Ninth Circuit Vacates Portland Protest and Press Injunction

A Ninth Circuit panel on November 10, 2026 vacated the preliminary injunction that had limited federal agents' use of tear gas and pepper balls near Portland's ICE facility, and threw out the provisional class covering everyone who protests or reports there. Two of the five plaintiffs are working journalists.

Information last verified on November 13, 2026. This is a developing story; we update it as the record changes.

Status: Dickinson v. Trump, No. 26-1609, was filed November 10, 2026 and carries the court's "FOR PUBLICATION" designation, so it is binding Ninth Circuit precedent. It is a ruling on a preliminary injunction, not a final judgment on the merits, and the underlying lawsuit in the District of Oregon was not dismissed. The injunction it vacated had already been stayed by the same panel since April 27, 2026, so nothing changed on the ground on November 10. Under Federal Rule of Appellate Procedure 40(d)(1), because the United States and federal officers are parties, a petition for panel rehearing or rehearing en banc may be filed within 45 days after entry of judgment unless the court orders otherwise, and under Rule 41(b) the mandate issues seven days after that period expires. As of November 13, 2026 that period had not run and the mandate had not issued.

Jurisdiction scope: This decision binds federal courts in the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, plus Guam and the Northern Mariana Islands. It interprets the First Amendment and Federal Rule of Civil Procedure 23. It does not decide any state recording or wiretap law, any Fourth Amendment excessive-force question, any damages claim, or the ultimate merits of the plaintiffs' case.

What Happened

The dispute grew out of the federal immigration enforcement facility at 4310 S. Macadam Avenue in Portland, Oregon. The panel wrote that between June 2025 and February 2026 at least 150 protests were staged there, with crowds as large as several thousand people (slip op. 7).

The panel's recitation of that record is unsparing, and it is the predicate for everything the court went on to hold. It found that some demonstrators carried bats, improvised weapons, shields and ballistic vests; smashed security cameras; hurled rocks, glass, bricks and metal at officers; tore plywood from the facility's guard shack; blockaded the driveway and the gates; and aimed strobe lights and lasers at officers (slip op. 7 to 12). A smoke canister thrown onto the roof started a fire. The panel treated those findings, not the plaintiffs' own conduct, as setting what it called the tenor of the demonstrations.

Five people sued the President, the Secretary of Homeland Security and the Department of Homeland Security. Jack Dickinson, known at the protests as the Portland Chicken, Laurie and Richard Eckman, and two freelance journalists, Hugo Rios and Mason Lake, alleged that federal officers had used crowd-control munitions against them through an unwritten policy, pattern and practice of retaliating against people for exercising First Amendment rights.

The district court record moved quickly. Judge Michael H. Simon entered a temporary restraining order on February 3, 2026. Plaintiffs moved to convert it into a preliminary injunction nine days later, and moved for provisional class certification on February 28. The court began a three-day evidentiary hearing on March 2, and on March 9, 2026 issued a 34-page opinion granting the preliminary injunction and, in a companion order, provisionally certifying a class.

The injunction had four parts, as the panel recited them (slip op. 13 to 14). It barred DHS agents from directing or using chemical or projectile munitions unless the specific target posed an imminent threat of physical harm. It barred firing such devices at the head, neck or torso of any person unless the officer would be legally justified in using deadly force. It set separate rules for pepper spray, permitting it only against a target exhibiting at least active resistance, a term defined to exclude trespassing, refusing to move, refusing to obey a dispersal order and going limp. And it required the parties to confer about how agents could place conspicuous and unique identifying markings on uniforms, vests or helmets, with the district court reserving the power to decide the question itself if they could not agree.

The certified class was broad: all people who, since June 2025, "have, desire to, or will nonviolently protest against or report on DHS activities at the Portland ICE Building." The panel also noted that the injunction's own terms covered anyone "in the vicinity of" the facility, class member or not (slip op. 14).

The government appealed. On April 27, 2026 the same three judges, Kenneth K. Lee, Ana de Alba and Eric C. Tung, issued a published order staying the injunction pending appeal. The appeal was argued in Pasadena on July 10, 2026. The November 10 opinion, written by Judge Lee, reaffirmed that stay order's reasoning and vacated both the injunction and the provisional class certification outright.

