Reach Community Development v. United States Department of Homeland Security

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REACH COMMUNITY No. 26-1575 DEVELOPMENT; WHITFIELD D.C. No. TAYLOR, individually and as Parent 3:25-cv-02257- and Next Friend of Minor Children AB A.T. and B.T; MINDY KING; SUSAN DOOLEY; JANICE LINEBERGER; JANE DOE; OPINION REBECCA ROE; REACH B49 PARTNERS, LP; REACH OFFICE, LLC; DIANE MORENO; ERICA DEL NIGRO, individually and as Parent and Next Friend of Minor Child J.D.; ROY BROOKS, Plaintiffs - Appellees, SHAE ANDERSON, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; MARKWAYNE MULLIN, in his official capacity as Secretary of Homeland Security; UNITED STATES IMMIGRATION AND 2 REACH COMMUNITY DEVELOPMENT V. USDHS CUSTOMS ENFORCEMENT; DAVID J. VENTURELLA, in his official capacity as Acting Director of ICE; UNITED STATES CUSTOMS AND BORDER PROTECTION; RODNEY S. SCOTT, in his official capacity as the Commissioner of CBP; FEDERAL PROTECTIVE SERVICE; FARON PARAMORE, in his official capacity as the Director of FPS; UNITED STATES SECRET SERVICE; SEAN M. CURRAN, in his official capacity as Director of the Secret Service, Defendants - Appellants. Appeal from the United States District Court for the District of Oregon Amy M. Baggio, District Judge, Presiding 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 Tung; Dissent by Judge de Alba  REACH COMMUNITY DEVELOPMENT V. USDHS 3 SUMMARY* Preliminary Injunction / Constitutional Rights The panel vacated the district court’s preliminary injunction enjoining several federal agencies from deploying tear gas to disperse demonstrators gathered outside a U.S. Immigration and Customs Enforcement (ICE) facility in Portland, Oregon. In a prior order, the panel granted the government’s motion to stay the district court’s preliminary injunction pending appeal, holding that tenants of an apartment complex, located across the street from the government facility, lacked a substantive-due-process right to be free from exposure to chemicals that were released when federal law enforcement officers used tear gas to disperse crowds. On appeal from the preliminary injunction order itself, the panel reaffirmed that holding. The panel held that the plaintiffs have no likelihood of success on the merits because they lack a substantive-due- process right to be free from the government’s use of non- lethal crowd-control devices in response to disruptive demonstrations. Neither the district court nor the plaintiffs provided any indication that the substantive-due-process right they claim is to be found in the constitutional text or structure or is deeply rooted in the nation’s history and tradition. Because the district court failed to anchor 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. 4 REACH COMMUNITY DEVELOPMENT V. USDHS claimed right in any history or tradition, its analysis was flawed. The panel rejected the plaintiffs’ argument that they need not show that the conduct violates a right deeply rooted in the nation’s history, so long as the challenged conduct “shocks the conscience.” To succeed on a substantive-due- process challenge to executive action, a plaintiff must show both that the action shocks the conscience and that the action deprives a right that, carefully described, is deeply rooted in the nation’s history and implicit in the concept of ordered liberty, consistent with the Supreme Court’s teachings in Washington v. Glucksberg, 521 U.S. 702 (1997) and Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022). Because the plaintiffs fail to satisfy the historical inquiry, the panel did not need to decide whether the government’s conduct shocks the conscience. Dissenting, 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. She would apply the shocks-the-conscience standard alone and hold that the district court properly determined that the plaintiffs are likely to succeed on the merits of their Fifth Amendment substantive-due-process claim.  