Dickinson v. Trump

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JACK DICKINSON, also known as No. 26-1609 the Portland Chicken; LAURIE D.C. No. ECKMAN; RICHARD ECKMAN; 3:25-cv-02170-SI HUGO RIOS; MASON LAKE, on behalf of themselves and those similarly situated, OPINION Plaintiffs - Appellees, v. DONALD J. TRUMP, President of the United States, in his official capacity; MARKWAYNE MULLIN, Secretary, U.S. Department of Homeland Security (DHS), in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants - Appellants. Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding 2 DICKINSON V. TRUMP Argued and Submitted July 10, 2026 Pasadena, California Filed November 10, 2026 Before: Kenneth K. Lee, Ana de Alba, and Eric C. Tung, Circuit Judges. Opinion by Judge Lee; Partial Concurrence and Partial Dissent by Judge de Alba SUMMARY * Preliminary Injunction / First Amendment The panel vacated the district court’s preliminary injunction and provisional class certification in an action brought by five plaintiffs—peaceful protesters and independent journalists who were exposed to tear gas or pepper balls used to disperse crowds near the U.S. Immigration and Customs Enforcement (ICE) facility in Portland, Oregon—alleging that the government specifically targeted them in retaliation for exercising their First Amendment rights. The district court preliminarily enjoined the government from using non-lethal crowd-control munitions unless someone poses an imminent threat of physical harm to law enforcement or other persons and further ordered that the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  DICKINSON V. TRUMP 3 ICE agents’ uniforms must be altered to have more conspicuous and unique identifying markings. In a prior order, the panel granted the government’s motion to stay the district court’s preliminary injunction pending appeal, holding that the government made a strong showing that it would likely succeed on the merits and that the district court acted beyond its authority in fashioning an overbroad injunction to redesign federal agent uniforms. On appeal from the preliminary injunction order, the panel reaffirmed the stay order’s holding and vacated the preliminary injunction and provisional class certification. The panel held that the plaintiffs have not shown that they are likely succeed on the merits of their First Amendment claim. The district court erred in assuming that the government can use non-lethal munitions only in response to the threat of imminent physical harm. Under the court’s precedent, law enforcement agents may use nonlethal force to clear crowds and restore order and need not wait until they face an imminent threat of physical harm. Moreover, the plaintiffs have not shown an unwritten policy, pattern, or practice of First Amendment retaliation and the record does not support the plaintiffs’ claim that federal agents retaliated against them for exercising their First Amendment rights. The panel next held that the injunction is overbroad and unworkable. First, the injunction improperly grants relief not only to the five named plaintiffs but to anyone protesting or reporting at the Portland ICE facility. Second, the injunction is overbroad because it restricts federal agents from using non-lethal munitions unless they face imminent threat of physical harm. Finally, the injunction’s requirement that federal agents’ uniforms be redesigned with 4 DICKINSON V. TRUMP conspicuous and unique identifying markings is beyond the court’s power. Because the remaining stay factors favored the government, the panel vacated the preliminary injunction. The panel also vacated the district court’s provisional class certification order, which certified all people who “have, desire to, or will nonviolently protest against or report on DHS activities.” The panel held that the provisional class does not meet Rule 23’s commonality requirement, and even if the plaintiffs could establish commonality, the provisional class must be decertified because the plaintiffs cannot satisfy Rule 23(b)(2)’s indivisible-remedy requirement. Concurring in part and dissenting in part, Judge de Alba concurred to the extent that three provisions of the preliminary injunction are overbroad, and otherwise dissented. She would uphold the preliminary injunction as to its prohibition against federal officers firing munitions “at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person.” She would also hold that the district court did not abuse its discretion when it ruled that the plaintiffs’ proposed class met Rule 23’s commonality and indivisibility requirements.  