Lawyers for an apartment building near Portland’s U.S. Immigration and Customs Enforcement office lost its bid for a review of an appeals court ruling that cleared the way for federal officers to continue firing clouds of tear gas during protests.
A group of Gray’s Landing residents and the affordable housing complex’s owner had sued the federal government, contending the wide use of tear gas against demonstrators wafted into apartments and made tenants sick.
U.S. District Judge Amy Baggio of Portland in March ordered federal officers to stop unleashing tear gas that could seep into Gray’s Landing unless they faced an imminent deadly threat.
She found the officers showed “deliberate indifference” based on the quantity of chemical munitions they used during protests of President Donald Trump’s mass deportation campaign and violated the resident’s constitutional right of “bodily integrity.”
But a three-judge panel of the 9th U.S. Circuit Court of Appeals, in a split 2-1 ruling in April, overturned Baggio’s order. The majority of the panel likened the concerns raised by Gray’s Landing residents to a neighborhood grievance and found Baggio’s order “vague” and “unworkable.”
Gray’s Landing lawyers then asked for a broader group of judges to reconsider the panel’s decision, but no judge sought a vote to take up the matter, according to a court order issued Thursday.
And the same three-judge panel voted along the same 2-1 split Thursday to deny Gray’s Landing’s motion for review.
Circuit Judges Eric C. Tung and Kenneth Kiyul Lee, both Trump appointees, voted in the majority in each panel ruling, and Circuit Judge Ana de Alba, a Biden appointee, dissented.
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