REACH COMMUNITY DEVELOPMENT V. USDHS 5 COUNSEL Stephen K. Wirth (argued), Brian C. Rosen-Shaud, Daniel F. Jacobson, and Lynn D. Eisenberg, Jacobson Lawyers Group PLLC, Washington, D.C.; Katharine Schwartzmann, Protect Democracy, New Orleans, Louisiana; Darin M. Sands and Colin H. Hunter, Bradley Bernstein Sands LLP, Portland, Oregon; Taylor Jaszewski, Bradley Bernstein Sands LLP, Oakland, California; Brian D. Netter, Jeffrey B. Dubner, and Anna L. Deffebach, Democracy Forward Foundation, Washington, D.C.; for Plaintiffs-Appellees. Brenna H. Scully (argued), Mark R. Freeman, and August E. Flentje, Attorneys, Appellate Staff; Eric D. McArthur, Deputy Assistant Attorney General; Brett A. Shumate, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants- Appellants. OPINION TUNG, Circuit Judge: A few months ago, we granted a stay of a preliminary injunction that the district court issued against the federal government. The injunction prohibited several federal agencies from deploying tear gas, a common crowd- dispersal tool, in response to hundreds of demonstrators descending upon an Immigration Customs Enforcement facility in Portland, Oregon, and causing acts of lawlessness, including assaulting federal officers, and vandalizing and trespassing upon federal property. Reach Community Development v. United States Dep’t of Homeland Security, 6 REACH COMMUNITY DEVELOPMENT V. USDHS 174 F.4th 1143, 1145 (9th Cir. 2026). We held that, contrary to the district court’s ruling, tenants of an apartment complex, located across the street from the government facility, lacked a substantive-due-process right to be free from being exposed to gas that wafted over to their complex. Id. at 1146–47. Now on appeal from the preliminary injunction order itself, we reaffirm that holding. I. The facts of this case were discussed in our prior order, and we do not repeat them here. No new facts or changes in the record have been alleged since our ruling on the stay motion. The matter here turns on a question of law— whether there is a substantive-due-process right not to be exposed to chemicals from the government’s use of non- lethal crowd-control devices. We address that question below. II. The standard for issuing a preliminary injunction is well known. “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.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (emphasis added). We “review an order regarding preliminary injunctive relief for abuse of discretion, but review any underlying issues of law de novo.” Norbert v. City & County of San Francisco, 10 F.4th 918, 927 (9th Cir. 2021) (citation omitted). If we find that there is no likelihood of success on the merits, we can end our inquiry there and vacate the preliminary injunction. California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (“Likelihood of  REACH COMMUNITY DEVELOPMENT V. USDHS 7 success on the merits is ‘the most important’ factor; if a movant fails to meet this ‘threshold inquiry,’ we need not consider the other factors.”) (citation omitted). In this posture, too, we need not address standing before disposing of the matter on the merits. See Mullin v. Doe, 609 U.S. 324, 346 (2026) (plurality opinion) (“[W]e may reverse the District Court’s grant of interim relief on either jurisdictional or merits grounds.”). III. The district court’s preliminary injunction must be vacated because Plaintiffs have no likelihood of success on the merits. Simply put, Plaintiffs lack a substantive-due- process right to be free from the government’s use of non- lethal crowd-control devices in response to disruptive demonstrations. In our stay order, we held that “any claimed ‘right’ not mentioned in the Constitution must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” Reach, 174 F.4th at 1147 (quoting Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022)). Here, Plaintiffs “have not pointed to any historical prohibition—much less a ‘deeply rooted’ one—against the use of non-lethal crowd-control devices by law enforcement.” Id. “To the contrary,” we said, “such devices have long been a common tool of law enforcement to disperse crowds that have turned disruptive and violent.” Id. As far as we were aware, “‘no federal or state court’ has recognized the Plaintiffs’ claimed right.” Id. (quoting Dobbs, 597 U.S. at 241). “Nor have the parties pointed us to ‘any scholarly treatise’ that would support such a right.” Id. Thus, we concluded that the alleged right “does not appear to exist.” Id. Before us again on appeal, Plaintiffs 8 REACH COMMUNITY DEVELOPMENT V. USDHS have not unearthed any new historical material to dislodge our earlier conclusion. We also concluded that the district court’s analysis was flawed. Id. at 1148. While the district court claimed to follow Glucksberg’s command that it must provide a “careful description” of the right, it failed to anchor that right “in any history or tradition.” Id. As we explained, one “must first carefully describe the right, and then determine whether that right is historically rooted.” Id. (citing Washington v. Glucksberg, 521 U.S. 702, 724 (1997)). “One cannot simply pluck a ‘right’ as general and abstract as ‘bodily integrity’ from the caselaw, and then carefully describe that right on one’s own terms without