Category Archives: Law

Tear Gas Mirabella

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Guest Post: A first-hand account by Neal Milner, Emeritus Professor of Political Science at the University of Hawaii, and a columnist and regular contributor to Civil Beat, now living in Portland, Oregon.

ICE didn’t target anyone.
The agents on the roof did worse than that.
They targeted everyone.

My wife Joy and I were tear gassed at Portland’s Labor Against ICE demonstration on Saturday, January 31. So were a lot of others.

With no warning or provocation, ICE agents wildly and indiscriminately fired gas canisters and flash bombs into the crowd.

Several thousand people had marched the few blocks from a small park, where the rally started, to ICE headquarters.

Parents brought children, elderly people came with walkers, (there is a large retirement community across from the park). Families pushed strollers while others walked with dogs. Many cyclists too.

A surprisingly sunny Portland afternoon. Noisy but pleasant. Chanting. Calls and response. “Fuck Ice!”

No talk of violence or even confrontations. The organizers had not planned any purposeful civil disobedience. The only cops visible were a few directing traffic on nearby streets.

Overall, union based and family friendly—at least at first.

Joy and I were a couple hundred yards from the front of the crowd as it arrived at the ICE building. There was one agent observing from the roof. The crowd was across the street with no barriers, human or otherwise, between.

We were talking to two guys holding their small terrier when with no warning and no provocation, a few agents came onto the lower roof of the building and began firing the gas canisters and shooting off loud flash devices.

Before we even knew what was going on—remember there had been no warning—what we thought was smoke but was gas enveloped us and many people behind us. The stuff travels indiscriminately and really fast.

Joy and I immediately felt the effects of the gas. It’s very painful and disorienting. Fortunately, with some help we were finally able to walk on our own the few blocks to our building.

ICE didn’t target anyone. The agents on the roof did worse than that. They targeted everyone.

To make that more real, think of what that meant for three groups of people at the rally.

Older people who were less mobile: Who knows how they managed to navigate the crowd and move to shelter, trying to outrace the rapidly spreading tear gas. Our 80+ year old neighbor was hit blocks away.

Union people: besides their own struggles with the attack, how different it must have felt from picket lines where rules are so predictable.

The children: Parents brought their kids to teach them something about being a citizen and in a setting a lot more interesting than middle school social studies.

The Oregonian has a video of a little girl sitting on the ground, saying, “Owie, Owie.” That’s sure not the civics lesson her parents hoped she would learn.

There’s ongoing litigation about these Portland ICE tactics. A few days ago a judge ruled that ICE can’t act as arbitrarily as it did on that Saturday.

Good, it’s important to have a victory for freedom of assembly and the First amendment.

But what will linger with me most is the vision of that stunned, crying little girl in a pink sweatshirt covered with butterflies.

They tear gassed our children.

A blistering legal takedown of the Trump administration’s policy toward Haitian immigrants

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Another scathing 83-page opinion by a federal district court judge, this time Judge Ana Reyes in the DC Circuit. It comes in a case challenging the Trump administration’s plan to terminate the Temporary Protected Status previously granted to 352,959 lawful Haitian immigrants.

Reyes found that the government has neither the facts nor the law on its side.

NPR reported:

Reyes said in an 83-page opinion that plaintiffs were likely to prevail on the merits of the case, and that she found it “substantially likely” that Homeland Security Secretary Kristi Noem preordained her termination decision because of “hostility to nonwhite immigrants.”

Here is the conclusion of Judge Reyes’ opinion.

There is an old adage among lawyers. If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither, pound the table. Secretary Noem, the record to-date shows, does not have the facts on her side or at least has ignored them. Does not have the law on her side or at least has ignored it. Having neither and bringing the adage into the 21st century, she pounds X (f/k/a Twitter).

Kristi Noem has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants. Secretary Noem, however, is constrained by both our Constitution and the APA to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that.

By accompanying Order, the Court GRANTS Plaintiffs’ Renewed Motion for a Stay Under 5 U.S.C. § 705.

This is a long and thorough takedown of the administration’s position.