Judge Lee framed the ruling at the outset: the First Amendment "shields the people from governmental suppression of their right to protest peacefully and speak freely," but "cannot be a sword to justify vandalism of federal buildings, criminal trespass of government property, or obstruction of law enforcement" (slip op. 6).

What the Law Actually Says

The retaliation test the panel applied. A First Amendment retaliation plaintiff must establish a but-for causal connection between the government's retaliatory animus and the injury, citing Nieves v. Bartlett, 587 U.S. 391, 398 (2019). The panel then applied the three-element test from Index Newspapers: the plaintiff was engaged in constitutionally protected activity; the defendant's actions would chill a person of ordinary firmness from continuing that activity; and the protected activity was a substantial or motivating factor in the defendant's conduct (slip op. 15 to 16). The panel said expressly that it would "focus here on the third prong." It did not question that protesting and filming at the facility were protected activity.

When non-lethal force may be used. The panel said the district court erred in assuming the government may use non-lethal munitions only in response to a threat of imminent physical harm. Citing Puente v. City of Phoenix, 123 F.4th 1035, 1062 (9th Cir. 2024), which in turn quotes Cantwell v. Connecticut, 310 U.S. 296, 308 (1940), the panel held officers may disperse a protesting crowd where there are "objectively reasonable grounds to conclude that there [is] a 'clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order'" (slip op. 16 to 17). Agents "may use nonlethal force to clear crowds and restore order" and "need not wait until they face 'an imminent threat of physical harm'" (slip op. 7). The panel added, again quoting Puente, that "it is the tenor of the demonstration as a whole that determines whether the police may intervene" (slip op. 17).

Why the plaintiffs lost on the record. Once the imminent-harm assumption was removed, the panel said, the inference of retaliatory intent "collapses," leaving "a more plausible explanation": the five plaintiffs "were not intentionally targeted for their First Amendment activity but were rather unfortunate collateral casualties during a chaotic effort to quell disorder" (slip op. 19). The panel also found no unwritten policy of retaliation, pointing to written DHS policy prohibiting targeting anyone for exercising First Amendment rights (slip op. 19). In a footnote the panel acknowledged that some video clips "may show that some officers may have used unprovoked or excessive force," but added that "the individuals do not appear to be any of the plaintiffs" (slip op. 21 n.4).

The Fourth Amendment is a different question. The panel held the district court wrongly leaned on Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012), a Fourth Amendment excessive-force case, writing that "the Fourth Amendment's excessive force analysis differs from the First Amendment's intent to retaliate framework" (slip op. 18). Even force that was not justified "would not compel the conclusion that the officers acted because of subjective antipathy to First Amendment activity" (slip op. 21).

Scope of injunctive relief. Relying on Trump v. CASA, Inc., 606 U.S. 831 (2025), the panel held that an injunction whose explicit terms protect non-parties exceeds a federal court's equitable authority (slip op. 23 to 24). On the uniform provision, the panel wrote that "Courts cannot be the couture of the executive branch" (slip op. 25).

Rule 23. The panel held the provisional class failed commonality under Rule 23(a)(2) because the class swept in people whose conduct had nothing in common: "there is little in common between an Antifa provocateur who destroys the security camera at the ICE facility and a peaceful protester who holds a sign several hundred feet away on the public sidewalk" (slip op. 30). It then held that even if commonality were met, Rule 23(b)(2)'s indivisible-remedy requirement failed under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011), because different class members would be entitled to different injunctions or to none (slip op. 33 to 34).

What the panel did not decide. It declined to reach the government's standing argument, choosing merits grounds over what it called "the more murky jurisdictional issue" (slip op. 15 n.1). No right-to-record claim and no right-of-public-access claim was before it. The preliminary injunction motion rested only on the plaintiffs' First Amendment retaliation claim (ECF 155 at 18), so that is the only theory the panel reviewed.

