Judge bars National Guard deployment to Portland until her final ruling

A federal judge in Oregon Sunday night blocked President Donald Trump from sending National Guard troops from any state to Oregon for the next week until she issues a final decision.

U.S. District Judge Karin J. Immergut granted a preliminary injunction about five hours before her temporary order barring the deployments of National Guard troops to Portland was set to expire at 11:59 p.m. Sunday. It followed an accelerated three-day trial that ended last week.

Immergut intends to issue her final decision by the end of day Friday, but her preliminary injunction signaled that she’s anticipating granting a permanent injunction by the end of the week.

In a 16-page order, she found that the states of Oregon and California and city of Portland are entitled to a preliminary injunction on their claims that Trump’s federalization of the National Guard to Oregon violated federal code’s Title 10, Sec. 12406 and the 10th Amendment.

She found there was neither a threat of rebellion nor an inability of “regular officers” to execute federal law due to the nightly protests since June outside the U.S. Immigration and Customs Enforcement facility in Portland’s South Waterfront neighborhood.

Immergut ruled that Trump exceeded his authority by calling up the troops to be deployed to a “single federal building” in Portland.

“This Court finds no credible evidence that during the approximately two months before the President’s federalization order, protests grew out of control or involved more than isolated and sporadic instances of violent conduct that resulted in no serious injuries to federal personnel,” Immergut wrote.

TIMELINE: Follow the flurry of court action in National Guard deployment to Portland

Following a few nights in June, which involved “the high watermark of violence and unlawful activity” outside the ICE building, subsequent protests between June 15 and Sept. 27 were “generally uneventful with occasional interference to federal personnel and property,” she wrote in her ruling.

Although there were sporadic instances of unlawful behavior, she found that federal law enforcement, along with state and local police, have been able to manage the situation and make arrests and prosecute people, she wrote.

She defined rebellion as an “organized group engaged in armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means,” drawing from contemporaneous dictionary definitions of the word and historical examples.

Immergut said the federal government did not provide any evidence that the “episodes of violence” outside the ICE building were perpetrated by an organized group aimed at overtaking part of the government.

“The trial testimony produced no credible evidence of any significant damage to the ICE facility in the months before the President’s callout and no credible evidence that ICE was unable to execute immigration laws,” the judge wrote. “Protesters frequently blocked the driveway of the ICE building, but the evidence also showed that federal law enforcement officers were able to clear the driveway.”

Immergut also pointed out that Robert Cantu, the deputy regional director of the Federal Protective Service who is responsible for protecting the ICE building in Portland, was never consulted by the Trump administration before the president authorized Guard troops to be mobilize and was surprised to learn once they were called up for federal service.

At the federal government’s request, Immergut agreed to put a hold on part of her preliminary injunction that bars the federalization of the Guard members, maintaining the status quo. That means the Guard members mobilized can remain under federal control but cannot be deployed until the court issues it final opinion.

In a Sept. 27 social media post on his Truth Social profile, Trump authorized “all necessary Troops” to protect “War ravaged Portland,” and also promised “Full Force, if necessary,” at the request of Homeland Security Secretary Kristi Noem. He wrote that he was directing his defense secretary to have troops ready to protect “any of our ICE Facilities under siege from attack by Antifa and other domestic terrorists.”

The next day, Defense Secretary Pete Hegseth issued a memo, mobilizing 200 Oregon National Guard troops to serve under federal control for 60 days at Portland’s ICE building.

Immergut granted an initial temporary restraining order on Oct. 4, blocking their deployment to the city. Hours later, Hegseth mobilized 200 California National Guard to be deployed to Portland instead, and they arrived by air in Portland the next morning. Hegseth also called up another 200 Texas National Guard to be made available for deployments to Oregon and Illinois.

Immergut held an emergency hearing by phone on Oct. 5, a Sunday night, and granted a second broader temporary order that prevented Trump from sending National Guard from any state to Oregon under federal control.

The judge extended both temporary orders another 14 days, and they expired this Saturday and Sunday nights, respectively.

Lawyers for Oregon, California and Portland argued that the president’s authorization violated federal statute and the 10th Amendment, which protects a state’s sovereign interests and says that powers not delegated to federal officials are reserved “to the States.”

They urged the judge to permanently block the Trump administration’s Sept. 28 memo and related orders to federalize and deploy Oregon National Guard troops to Portland, and all cross-state deployment orders of troops to Portland.

The state of California joined Oregon and Portland’s lawsuit after 200 California National Guard members were flown to Portland in an apparent attempt to get-around Immergut’s initial temporary order that only blocked Oregon National Guard.

U.S. Department of Justice lawyers countered that the district judge lacked authority to review Trump’s assessment.

They also argued that judge must give a “great deal of deference” to the president’s determination that he’s met at least two of the criteria required before he can federalize National Guard members under federal code’s Title 10, Sec. 12406: that there was a danger of a rebellion against U.S. government authority, and “regular officers” have been unable to execute federal law.

