ICE vs. the Fifth Amendment: Examining a Novel Legal Strategy for Restricting ICE Operations

By Nadaroopa Saraswathi Mohan '26

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In the wake of increased ICE operations across the country, public discourse has understandably revolved around protestors’ First Amendment rights. Federal agents’ unrestrained use of lethal force and misuse of less-lethal weapons against protestors has reignited questions about the appropriate methods of crowd control and dispersal. Chief among these concerns is the use of tear gas, pepper spray, and “stinger” munitions—all chemical agents designed to irritate the eyes, throats, and lungs—against protestors. (1) In Portland, Oregon, a unique legal claim has surfaced: residents of the Gray’s Landing development have won a preliminary injunction against Immigration and Customs Enforcement (ICE) that prohibits the use of “chemical munitions in quantities such that aerosolized chemicals discharged from said munitions are likely to reach Gray’s landing….unless it is determined to be necessary to address an imminent threat to life” on Fifth Amendment grounds. (2) Should the verdict succeed against the Trump administration’s appeal, Reach Community Development has paved a new legal pathway to limit federal agents’ use of chemical weapons against protestors. 

To decide this case, the District Court of Oregon had to assess the substantive due process claim and the request for a preliminary injunction. Each requires a plaintiff to meet different conditions. Concerning the substantive due process claim, Plaintiffs argue that ICE’s deployment of chemical weapons violates their Fifth Amendment rights by infringing on their right to bodily integrity through deliberate indifference, causing them irreparable injury. (3) The Fifth Amendment guarantees that no person shall be deprived of “life, liberty, or property, without due process of law.” (4) The Supreme Court has ruled that the Constitution protects certain fundamental rights—that are “implicit in the concept of ordered liberty”—from government interference regardless of the government’s adherence to procedures during enforcement of the law. (5) Thus, to prove that ICE violated their Fifth Amendment rights, Plaintiffs had to establish that ICE deprived them of a certain fundamental liberty, and that the government’s behavior is conscience-shocking. (6) 

Since Plaintiffs allege that the government violated the right to bodily integrity, an established substantive due process right, the District Court of Oregon had to evaluate whether the facts of this case align with the existing bodily integrity framework. (7) For Plaintiffs to win their request for a preliminary injunction, they had to establish all factors of the Winter test. In other words, a plaintiff must demonstrate that they are likely to succeed on the merits of the case, that they have suffered irreparable harm, and—when the nonmoving actor is a government entity—that the balance of equities tips in their favor and the injunction is in the public interest. (8) 

Proving the Fifth Amendment Claim  

The District Court of Oregon found that Plaintiffs have “a right to bodily integrity free from the nonconsensual exposure and ingestion of toxic airborne substances in the form of chemical munitions that have been intentionally, repeatedly, and excessively deployed by Defendants.” (9) In Guertin v. Michigan, the United States Court of Appeals for the Sixth Circuit ruled that the right to bodily integrity is violated when government actors knowingly and intentionally introduce life-threatening substances into individuals without consent. (10) The presiding judge, Judge Amy M. Baggio, noted that the facts of the case fit within Guertin’s framework for evaluating violations of the right to bodily integrity. (11)

Since June 2025, Plaintiffs have worn gas masks in their homes, placed wet towels under their doors and around their air conditioning units, and slept in closets to avoid exposure to chemical munitions. (12) The frequency of these bombardments has caused tremendous, long-lasting damage to Gray’s Landing. The gases from these chemical munitions do not dissipate once inside; residents of Gray’s Landing reported that the chemical irritants bonded to their walls, clothes, carpets, and furniture, causing recurring physiological damage. Residents experienced difficulty breathing, persistent coughing, throat and eye irritation, dizziness, headaches, and other symptoms. (13) Moreover, Gray’s Landing houses populations especially vulnerable to chemical irritants. 16% of tenants identify as disabled, 13% are younger than 18 years old, and 30% of tenants are 63 years of age or older. Susan Dooley, a 72-year-old Air Force veteran, was diagnosed with shortness of breath and mild heart failure six months after ICE began utilizing tear gas on protestors. (14) These facts support Plaintiffs’ claim that their right to bodily integrity was violated because they were unconsensually exposed to chemical agents. 

Additionally, Judge Baggio noted that Defendants continued the use of chemical munitions in large quantities even after being notified of their impact on Gray’s Landing on multiple occasions. (15) Further, Defendants’ own Use of Force Manual includes mention of the health impact of widespread use of chemical munitions when it counsels against their use in the presence of children and elderly folk who are unable to leave the area easily. (16) In other words, after notifications from multiple sources—including internal manuals—federal agents continued to unleash chemical munitions in tremendous quantities, which establishes that they knowingly and intentionally exposed Plaintiffs to chemical agents. These facts establish that the government deprived Plaintiffs of the right to bodily integrity. 