The right to film police is a separate line of cases, and it was not disturbed. In Index Newspapers, the Ninth Circuit said journalists at the 2020 Portland protests "were clearly observing and recording law enforcement activity in public," citing its own decision in Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995), which recognized that a person filming police during a public protest march was exercising a "First Amendment right to film matters of public interest." Nothing in the November 10 opinion addresses that line of authority. Readers in Oregon should also keep in mind that this is federal constitutional law only, and that Oregon's own rules on recording police officers are a separate body of state law that a federal injunction ruling does not touch.

The partial dissent. Judge de Alba agreed that three provisions were overbroad: the imminent-threat provision, the pepper-spray active-resistance provision and the uniform provision (slip op. 35 n.1). She otherwise dissented. She wrote that "Plaintiffs have presented an overwhelming amount of evidence that supports the district court's finding of retaliatory intent" (slip op. 48), catalogued the video record at length, and would have upheld the one provision barring agents from firing munitions "at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person" (slip op. 60). She would also have affirmed class certification (slip op. 61 to 67).

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The detail we find most significant is one the opinion never announces. Two of the five plaintiffs were working journalists, and the majority opinion contains no separate analysis of them as journalists at all.

Read the majority's own factual recitation. Rios appears as someone who "was filming the protests by the driveway" (slip op. 9). Lake appears as someone who "stood off to the side of the driveway ... on the public sidewalk to document the protest" (slip op. 10). The word "journalist" appears in the majority's own voice twice, both times only to introduce the plaintiffs: once in the opening paragraph, as "peaceful protesters and independent journalists" (slip op. 6), and once in the factual recitation, as "protesters or freelance journalists" (slip op. 8). Every other time it appears in the majority, it is inside a quotation from a different case.

The dissent tells it differently, and so did the district court. Judge de Alba records that Rios "wore gear identifying him as a member of the press" and that Lake "was also wearing gear identifying him as a member of the press" (slip op. 44). The district court's March 9 opinion was more specific still, finding that Lake wore a vest reading PRESS on front and back, a helmet marked PRESS on the front, back and sides, and a 3-by-7-inch press badge around his neck, and that Rios wore a conspicuous PRESS tag across his chest. It also recorded Rios telling an officer he was "just filming" and the officer answering, "I don't care."

That omission is not a drafting slip. It follows from the panel's framework. If the question is whether the tenor of the demonstration as a whole justified dispersal, then what any individual in the crowd was doing, including holding a camera and wearing a press vest, recedes. Everyone exposed to the gas becomes, in the panel's phrase, a collateral casualty. The press identification that the district court treated as evidence of targeting becomes, under this framework, simply not the relevant question.

The two precedents the panel had to get past show how much turns on the record rather than the rule. Index Newspapers and Los Angeles Press Club both involved journalists and both found retaliation on their records. Los Angeles Press Club is only half a counterweight: the same decision vacated that injunction as overbroad, and this panel cited it as authority for doing the same here (slip op. 23 to 25). The panel distinguished them on evidence, not law. The panel refused to read Index Newspapers as a rule. Its "exceptionally strong" evidence discussion, the panel said, "was about the specific evidence in that case and cannot be read to establish a broad rule that alleged excessive force shows strong evidence of a First Amendment violation" (slip op. 20 to 21). What the panel rejected was the plaintiffs' attempt to carry a Fourth Amendment excessive-force theory into a First Amendment claim, not the journalist-proximity evidence itself. And of Los Angeles Press Club: "The record here does not contain an 'avalanche of circumstantial evidence'" (slip op. 22). Both decisions survive intact. A journalist with the kind of record the Central District of California compiled in Los Angeles Press Club, where officers "repeatedly targeted journalists and peaceful legal observers who stood far from any protesters or bad actors," still has published Ninth Circuit authority to point to.

The class ruling may matter more than the injunction ruling, and it is the part most likely to be overlooked. The vacated class covered people who "report on" DHS activities, not only people who protest. By holding that First Amendment retaliation claims turn on the subjective motivation of the particular officer and so resist class treatment, the panel pushed each reporter who says they were targeted into bringing a separate case about their own incident, with their own evidence of that officer's intent. Combined with the CASA holding that an injunction cannot by its terms protect non-parties, the practical effect is that whatever protection a court orders runs to the named plaintiffs in front of it.

