Co-authored by Nick Robinson, senior legal adviser at the International Center for Not-for-Profit Law
From women’s suffrage to the Civil Rights movement, public demonstrations have been critical to making social progress in the United States. Yet, during last summer’s racial justice protests, peaceful protesters were frequently met by police with force, particularly so-called “less lethal” weapons like tear gas and rubber bullets.
Law enforcement used these weapons in more than 100 cities across the country and at least a dozen in California. While the real number of those affected is much higher, there were hundreds of documented injuries, many serious, including well over 100 head injuries from projectiles and reports of chemical injuries from tear gas, not to mention the mental health burden, all in the setting of already overburdened hospitals filled with COVID-19 patients. From Los Angeles to Oakland, emergency physicians were called on to manage complex facial fractures, groin injuries and brain trauma.
Numerous reports commissioned by U.S. cities to investigate what went wrong found that when dealing with protests, police were often poorly trained, overly militarized, too aggressive and inappropriately used less lethal weapons. The use of tear gas and projectiles against crowds often inflamed tensions instead of calming them, leading to confrontation with protesters. Besides the human toll caused by these weapons, these incidents also led to litigation and substantial payouts by cities.
In response, lawmakers have started taking action, with at least six states and 12 cities already enacting legislation to better regulate these weapons. Some, like Washington, D.C., and Philadelphia, have outlawed the use of these weapons to disperse constitutionally protected demonstrations.
These bans only reinforce current law.
Given the indiscriminate nature of firing rubber bullets and tear gas into a crowd, federal courts have repeatedly ruled that it is already unconstitutional to use them to break-up a First Amendment-protected protest. For example, in June, a federal district judge issued a preliminary injunction against the Los Angeles County Sheriff’s Department after finding that it had indiscriminately targeted peaceful protesters, journalists and legal observers with tear gas and projectiles.
The challenge for these prohibitions on less lethal weapons, however, is that the Supreme Court has largely failed to lay out clear standards on when a demonstration stops being protected under the First Amendment.
If a handful of protesters block a sidewalk, kick over a trash can or police decide the crowd is “threatening,” law enforcement currently has far too broad discretion to declare a protest an unlawful assembly or a riot.
And once an unlawful assembly or a riot is declared, in the eyes of the police, bans on less lethal weapons then no longer apply.
To avoid getting caught in squabbles over what is and is not a constitutionally protected protest, some jurisdictions have instead begun to set out standards for when and how these weapons can be used for crowd control more generally.
California is taking the legislative lead in these efforts through AB48, which passed the Assembly in June and will soon be voted on by the state Senate.
It would create new common-sense requirements for the use of less lethal weapons for crowd control, including that their use is necessary to prevent serious injury and proportionate to the threat. It also requires that before these weapons are used there must be a dispersal order by law enforcement and an opportunity to comply.
Importantly, after firing less lethal weapons, police would have to publicly justify why their use was necessary and detail why de-escalation tactics were not feasible or failed. These types of reporting requirements are critical to stop the excessive use of these weapons by police.
There is no doubt that much more work still needs to be done. Broader efforts are needed on the national level. In June, two subcommittees of the U.S. House of Representatives demanded manufacturers of tear gas provide more information about its safety.
Hopefully, reforms led by states and cities can support a coherent national policy on less lethal weapons — their manufacture, procurement and use — that better protects protesters and the public.
For now, it is up to states like California, through measures like AB48, to lead the way.
Cross-posted from the San Francisco Chronicle