Staff Reports
The Ninth Circuit just handed two big wins to the federal government in a single day — and one of those wins came wrapped in a legal plot twist tied to the Supreme Court’s Dobbs decision. If you like court drama, this is the kind where judges tell other judges to stop redesigning police uniforms and to stop inventing new constitutional rights on the fly. The upshot: federal officers in Portland get more room to act, and district courts get a lesson in limits.
What the Ninth Circuit actually did
The appeals court vacated two preliminary injunctions that had limited federal officers’ use of tear gas, pepper balls, and other crowd‑control tools during protests outside the Portland ICE facility. The panel was split 2–1, with Judges Eric C. Tung and Kenneth K. Lee in the majority and Judge Ana de Alba dissenting. One case, Dickinson v. Trump, names President Donald J. Trump and Secretary Markwayne M. Mullin as official defendants in the caption. The court told the district judges their broad orders were overbroad, included legal errors, and even stepped into micromanaging uniforms. As the opinion put it, “Courts cannot be the couture of the executive branch.” That line alone should give pause to any judge who thinks injunctions are an invitation to an executive‑branch makeover.
The Dobbs twist — and why it matters
In Reach Community Development, the Ninth Circuit did something interesting: it used the Dobbs/Glucksberg test — the same historical‑rootedness inquiry the Supreme Court emphasized in its abortion ruling — to say you can’t just create a new substantive‑due‑process right against incidental exposure to chemical munitions. In plain English: if you want the court to recognize a brand‑new constitutional right, you need history and tradition to back it up. The majority said Dobbs forecloses inventing a novel right here. That legal move reaches beyond abortion law and signals judges will be cautious before declaring new, unwritten liberties in the name of substantive due process.
First Amendment, crowd control, and judicial overreach
The other opinion, Dickinson, focused on First Amendment retaliation claims brought by protesters and journalists. The Ninth Circuit found the record didn’t show officers singled people out because of their speech, and it rejected a district judge’s requirement that officers wait until an “imminent” threat before using nonlethal force. The court made a larger point about remedies: judges can enforce constitutional limits, but they can’t rewrite how law enforcement does its job or hand out classwide orders without satisfying strict legal rules. If you want safer streets and protected free speech, you don’t get there by issuing broad injunctions that tie officers’ hands the moment chaos looms.
What comes next — litigation and policy
Plaintiffs can try again. They might sharpen the record on remand, seek en banc review, or take the fight to the Supreme Court. They can also press for legislation or local rules that actually set clear standards for crowd control. That would be more sensible than asking judges to find new constitutional rights out of whole cloth or to dress federal agents like runway models. The Ninth Circuit’s twin rulings will likely be cited by other courts when litigants press novel due‑process claims or when district judges try to craft sweeping remedies. For those concerned with public order, the message is clear: courts will not lightly invent sweeping new rights, and federal officers will have breathing room to protect property and people while upholding the First Amendment.
