WASHINGTON (AP) — A federal judge said Tuesday that he knows of no U.S. Supreme Court precedent to justify the Pentagon's censuring of a sitting U.S. senator who joined a videotaped plea for troops to resist unlawful orders from the Trump administration.
Sen. Mark Kelly had a front-row seat in a courtroom as his attorneys urged U.S. District Judge Richard Leon to block the Pentagon from punishing the Arizona Democrat, a retired U.S. Navy pilot. Leon didn't immediately rule from the bench on Kelly's claims that Pentagon officials violated his First Amendment free speech rights.
But the judge appeared to be skeptical of key arguments that a government attorney made in defense of Kelly's Jan. 5 censure from Defense Secretary Pete Hegseth.
“You're asking me to do something the Supreme Court has never done,” the judge told Justice Department attorney John Bailey. “Isn't that a bit of a stretch?”
Bailey argued that Congress decided that retired military service members are subject to the same Uniform Code of Military Justice that applies to active-duty troops.
“Retirees are part of the armed forces,” Bailey said. “They are not separated from the services.”
Benjamin Mizer, one of Kelly's lawyers, said they aren't aware of any ruling to support the notion that military retirees have “diminished speech rights.” And he argued that the First Amendment clearly protects Kelly's speech in this case.
“And any other approach would be to make new law,” Mizer added.
Leon, who was nominated to the bench by Republican President George W. Bush, said the Pentagon's actions against Kelly could have a chilling effect on “many, many other retirees who wish to voice their opinion.”
The judge said he hopes to issue a ruling by next Wednesday. Kelly shook hands with two government attorneys after the hearing.
In November, Kelly and five other Democratic lawmakers appeared on a video in which they urged troops to uphold the Constitution and not to follow unlawful military directives from the Trump administration.
Republican President Donald Trump accused the lawmakers of sedition “punishable by DEATH” in a social media post days later. Hegseth said Kelly’s censure was “a necessary process step” to proceedings that could result in a demotion from the senator’s retired rank of captain and subsequent reduction in retirement pay.
The 90-second video was first posted on a social media account belonging to Sen. Elissa Slotkin. Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan also appeared in the video. All of the participants are veterans of the armed services or intelligence communities.
The Pentagon began investigating Kelly in late November, citing a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other punishment.
Hegseth has said Kelly was the only one of the six lawmakers to be investigated because he is the only one who formally retired from the military and still falls under the Pentagon’s jurisdiction.
Sen. Mark Kelly, D-Ariz.,walks to speak to reporters outside of federal court in Washington, Tuesday, Feb. 3, 2026. (AP Photo/Mark Schiefelbein)
Sen. Mark Kelly, D-Ariz.,speaks to reporters outside of federal court in Washington, Tuesday, Feb. 3, 2026. (AP Photo/Mark Schiefelbein)
Sen. Mark Kelly, D-Ariz.,speaks to reporters outside of federal court in Washington, Tuesday, Feb. 3, 2026. (AP Photo/Mark Schiefelbein)
PORTLAND, Ore. (AP) — Federal officers are temporarily restricted from using tear gas at protests outside a Portland immigration building, a judge in Oregon ruled Tuesday, just days after agents fired gas into a crowd of demonstrators that local officials described as peaceful and which included young children.
U.S. District Judge Michael Simon ordered federal officers to not use chemical or projectile munitions unless the person targeted poses an imminent threat of physical harm. Simon also limited federal officers from firing munitions at the head, neck or torso “unless the officer is legally justified in using deadly force against that person.”
The temporary restraining order will be in effect for 14 days.
The ruling came in response to a lawsuit filed by the ACLU of Oregon on behalf of protesters and freelance journalists covering demonstrations at the flashpoint U.S. Immigration and Customs Enforcement building.
The suit names as defendants the Department of Homeland Security and its head Kristi Noem, as well as President Donald Trump. It argues that federal officers’ use of chemical munitions and excessive force is a retaliation against protesters that chills their First Amendment rights.
The Department of Homeland Security did not immediately respond to a request for comment.
Courts elsewhere have also considered the issue of federal agents’ use of chemical munitions against protesters, as cities across the country have seen demonstrations against the Trump administration’s surge in immigration enforcement.
Last month, a federal appeals court suspended a decision that prohibited federal officers from using tear gas or pepper spray against peaceful protesters in Minnesota who aren’t obstructing law enforcement. An appeals court also halted a ruling from a federal judge in Chicago that restricted federal agents from using certain riot control weapons, such as tear gas and pepper balls, unless necessary to prevent an immediate threat. A similar lawsuit brought by the state is now before the same judge.
The Oregon complaint describes instances in which the plaintiffs — including a protester known for wearing a chicken costume, a married couple in their 80s and two freelance journalists — had chemical or “less-lethal” munitions used against them.
In October, 83-year-old Vietnam War veteran Richard Eckman and his 84-year-old wife Laurie Eckman joined a rally that peacefully marched to the ICE building. Once there, federal officers launched chemical munitions at the crowd, hitting Laurie Eckman in the head with a pepper ball and causing her to bleed, according to the complaint. With bloody clothes and hair, she sought treatment at a hospital, which gave her instructions for caring for a concussion. A munition also hit her husband’s walker, the complaint says.
Jack Dickinson, who frequently attends protests at the ICE building in a chicken suit, has had munitions aimed at him while posing no threat, according to the complaint. Federal officers have shot munitions at his face respirator and at his back, and launched a tear-gas canister that sparked next to his leg and burned a hole in his costume, the complaint says.
Freelance journalists Hugo Rios and Mason Lake have similarly been hit with pepper balls and tear gassed while marked as press, according to the complaint.
“Defendants must be enjoined from gassing, shooting, hitting and arresting peaceful Portlanders and journalists willing to document federal abuses as if they are enemy combatants,” the complaint says. “Defendants’ actions have caused and continue to cause Plaintiffs irreparable harm, including physical injury, fear of arrest, and a chilling of their willingness to exercise rights of speech, press, and assembly.”
Local officials have also spoken out against the use of chemical munitions. Portland Mayor Keith Wilson demanded ICE leave the city after federal officers used such munitions Saturday at what he described as a “peaceful daytime protest where the vast majority of those present violated no laws, made no threat, and posed no danger to federal forces.”
“To those who continue to work for ICE: Resign. To those who control this facility: Leave,” Wilson wrote in a statement Saturday night. “To those who continue to make these sickening decisions, go home, look in a mirror, and ask yourselves why you have gassed children.”
The protest was one of many similar demonstrations nationwide against the Trump administration’s immigration crackdown in cities like Minneapolis, where in recent weeks federal agents killed two residents, Alex Pretti and Renee Good.
Associated Press writers Steve Karnowski in Minneapolis and Sophia Tareen in Chicago contributed.
Federal agents lobbed tear gas and flash bangs at protesters in front of the ICE building on Jan. 31, 2026, in Portland, Ore. (Allison Barr/The Oregonian via AP)