In determining whether ICE’s actions rise to the level of conscience-shocking, the District Court of Oregon had to ascertain if Defendants acted with an intent to injure or with deliberate indifference; either standard is sufficient to establish that the behavior in question shocks the contemporary conscience. A government actor acts with deliberate indifference if they disregard known or obvious consequences of their actions. (17) Although there were legitimate instances to deploy chemical agents, ICE agents used chemical agents even when there was ample time to deliberate about their use before deployment. In other words, ICE agents used immense quantities of chemical agents even when there were other options available to them for crowd dispersal.

Judge Baggio wrote, “the Court finds deliberate indifference based on the quantity of chemical munitions used, the distance from the Portland ICE facility to the impact areas, the fact that chemical munitions are being used contrary to the advice in agency use of force manuals, and particularly in light of Defendants’ specific notice of harm to Resident Plaintiffs.” (18) Notably, ICE agents’ use of force reports confirm that the use of chemical agents was a part of ongoing and coordinated efforts to respond to protests at or near the Portland ICE facility. (19) These components confirm that federal agents disregarded known consequences of their chemical munitions deployment, thereby fulfilling the conscience-shocking standard of Plaintiffs’ substantive due process claim. 

The Case for a Preliminary Injunction 

The veracity of Plaintiffs’ Fifth Amendment claims meets the first Winter standard; Plaintiffs are likely to succeed based on the merits of their case. Thus, the Court turned to the final two Winter standards: that the Plaintiffs face irreparable harm in the absence of preliminary injunctive relief, and that the balance of equities was in their favor and an injunction was in the public interest.

The Court found that the Plaintiffs were likely to face irreparable harm without injunctive relief because the Plaintiffs demonstrated a strong likelihood that their right to bodily integrity was being violated. (20) The deprivation of a constitutional right constitutes an irreparable injury. (21) Further, Judge Baggio noted the physical harm that Plaintiffs suffered to their health and their property despite mitigation efforts. (22) The constitutional and physical injuries, combined with the Defendants’ absence of intent to halt deployment of chemical weapons, establish that Plaintiffs are likely to face irreparable injury if a preliminary injunction is not issued. (23)

When determining whether the balance of equities and the public interest tipped in the Plaintiffs’ favor, Judge Baggio emphasized that the federal government’s obligation to protect federal property is secondary to the protection of Constitutional rights. Thus, since Plaintiffs demonstrated the likelihood of a violation of their right to bodily integrity under the Constitution, the balance of equities and the public interest falls in favor of Plaintiffs. 

Reach Community Development v. U.S. Department of Homeland Security’s Implications 

If appellate courts uphold Judge Baggio’s ruling in Reach Community Development v. U.S. Department of Homeland Security, then we might have a novel legal pathway for limiting ICE’s use of force. This task has proven especially difficult under the Trump administration after federal agents shot and killed Renee Good and Alex Pretti in Minnesota earlier this year.

Plaintiffs’ position as a third party to the clashes between ICE and protestors strengthens their constitutional claim. If Plaintiffs were protestors at the ICE facility, the government could easily construe their behavior as violent or unruly, thereby justifying the use of chemical munitions for dispersal. Since Plaintiffs pose no threat to federal agents, they can sidestep the government’s claims that the quantity of chemical agents used at the Portland ICE facility is necessary.

Further, the ruling could enable citizens to hold individual officers or municipalities accountable for violating the Constitution. If appellate courts uphold Judge Baggio’s ruling, then the overuse of chemical weapons in response to protests would be established as unconstitutional and therefore clearly illegal. In the future, this might enable plaintiffs to sue for damages by overcoming qualified immunity defenses.

Although Reach Community Development’s ruling only offers temporary relief to residents near one ICE facility in one municipality, it provides a novel, substantial legal framework for similar suits across the country and in the future.

Endnotes 

1. Compl. Reach Community Development, et al. v. U.S. Department of Homeland Security, et al., 3:25-cv-02257-AB. (D. Or.), filed December 5, 2025. 

2. Ibid. 

3. Tabuchi, Hiroko. 2026. “Portland Lawsuit Alleges Tear Gas Use by ICE Is a Health Threat.” The New York Times, February 11, 2026. https://www.nytimes.com/2026/02/11/climate/ice-portland-tear-gas-pollution-health-lawsuit.html.

4. U.S. Const. amendment V. 

5. Zablocki vs. Redhail, 434 U.S. 374 (1978). 

6. Reach Community Development, et al. v. U.S. Department of Homeland Security, et al., 3:25-cv-02257-Document 75 (D. Or. 2026), filed March 6, 2025. 

7. Ibid. 

8. Ibid. 

9. Ibid. 

10. Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019). 

11. Reach Community Development, et al. v. U.S. Department of Homeland Security, et al., 3:25-cv-02257-Document 75 (D. Or. 2026), filed March 6, 2025.

12. Ibid. 

13. Ibid. 

14. Ibid. 

15. Ibid. 

16. Ibid. 

17. Ibid. 

18. Ibid. 

19. Ibid. 

20. Ibid. 

21. Ibid. 

22. Ibid. 

23. Ibid.