regard to whether that right is in fact grounded in history.” Id. Otherwise, we said, “Glucksberg and Dobbs would have easily come out the other way if the district court’s analysis were followed[.]” Id. None of the cases cited by the district court or Plaintiffs establishes a right to be free from exposure to tear-gas chemicals used by law enforcement officers as a means of crowd control. See Guertin v. Michigan, 912 F.3d 907, 918– 22 (6th Cir. 2019); Washington v. Housing Authority of the City of Columbia, 58 F.4th 170, 177–82 (4th Cir. 2023); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); Hess v. Garcia, 72 F.4th 753, 765 (7th Cir. 2023). We also rejected Plaintiffs’ request for us to “find an unwritten constitutional right (against the use of such devices) that is possessed not by the direct targets of the government action (such as the crowds) but by the neighboring residents who may be incidentally affected by that action.” Reach, 174 F.4th at 1147. We concluded that “Plaintiffs’ approach would transform the Constitution into ‘a font of tort law,” and we “refuse[d] to accept their invitation to do so here.” Id. (citation omitted).  REACH COMMUNITY DEVELOPMENT V. USDHS 9 We reaffirm those conclusions here and vacate the district court’s preliminary injunction. Plaintiffs raise a new argument on appeal (one they did not present to the district court or to us during the stay proceedings), but it fails all the same. Rather than salvage their (and the district court’s) defective argument that the asserted right is historically rooted, Plaintiffs now argue that they never needed to make that showing. So long as the challenged conduct “shocks the conscience,” they say, they need not show that the conduct violates a right deeply rooted in our history. That argument is wrong. Glucksberg and Dobbs make amply clear 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. Dobbs, 597 U.S. at 231; Glucksberg, 521 U.S. at 721. To get around this precedent, Plaintiffs assert that challenges to executive action—as opposed to legislative action—are different, citing County of Sacramento v. Lewis, 523 U.S. 833 (1998), and concluding from that case that challenges to the former need not satisfy Glucksberg while challenges to the latter do. To be sure, Lewis distinguished between executive and legislative action but concluded that plaintiffs have a heavier burden in challenging executive action than legislative action. See id. at 847 n.8; see also Browder v. City of Albuquerque, 787 F.3d 1076, 1079 n.1 (10th Cir. 2015) (Gorsuch, J.) (“Lewis indicated that its standard for executive conduct is intended to be even more demanding than the Glucksberg standard for legislative action.”). Lewis instructed that, to prevail on a substantive-due-process challenge to executive action, the plaintiff must show both that the action “shocks the conscience” and that the action deprives him of a right deeply rooted in our Nation’s history. 523 U.S. at 847 n.8. Lewis repeatedly described the “shocks 10 REACH COMMUNITY DEVELOPMENT V. USDHS the conscience” standard as an “antecedent” or “threshold” issue: “[o]nly if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action[.]” Id. Contrary to Plaintiffs’ view, then, Lewis did not dispense with Glucksberg. Our court has so held. In Brittain v. Hansen, we held that “[i]t is not enough to allege conscience shocking action” to establish a substantive-due-process claim challenging executive action. 451 F.3d 982, 991 (9th Cir. 2006). We made clear that “to establish a constitutional violation based on substantive due process, [the plaintiff] must show both a deprivation of her liberty and conscience shocking behavior by the government.” Id. (emphasis added). Some of our cases have described the shocks-the- conscience test as if it is an independent path to prove a due- process violation, Glucksberg notwithstanding. See, e.g., Regino v. Staley, 133 F.4th 951, 960 n.5 (9th Cir. 2025); Martinez v. City of Oxnard, 337 F.3d 1091, 1092 (9th Cir. 2003) (per curiam); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). But none of those cases held that the test set forth in Glucksberg and Dobbs does not govern. The strongest case for Plaintiffs (Regino)—loosely describing in a footnote the shocks-the-conscience test and the fundamental-rights test as alternative tests—expressly declined to address the applicability of the shocks-the-conscience test. 133 F.4th at 960 n.5 (“[W]e do not address the shocks-the-conscience standard and express no opinion on its applicability.”). That case thus does not control our disposition here. We make clear