DICKINSON V. TRUMP 5 COUNSEL Kimberly S. Hutchison (argued) and Mark Fleming, Singleton Schreiber LLP, San Diego, California; Matthew B. Borden (argued), J. Noah Hagey, Kory J. Debark, Megan Wachspress, Marissa Benavides, and Hadley Rood, BraunHagey & Borden LLP, San Francisco, California; Kelly Simon and Eri Andriola, American Civil Liberties Union of Oregon, Portland, Oregon; J. Ashlee Albies, Albies & Stark LLC, Portland, Oregon; Jane L. Moisan, People's Law Project, Portland, Oregon; for Plaintiffs-Appellees. Michael Shih (argued), Douglas C. Dreier (argued), Brenna H. Scully, Mark R. Freeman, and August E. Flentje, Attorneys, Appellate Staff; Brad P. Rosenberg, Trial Attorney; John Bailey, Counsel; Eric D. McArthur, Deputy Assistant Attorney General; Yaakov M. Roth, Principal Deputy Assistant Attorney General; Brett A. Shumate, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants- Appellants. Jona J. Maukonen, Assistant Attorney-In-Charge; Robert A. Koch, Attorney-In-Charge; Civil & Administrative Appeals; Paul L. Smith, Solicitor General; Dan Rayfield, Oregon Attorney General; Office of the Oregon Attorney General, Salem, Oregon; for Amicus Curiae State of Oregon. Denis M. Vannier, Senior Deputy City Attorney, Portland Office of the City Attorney, Portland, Oregon, for Amicus Curiae City of Portland. 6 DICKINSON V. TRUMP OPINION LEE, Circuit Judge: The First Amendment shields the people from governmental suppression of their right to protest peacefully and speak freely. But the First Amendment cannot be a sword to justify vandalism of federal buildings, criminal trespass of government property, or obstruction of law enforcement—all of which have occurred frequently outside the U.S Immigration and Customs Enforcement (ICE) office in Portland. Faced with agitators who have flung bricks, blocked the movement of ICE cars, and physically attacked federal agents, the government has used tear gas and other nonlethal methods to disperse crowds. Five plaintiffs—peaceful protesters and independent journalists who were exposed to tear gas or pepper balls—sued, claiming that the government specifically targeted them for exercising their First Amendment rights. The district court preliminarily enjoined the government from using non-lethal crowd-control munitions unless someone “poses an imminent threat of physical harm” to law enforcement or other persons. The court also ordered that the ICE agents’ uniforms must be altered to have more “conspicuous and unique identifying markings.” We earlier stayed the preliminary injunction pending appeal because the government made a strong showing that it would likely succeed on the merits. The record did not show that the agents had the subjective intent to retaliate or that the government has an unwritten policy targeting them. Dickinson v. Trump, 174 F.4th 634, 637 (9th Cir. 2026). We also held that the district court acted beyond its authority in  DICKINSON V. TRUMP 7 fashioning an overbroad injunction to redesign federal agent uniforms. Now on appeal from the preliminary injunction order, we reaffirm the stay order’s holding and vacate the preliminary injunction and provisional class certification. The plaintiffs have not shown that they are likely succeed on the merits: Under our precedent, 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.” The record also does not support the plaintiffs’ claim that federal agents retaliated against them for exercising their First Amendment rights. Rather, the plaintiffs appear to be unfortunate collateral casualties of federal agents’ efforts to quell an unruly and sometimes violent crowd. BACKGROUND I. Factual Background A. Peaceful protests—and unrest—in Portland. Over the past year, the Portland ICE facility has become ground zero for protestors who oppose the federal government’s immigration policy. But along with peaceful protest has come significant unrest. Between June 2025 and February 2026, at least 150 protests have been staged at the ICE facility in Portland. Crowds as large as several thousand people have gathered outside the facility. While many protesters peacefully exercise their First Amendment right to oppose governmental policies, some provocateurs have carried bats and improvised weapons while donning shields and ballistic vests. One protest involved hundreds of protesters pounding on the ICE building entry points, trying to penetrate the building, and preventing ICE cars from entering or exiting the building. 