We would flag one point of real tension in the opinion. The panel acknowledged that some clips may show unprovoked or excessive force, then set that aside because the people in them "do not appear to be any of the plaintiffs" (slip op. 21 n.4). On its own logic, that is consistent: the plaintiffs must prove retaliation against themselves. But it also means conduct the panel was willing to describe as possibly unprovoked produced no remedy in this case for anyone, because the class that would have covered those people was simultaneously decertified. That is a structural gap, and it is a fair thing for a reader to notice.

Finally, a note on how much actually changed. The headline is that a protection was vacated. The ground truth is that the same panel stayed this injunction on April 27, 2026, more than six months earlier. November 10 converted a stay into a vacatur and added a published class-certification holding. For anyone standing on a Portland sidewalk, the operative rules had already been these since the spring.

How This Affects You

What this decision changes, and what it leaves alone, is worth separating carefully.

It changes the standard a federal district court in this circuit must apply before restraining agents' use of crowd-control munitions, and it narrows who such an order can protect: after CASA and this ruling, a preliminary injunction cannot by its explicit terms cover non-parties, and a class of everyone who protests or reports at a location is substantially harder to certify when the claim is retaliation.

It does not decide that any particular use of force was lawful. The panel ruled at a preliminary stage, on this record, and expressly did not resolve the merits. It did not stop at likelihood of success, though: its holding heading reads that "the plaintiffs have failed to establish any of the required Winter factors" (slip op. 15), and a separate section holds that even assuming irreparable harm, "the balance of equities tips in the government's favor and the injunction is not in the public interest" (slip op. 26).

It does not address the right to record police or federal officers in public. The operative complaint does include a separate First Amendment right-of-access and newsgathering claim brought by the two journalist plaintiffs and a subclass, but the preliminary injunction motion rested only on the First Amendment retaliation claim (ECF 155 at 18), so the panel never reached it. That claim remains pending in the district court. A decision about when agents may deploy tear gas is not a decision about whether a camera may be pointed at them.

It does not touch state law. Whether recording a particular conversation or encounter is lawful in Oregon is governed by Oregon's recording statutes, which set their own rules for conversations in public settings. Those questions, including what Oregon permits when recording in public places, are analyzed independently of anything in this opinion, as are the federal wiretap statute and related recording rules, which operate on a different axis entirely from a First Amendment retaliation claim.

And it does not resolve the underlying lawsuit. The case was not dismissed. What the panel vacated was interim relief.

What Happens Next

The immediate procedural question is the rehearing window. Under FRAP 40(d)(1), because the United States and federal officers are parties, a petition for panel rehearing or rehearing en banc may be filed within 45 days after entry of judgment unless the court shortens or extends that time. Under FRAP 41(b), the mandate issues seven days after that period expires, or seven days after entry of an order denying a timely petition, whichever is later. As of November 13, 2026 the window was open and the mandate had not issued. A published opinion can also be amended by the panel. We take no position on whether any petition will be filed or how any court would rule on one.

Beyond that, the two published Ninth Circuit decisions now sit alongside each other. Los Angeles Press Club, decided April 1, 2026, affirmed a district court's retaliation findings on a record it described as an avalanche of circumstantial evidence, while vacating that injunction as overbroad and sending it back for narrowing. Dickinson, decided November 10, 2026, found the Portland record insufficient. Both are binding, and the difference between them is evidentiary. That is the comparison to watch, and we will update this page as the record changes. We have covered a different Ninth Circuit First Amendment ruling on compelled disclosure separately.

This is general legal information, not legal advice. It describes what a federal appellate court held in one case at a preliminary stage. It does not tell you how any law applies to your situation, and it is not guidance about participating in, observing or recording any event. Reading it creates no attorney-client relationship. Consult a licensed attorney in your jurisdiction about your specific circumstances.

Related articles

• Oregon Laws on Recording Police: Your Rights and Legal Limits
• Oregon Recording Laws (2026)
• Oregon Laws on Recording in Public
• Federal Recording Laws
• Ninth Circuit on Compelled Disclosure and the First Amendment

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Last updated: 2026-11-13. This is a developing story; details verified as of 2026-11-13.

Frequently Asked Questions

Did the Ninth Circuit rule that tear-gassing journalists is legal?

