Fact check: What federal laws and Department of Homeland Security policies regulate ICE use of tear gas and chemical agents?

1. A legal vacuum: Why the written federal code doesn’t name “tear gas” but still limits force

The federal immigration enforcement regulation 8 C.F.R. § 287.8 sets standards for enforcement activities and limits on force, distinguishing non‑deadly from deadly force and requiring minimum necessary force, but it does not explicitly mention tear gas or other chemical agents. This regulatory gap means that ICE and other DHS components rely on general force rules rather than a statutory checklist for chemical agents, creating room for divergent interpretations and implementation across DHS subagencies ^{[1] [2]}. The absence of explicit statutory language naming specific chemical agents places greater weight on component policies, training, procurement rules, and local judicial orders to define acceptable use, which is precisely the battleground that recent oversight and litigation have highlighted ^{[3] [5]}.

2. Component policies matter: DHS and CBP say they follow internal rules, but details are thin

DHS and the Border Patrol have asserted that specific uses of chemical munitions were conducted under component-level policies, and DHS released footage defending such actions as consistent with CBP policy; yet public reporting finds little transparency about the precise policy text and its operational thresholds ^[5]. Congressional and media scrutiny has focused on whether those component policies comport with the broader 8 C.F.R. standard for minimum necessary force, and whether they harmonize across ICE, CBP, and other DHS offices—an alignment that is not evident in the available public record. The result is that DHS component claims of policy compliance are central to the dispute but do not, on their face, resolve legal or accountability questions raised by judges and lawmakers ^{[7] [5]}.

3. Court orders and oversight have added constraints and produced confrontations

Federal judges have issued orders restricting use of tear gas and riot-control tactics to situations where people pose an immediate threat, and requiring verbal warnings before deployment; those orders have become operative constraints that agents must follow or risk contempt and legal challenge ^[3]. Recent hearings and warnings from judges to Border Patrol leaders in late October 2025 demonstrate that courts are actively policing how DHS components interpret their own policies in the field ^[4]. These judicial interventions show that where statutory text is sparse, courts and oversight actors effectively shape permissible operational behavior through injunctions and oversight, often prompted by specific incidents that raise questions about proportionality and necessity ^{[3] [4]}.

4. Reporting and political responses show competing narratives and accountability pressure

Local officials and members of Congress have publicly condemned aggressive federal tactics and demanded investigations, arguing that the use of helicopters, pepper balls, and tear gas against civilians violated norms and possibly policy ^{[8] [7]}. DHS and Border Patrol officials counter that operations followed internal rules and were targeted at immediate threats, producing competing narratives about necessity and compliance ^[5]. The press and investigators have zeroed in on whether actions violated internal use-of-force prohibitions—such as rules against intentionally targeting vulnerable body areas—illustrating how policy compliance claims can be tested by technical details of use‑of‑force doctrine and evidentiary records ^[6].

5. What this means for accountability and reform debates going forward

Because federal regulation provides broad force standards without chemical-agent specificity, accountability depends on transparency of component policies, timely judicial review, and Congress’s willingness to legislate targeted limits or reporting requirements. The October 2025 episodes and subsequent judicial warnings underscore that policymakers and courts are the practical backstops when internal DHS discipline and policy disclosure are insufficient ^{[4] [5]}. Reform advocates will point to the regulatory gap as rationale for statutory reform or binding DHS-wide rules; DHS and its components will emphasize operational flexibility and existing force standards—creating a natural fault line for legislative, judicial, and oversight contests ^{[1] [7]}.

6. Bottom line: the rules are fragmented, enforcement is contested, and oversight is active

The current legal regime mixes general use-of-force standards in 8 C.F.R. § 287.8, component-level policies whose texts are not uniformly public, and enforceable court orders that can impose immediate constraints; recent events in October 2025 illustrate how that mix leads to contested applications and calls for investigations ^{[1] [3] [4]}. Continued transparency about component policies, public release of operational after-action reports, and potential statutory clarification would be required to convert the present patchwork into a clear, uniformly enforceable framework for ICE and other DHS agencies’ use of tear gas and chemical agents ^{[5] [6]}.