PORTLAND, Ore. (KATU) — A federal court judge ruled that the Department of Homeland Security (DHS) has been using excessive force outside of the Immigration and Customs Enforcement (ICE) facility in South Portland.
The decision says that DHS has been indiscriminately using chemical munitions and must pause doing so until the decision is made on the merits.
U.S. District Judge Michael H. Simon granted a temporary restraining order, and stressed in his decision the importance of free speech, newsgathering, and nonviolent protest in a constitutional democratic republic, contrasting it with authoritarian regimes.
Judge Simon wrote in his decision, “In a well-functioning constitutional democratic republic, free speech, courageous newsgathering, and nonviolent protest are all permitted, respected, and even celebrated. In an authoritarian regime, that is not the case.”
He continued, “Our nation is now at a crossroads. We have been here before and have previously returned to the right path, notwithstanding an occasional detour. In helping our nation find its constitutional compass, an impartial and independent judiciary operating under the rule of law has a responsibility that it may not shirk. For that reason, and as more fully explained below, the Court grants Plaintiffs’ motion for a temporary restraining order.”
The plaintiffs in the case alleged First Amendment retaliation and claimed that federal agents have violated their rights through excessive force and viewpoint discrimination.
The temporary restraining order prohibits federal agents and their associates from using chemical or projectile munitions unless there is an imminent threat of physical harm. It also restricts the use of less lethal weapons unless legally justified.
The order will remain in effect for 14 days, with the possibility of extension. Plaintiffs have until Feb. 12, 2026, to file a motion for a preliminary injunction, with a hearing scheduled for March 2, 2026.
The ACLU of Oregon, along with several attorneys, had filed the class-action lawsuit against the Trump administration in November 2025.
The plaintiffs, including “the Portland Chicken,” an elderly couple, veterans, and journalists, argued that federal officers have engaged in violent tactics reminiscent of those used during “Operation Diligent Valor” in 2020.
The plaintiffs submitted videos as evidence of excessive force. They stated federal officers fired munitions and flash bangs into a march this past weekend, without providing warnings or instructions before they began shooting.
Image taken from a court filing of DHS agents’ use of chemical munitions during protests in Portland. Court documents state this picture of a person being sprayed by chemical munitions while sitting down was taken on MLK Day.
They also claimed officers were firing into the crowd as the crowd was attempting to disperse.
The plaintiffs also submitted a video of a kid washing their eyes out after gas was reportedly deployed against protesters.
Videos taken from a court filing of DHS agents’ use of chemical munitions during protests in Portland
The plaintiffs asked for two forms of relief: For DHS officers to stop using “non-trivial amounts of force on people engaged in passive resistance” and to stop DHS from “using crowd-control weapons in dangerous ways that violate their own policies and jeopardize peaceful protesters.”
Even if there were some individuals who did not comply with DHS orders, the plaintiffs cited a holding from Nelson v. City of Davis that says “a failure to fully or immediately comply with an officer’s orders neither rises to the level of active resistance nor justifies the application of a non-trivial amount of force.”
Did DHS respond?
While federal court records do not show a response from the government, documents from the plaintiffs indicate that the Department of Homeland Security (DHS) attempted to settle the issue out of court through emails.
An excerpt from these emails outlines the protocol for federal officers, stating, “When feasible, prior to the application of force, a CBP, ICE or FPS officer/agent must attempt to issue a verbal warning to comply with the officer/agent’s instructions.”
The email further explains that less-lethal munitions may be used when “objectively reasonable and necessary” and after providing verbal warnings, if feasible. The munitions are not to be “deliberately deployed/targeted for kinetic impact on specific individuals unless there exists an assaultive threat.”
KATU contacted the court to find out whether there was an official response filed.
DHS also provided KATU with two statements regarding the protests this past week, including different numbers of protesters and those arrested. Both statements were provided before the court decision was made this afternoon.
The following response was given to KATU on Monday morning, attributed to Assistant Secretary Tricia McLaughlin:
On Saturday, over 250 rioters violently stormed an ICE facility in Portland forming a shield wall with umbrellas while they attempted to tie the vehicle gate shut with ropes and moved a dumpster to block the front gate. Agitators threw objects at law enforcement and rocks at cameras. Four rioters were arrested with charges including destruction of government property, failure to comply, and disorderly conduct.Secretary Noem has been clear: anyone who destroys federal property and assaults or obstructs law enforcement will be prosecuted to the fullest extent of the law. Law and order will prevail.Instead of calling for ICE officers to resign, Mayor Wilson should be grateful to our brave law enforcement officers for cleaning up the streets of Portland by arresting criminal illegal aliens—not bashing them online and peddling false narratives about them. This garbage is contributing to ICE officers facing a 1300% increase in assaults against them as they put their lives on the line every day to defend the lives of American citizens.
On Tuesday, DHS provided this statement, which states there were 500 people instead of 250, and said six were arrested instead of four, as the Monday statement claimed:
Over the weekend, more than 500 rioters violently stormed an ICE facility in Portland forming a shield wall with umbrellas while they attempted to tie the vehicle gate shut with ropes and moved a dumpster to block the front gate. Rioters threw objects at law enforcement and rocks at cameras. Six rioters were arrested with charges including destruction of government property, failure to comply, and disorderly conduct.Secretary Noem has been clear: anyone who destroys federal property and assaults or obstructs law enforcement will be prosecuted to the fullest extent of the law. Law and order will prevail.
The Tuesday statement was also attributed to Assistant Secretary Tricia McLaughlin.
KATU reached back out for clarity on the discrepancy and to ask what charges the individuals were arrested on.
The Portland Police Bureau (PPB) did not declare a riot during the protests over the weekend. In all of 2025, only one protest in Portland had been declared a riot.
The bureau also reported no arrests during the protest, but since June 2025, 86 arrests have been related to ICE protest activity.