today what we already held in Brittain: to succeed on a substantive-due-process challenge to executive action, a plaintiff must show both that the action  REACH COMMUNITY DEVELOPMENT V. USDHS 11 shocks the conscience and that the action deprives a right that, carefully described, is deeply rooted in our Nation’s history and implicit in the concept of ordered liberty, consistent with the Supreme Court’s teachings in Glucksberg and Dobbs. Plaintiffs acknowledge (as they must) that they must prove a deprivation of their “liberty”—not just executive conduct that “shocks the conscience.” See, e.g., Ans. Br. 28 (“Because Plaintiffs challenge executive conduct, not legislation, the shocks-the-conscience test applies, under which Plaintiffs must demonstrate conscience-shocking conduct that burdens a liberty interest.”) (emphasis added). Yet in determining what “liberty” is, Plaintiffs would not apply Glucksberg and Dobbs. Instead, Plaintiffs apparently would apply an ahistorical test that, in the end, is dependent on what judges believe should be recognized as a “liberty interest.” Glucksberg and Dobbs squarely rejected that approach. Plaintiffs’ position would, bizarrely, set up a two- tiered analysis of whether “liberty” is at stake—one for executive actions; another for legislative actions. Nothing justifies this view. Plaintiffs’ view, if accepted, would bring back the “freewheeling judicial policymaking” that Glucksberg and Dobbs put to an end. Dobbs, 597 U.S. at 240. A shocks-the- conscience test without any anchor in longstanding history is an open invitation for courts to make up law—one judge’s expectation is another judge’s shock. See Lewis, 523 U.S. at 865 (Scalia, J., concurring in the judgment) (“[F]or judges to overrule [a] democratically adopted policy judgment on the ground that it shocks their consciences is not judicial review but judicial governance.”). We “must not fall prey to such an unprincipled approach.” Dobbs, 597 U.S. at 240. “Instead, guided by the history and tradition that map the 12 REACH COMMUNITY DEVELOPMENT V. USDHS essential components of our Nation’s concept of ordered liberty, we must ask what the [Constitution] means by the term ‘liberty.’” Id. Here the due-process clause does not protect a right to be free from exposure to gases released from the government’s deployment of non-lethal crowd- control devices in response to disruptive crowds. The dissent’s points do not persuade. The dissent contends that Lewis “suggests” that a shocks-the-conscience test (without inquiring into history) “might” be enough. Dissent at 17 (emphasis in original). To the extent the conduct at issue fails to shock the conscience, we agree that (under our precedents) a court can deny a substantive-due- process challenge to executive action without looking to history. But nowhere did Lewis suggest that a plaintiff can succeed on such a claim without showing that the liberty purportedly denied was deeply rooted in our history and tradition; indeed, Lewis said the opposite. See supra at 9– 10. The dissent does not dispute that at least one precedent of this court, consistent with Lewis, requires plaintiffs to show both a deprivation of liberty and conscience-shocking action. Dissent at 19 (citing Brittain, 451 F.3d at 991). Yet the dissent expressly (and remarkably) refuses to follow that precedent. The dissent argues that another case (Martinez) held that conscience-shocking conduct alone was enough to find a substantive-due-process violation; that Martinez and Brittain “are in conflict”; and that Martinez controls over Brittain because Martinez “ha[d] successfully posed as the law of the circuit for long enough to be relied on.” Dissent at 20 (quoting United States v. Hardesty, 958 F.2d 910, 912 (9th Cir. 1992), superseded in part, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc)).  REACH COMMUNITY DEVELOPMENT V. USDHS 13 This is incorrect. There is no conflict. Martinez did not address whether the plaintiff’s asserted right needed to be deeply rooted in our nation’s history or tradition (as Glucksberg instructs)—the issue we decide here. See United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (“Prior precedent that does not squarely address a particular issue does not bind later panels on the question” (internal quotation marks omitted)). In Martinez, the court said that the “Due Process Clause protects individuals from state action that either shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” Dissent at 19 (quoting Martinez, 337 F.3d at 1092). But nowhere does Martinez mention (much less address) a historical inquiry or Glucksberg; it