8 DICKINSON V. TRUMP At other times, demonstrators have smashed security cameras; hurled rocks, glass, bricks, metal, and deployed munitions canisters at law enforcement officers; flung fireworks toward the facility; torn the plywood off the facility’s guard shack; used wooden pallets and other debris to block the doors of the facility; banged on the front door of the facility building while trying to break the front gate by rocking it; pushed officers and tried to seize their shields; and weaponized high-powered strobe lights and lasers against officers to impair their vision and coordination. One protester even threw a smoke canister on the facility’s roof, causing a fire. Id. One officer was dragged by a crowd while seeking to detain a subject. Id. In response, federal law enforcement has at times used non-lethal munitions to disperse crowds and de-escalate, especially when officers are largely outnumbered by the crowd. Chemical irritants allow officers to avoid physical confrontation with protesters. Id. This results in fewer injuries and enables officers to control large, disorderly crowds. Id. B. Plaintiffs peacefully protest and observe amid the violence. Plaintiffs Jack Dickinson, Laurie Eckman, Richard Eckman, Mason Lake, and Hugo Rios are protesters or freelance journalists who were at some of the protests. They claim that U.S. Department of Homeland Security (“DHS”) officers targeted them with crowd-control devices in retaliation for exercising their First Amendment rights. They say they were shot by pepper balls, pepper-sprayed, or tear-gassed in response to their First Amendment activity. But declarations by supervisory DHS officials and related use-of-force reports show that, at those protests,  DICKINSON V. TRUMP 9 officers consistently faced violent, disruptive, or otherwise unlawful behavior. The plaintiffs appeared near those other protesters acting violently or unlawfully. For example, on September 1, 2025, protesters arrived at the ICE facility carrying “bats, improvised weapons, [and] shields,” and they blocked the entrance to the facility despite multiple warnings to clear the entryway. After several protesters removed three wooden boards from the fence at the facility, officers deployed pepper balls. Later that night, protesters placed a prop guillotine in front of the facility, blocking the driveway. Although blocking the ICE facility’s driveway is illegal, the federal government could not rely on the Oregon State Police or Portland Police Bureau to help. That is because there are “sanctuary laws in the Oregon Revised Statute and also the City of Portland that prohibit [them] from facilitating immigration-related activity or enforcement.” To clear the driveway, federal law enforcement again deployed pepper balls. During that night, after 10 p.m., plaintiff Hugo Rios was filming the protests by the driveway to the ICE facility. While filming, he “heard some automated [long range acoustic device] announcements that [he] heard every time [he] was there warning that they might deploy gas and talking about how trespassing was illegal and things like that.” When DHS used pepper balls to clear the crowd, Rios was hit. Rios walked away, and he testified that he has no intention of returning to the ICE facility. On September 13, protesters again obstructed the driveway to the facility. Federal agents ordered them to disperse, but they refused. ICE deployed pepper balls toward the ground to clear the group. About 90 minutes later, after more warnings were ignored, ICE again used pepper ball rounds to disperse trespassers from the driveway. When federal officers pushed out of the gate in line 10 DICKINSON V. TRUMP formation to clear the driveway and arrest a protester who had started a fire on the driveway, “multiple demonstrators surrounded them,” “pushed the officers,” and “attempted to seize their shields.” One protester held an object that resembled a katana sword. After multiple warnings, DHS deployed pepper balls and tear gas. Plaintiff Mason Lake was at the protest and stood off to the side of the driveway to the federal building on the public sidewalk to document the protest. He was exposed to pepper spray. On October 4, protesters again trespassed federal property and refused to depart despite multiple dispersal orders. An individual shoved an officer and “threw a large, heavy object, striking the officer’s upper body.” During one instance when an officer sought to detain one protester who was obstructing the front entrance, the protester tried to bite his groin area and forcefully grabbed his penis, refusing to release their grip. Officers then used pepper balls and tear gas to disperse protesters. Plaintiffs Laurie and Richard Eckman were at the protest. Outside the Portland ICE building, the Eckmans stood with other protesters right by the federal property and just east of the driveway