A preliminary injunction blocking the federal government from deploying National Guard troops to Oregon will remain in effect until November 7.
The injunction was issued Sunday evening, November 2 by US District Judge Karin Immergut, in Oregon’s case against the Trump administration over National Guard deployment. Immergut said she is still reviewing all the exhibits and evidence presented during a three-day trial that wrapped up Friday.
“During the trial, the parties introduced over 750 exhibits, many of which are voluminous. This Court heard the trial testimony and arguments of counsel and has been in the process of diligently reviewing all the evidence. The interest of justice requires that this Court complete a thorough review of the exhibits and trial transcripts before issuing a final decision on the merits,” Immergut wrote in her order. She promised a final opinion by 5 pm Friday, November 7.
The ruling means National Guard troops remain federalized, but not deployed, essentially maintaining the status quo for now.
Judge Immergut said not only is she reviewing all the evidence submitted at trial, she’s still reviewing post-trial briefings from defendants and plaintiffs, which were just filed on Saturday. She said she asked both parties whether they’d agree to maintain the status quo for a week, but Trump administration attorneys (defendants) declined. The judge found their arguments flawed.
“Without offering any legal support, Defendants argue that this Court may no longer first decide whether a preliminary injunction is warranted, while this Court continues to review the entire trial record to determine whether Plaintiffs have satisfied their ultimate burden of proving their two claims on the merits. Defendants’ argument is without merit,” Immergut wrote. She said federal rules of civil procedure that govern injunctions and restraining orders do not preclude her from ruling on a preliminary injunction.
The judge said based on “the trial testimony, and the exhibits … reviewed so far,” she determined that the state of Oregon and city of Portland (plaintiffs) “are entitled to a preliminary injunction” on their claims that federalization and deployment of the National Guard to Oregon violates section 10 of US Code and the 10th Amendment. Immergut was clear in her order that the preliminary injunction applies to all National Guard troops, including those from out of state.
Her ruling suggests she finds deployment of military forces in Oregon would likely violate federal law.
Among the exhibits was an acknowledgement that the federal government did briefly put National Guard troops on the ground for a few hours from about 11 pm to 2 am after Judge Immergut had issued a temporary restraining order (TRO) blocking any Guard deployment.
"It was quickly pulled back because we got the TRO, but at the time of the first TRO, [deployment] had already started," a DOJ attorney told Judge Immergut, saying troops were deployed before they got word of the restraining order.
"Alright, well, we'll discuss later whether that's contempt and in direct violation of my TRO," Immergut replied.
Sunday's ruling comes as the 9th Circuit Court of Appeals is set to reconsider the Trump administration’s appeal of Immergut’s temporary restraining order issued in early October, shortly after the lawsuit was filed.
Last week, Immergut heard from US Department of Justice attorneys, as well as attorneys for the state of Oregon, state of California, and city of Portland, who called up several law enforcement witnesses to testify about conditions on the ground at Portland’s ICE facility.
The Trump administration maintains that National Guard troops are necessary to help protect the ICE facility and staff inside.
Section 10 of US Code lays out a set of three conditions that warrant federalizing National Guard troops:
- The United States is invaded or is in danger of invasion by a foreign nation;
- there is a rebellion or danger of a rebellion against the US government; or
- the president is unable to execute federal laws with the regular forces
Attorneys for the administration argue the ongoing protests in Portland constitute a rebellion, or the threat of one, and say the president, via federal agencies, isn’t able to carry out federal law with the current staff on the ground. They say the president was well within the scope of his authority to order National Guard troops into Oregon.
During closing arguments, federal attorneys argued “the decision whether the exigency has arisen belongs exclusively to the president,” meaning the president has discretion to decide whether circumstances are serious enough to warrant National Guard deployment. That point is significant, as Trump’s own statements about the protests in Portland suggest that he was likely viewing old footage from 2020 protests in making a determination about what’s currently happening in Portland. During an “antifa roundtable” held last month, Trump also claimed, with no evidence, that Portland doesn’t have stores anymore, comparing it to a “bombed-out” city.
At various points during the three days of court hearings, US Department of Justice attorneys relied on testimony from federal agents to suggest Oregon’s sanctuary laws prevent local police from providing effective help during protests, justifying the need for National Guard assistance. State law prohibits local resources, including law enforcement resources, from being used for immigration enforcement.
Trump administration attorneys focused heavily on events that happened on June 14, following a No Kings march and rally earlier that day. Witnesses from the Federal Protective Service, as well as ICE, said protesters tried to breach the ICE building that day, breaking windows and at one point putting chains around the door at the front entry to trap federal agents inside.
The June 14 protest—the only day when a riot was declared at the site—remained a subject of focus for federal attorneys throughout the trial, as they attempted to paint ongoing anti-ICE protests as violent and unmanageable.
In fact, a Federal Protective Service field supervisor testified that on that day, federal agents were in position with long guns, ready to use lethal force.
Conversely, Oregon’s legal counsel pointed to multiple nights when the protest crowds were calm and small in number, warranting no intervention from the Portland Police Bureau. Even recent weeks, which have seen increased protest sizes and activity, have been managed by a combination of Department of Homeland Security agents and local police, attorneys with the city of Portland argued.
State and local attorneys also relied on testimony from local law enforcement agencies to demonstrate a pattern of unnecessarily excessive force used by federal officers at the ICE facility to try to clear protesters from the driveway, and sometimes even from the public street in front of the property.
Portland Police Bureau Commander Franz Schoening described a protest on October 4 that saw federal agents resort to violence, for no apparent reason.
I remember our members … they were deployed, prepared to intervene if we saw any criminal conduct,” Schoening testified. He said federal agents emerged from the ICE building “and deployed CS gas on that crowd that largely we had seen, no violent criminal conduct.”
“It was all passive trespassing, civil disobedience type conduct,” Schoening told the court. “Their use of CS gas on that crowd was startling.”
The commander also testified that his officers were at times unable to assist in managing protesters at the ICE building, due to a health and safety risk to officers who’ve been exposed to tear gas and at one point, hit by pepper balls shot by DHS agents.
In a post-trial memo submitted on behalf of Oregon and the city of Portland, attorneys argued Trump’s actions, in conjunction with those of Defense Secretary Pete Hegseth and Department of Homeland Security Secretary Kristi Noem, “exceeded their authority” under chapter 10 of US Code that governs National Guard activation, as well as the 10th Amendment.
“The orders federalizing and deploying the National Guard to Portland are unlawful and unconstitutional and should be enjoined,” plaintiffs wrote in the memo submitted Saturday.
Oregon’s lawsuit against the Trump administration is one of four high-profile cases that calls into question the scope of the president's authority in activating a militia against American citizens.