mentions only “ordered liberty,” a separate component of the due-process analysis. See Dobbs, 597 U.S. at 231, 237 (“[T]he Court has long asked whether the right is ‘deeply rooted in [our] history and tradition and whether it is essential to our Nation’s ‘scheme of ordered liberty.’” (emphasis added) (citations omitted)).1 Dobbs, reaffirming Glucksberg, makes clear that the “historical inquir[y]” is “essential”: a court cannot “recognize a new component of the ‘liberty’ protected by the Due Process Clause” without reference to history “because the term ‘liberty’ alone provides little guidance.” Dobbs, 597 U.S. at 239. Brittain, prefiguring Dobbs, expressly applied the Glucksberg test and thus binds us. 1 The dissent also cites Estate of Soakai v. Abdelaziz, 137 F.4th 969 (9th Cir. 2025), for the proposition that Glucksberg’s historical inquiry does not apply. Dissent at 20. But the case does not say that. It applied a shocks-the-conscience standard without addressing Glucksberg or history. We are thus not bound by it. 14 REACH COMMUNITY DEVELOPMENT V. USDHS The dissent does not even try to satisfy that test. It cannot. As discussed, the purported right to be free from exposure to gases released from non-lethal crowd-control devices in response to disruptive crowds is not deeply rooted in our nation’s history or tradition. Reach, 174 F.4th at 1147. The dissent proceeds instead to recite facts that purport to demonstrate the conscience-shocking nature of the government’s conduct. We need not decide whether that is so, since Plaintiffs fail to satisfy the historical inquiry. We only observe that the dissent fails to include the facts that appear to have prompted the use of the devices in the first place: members of the crowd barricaded federal officers inside the facility, ER-66; set federal property on fire and destroyed facility cameras, ER-70, 100–02; threw rocks, glass, and metal at officers, ER-99–100, 127; and targeted federal agents’ eyes with high-powered lasers capable of causing permanent damage, ER-148–59. A proper shocks- the-conscience inquiry must account for those facts. The deployment of non-lethal crowd-control devices to prevent violence from escalating and to protect federal property does not appear to us to shock the conscience. * * * Plaintiffs ask us to recognize a substantive-due-process right that no court or other authority (except the district court here) has recognized before. Dobbs forecloses our doing so. That case reflects the Supreme Court’s most recent, thorough explication of the limited scope of substantive-due- process rights and how those rights, carefully described, must find longstanding support in our nation’s history. They cannot be founded on general and abstractly formulated propositions such as the right to “bodily integrity.” Yet nowhere in the Plaintiffs’ briefs—or in the district court’s opinion—is Dobbs ever mentioned. That omission tells us  REACH COMMUNITY DEVELOPMENT V. USDHS 15 much. Plaintiffs would return us to a time before Glucksberg and Dobbs were decided, when Roe v. Wade put judges in the position of creating new rights rather than securing those rights established or recognized by our Constitution, when judges devised extra-constitutional rules that overrode legislative acts authorized by the will of the people or invalidated law-enforcement action long understood to be permissible. That we cannot do. The district court’s preliminary injunction is vacated. PRELIMINARY INJUNCTION VACATED. de Alba, Circuit Judge, dissenting: In my view, the majority too easily declares both the shocks-the-conscience standard and the fundamental-rights standard as applicable in executive-action cases. As discussed below, the Supreme Court’s and our decisions are not so straightforward on the question of what standard we should apply in such cases. Yet an exploration of the relevant authorities leads me to conclude that we should apply the shocks-the-conscience standard alone to determine whether substantive-due-process rights were violated in executive-action cases. I. The district court properly determined that Plaintiffs are likely to succeed on the merits of their Fifth Amendment substantive-due-process claim. We have noted that there are “two different legal standards to substantive due process claims”—a “fundamental rights” standard and a “shocks the conscience” standard. Regino v. Staley, 133 F.4th 951, 960 n.5 (9th Cir. 2025). The majority opinion describes the 16 REACH COMMUNITY DEVELOPMENT V. USDHS fundamental-rights standard. Under the shocks-the- conscience standard, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citation