to the building. Mrs. Eckman was struck by a pepper ball, and Mr. Eckman was exposed to tear gas. Two weeks later, protesters again blocked the driveway and were “aggressive and hostile, shining strobe lights directly at the [officers] to impair their vision and coordination.” Plaintiff Jack Dickinson, who is known as the Portland Chicken because he wears a chicken suit to protests at the facility, was at the protest. Dickinson confirmed that he and others would intentionally block the ICE facility’s driveway and refuse to comply with lawful instructions to clear the driveway. As the day progressed, the “crowd was becoming more agitated leading up to [them]  DICKINSON V. TRUMP 11 throwing and kicking heavy cans at officers.” Officers tried to apprehend a person who had thrown a canister at another officer earlier in the day, but the crowd surrounded the officers. Law enforcement deployed smoke canisters, and protesters threw them back at officers. Officers then deployed tear gas. Dickinson noted that the “chemicals also seeped into his mask, affecting [his] nose and throat.” These unruly protests continued into the new year. On January 19, Dickinson and about 20 others trespassed on the ICE facility’s driveway to block the entrance/egress. After the trespassers failed to heed warnings to depart, Federal Protective Service (“FPS”) officers deployed pepper balls and pepper spray but the trespassers refused to leave. Four trespassers, including Dickinson, were taken into custody for failure to comply and trespassing. Just five days later, hundreds of protesters flooded the ICE facility’s vehicle entrance and began pounding on the building’s entry points. They tried to penetrate the building. Id. After FPS issued multiple warnings that were ignored, FPS deployed pepper balls to disperse the crowds. Id. But less than 80 minutes later, the protesters had created additional barricades with scooters and began moving toward the gate. Id. Federal agents used pepper balls and tear gas to push the protesters back. Id. Protesters then began to tamper with the facility’s security cameras with rakes and rocks, which caused FPS to deploy further pepper balls and flash bangs. Dickinson attended the protest and noted that he was “only wearing a KN-95 mask,” so he was “pretty exposed to the chemicals that were not adequately filtered through the mask.” After tear gas was released, Dickinson stated that he picked up a sign and waved it to “try [to] diffuse some of the tear gas.” Id. He claims that “DHS fired in my direction because I was holding and waving the 12 DICKINSON V. TRUMP sign,” and that he was hit in the right ankle with less-lethal munitions. Id. He put the sign down after that. Id. Later on January 31, thousands of protesters gathered outside the ICE facility. Dickinson called this “the largest protest of its kind or in this area.” Ten to fifteen trespassers “entered the property and began banging on the guard shack and attempted to barricade the door and tear[] plywood off the guard shack.” After warnings were issued to disperse, multiple trespassers produced umbrellas and formed a shield wall. Others ran to the vehicle gate with ropes, appearing to try to tie the gate shut. Federal officers deployed tear gas toward protesters destroying the guard shack. Protesters hurled rocks or other hard objects at law enforcement officers and at cameras on the building. Protesters also moved a dumpster toward the front gate, and a security guard observed protesters again prying plywood from the guard shack. Officers again used crowd-control devices to disperse the crowd and prevent further damage to federal property. Plaintiffs Mr. Eckman and Mrs. Eckman were at the protest. They originally attended an interfaith gathering at Elizabeth Caruthers Park, three blocks from the Portland ICE Building. After listening to speeches at the park, they walked towards the ICE Building with the crowd and were later exposed to tear gas. II. Procedural History The plaintiffs sued President Donald J. Trump, then- DHS Secretary Kristi Noem, and the U.S. Department of Homeland Security, alleging that the defendants have unconstitutionally chilled their First Amendment rights to dissent and to document dissent. They claim that the defendants, through an unwritten policy, pattern, and practice, have used excessive force via non-lethal munitions  DICKINSON V. TRUMP 13 against peaceful protesters in retaliation for exercising their First Amendment rights. After extensive discovery and a three-day evidentiary hearing, the district court entered a preliminary injunction. First, the injunction prohibits DHS and its “agents and