I would encourage you to read the first four pages of the opinion in which Judge Reyes summarizes her decision to extend legal protections for Haitians in the TPS program until the current lawsuit is completed.

Then you can pick and choose what additional sections of the opinion might interest you.

Oregon’s Attorney General offers an online “reading room” for documents in key federal case

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While looking online for a copy of the court order posted here yesterday, I was pleasantly surprised to find a “Public Records Reading Room” created and supported by Oregon’s Office of the Attorney General.

Like Hawaii, Oregon has joined in various lawsuits challenging policies of the Trump Administration that affects the state’s residents.

One of those cases, in which Oregon joined California in challenging the deployment of national guard troops to its cities, has drawn widespread public and media interest. The online reading room is Oregon’s response.

Oregon Department of Justice has received requests under the Oregon Public Records Law for exhibits in State of Oregon, et al. v. Trump, et al., No. 3:25-cv-01756-IM (D. Or.). To facilitate access to these records, Oregon DOJ will post to this website exhibits that are not exempt from disclosure (due to the Court’s orders requiring confidentiality of certain documents) on a rolling basis.

Arranged for easy public access are more than 13 gigabytes of court records in the case, including trial exhibits introduced by the states of Oregon and California, along with the City of Portland and the federal government. There are also more than 2.4 GB of videos introduced as exhibits by ICE, and redacted versions of our depositions filed in the case.

These can be downloaded in bulk via zip files, or by clicking the links for individual files in each category, which are then listed out to allow downloads of individual files of interest.

These exhibits would normally go unseen by the public, and are not typcally included in the federal court’s PACER public document retrieval system. And they’re made available here free of charge.

As a reporter, I try as much as possible to get back to source documents so that I’m not reliant on someone else’s interpretation of events. This kind of document collection is priceless.

For example, here’s a list of the first 50 State of Oregon trial exhibits (out of 91 total).

Screenshot

It’s quite a public service. Hawaii’s Attorney General might consider following suit with key documents from its federal litigation with the Trump administration.

Oregon judge temporarily bars use of tear gas and other weapons absent immediate threat

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Here comes another federal court order.

I’m posting this and similar orders so that readers can see these primary documents themselves.

U.S. District Judge Michael H. Simon in Portland issued a 22-page order on Tuesday at least temporarily haltlmh the use of tear gas, pepper balls, and related weapons in the absence of “an imminent threat of physical harm to a law enforcement officer or other person.”

Simon found that ICE agents had engaged in “persistent, excessive, and targeted violence” against peaceful demonstrators, journalists, and observers that violated their constitutional rights, including attacks on peaceful protestors during a demonstration over the weekend.

His order begins with a summary statement.

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. 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.

Later, he discussed the importance of the First Amendment rights at issue.

The public interest in protecting First Amendment rights cannot be overemphasized. Freedom of speech, including through political protest, is “one of the chief distinctions that sets us apart from totalitarian regimes.” As the Ninth Circuit has recognized, “robust political discourse within a traditional public forum is the lifeblood of a democracy.” Protest particularly serves this core democratic function “when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Indeed, the First Amendment tolerates societal “trouble” caused by protest because “our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength.” [legal citations omitted]

Simon’s temporary restraining order consists of three prohibitions:

a. No Enjoined Person may direct or use chemical or projectile munitions, including but not limited to kinetic impact projectiles, pepper ball or paintball guns, pepper or oleoresin capsicum spray, tear gas or other chemical irritants, soft nose rounds, 40mm or 37mm launchers, less lethal shotguns, and flashbang, Stinger, or rubber ball grenades, unless the specific target of such a weapon or device poses an imminent threat of physical harm to a law enforcement officer or other person.

b. No Enjoined Person may fire any munitions or use any weapons (including those described above) at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person.

c. No Enjoined Person may target any individual with a less lethal munition, if doing so would endanger any other individual who does not pose an imminent threat of physical harm to a law enforcement officer or other person. For purposes of illustration only, no Enjoined Person may use chemical or projectile munitions in response to trespassing, refusal to move, or refusal to obey a dispersal order.

The temporary restraining order applies until a scheduled hearing in his court in two weeks.

The full order appears below.