modified). “While the measure of what is conscience shocking is no calibrated yard stick, it does . . . point the way.” Id. at 847 (citation modified). That said, “[h]istorically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property,” i.e., “conduct intended to injure in some way unjustifiable by any government interest.” Id. at 849 (citation modified). The guarantee of due process does not apply to the “traditional category of common-law fault” and “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Id. at 848 (citation modified); see also id. at 849 (“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”). In between deliberate conduct and negligent conduct is “the middle range, following from something more than negligence but less than intentional conduct, such as recklessness or gross negligence.” Id. at 849 (citation modified). This middle range “is a matter for closer calls,” although the Supreme Court has determined that, for example, “deliberately indifferent conduct,” depending on the circumstance, “must also be enough to satisfy the fault requirement for due process claims.” Id. at 849–50 (footnote omitted); see also id. at 849–53 (explaining that deliberate indifference may shock the conscience in the pretrial custody context—e.g., when a pretrial detainee is denied medical needs while awaiting trial—but may be “less egregious” in the context of “high-speed law enforcement chases” and “a  REACH COMMUNITY DEVELOPMENT V. USDHS 17 prison riot” when officers “are supposed to act decisively” rather than deliberately). Ultimately, what shocks the conscience “is less a matter of rule,” and an asserted denial of constitutional due process “is to be tested by an appraisal of the totality of facts in a given case.” Id. at 850 (citation modified). The parties dispute which standard applies. Whether the fundamental-rights standard and/or the shocks-the- conscience standard applies depends “on whether it is legislation or a specific act of a governmental officer that is at issue.” Id. at 846. In cases dealing with legislative action, the fundamental-rights standard applies. Id. In cases dealing with executive action, the shocks-the-conscience standard applies, id., although it is less clear whether the fundamental- rights standard also applies or can be applied in the alternative. The parties agree that this is an executive-action case and that the shocks-the-conscience standard applies; however, they disagree on whether the shocks-the-conscience standard alone applies (as Plaintiffs contend) or whether both the shocks-the-conscience standard and the fundamental-rights standard apply (as the government contends). Notably, Lewis suggests—without deciding—that meeting the shocks-the-conscience standard alone might be sufficient in an executive-action case. See id. at 847 n.8 (“Only if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action, and only then might there be a debate about the sufficiency of historical examples of enforcement of the right claimed, or its recognition in other ways. In none of 18 REACH COMMUNITY DEVELOPMENT V. USDHS our prior cases have we considered the necessity for such examples, and no such question is raised in this case.”) (emphasis added); see also id. at 861 (Scalia, J., concurring in the judgement) (“According to today’s opinion, [the shocks-the-conscience test] is the measure of arbitrariness when what is at issue is executive, rather than legislative, action.”). At the same time, Lewis states that “a case challenging executive action on substantive due process grounds, like this one, presents an issue antecedent to any question about the need for historical examples of enforcing a liberty interest of the sort claimed,” and that “the threshold question” in such a case is whether the executive action shocks the conscience. Id. (emphases added). Although the majority interprets this language to mean that both the shocks-the-conscience standard and the fundamental-rights standard apply to executive-action cases, that is not what the Court said in Lewis. It merely noted that “any question” about whether the fundamental-rights standard applies would follow the application of the shocks-the-conscience standard. Indeed, as stated above, Lewis underscored that “[i]n none of our prior cases have we considered the necessity” of applying the fundamental-rights standard to executive-action cases “and no such question is raised in this case.” Id. Following Lewis, Justice Thomas—writing for a three- justice plurality in Chavez v. Martinez—applied both the shocks-the-conscience standard and