employees” from “direct[ing] or us[ing] chemical or projectile munitions, including but not limited to . . . pepper ball or paintball guns, tear gas or other chemical irritants, . . . and flashbang . . . grenades, unless the specific target of such a weapon or device poses an imminent threat of physical harm.” (emphasis added). Second, the injunction prohibits DHS officers from firing any such devices “at the head, neck, or torso of any person, unless the officer is legally justified in using deadly force against that person.” Id. Third, the injunction sets forth special instructions governing the use of pepper spray and similar devices (which the injunction distinguishes from “chemical irritants”). DHS officers may not use “pepper spray . . . unless the specific target . . . exhibits, at a minimum, active resistance,” defined to exclude “trespassing, refusing to move, refusing to obey an order to disperse, and ‘going limp.’” The injunction also bans the use of pepper spray “against groups of people where bystanders foreseeably would be affected.” Id. Pepper spray may only be “used against specific individuals actively engaged in violent unlawful conduct, actively resisting arrest, or as reasonably necessary in a defensive capacity.” Finally, the preliminary injunction also requires the parties to “confer regarding how” DHS officers “can place conspicuous and unique identifying markings . . . on the uniforms, vests, and/or helmets” of the agents deployed to the Portland ICE facility. “If the parties cannot reach 14 DICKINSON V. TRUMP agreement,” the district court will itself decide how to redesign DHS officers’ uniforms and will modify the preliminary injunction “appropriately.” The district court denied the government’s motion to stay the injunction pending appeal. The same day that the injunction was issued, the district court certified a provisional class of “[a]ll people who, since [June 2025], have, desire to, or will nonviolently protest against or report on DHS activities at the Portland ICE Building.” The injunction covers all individuals who happen to be “in the vicinity of” the Portland ICE facility, whether or not an individual is a member of the class or not. The district court denied the government’s motion to stay the injunction pending appeal. The federal government moved to stay the district court’s preliminary injunction pending appeal, which we granted. We now address the appeal of the injunction. STANDARD OF REVIEW We review a preliminary injunction order “for abuse of discretion, but review any underlying issues of law de novo.” Norbert v. City & Cnty. of San Francisco, 10 F.4th 918, 927 (9th Cir. 2021) (citation omitted). We “review a class certification determination for legal error under a de novo standard, and if no legal error occurred, will proceed to review the decision for abuse of discretion.” O’Connor v. Uber Techs., 904 F.3d 1087, 1094 (9th Cir. 2018) (quotation marks omitted).  DICKINSON V. TRUMP 15 DISCUSSION I. We vacate the preliminary injunction because the plaintiffs have failed to establish any of the required Winter factors. A preliminary injunction is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. We vacate the district court's injunction because the plaintiffs have failed to satisfy any of these factors. 1 A. The plaintiffs will not likely succeed on their First Amendment claim. To prevail on a First Amendment retaliation claim, a plaintiff “must establish a [but-for] ‘causal connection’ between the government defendant’s ‘retaliatory animus’ and [his or her] ‘subsequent injury.’” Nieves v. Bartlett, 587 U.S. 391, 398 (2019). A plaintiff must show that: (1) he or she was “engaged in a constitutionally protected activity”; 1 The government argues that the plaintiffs lack standing to seek prospective relief. In vacating a preliminary injunction, “a court with appellate jurisdiction may reverse on either jurisdictional or merits grounds.” Mullin v. Doe, 146 S. Ct. 2121, 2137 (2026) (plurality opinion) (“[I]n evaluating the likelihood-of-success question for the purpose of ruling on a request for interim relief, courts may consider both the likelihood that they have jurisdiction and the likelihood that the claim will succeed on the merits.”). Rather than address the more murky jurisdictional issue, we reverse the preliminary injunction on merits grounds. 16 DICKINSON V. TRUMP (2) the defendant’s “actions would chill a person of ordinary firmness from continuing to engage in the protected activity”; and (3) “the protected activity was a substantial or motivating factor in the [defendant’s] conduct.” Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 827 (9th Cir. 2020). We focus here on the third prong. As we noted in our stay order, the district court made two critical legal errors in ruling that the plaintiffs likely will prevail on their First Amendment retaliation claim. Dickinson, 174 F.4th at 642. First, it erred in assuming that the government can use non-lethal munitions only in response to the threat of imminent physical harm. Id. Based on that incorrect assumption, the district court concluded that the government’s use of tear gas, pepper balls, and other devices to disperse the crowd was “strong circumstantial evidence of Defendants’ intent to punish the crowd for their expression.” Id. But that assumption is not the law in our circuit. We recently emphasized that law enforcement can use non-lethal force in response to “imminent lawlessness” by protesters who claim they are exercising their First Amendment rights. Puente v. City of Phoenix, 123 F.4th 1035, 1062 (9th Cir. 2024). There, the Phoenix police used tear gas, “flash-bang grenades,” and other chemical irritants to scatter a protesting crowd at a “Free Speech Zone” outside a political rally held by President Trump. Id. at 1042–43. Addressing a First Amendment claim, we held that law enforcement officers can still use non-lethal munitions to disperse a protesting crowd if 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  DICKINSON V. TRUMP 17 other immediate threat to public safety, peace, or order.’” Id. at 1062 (emphasis added) (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)). And that is what law enforcement appears to have done here in response to vandalism, the blocking of street traffic, and the trespassing on ICE property—all of which are “immediate threat[s] to public safety, peace, [and] order.” Id. The dissent lists a series of incidents involving the plaintiffs and other peaceful protestors to suggest that federal agents had intentionally targeted them for their free expression. But we cannot view these incidents in isolation from the larger mayhem of dozens (and sometimes hundreds) of people impeding law enforcement, vandalizing federal property, or assaulting federal agents. If we airbrush away the surrounding unlawful activities, we are left with a sanitized portrait of only peaceful protestors. But that does not accurately depict the messy reality of law enforcement trying to tamp down an unruly crowd and unfortunately causing collateral harm to peaceful protestors in the process. And in “assessing whether a sufficient clear and present danger justifies dispersal of a crowd, it is the tenor of the demonstration as a whole that determines whether the police may intervene.” Puente, 123 F.4th at 1062 (emphasis added) (internal citation omitted and cleaned up). The “tenor of [the Portland protests] as a whole” was of chaos and confusion. As we discussed in our stay order, the district court tried to distinguish Puente by saying that the case “involved a single protest event, as opposed to a systematic and sustained pattern of escalating violence over a period of months.” Dickinson, 174 F.4th at 643. But Puente did not say that the First Amendment hinges on whether there is a single protest or a series of demonstrations. In any event, that factual difference may potentially cut the other way. Id. The 18 DICKINSON V. TRUMP government may be more justified in using tear gas and other non-lethal munitions in Portland to establish order, given the months-long siege of the ICE facility there. Id. Instead of following Puente’s standard for First Amendment claims, the district court relied on an inapt Fourth Amendment excessive force case to suggest that evidence of purported excessive force “is strong circumstantial evidence of Defendants’ intent to punish the crowd for their expression.” Dickinson v. Trump, 827 F. Supp. 3d 1375, 1396 (D. Or. 2026) (relying on Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012)). In Nelson, the court held that there was a potential Fourth Amendment violation when a police officer allegedly shot a pepper ball at the eye of a college student during the Picnic Day festivities at an apartment complex near the University of California at Davis. Nelson, 685 F.3d at 873-74. A police officer permanently damaging a student’s eye at a raucous college party is not the same as federal agents using crowd-control tactics to disperse an unruly crowd that has repeatedly vandalized federal property, obstructed law enforcement efforts, and at times even assaulted federal agents. And doctrinally, the Fourth Amendment’s excessive force analysis differs from the First Amendment’s intent to retaliate framework. In short, the district