Reported / Citable
Background
An ICE facility in Portland, Oregon has been the site of regular protests against federal immigration enforcement. Federal law enforcement officers from several agencies (DHS, ICE, CBP, the Federal Protective Service, and the Secret Service) have used tear gas and other non-lethal crowd-control devices to disperse demonstrators. A neighboring apartment complex called Gray’s Landing — and several of its residents — sued in the U.S. District Court for the District of Oregon. They alleged that chemical agents drifted into their building, exposing residents and damaging the property.
The plaintiffs were not the demonstrators. They were neighbors. They argued, among other things, that they had a constitutional substantive-due-process right to “bodily integrity” that protected them from incidental exposure to chemicals deployed against the protesters next door. The district court agreed and entered a preliminary injunction barring federal officers from using non-lethal crowd-control devices in a way that would expose the apartment complex residents to those chemicals. The federal government appealed and sought a stay of the injunction pending appeal, plus a stay of further district court proceedings.
The Court’s Holding
The Ninth Circuit, in an order by Judge Tung joined by Judge Lee, granted both stays. The panel held that the federal government made a strong showing it was likely to succeed on the merits.
The core problem with the district court’s reasoning, the panel explained, is that there is no substantive-due-process right to “bodily integrity” against incidental chemical exposure of the kind alleged here. The Supreme Court’s substantive-due-process doctrine recognizes only those rights that are deeply rooted in the nation’s history and tradition or that are implicit in the concept of ordered liberty. Neither the district court nor the plaintiffs identified any constitutional text, structural principle, or historical tradition that would support extending substantive due process to a third-party bystander’s claim of exposure to non-lethal crowd-control agents used against demonstrators.
Because the asserted right was unmoored from the constitutional framework, the government had a strong likelihood of success on appeal. The panel also addressed the remaining stay factors and concluded that they all favored the government. Federal officers could be hampered in their ability to maintain order around an active federal facility if the injunction remained in place during appeal.
The panel went further and stayed all district court proceedings pending appeal. Because the plaintiffs’ theory of relief was meritless and the district court had not found likelihood of success on the plaintiffs’ remaining Fourth Amendment claim, there was no reason to keep discovery going while the appeal was pending.
Judge de Alba dissented. She would have held that the federal government forfeited its key arguments by failing to raise them squarely in the district court before seeking a stay on appeal.
Key Takeaways
- Substantive due process protects rights that are deeply rooted in the nation’s history and tradition or implicit in the concept of ordered liberty. Bystanders incidentally exposed to non-lethal crowd-control agents have no clearly established substantive-due-process “bodily integrity” right.
- A federal court’s preliminary injunction limiting how federal officers may respond to demonstrations can be stayed pending appeal when the legal theory underlying the injunction is unmoored from established substantive-due-process doctrine.
- Once a preliminary injunction is stayed on the ground that the underlying claim is meritless, district courts may also stay further proceedings (including discovery) on that claim during the appeal.
- Bystander plaintiffs concerned about police use of non-lethal weapons may have stronger ground in Fourth Amendment, state-law tort, or trespass theories than in substantive due process — but those theories were not the basis of the injunction here.
Why It Matters
Although this case arose in Portland, the legal issues directly affect California. Federal facilities — including ICE facilities in Los Angeles, San Francisco, and the San Diego area — have repeatedly been the focus of demonstrations, sometimes leading to use of non-lethal crowd-control devices by federal officers. The Ninth Circuit’s ruling will govern any similar bystander suit brought in California federal courts.
The decision is also part of a broader debate about how courts should balance protest activity against federal law enforcement operations and the interests of nearby residents. By rejecting a sweeping substantive-due-process theory, the panel keeps the doctrine narrow and confined to historically recognized rights. That makes it harder for residents and businesses near federal facilities to get prophylactic relief through federal court before they can show concrete violations of more established constitutional or statutory protections.
The dissent on forfeiture grounds, and the case’s political salience, mean this dispute will likely be tested further on the merits and possibly through en banc or Supreme Court review.