fundamental-rights standard in an executive-action case. 538 U.S. 760 (2003). The plurality concluded that the executive conduct was not “conscience shocking.” Id. at 774–75 (citation modified). Instead of ending the analysis there, the plurality turned to a fundamental-rights analysis and declined to recognize a new  REACH COMMUNITY DEVELOPMENT V. USDHS 19 fundamental liberty interest in the case. Id. at 775–76. “That certainly makes it seem like the plurality thought that a substantive-due-process violation could be shown either way—by conscience-shocking conduct or by infringement of a fundamental right.” Littlejohn v. Sch. Bd. of Leon Cnty., Fla., 132 F.4th 1232, 1285 (11th Cir. 2025) (Newsom, J., concurring), cert. denied, 146 S. Ct. 2608 (2026). Then, on remand from Chavez, in Martinez v. City of Oxnard, the Ninth Circuit concluded that the “Due Process Clause protects individuals from state action that either shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” 337 F.3d 1091, 1092 (9th Cir. 2003) (per curiam) (citation modified). In other words, this court adopted the Supreme Court plurality’s suggestion that a substantive-due-process violation could be shown through either conscience-shocking conduct or by infringement of a fundamental right. Yet, following Martinez, in Brittain v. Hansen, we concluded, “It is not enough to allege conscience shocking action” because “there is no general liberty interest in being free from capricious government action.” 451 F.3d 982, 991 (9th Cir. 2006) (citation modified). Accordingly, “in order to establish a constitutional violation based on substantive due process, [a plaintiff] must show both a deprivation of [their] liberty and conscience shocking behavior by the government.” Id. (footnote omitted). Martinez and Brittain are in conflict.1 “Normally, when faced with an irreconcilable intra-circuit conflict of this 1 The majority’s position to the contrary notwithstanding, Martinez, following Chavez, explicitly stated a standard for evaluating questions arising under the Due Process Clause, and I view that standard as binding. Cf. Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (“[S]ince 20 REACH COMMUNITY DEVELOPMENT V. USDHS nature, the proper course would be to cal[l] for an en banc panel to resolve the conflict.” United States v. Hardesty, 958 F.2d 910, 912 (9th Cir. 1992) (citing Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987) (en banc)). Such a call, however, “is not required where . . . the conflict may be reconciled or avoided.” Id. Moreover, “we have also found it appropriate to follow one of two conflicting lines of authority without calling for en banc review.” Id. This is the case when “Congress has undermined one of the conflicting cases by amending a substantive statute” or “we are asked to make the unsatisfactory choice between two opposing lines of authority, neither of which has an unimpaired claim to being the law of the circuit without the aid of an intervening decision by Congress or the Supreme Court.” Id. (citation modified). In the latter situation, “a panel may follow the rule which has successfully posed as the law of the circuit for long enough to be relied upon.” Id. (citation modified). Here, we have applied the shocks-the-conscience standard, rather than the fundamental-rights standard, in numerous executive-action cases post-dating Lewis, Martinez, and Brittain. See, e.g., Estate of Soakai v. Abdelaziz, 137 F.4th 969, 976–80 (9th Cir. 2025) (applying the shocks-the-conscience standard only and holding that the plaintiffs “have stated a substantive due process claim by plausibly alleging that they, as bystanders, were injured when [the defendants] engaged in a high-speed chase for the we have never squarely addressed the issue, and have at most assumed the applicability of the Chapman standard on habeas, we are free to address the issue on the merits.” (emphasis added)); United States v. Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (concluding that cases are “not precedential for propositions not considered” or matters that are “simply assumed” (citation modified)).  REACH COMMUNITY DEVELOPMENT V. USDHS 21 purpose of harming the fleeing suspect without a legitimate law enforcement objective”). In this case, we should follow suit and apply the shocks-the-conscience standard alone. 