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By Alfred A. Spencer, JHBL Staff Member
Blog
On January 28, 2021, the District Court for the Western District of Washington granted the plaintiff’s third motion for contempt against the city for their use of crowd control agents following a prior preliminary injunction hearing. Black Lives Matter Seattle-King City v. City of Seattle was one of the first cases brought against the state for the police use of tear gas against protestors for what occurred during the 2020 protests. Additionally, this case was one of the first to have a preliminary injunction granted. When the court had initially granted the plaintiffs motion for a preliminary injunction in June 2020, the court stated, “[The] SPD’s use of less-lethal, crowd control weapons have surely chilled speech. To start, exposure to tear gas and pepper spray is excruciating.”
The murders of George Floyd and Breonna Taylor and the dozens of other incidents of police brutality in the past nine months have shone a light on how the police use tear gas and other chemical irritants in response to peaceful protests. In June of 2020, Congresswoman Alexandria Ocasio Cortez and other members of the House of Representatives have even proposed a bill to stop the police from using tear gas and other chemical irritants. In the same month, 1,300 medical and public health professionals wrote an open letter asking the police to stop using tear gas and other respiratory irritants.
Background
Tear gas was the first chemical weapon to be used in the United States (US) on the public in the 1920s to early 1930s. Following the French introduction of the weapon during the First World War, the US started to create its own chemical weapons. After the war ended, the leader of the Chemical Weapons Service, Amos Fries, began to make the case for domestic deployment of tear gas in response to civil unrest. Initially, the US government was not willing to allow for the use of chemical weapons domestically, but Fries was able to gain enough support and demonstrate that tear gas was a viable tool for the state. In August 1921, he famously tested tear gas on a troop of 60 girl scouts, including his daughter, to demonstrate that it was not harmful. Following that demonstration, the Department of War revoked its orders that prohibited the use of “non-lethal” gasses on civilians. Since then, police in the US have a myriad of chemical weapons at their disposal and use them when they deem fit. One of the first instances in which tear gas was deployed on a large scale in the US was during the labor movement in the early 1930s. During the Bonus Army March of 1932, 15,000 veterans had gathered in Washington D.C. in protest to obtain the funds the government had promised them. In response, the police began to deploy tear gas to clear the area. As tear gas was deployed, the police attacked with bayonets and killed two protestors. Since then, things have not gotten any better.
Since the end of the First World War and the widespread acceptance of the use of chemical irritants by the police, various chemical agents and dispersal devices have been created. The three most common are chlorobenzalmalononitrile (CS), oleoresin capsicum (OC or Pepper Spray), and phenacyl chloride (“Mace” or CN). Although touted as “non-lethal,” all these chemical irritants have either directly led to the death of those they are used against, contributed to the deaths of those they are used against, or permanently maimed those who were exposed to copious amounts. Despite the decades of injuries and deaths caused by the police use of chemical irritants, they continue to be used, and more dangerous methods for dispersal are being developed. Often, these weapons are used against peaceful protestors, non-violent crowds of festival or party-goers, or they are used against those who pose no real threat to law enforcement or those around them. The US government has acknowledged the dangers these weapons pose and has agreed that their use amounts to a war crime when used in armed conflict but refuses to ban their use domestically.
Injuries
Exposure to chemical irritants can lead to a variety of short-term and long-term side effects. Short-term side effects include chest tightness, coughing, choking, shortness of breath, burning in the eyes, blurred vision, chemical burns, and allergic reactions. Exposure for a prolonged period in a small area can lead to respiratory failure or death. If tear gas canisters or pepper bullets are fired into crowds, their impacts can cause severe trauma. In a 2012 case, the plaintiff was shot in the eye with a pepper bullet causing him to permanently lose sight in one eye and suffer permanent loss of visual acuity in the other. In an earlier case, a victim was exposed to so much tear gas in a confined area that he died from exposure fourteen hours later. Before his death, doctors were unable to properly tend to the victim because he was so inundated in the chemicals. The stench was so strong that they could only be in the same room with him for minutes at a time.
Chemical irritants can also impact those that they are not meant to harm. Since tear gas was introduced, the wind proves to be a factor that serves to make tear gas and other chemical irritants indiscriminate weapons. When it was first introduced, the police were inadvertently exposing themselves to the chemicals. As time progressed, even those not in the immediate area began to be impacted by its deployment. On May 20, 1969, California Governor Ronald Reagan ordered national guard helicopters to dispense tear gas over a protest in Berkley, California. Once dispersed, the tear gas impacted thousands of peaceful protestors, bystanders, and nursery school children miles away. This incident did not stop the deployment of tear gas in cities or residential neighborhoods. In 1998, the police in Michigan deployed tear gas in response to a union protest; once again, the wind carried the tear gas into the houses of two families nearby. In 2013, the police in Louisiana deployed tear gas in response to festival-goers not leaving at the prescribed time. The wind carried it into the house of the plaintiff, exposing both her and her children to tear gas. In both cases, the police were absolved of responsibility because the courts found it was reasonable for the police to deploy tear gas in such circumstances.
