here is not.”

“They’ve suffered and will continue to suffer grievous injuries if the government continues its conduct. We’re talking about acute respiratory distress, chemical burns, chronic coughing, heart palpitations, severe PTSD episodes.”

“One plaintiff here has had to have an adrenal gland surgically removed because the gas exacerbated her Cushing’s disease, and further exposure threatens her life. Children who were healthy before being exposed to these chemical munitions now have to take daily medication.”

“These are real harms, not speculative harms. And this court can deny the government’s motion simply based on the lack of irreparable harm present in the record.”

“I think on the merits this case is a straightforward application of the right to bodily integrity. Now I know the government points to Glucksberg, but Glucksberg was not about the right to bodily integrity. It was about defining a new constitutional right to assisted dying, and the court said that there was no history and tradition of that new right. It did not say that there was no right to bodily integrity.”

“And in fact, the Supreme Court has reaffirmed that right time and time again going back to 1891 and all the way through today. And I would also in particular point this court to this court’s own precedents, which have since Glucksberg reaffirmed the right to bodily integrity in a variety of contexts, including outside of the sort of medical battery context that the government attempts to rely on.”

“There’s no question that in this circuit the right to bodily integrity applies outside of the medical battery context. It applies, for example, in cases of sexual abuse or in cases of corporal punishment. And beyond that you can see every circuit has applied the right to bodily integrity outside of the medical battery context.”

“I think we would point in particular to the Sixth Circuit’s decision in Guertin v. Michigan, the water contamination case. But there are cases everywhere, including in the Fifth Circuit, where courts have recognized that non-forcible coercion by the police can amount to a bodily integrity violation.”

“So to be very clear, the government is attempting to force us to define the right at an extremely granular level of generality. But that’s simply not the way that this court has ever approached that question, and it’s not the way that the Supreme Court has approached it either.”

“Okay, so again, let me know how you feel about their argumentation that there are people suffering inside of the apartment building and people have been affected by this. And this is actually true. We’ve been covering this since day one and very early on many, many residents — either ICE supporters, non-supporters, Trump supporters, non-Trump supporters — everybody was pretty much getting affected.”

“In fact, as I filmed this video, a lot of the early people we were covering and trying to tell their story, a lot of them left. And they left for a reason.”

“And believe it or not, a lot of them were actually not even that big of Trump supporters, but they did not support what was going on outside of the facility.”

“So yeah, this is a very complex case and we are covering it closely, but the U.S. government has made it very simple: how can we control these munitions? Federal agents need a way to have tear gas or some sort of munitions to push people back. Otherwise, what are we supposed to do — cross that line and use even more dangerous munitions or arrest more people?”

“So, there’s another little detail in there I do find rather interesting. And this actually was one of the biggest stories involving Homeland Security recently at this Portland ICE facility. These agents can use tear gas as of right now, but they haven’t used tear gas.”

“I’m sure you guys saw some of the clips from the No Kings protest if you are interested in this story. That building got destroyed. The gate got smashed open three times at the Portland ICE facility. Tear gas was never used.”

“And many people speculated this was all done on purpose to show that with tear gas, without tear gas, Homeland Security can make that decision. But either way, the building has nearly gotten destroyed here.”

“And look, I do want to acknowledge I am speaking pretty general and very vague as far as the topics and terms here. But if you guys want to go and do your own research, these are going to be the YouTube videos. You guys can go and look them up and listen to both sides. You guys can look up the actual specific definitions that are being contested.”

“My job is just to try and make this as easy and as simple and just to give you a baseline for you to follow along.”

“And yeah, let me know how you guys feel about all of this. I was just simply trying to give you both of the talking points because we don’t really get to have that much insight as far as what’s going on here.”

“So, we are covering Portland very closely and we’re covering other federal operations around the United States as well. So again, if you are new here, make sure to please subscribe, make sure to please like this video, and I really thank you guys so much for everything.”

“Make sure to please pray for peace, especially in this situation, especially for Portland. And I thank you guys so much. God bless all of you, and please seek Christ. Thank you guys so much.”