The opinion, penned by U.S. Circuit Judge Ronald M. Gould, said that while the injunction was appropriate to protect those who engage in peaceful protests and cover and report on them, the one issued by the lower court was "overbroad."
As a result, the Ninth Circuit vacated that order and told the district court to "fashion a narrower injunction."
The plaintiffs' lawsuit alleged the government violated their First Amendment right to be free from retaliation by federal officers for engaging in protected activities. The panel found they are likely to succeed on the merits of that claim.
The record "contained extensive evidence that defendants acted with retaliatory intent," it says.
The preliminary injunction applies to DHS and all of its officers operating in Los Angeles and the surrounding counties. It prohibits the firing of crowd control weapons at the "head, neck, groin, back, or other sensitive areas" of journalists, legal observers and protesters.
Although federal policies generally ban targeting sensitive areas outside life-threatening situations, the district court found that DHS officers failed to follow those policies, the opinion noted.
The injunction, however, went too far in some ways, the panel said. For example, it included provisions that applied to nonparties and was not tailored to the specific harms alleged.
"Rather than attempt to re-write the preliminary injunction, the panel vacated and remanded to the district court to fashion a narrower preliminary injunction consistent with the opinion," the panel said.
Peaceful protest and a free press are part and parcel of American's democracy, it said. The government cannot "silence the people or the press simply because the government disagrees with public protests, demonstrations, press reporting, or other speech criticizing the government," according to the opinion.
In appealing the injunction, the government argued that the plaintiffs had not shown with direct evidence that their First Amendment activities were a substantial or motivating factor in the federal agents' decision to use force against them.
The plaintiffs, however, may rely on circumstantial evidence to establish retaliatory intent, the panel said.
The district court cited an "avalanche" of circumstantial evidence supporting the claim that journalists, legal observers and protesters were targeted for retaliatory force by federal agents, the judgment underscores.
"The record contains extensive evidence that federal officers repeatedly targeted journalists and peaceful legal observers who stood far from any protesters or bad actors," the panel said.
"There is also evidence that defendants deployed crowd control weapons even when crowds were already dispersing or attempting to comply with orders to disperse," it added.
The government argued in its appeal that the injuries resulted from legitimate efforts by the officers to protect federal personnel, federal property and the public "from the chaos of violent protests."
The district judge, however, reviewed each incident before determining that the DHS officers had targeted protesters, journalists and legal observers with "indiscriminate force," the panel noted.
"The presence of some violent actors did not give defendants carte blanche to fire crowd control weapons indiscriminately into crowds of peaceful protesters, legal observers, and members of the press," it said.
The district court also appropriately determined that the plaintiffs demonstrated that they'd suffer irreparable harm without an injunction from the court, the panel said.
The preliminary injunction, however is too wide in scope, it said.
For example, the injunction prohibits the firing of tear gas canisters or flash-bang grenades that are aimed at striking "any person."
In addition, it bans DHS from dispersing journalists and legal observers without probable cause to believe an individual has committed a crime. That would wrongfully apply to lawful, nonretaliatory dispersal orders, the panel said.
The Ninth Circuit also took issue with the injunction's ban on the use of crowd control weapons without first giving two separate audible warnings. The subjectivity of an audible warning invites "strategic or near-frivolous contempt proceedings against the government's responsible law enforcement agents," the panel stated.
In its opening brief filed with the Ninth Circuit in November, the government said while some protests remained peaceful, others turned violent.
"Rioters attacked officers with Molotov cocktails, mortar-style fireworks, and other dangerous projectiles," DHS claimed. "Rioters also breached the perimeter of federal buildings, damaged federal vehicles, and injured many officers."
The injunction allows journalists or legal observers to disregard lawful orders to disperse and constrains officers' ability to use crowd-control devices to control violent protests, the government said. As a result, rioters can use journalists and legal observers as "human shields."
In addition, "journalist" and "legal observer" are defined too broadly, DHS said, covering anyone standing an "unspecified distance away from a protest, anyone wearing unspecified distinctive clothing indicative of journalist status, and anyone wearing a certain kind of green hat or blue vest."
The litigation followed protests during the summer of 2025 in response to immigration raids carried out by ICE in Southern California. It was filed in June by journalists, legal observers, protesters and two press organizations: the Los Angeles Press Club and the NewsGuild-Communications Workers of America.
In their November response to DHS' appeal, the plaintiffs said its officers shot at them in the head, upper body and back "with searing tear gas canisters, rubber bullets, and pepper balls, unnecessarily teargassed them without warning, and fired unremitting volleys of chemical and projectile weapons at them when they posed no threat to law enforcement," leaving them with "brain injuries, gaping wounds, severe respiratory distress, and other painful injuries."
The journalists further said that violence has caused them to limit their news-gathering, and the protesters said they are more hesitant to speak out.
The American Civil Liberties Union, which represented the plaintiffs, welcomed the Ninth Circuit decision.
"The court recognized the harms inflicted on journalists, observers and protesters are real, ongoing and unconstitutional," said Peter Eliasberg, chief counsel at the ACLU Foundation of Southern California, in a statement Wednesday.
Another lawyer for the plaintiffs, Matt Borden of BraunHagey & Borden LLP, said the decision "reinforces that in a democracy, the public has the right to document and observe government action and to speak out without being targeted for doing so."
Government representatives did not respond to a request for comment Wednesday.
U.S. Circuit Judges Ronald M. Gould, Jacqueline H. Nguyen and Mark J. Bennett sat on the panel for the Ninth Circuit.
The plaintiffs are represented by Matthew Borden, J. Noah Hagey, Kory J. DeClark, Kevin Opoku-Gyamfi and Greg Washington of BraunHagey & Borden LLP, Peter J. Eliasberg, Jonathan Markovitz, Adrienna Wong, Summer Lacey, Jacob Reisberg, Mohammad Tajsar and Meredith Gallen of the ACLU Foundation of Southern California, Carol A. Sobel of the Law Office of Carol A. Sobel, Paul Hoffman, Michael Seplow and John Washington of Schonbrun Seplow Harris Hoffman & Zeldes LLP, and Peter Bibring of the Law Office of Peter Bibring.
The government is represented by Brett A. Shumate, Eric D. McArthur, Bilal A. Essayli, Mark R. Freeman, Courtney L. Dixon and Michael Shih of the U.S. Department of Justice's Civil.
The case is Los Angeles Press Club et al. v. Noem et al., case number 25-5975, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Adam LoBelia.
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