The Ninth Circuit Court of Appeals ruled on November 10, 2026, to vacate a preliminary injunction that prohibited federal agencies from using tear gas to disperse crowds outside an Immigration and Customs Enforcement (ICE) facility in Portland, Oregon. This decision affects residents living near the facility who claimed exposure to tear gas during protests. The ruling underscores the legal complexities surrounding the use of crowd-control measures by law enforcement during demonstrations.

The case, Reach Community Development v. United States Department of Homeland Security, No. 26-1575, involved multiple plaintiffs, including Reach Community Development and several individuals living near the ICE facility. The plaintiffs argued that the use of tear gas violated their substantive due process rights under the Fifth Amendment, as it subjected them to harmful chemicals without justification.

The dispute arose after federal law enforcement agencies deployed tear gas to manage protests that escalated into violence, including assaults on officers and vandalism of property. The plaintiffs sought a preliminary injunction from the district court to prevent the federal government from using tear gas, claiming their right to be free from exposure to such chemicals was constitutionally protected.

The district court initially granted the injunction, leading to the appeal by the federal government. The Ninth Circuit previously stayed the injunction pending appeal, indicating that the plaintiffs likely lacked a substantive due process right to be free from exposure to the tear gas used during the protests. This appeal focused on whether the plaintiffs had a valid claim under the substantive due process framework.

The Ninth Circuit's ruling reaffirmed that the plaintiffs did not have a substantive due process right to be free from the government's use of non-lethal crowd-control devices. The court stated, "Plaintiffs lack a substantive-due-process right to be free from the government’s use of non-lethal crowd-control devices in response to disruptive demonstrations." The judges noted that neither the district court nor the plaintiffs provided evidence that such a right is found in the Constitution or is deeply rooted in American history.

The court's opinion emphasized the importance of historical context in determining substantive due process rights. The judges explained that any claimed right not mentioned in the Constitution must be deeply rooted in the nation’s history and tradition. They found that the plaintiffs failed to demonstrate that a right to be free from exposure to tear gas exists within this framework.

Judge Tung, who authored the opinion, stated, "To prevail on a substantive-due-process claim, a plaintiff must show that the asserted right, carefully described, is deeply rooted in our Nation’s history." The court further clarified that the plaintiffs' argument that they need not show historical grounding for their claim was incorrect, as precedent requires both a historical basis and a demonstration that the government action shocks the conscience.

The dissenting opinion, written by Judge de Alba, argued that the majority's interpretation of the law was overly restrictive. Judge de Alba contended that the court should apply only the shocks-the-conscience standard in executive-action cases, suggesting that the plaintiffs were likely to succeed on the merits of their claim. The dissent highlighted the potential for government overreach in the use of crowd-control measures and emphasized the need for scrutiny of such actions.

The Ninth Circuit's ruling has significant implications for how federal law enforcement agencies manage protests and use crowd-control measures. It suggests that residents living near protest sites may have limited legal recourse against the deployment of non-lethal crowd-control devices, such as tear gas, even if they are adversely affected by such actions.

This decision may influence future cases involving the use of crowd-control tactics by law enforcement, particularly in the context of protests and demonstrations. The ruling reaffirms the legal standards that govern substantive due process claims and highlights the challenges plaintiffs face in establishing new rights under the Constitution.

Looking ahead, the plaintiffs in this case may consider appealing the Ninth Circuit's decision to the U.S. Supreme Court. However, it remains uncertain whether the Supreme Court will choose to hear the case or if there are related cases pending that could influence the legal landscape surrounding this issue.