First and Fourth Amendment
The Fourth Amendment protects against unreasonable searches and seizures by the government. A seizure occurs when a government actor shows authority by means of physical force that in some way restrains the liberty of citizens it is used against. Thus, when tear gas is deployed by a federal or state police officer, it amounts to a seizure. Next, the court will look to the objective reasonability of the actions taken by the police. In determining whether the use of force was reasonable, the court considers what a reasonable cop under similar circumstances would do. The court then looks to evidence produced by both parties and weighs the interests of the individual(s) against those of the state. If it is deemed to be objectively unreasonable, then the force used will be considered excessive under the Fourth Amendment.
At first glance, this test seems reasonable; however, it is not applied fairly in all cases. In Dundon v. Kirchmeier, police shot tear gas canisters at peaceful protestors, legal observers, medics, and medical vehicles. This not only caused physical injuries, but it also restricted their movement, as people reported being unable to leave the bridge due to tear gas clouds blocking their exit. Despite all of this, the court denied the plaintiffs’ request for a preliminary injunction on the grounds that the police acted reasonably given the circumstances. This contrasts with the court decision in Black Lives Matter Seattle King-City. In this case, the court stated that it was clear that the police, on some occasions, had used less-lethal weapons disproportionately and without provocation. In this case, the police did not go as far as they did in Dundon, yet the court granted the plaintiffs a preliminary injunction.
The First Amendment protects, among other things, one’s right to freedom of speech and one’s right to peacefully assemble. The courts have previously held that the state acting in a retaliatory manner would constitute a violation of this right. To establish that the police acted in a retaliatory manner, the plaintiffs must show that they were engaged in a constitutionally protected activity, the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity, and the protected activity was a substantial or motivating factor in the defendant’s conduct.
As it pertains to Dundon, the intent to hinder the protestors’ First Amendment right was there. The defendants cited an event that happened in the month leading up to the incident and various other small run-ins they had with some protestors; this is likely what guided their actions. In the end, the court decided that the police acted reasonably in attempting to protect public and private property and enforce the law. In Black Lives Matter Seattle King-City the courts held differently. Unlike in Dundon, the court applied the test. In Black Lives Matter Seattle King-City, the court stated that it was clear the plaintiffs were engaged in a constitutionally protected activity, the defendants’ actions would chill a normal person from engaging in the protected activity, and it was clear that the protected activity was a motivating factor for the defendants’ conduct. The position that the court took in Dundon ignores this retaliation test despite the facts of the case. Forty-nine declarations from the plaintiffs made clear that those being targeted were photographers, medics, medical vehicles, people peacefully protesting, and people praying. Thus, their exposure to tear gas makes clear that the police intended to hinder the protestors’ First Amendment rights. The one difference between the two cases is that Dundon took place on both public property, private property, and public roadways, whereas the events in Black Lives Matter Seattle King-City took place on public roads and sidewalks.
Conclusion
The use of tear gas and other chemical irritants on US citizens should be prohibited because it infringes on the First Amendment, the Fourth Amendment, and it poses a public health risk, the likes of which cannot be ignored. The government has recognized that chemical weapons are so egregious that their use in war constitutes a war crime. The CDC has issued warnings about the dangers of chemical irritant exposure. Various human rights groups both at home and abroad have been speaking up about the danger that chemical irritants pose. The police use of tear gas and chemical irritants against US citizens is not just a public health issue; it is a constitutional rights issue. Tear gas has existed for over 100 years, and it has been used domestically for almost the same amount of time. No one should have to fear being exposed to deadly chemicals while exercising their rights.
Alfred A Spencer is a second-year day student at Suffolk University Law School. After he graduates, he intends to practice public interest law and hopes to work for the government to protect the rights of every American and ensure the law is fairly applied to all. He currently interns with the Attorney General’s Office Contributory Retirement Appeals Board, conducting research and drafting decisions. Alfred has an upcoming Note titled: The Police Use of Tear Gas and Other Chemical Weapons: Legal and Health Arguments Against its Widespread Use.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources:
Titcomb v. State, 30 Misc. 2d 902 (Ct. Cl. 1961)
Ellsworth v. City of Lancing, 34 F. Supp. 2d 571 (W.D. Mich. 1998)
Pinard v. Clatskanie Sch. Dist., 6J, 467 F.3d 755 (9th Cir. 2006)
Nelson v. City of Davis, 685 F.3d 867, 884-887 (9th Cir. 2012)
Young v. Akal, 985 F. Supp. 2d 785 (W.D. La. 2013)
Dundon v. Kirchmeier, No. 1:16-cv-406, 2017 U.S. Dist. LEXIS 222696 (D.N.D. Feb. 7, 2017)
Black Lives Matter Seattle-King County v. City of Seattle, 466 F. Supp. 3d 1206 (W.D. Wash. 2020)
https://time.com/5886348/report-peaceful-protests/
https://www.vox.com/2020/6/3/21277995/police-tear-gas-protests-history-effects-violence
https://emergency.cdc.gov/agent/riotcontrol/factsheet.asp
https://www.lung.org/clean-air/outdoors/what-makes-air-unhealthy/toxic-air-pollutants/tear-gas
https://www.theatlantic.com/international/archive/2014/08/100-years-of-tear-gas/378632/