They argued that rebellion includes the violent resistance to federal enforcement of immigration law and pointed to the one night that Portland police declared a riot on June 14. .

“Violent agitators, many of whom were organized, specifically targeted federal personnel and buildings to impede enforcement. … At a minimum, these conditions created ‘a danger of a rebellion.’ Creating life-threatening dangers for federal officers enforcing federal law (as well as bystanders) and targeting federal employees for their work performing federal functions surely amounts to a dangerous risk of rebellion,” Justice Department attorney J. Stephen Tagert wrote to the judge in a post-trial brief Saturday.

The federal government lawyers said Immergut was wrong in previously restricting her assessment to conditions in Portland in the “days leading up to” Trump’s authorization, arguing no time limitation exists.

They said a permanent injunction would be a “drastic and extraordinary remedy,” that is unwarranted and asked, if any injunction was issued, that it be limited to only prevent the deployment of troops based on the president’s judgment prior to his Sept. 27 authorization for Oregon.

“The Court cannot prevent future federalizations and deployments of the National Guard were the circumstances to change, necessitating immediate action. And that includes if the situation around the Portland ICE building worsens,” Target wrote in the Saturday brief. “If the Court does enter an injunction, the injunction should not impede the President’s authority to initiate other federal protection missions based on distinct facts or to federalize Guardsmen for separate purposes, such as maintaining air sovereignty or responding to a foreign invasion.”

Although card readers at the ICE building were “occasionally damaged,” Immergut wrote in her preliminary ruling that she found no evidence of any “significant damage” to the complex in the two months preceding Hegseth’s memo mobilizing the troops.

While protesters have frequently blocked the building’s driveway, federal officers have been able to clear it. Even when the building was temporarily closed from mid-June to early June due to property damage that occurred on June 12, the building’s Enforcement and Removal Operations office was able to temporarily relocate to another building in Portland until the ICE facility reopened and deportation officers continued to make arrests in the community, the judge wrote.

Immergut found credible the testimony of Portland police command staff who had “first-hand knowledge” of the crowds outside the ICE building.

Portland police Assistant Chief Craig Dobson, Central Precinct Cmdr. Brian Hughes and police Cmdr. Franz Schoening, who oversees the Police Bureau’s crowd control incident commanders, all testified that there was no need for the National Guard in the city and they feared their presence would incite more problems.

“More detailed findings of fact based on the trial testimony and exhibits are forthcoming following this Court’s full review of the record,” the judge wrote.

Oregon Attorney General Dan Rayfield called Sunday night’s ruling “a step toward truth and accountability.”

“From the beginning, this case has been about making sure the facts—not the President’s political whims—guide how the law is applied,” he said in a statement. “We’re grateful the court is taking the time to get it right, and we’ll keep doing everything we can to protect Oregon’s ability to govern itself and keep our communities safe.”

Oregon Gov. Tina Kotek praised the preliminary decision, describing it as “another affirmation of our democracy and the right to govern ourselves.”

“Oregon stands united against this unwanted, unneeded unconstitutional military intervention,’’ she said in a statement.

U.S. Justice Department lawyer Eric Hamilton signaled at the end of trial on Friday afternoon that the federal government would ask the 9th U.S. Circuit Court of Appeals to put a hold on any injunction issued by Immergut as it appeals.

Lewis and Clark Law Professor Tung Yin said the judge’s credibility findings about witnesses can be important because when the district court makes a finding of fact, it can be overturned by the Ninth Circuit only if it is “clearly erroneous.”

“It’s not enough that the appellate judges think they would have reached a different finding. Basing the findings on credibility is not necessary, but it helps because the trial judge gets to observe witness demeanor, whereas appellate judges just get a transcript,” he said by email.

Yin said he anticipated the losing party would appeal and ask for an immediate stay, or hold, by a three-judge 9th Circuit panel, whose ruling could prompt another call for a review by a larger pool of appeals court judges.

Whether a new three-judge 9th Circuit panel would hear the a motion to put Immergut’s latest ruling on hold or the 11-judge 9th Circuit panel already in place will take it is impossible to know, said Jeff Feldman, a professor and co-director of the Ninth Circuit Appellate Advocacy Clinic at the University of Washington.

“The normal process would be to assign a new panel, but this is not a normal case and the court has discretion as to how to handle it,” he said.

An appeal of Immergut’s final ruling is what likely would end up before the U.S. Supreme Court at some point, legal observers said.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals already has been assigned to review Immergut’s initial temporary restraining order that barred just the federal deployment of the Oregon National Guard to Portland.

A similar challenge by the state of Illinois to the federalization of National Guard members there is now before the U.S. Supreme Court. The federal government petitioned the Supreme Court to block a federal judge in Chicago’s temporary restraining order barring the deployment.