court’s erroneous legal assumption colored its analysis: It incorrectly concluded the five plaintiffs were likely being intentionally targeted for their First Amendment rights because there purportedly was no valid reason for the government to use tear gas and other non-lethal munitions. Once that foundational—and faulty— assumption is cast aside, the court’s finding of intent to retaliate collapses. We are left with a more plausible explanation of events: As detailed earlier, the five plaintiffs  DICKINSON V. TRUMP 19 (out of hundreds of protesters) were not intentionally targeted for their First Amendment activity but were rather unfortunate collateral casualties during a chaotic effort to quell disorder. 2 Second, the plaintiffs have not shown an unwritten policy, pattern, or practice of First Amendment retaliation. The district court did not identify any direct evidence that DHS, as an agency, intentionally targeted the plaintiffs for their First Amendment activities. 3 To the contrary, DHS policies expressly prohibit its officers from “profil[ing], target[ing], or discriminat[ing] against any individual for exercising his or her First Amendment rights.” Any officer who retaliates against protesters would violate these policies. Despite this express policy against retaliation, the district court inferred an unwritten DHS policy of retaliation based on individual DHS officers who used crowd-control munitions. The district court implored us to “review” the “video evidence” submitted by the plaintiffs, describing 2 The dissent faults the government for not coordinating with protestors and decreasing the number of warnings it gave before acting. But we have held that law enforcement may take action without giving even a single verbal dispersal order. Puente, 123 F.4th at 1064 (rejecting First Amendment challenge). And the fact that the district court found only a few instances of alleged retaliation—despite over 150 protests outside the Portland ICE facility from June 2025 to February 2026—suggests that law enforcement is not retaliating against protestors for exercising their First Amendment rights. 3 The district court also did not address the conflicting and contextual facts offered by the government. Protesters repeatedly trespassed onto the ICE facility, blockaded the facility’s gates, vandalized federal property, and attacked federal officers. Yet the district court did not acknowledge, much less address, this evidence. 20 DICKINSON V. TRUMP them as “unambiguous and disturbing.” We have reviewed the dozens of video clips—and we come to a different conclusion. As explained earlier, the district court’s analysis appears to have been influenced by its erroneous legal assumption that law enforcement cannot use non-lethal munitions against protesters unless they pose imminent physical harm to the officers. Viewed from that lens, law enforcement agents’ use of non-lethal chemical munitions against “peaceful” protesters unlawfully trespassing the ICE facility driveway or blocking street traffic might appear unjustified. But we have held that law enforcement can use such non-lethal munitions in the face of “disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order.” Puente, 123 F.4th at 1062. And when viewed under this proper legal lens, the use of such non-lethal force to disperse crowds engaging in unlawful behavior does not amount to an unwritten policy of retaliation but rather reflects law enforcement. The plaintiffs also cannot use a Fourth Amendment claim that they failed to raise in their preliminary injunction motion “to bolster” their First Amendment claim. Plaintiffs cite Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817 (9th Cir. 2020), but the case does not suggest that a Fourth Amendment violation would provide “exceptionally strong” evidence of a First Amendment violation. Compare Pl. Br. 39 n.4 (contending that a “pattern of misconduct that may very well amount to excessive force is ‘exceptionally strong’ evidence of retaliation” (quoting Index Newspapers, 977 F.3d at 829)), with Index Newspapers, 977 F.3d at 829 (“Because the district court’s findings include so many instances in which plaintiffs were standing nowhere near protesters while photographing and observing the Federal  DICKINSON V. TRUMP 21 Defendants’ actions, they provide exceptionally strong evidentiary support for the district court’s finding that some of the Federal Defendants were motivated to target journalists in retaliation for plaintiffs’ exercise of their First Amendment rights.”). That discussion in Index Newspapers 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. The Fourth Amendment is “legally and factually inapt” to this First Amendment case. Dickinson, 174 F.4th at 643. To be sure, a court might conclude that an officer used too much force to disperse a protest because, despite his “subjective apprehensions,” the circumstances did not objectively “present[] a clear and present danger of imminent lawlessness.” Puente, 123 F.4th at 1062. A court might also conclude that the officer used too much force because he misperceived “the tenor of [a] demonstration” as being more “infected with violence or obstruction” than it was. Id. (citation omitted). 