Dickinson v. Trump
Overview
Overview
On the government's motion, a Ninth Circuit panel (Kenneth K. Lee, Ana de Alba, Eric C. Tung; opinion by Lee, J.) stayed the district court's preliminary injunction pending appeal, holding the government made a strong showing it will likely succeed on the merits of the plaintiffs' First Amendment retaliation claim and that the provisional class was improperly certified. The panel also stayed the district court proceedings, so discovery need not continue while the appeal is resolved. Judge de Alba concurred in part and dissented in part. The stayed injunction had barred federal officers from using non-lethal crowd-control munitions at Portland's ICE building unless someone posed an imminent threat of physical harm. Published, filed April 27, 2026.
The Facts
Facts
Since June 2025, protesters have gathered at the U.S. Immigration and Customs Enforcement building in Portland's South Waterfront. The panel described a mix of conduct: peaceful protest alongside vandalism, criminal trespass, and obstruction, with some provocateurs hurling bricks, smashing security cameras, and blocking the driveway to trap ICE vehicles. Federal officers responded with tear gas, pepper balls, and other non-lethal munitions. A group of protesters and journalists, led by Jack Dickinson, sued President Trump, Homeland Security Secretary Kristi Noem, and DHS, claiming officers targeted them in retaliation for exercising their First Amendment rights. The district court, Judge Michael H. Simon of the District of Oregon, entered a preliminary injunction barring officers from using non-lethal crowd-control munitions unless a person poses an imminent threat of physical harm, and the same day certified a provisional class of everyone who has, wants to, or will nonviolently protest or report on DHS activity at the building. The government appealed and moved to stay the injunction pending appeal.
The Issue
Issue
Whether the government is entitled to a stay of the preliminary injunction pending appeal. That turns on whether it made a strong showing that it is likely to succeed on the merits of the plaintiffs' First Amendment retaliation claim and satisfied the remaining stay factors, and on whether the district court properly certified the provisional class.
The Rules
Rule
A court weighing a stay pending appeal considers the four factors from Nken v. Holder: the applicant's likelihood of success on the merits, whether it will be irreparably injured without a stay, whether a stay would substantially injure other parties, and where the public interest lies. A preliminary injunction is reviewed for abuse of discretion, with the underlying legal questions reviewed de novo. To prove First Amendment retaliation, a plaintiff must show protected activity, that the defendant's action would chill a person of ordinary firmness, and that the protected activity was a substantial or motivating but-for cause of the government's conduct, under Nieves v. Bartlett. Class certification under Rule 23 is not a pleading standard: plaintiffs must affirmatively prove by a preponderance of actual evidence that they meet every prerequisite, under Wal-Mart Stores v. Dukes.
The Application
Analysis
The panel majority concluded the government is likely to prevail. It held the district court erred in finding a subjective intent to retaliate and an unwritten policy or practice of retaliation: the findings that protesters were injured more than once, that officers were not disciplined, and that force incidents were escalating did not establish that the plaintiffs' protected speech, rather than the surrounding unlawful conduct, was the but-for cause of the munitions use. The majority also held the provisional class was improperly certified because it rested on allegations rather than the actual evidence Rule 23 demands, and because it swept in everyone in the vicinity of the building regardless of class membership. Finding the merits unlikely to succeed and the class improperly granted, the majority also stayed the district court proceedings so discovery need not continue during the appeal, and it rejected the argument that the government had forfeited its stay request. Judge de Alba concurred in part and dissented in part, arguing the government forfeited its motion to stay the injunction and that reaching the merits and decertifying the class at this stage was premature.
The Conclusion
Conclusion
The Ninth Circuit granted the government's motions to stay the preliminary injunction pending appeal and to stay the district court proceedings. The injunction limiting non-lethal munitions at the Portland ICE building is paused, and the merits of the appeal remain to be decided.
Related coverage
District court case (the injunction under review): Dickinson v. Trump, /cases/dickinson-v-trump . The same term the Ninth Circuit reached the opposite result on a similar First Amendment retaliation and press-access injunction, affirming that preliminary injunction as to the retaliation theory: Los Angeles Press Club v. Noem, /cases/los-angeles-press-club-v-kristi-noem-cd-cal . Matter: National Guard and federal enforcement at the Portland ICE facility, /matters/national-guard-portland .
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