Ninth Circuit, Dickinson v. Trump and Reach v. DHS: crowd-control munitions at the Portland ICE facility, the First Amendment and due process

What happened

On November 10, 2026, the same three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (Judges Kenneth K. Lee, Ana de Alba and Eric C. Tung) decided two appeals over the federal government's use of tear gas and other crowd-control munitions at the U.S. Immigration and Customs Enforcement (ICE) facility in Portland, Oregon. In both, the court vacated a preliminary injunction issued by the District of Oregon, reaffirming its earlier orders staying them.

• Dickinson v. Trump, No. 26-1609, brought by five protesters and independent journalists under the First Amendment. Judge Lee wrote the opinion; Judge de Alba concurred in part and dissented in part.
• Reach Community Development v. U.S. Department of Homeland Security, No. 26-1575, brought by tenants of an apartment complex across the street from the facility under the Fifth Amendment's Due Process Clause. Judge Tung wrote the opinion; Judge de Alba dissented.

What the opinions say

Dickinson (First Amendment retaliation). The district court had barred the government from using non-lethal munitions unless someone "poses an imminent threat of physical harm," ordered more "conspicuous and unique identifying markings" on agents' uniforms, and provisionally certified a class. The majority held the plaintiffs had not shown a likely First Amendment violation. It stated that "law enforcement agents may use nonlethal force to clear crowds and restore order—they need not wait until they face 'an imminent threat of physical harm,'" relying on Puente v. City of Phoenix (9th Cir. 2024), and that "it is the tenor of the demonstration as a whole that determines whether the police may intervene." It found that the plaintiffs "have not shown an unwritten policy, pattern, or practice of First Amendment retaliation," and described them as "unfortunate collateral casualties" of efforts to disperse crowds. It also held the injunction overbroad: relief reaching anyone protesting or reporting at the facility "cannot be reconciled with Trump v. CASA, Inc.," and the uniform requirement "is beyond the court's power." It vacated the provisional class under Rule 23.

Reach (substantive due process). The majority held that the tenants "lack a substantive-due-process right to be free from the government's use of nonlethal crowd-control devices in response to disruptive demonstrations." Applying Washington v. Glucksberg and Dobbs v. Jackson Women's Health Organization, it held that "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," and that "[o]ne cannot simply pluck a 'right' as general and abstract as 'bodily integrity' from the caselaw." It rejected the tenants' new argument that conduct that "shocks the conscience" is enough on its own, reading County of Sacramento v. Lewis (1998) to require both showings in a challenge to executive action. It did not decide whether the conduct shocks the conscience.

The other side

In Dickinson, Judge de Alba agreed that three provisions were overbroad: the "imminent threat" limit on munitions, the "active resistance" limit on pepper spray, and the uniform requirement. She would have upheld the ban on firing munitions "at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person," and the class certification. She wrote that the plaintiffs' political speech "rest[s] on the highest rung of the hierarchy of First Amendment values," and that the district court "relied on an avalanche of circumstantial evidence" showing officers "were, in many instances, motivated by retaliatory intent," including findings that protesters and journalists were "directly targeted with force in the head and other areas of the body without warning." She cited the Ninth Circuit's L.A. Press Club v. Noem (2026): "The presence of some violent actors did not give Defendants carte blanche to fire crowd control weapons indiscriminately into crowds."

In Reach, Judge de Alba wrote that "the majority too easily declares both the shocks-the-conscience standard and the fundamental-rights standard as applicable in executive-action cases," and that "we should apply the shocks-the-conscience standard alone." Applying it, she would have held the tenants likely to succeed, because the district court found the use of chemical munitions "often widespread, repeated, planned, and indiscriminate," and the government had "extended opportunities to do better." In her view, quoting Lewis, "[t]his 'indifference is truly shocking.'"

Where it sits in the record

Both rulings are at the preliminary-injunction stage, and both opinions decided the appeals on the merits without resolving the government's standing arguments, citing the Supreme Court's 2026 plurality opinion in Mullin v. Doe. They follow the panel's 2026 stay orders, reported at 174 F.4th 634 (Dickinson) and 174 F.4th 1143 (Reach). The Reach majority's analysis applies the history-and-tradition test of Dobbs (2022); the Dickinson majority applies the limit on relief to parties stated in Trump v. CASA (2025). The cases return to the District of Oregon.