4 But even if the officers’ actions were not justified, they would not compel the conclusion that the officers acted because of subjective antipathy to First Amendment activity. By conflating these inquiries, the district court only reinforced Puente’s conclusion that the First Amendment retaliation framework is a “poor fit” for the plaintiffs’ claims. Id. at 1063. 4 Some video clips submitted by the plaintiffs—at least based on the snippets divorced from the full context—may show that some officers may have used unprovoked or excessive force. But the individuals do not appear to be any of the plaintiffs. And even if the use of force was unjustified, we do not know the motives of the agents involved. Nor can we infer an unwritten policy or practice of retaliation based on just these few incidents out of the hundreds of encounters at the Portland ICE facility over the past year. 22 DICKINSON V. TRUMP Finally, our recent decision in Los Angeles Press Club v. Noem does not require a different result because its factual record differs significantly. 171 F.4th 1179, 1189 (9th Cir. 2026). There, our court held that “[b]ecause direct evidence of officers’ subjective motives is rarely available, Plaintiffs may rely on circumstantial evidence to establish retaliatory intent.” Id. But the court did not hold that the use of excessive force, standing alone, is always sufficient to infer retaliatory intent. And the court did not conclude that allegations of subjective chill standing alone are enough to support standing. Rather, the court relied on specific factual findings and “an ‘avalanche’ of circumstantial evidence to conclude that Plaintiffs’ First Amendment activity was a ‘substantial motivating factor’ for Defendant’s actions.” Id. (citation omitted). “The record,” the court said, “contains extensive evidence that federal officers repeatedly targeted journalists and peaceful legal observers who stood far from any protesters or bad actors.” Id. Not so here. The record here does not contain an “avalanche of circumstantial evidence” or “extensive evidence” that the federal officers “repeatedly targeted” peaceful individuals standing far from the disruptive activity near the ICE facility. Dickinson, 174 F.4th at 645. Instead, the record reveals law enforcement’s response to a substantial degree of violence, obstruction of law enforcement, and unrest—with protesters repeatedly trespassing onto the ICE facility, blockading the facility’s gates, vandalizing federal property, and attacking federal officers. Id.  DICKINSON V. TRUMP 23 B. The injunction is grossly overbroad and unworkable. The injunction must also be vacated because its scope exceeds the district court’s authority. First, the injunction improperly grants relief not only to the five named plaintiffs but to anyone protesting or reporting at the Portland ICE facility. That cannot be reconciled with Trump v. CASA, Inc., 606 U.S. 831 (2025), which reaffirmed that Article III courts lack equitable authority to grant “relief that extend[s] beyond the parties.” Id. at 843. We have reaffirmed that principle just recently. In Los Angeles Press Club, we held that the preliminary injunction there was overbroad, having several provisions that expressly apply to non-parties and are broader than necessary to afford “complete relief to the plaintiffs before the court.” Los Angeles Press Club, 171 F.4th at 1191 (citing CASA, 606 U.S. at 852 (emphasis in original)). The injunction there prohibited the defendants from firing tear gas canisters or flash-bang grenades aimed at striking “any person.” Id. That made the injunction overbroad. Similarly, here, as discussed in our stay order, the district court’s injunction is equally overbroad. The district court justified the injunction’s breadth as necessary to provide complete relief to the named plaintiffs. To be sure, “[t]he equitable tradition has long embraced the rule that courts generally ‘may administer complete relief between the parties.” CASA, 606 U.S. at 851 (emphasis in original) (quoting Kinney-Coastal Oil Co. v. Kieffer, 277 U.