2 See Hardesty, 958 F.2d at 912. Indeed, this is the better approach. As Tenth Circuit Judge Timothy M. Tymkovich explained, “[T]he fundamental-rights test is ill suited to evaluating particular conduct. That test is quintessentially one for legislation, not executive acts.” Timothy M. Tymkovich et al., A Workable Substantive Due Process, 95 2 I do not address the fundamental-rights question on the merits because I do not think it applies here. I note, however, that although the majority places great emphasis on Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), the Supreme Court has not consistently applied the standard articulated in Washington v. Glucksberg, 521 U.S. 702 (1997). See, e.g., Obergefell v. Hodges, 576 U.S. 644, 671 (2015). In fact, earlier this year, the Supreme Court vacated the Ninth Circuit’s order staying a preliminary injunction on behalf of, among others, parents who claimed that, in relevant part, certain California policies violated the Fourteenth Amendment’s Due Process Clause because they prevented schools from telling parents about their children’s efforts to engage in gender transitioning at school unless the children consented to parental notification. Mirabelli v. Bonta, 607 U.S. 492, 492–93 (2026). The Court concluded that the parents had a likelihood of success on the merits, even though the Due Process Clause “does not expressly grant parental rights of any kind” and members of the Supreme Court have “expressed skepticism—sometimes outright hostility—to understanding the ‘capacious’ term ‘liberty’ to enshrine specific rights.” Id. at 505 (Kagan, J., dissenting) (quoting Dobbs, 597 U.S. at 239). Indeed, “given the Court’s last venture into the field, [the Court’s decision in Mirabelli] cannot but induce a strong sense of whiplash.” Mirabelli, 607 U.S. at 505 (Kagan, J., dissenting) (comparing Mirabelli, 607 U.S. at 497 (recognizing a parent’s decisions about her child’s health), with Dobbs, 597 U.S. at 231 (repudiating a woman’s right to make important decisions about her own health)). 22 REACH COMMUNITY DEVELOPMENT V. USDHS NOTRE DAME L. REV. 1961, 2000 (2020). The test “asks whether a right is fundamental, and if so, whether the government’s interference is narrowly tailored to effect a compelling interest.” Id. Yet “[o]fficers’ actions on a given day are subject to all sorts of outside factors” and “those intangible factors are square pegs to the round holes of ‘compelling interest’ and ‘narrow tailoring.’” Id. II. The district court properly determined that Plaintiffs met the shocks-the-conscience standard. The executive conduct in question determines the appropriate analytical approach. “Where actual deliberation is practical, then an officer’s ‘deliberate indifference’ may suffice to shock the conscience.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (citation modified). “On the other hand, where a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives,” such as using force to bully a suspect or “get even.” Id. (citation modified). Here, the deliberate-indifference test applies as the government often had time to deliberate before using chemical munitions. The district court found that, while federal officers may have made certain snap-judgment decisions, they had “ample time” to deliberate before deploying chemical munitions and that the record reflects that the officers engaged in “eight months of planning, patterned operations, and inter-agency coordination.” Reach Cmty. Dev. v. U.S. Dep’t of Homeland Sec., 822 F. Supp. 3d 1186, 1214–15 (D. Or. 2026).  REACH COMMUNITY DEVELOPMENT V. USDHS 23 Various factors support the district court’s deliberate- indifference finding, including the distance from the Portland ICE facility to the chemical munitions impact areas, the quantity of chemical munitions federal officers used and their indiscriminate and pre-planned use, that chemical munitions were used contrary to agency use-of-force policies, and that the government knew its use of chemical munitions harmed Plaintiffs. Taking each of these factors in turn, the Portland ICE facility was often a significant distance away from the chemical munitions impact areas. Indeed, the district court found that there was “widespread deployment of chemical munitions,” including “spent munitions located in the Gray’s Landing courtyard, which [is over 100 feet away from the Portland ICE facility and] offers an outdoor recreation area and children’s play area,” and chemical munition deployment one or more blocks away from the Portland ICE Facility, without indication of a legitimate law enforcement purpose for the use of force in those areas. Id. at 1215. Although the government argues that it did not know the impact ranges of its chemical munitions, the government spells out likely impact ranges for the chemical munitions in its own briefing: “OC [i.e., pepper spray] can reach up to 20 feet when dispersed in