No. The panel ruled on a preliminary injunction, which asks whether plaintiffs are likely to succeed, not whether any particular use of force was lawful. It held that on this record the five plaintiffs had not shown that their First Amendment activity was a substantial or motivating factor in the officers' conduct, and described them as collateral casualties of crowd control rather than targets (slip op. 19). It expressly did not reach the merits.

Does this decision take away the right to film police or federal officers?

No. No right-to-record claim was before the panel. Judge de Alba's separate opinion notes that the plaintiffs brought a First Amendment retaliation claim alone (slip op. 51). The Ninth Circuit's statements on recording law enforcement in public appear in different cases, including Index Newspapers LLC v. U.S. Marshals Service, 977 F.3d 817 (9th Cir. 2020), which described the journalist plaintiffs there as 'clearly observing and recording law enforcement activity in public' and cited Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). The November 10 opinion does not discuss that line of authority.

Why does it matter that the panel vacated the class certification and not just the injunction?

The class covered all people who have, desire to, or will nonviolently protest against or report on DHS activities at the Portland facility (slip op. 14). Vacating it means the class no longer exists as a vehicle for relief, so reporters and protesters who were not named plaintiffs are not covered by any order in this case. The panel also held that First Amendment retaliation claims turn on the subjective motivation of the particular officer, which it said makes them poorly suited to class treatment generally (slip op. 30 to 31).

What exactly did the panel say about the uniform-marking requirement?

The district court had ordered the parties to confer about how agents could place conspicuous and unique identifying markings on uniforms, vests or helmets, and reserved the power to decide the question itself if they could not agree (slip op. 13 to 14). The panel held this exceeded the court's power, called the provision attenuated from the alleged First Amendment injury, and wrote that 'Courts cannot be the couture of the executive branch' (slip op. 25). Judge de Alba agreed that this provision was overbroad.

What did Judge de Alba's partial dissent actually say?

She concurred that three provisions of the injunction were overbroad: the one requiring an imminent threat of physical harm, the one requiring active resistance before using aerosol spray, and the uniform provision (slip op. 35 n.1). She dissented from the rest. She wrote that plaintiffs presented 'an overwhelming amount of evidence' supporting the district court's retaliatory-intent finding (slip op. 48), would have upheld the provision barring munitions fired at the head, neck or torso absent deadly-force justification (slip op. 60), and would have affirmed class certification on both commonality and indivisibility (slip op. 61 to 67).

Are Index Newspapers and Los Angeles Press Club still good law in the Ninth Circuit?

Both remain published Ninth Circuit decisions and neither was overruled. The panel distinguished them on their factual records. It said the 'exceptionally strong' evidence language in Index Newspapers was about the specific evidence in that case and 'cannot be read to establish a broad rule' (slip op. 21), and that the record in Dickinson 'does not contain an avalanche of circumstantial evidence' of the kind in Los Angeles Press Club (slip op. 22).

Does this change Oregon's own recording laws?

No. This is a federal constitutional decision about preliminary injunctive relief and Rule 23 class certification. Oregon's statutes governing when a conversation may be recorded, and how those rules apply to recording police, are state law and were not before the court. Those questions are analyzed separately from anything in this opinion.

Is the ruling final, and can it still change?

It is a published panel opinion, so it binds district courts in the Ninth Circuit, but it is not final in the sense of ending the case. Under FRAP 40(d)(1) a petition for panel rehearing or rehearing en banc may be filed within 45 days after entry of judgment because the United States is a party, and under FRAP 41(b) the mandate issues seven days after that period expires or after denial of a timely petition. As of November 13, 2026 that had not happened. A published opinion can also be amended by the panel.

Where can I read the opinion myself?

The slip opinion is posted on the Ninth Circuit's own site at cdn.ca9.uscourts.gov under the November 10, 2026 opinions directory for case 26-1609, and the case is listed on the court's opinions page. The district court's March 9, 2026 opinion granting the preliminary injunction is docket entry 155 in Dickinson v. Trump, No. 3:25-cv-02170-SI (D. Or.), available through CourtListener's RECAP archive. Reading the opinion body rather than the court-staff summary at the front matters, because that summary is expressly no part of the opinion of the court.