This article was originally published on our sister publication The Portland Mercury's blog Blogtown. Follow them for ongoing coverage of the Portland uprising following the killing of George Floyd. —Eds. Note
Night after night, Portlanders participating in demonstrations against law enforcement have been met with stinging clouds of tear gas. This lingering gas forces people to run blindly down city streets, pulling off their face mask to wipe tears and snot from their face, bending the rules of the COVID-19 pandemic to relieve pain. More often than not, these people have not committed any crime.
According to the Portland Police Bureau (PPB), this is the safest way to stop criminal acts being committed by a few individuals in the crowd.
PPB Deputy Chief Chris Davis explained officers’ reliance on tear gas, also known as CS gas, at a Wednesday press conference where he detailed PPB’s response to violence taking place during that past 40 days of protests.
"We don't want to use CS gas at all. I don't like it," said Davis. But, he explained, if members of a crowd are lighting fires near government buildings or throwing objects that put others' lives at risk—and peaceful protesters refuse to leave the area—officers don't see another option.
"It's a matter of us cooperating with each other," said Davis. "It's to be able to have people go out and express first amendment rights without coming to the point of risk of... an officer or a community member getting seriously injured, or killed. If it's the choice between using CS gas and a fatality....Well, I'd prefer that we weren't put in the position to make that choice."
But is it a necessary choice?
Davis' explanation echoes the legal arguments used by attorneys representing the City of Portland in a case that centers on this kind of indiscriminate harm inflicted on protesters. The federal lawsuit, filed by nonprofit Don't Shoot PDX, accuses PPB of violating the constitutional rights of non-violent protesters by punishing them for the actions of a few people.
"Consistently... the City of Portland has used the acts of individuals—few of whom are arrested—to mete out mass punishment against all present," reads a recent legal filing by lawyers representing Don’t Shoot PDX. “Persons attempting to leave the scene were punished. Persons shielding themselves from the unlawful use of force were punished. Persons being mere bystanders were punished.”
City attorneys say officers are accurately following PPB protocol. They're not entirely wrong.
PPB has policies limiting officers from using aerosol restraints (ie: handheld pepper spray) and impact munitions (ie: rubber bullets, flash bang grenades, and pepper balls) indiscriminately into a crowd. Those restrictions don't apply to tear gas. Instead, PPB directives grant officers the right to use tear gas on entire crowds if a "civil disturbance" has been declared. A new state law goes further to limit tear gas unless a "riot" is declared.
Yet lawyers representing Don't Shoot PDX say these rules still violate peaceful protesters' Fourth Amendment protections against "unreasonable seizure" by law enforcement without probable cause for arrest.
"There’s no constitutional authority to use force on a crowd unless you have the adequate level of probable cause for every last person who could be affected," said Juan Chavez, one of Don't Shoot PDX’s attorneys.
The nonprofit’s legal team is also arguing that this indiscriminate use of gas silences peaceful protesters and deters them from attending these protests, effectively restricting their First Amendment right to free speech.
PPB officers working these protests seem to justify their use of tear gas by pinning individual crimes onto entire groups of people. The city’s court filings in response to the lawsuit include dozens of statements by police who’ve worked on the ground during recent protests. In these statements, police describe "a crowd throwing projectiles" or "a crowd [that had] stolen construction barriers" or a "violent crowd," as if all people in the crowd were working together to commit a crime.
In one instance, Officer Heather Martley describes seeing a group of at least 100 individuals that "began picking up items and throwing them in our direction" before she threw a tear gas (or CS gas) canister at them. There’s no evidence indicating that all 100 protesters threw objects at Martley. Several officers explained that tear gas is such an effective tool to use against large, dense groups of protesters specifically for its ability to affect everyone in that crowd.
Lawyers representing Don't Shoot PDX say that officers should be arresting individual people committing crimes at these protests instead of subjecting all attendees to painful chemicals.
Davis says it's not that easy.
"We’d like to do that, but it’s extremely challenging because of the tactics that are used [by protesters]," Davis told reporters Wednesday, pointing to instances where protesters hid behind signs or other non-violent protesters to avoid being identified by police.
"It really is difficult to [arrest individual people] without significant use of force and significant injury to everyone involved," Davis added.
He stressed that non-violent protesters can avoid tear gas by simply leaving when officers tell them to. When officers believe a protest has turned into a civil disturbance or a riot, PPB broadcasts this designation to the crowd through a loudspeaker. That’s also when PPB usually orders all demonstrators to leave the area to avoid getting tear gassed or hit with munitions.
“Where it gets challenging is when people choose to stay anyway,” Davis said. “By that point, we have the authority to disperse the crowd [with tear gas] based on what we’re seeing.”
Don’t Shoot PDX attorney Jesse Merrithew says people who refuse PPB dispersal orders still shouldn’t be subject to violence.
“This concept is not difficult to understand,” Merrithew said on a media call last Wednesday. “[People] have the right to engage in civil disobedience—to refuse to obey a law that they don’t believe is just—and if they’re not fighting with the police, if they're not threatening anybody or hurting anybody, you cannot use force against them. The worst thing you can do to them is arrest them. The Portland Police Bureau does not respect this basic principal.”
In early June, US Federal Judge Marco Hernandez approved a temporary restraining order requested by Don’t Shoot PDX, which prohibits the police use of tear gas and other munitions unless "the lives or safety of the public or the police are at risk." While Don’t Shoot PDX wants tear gas during protests banned outright, it has accepted this added limitation on riot control weapons while the case is being debated in court.
But Hernandez’ temporary order expires on July 24. On July 16, Don’t Shoot PDX’s legal team will argue in favor of a preliminary injunction—a tool that would extend this ban for the duration of the case. The City of Portland is prepared to push back.
“Every additional limitation that this court imposes on the tools that officers have to address dangerous, criminal behavior puts them at greater risk, the public at greater risk, and requires more human resources to respond to the same protests,” reads the city’s response to the injunction request. “The public interest and balance of equities favors PPB having all of the tools they need to address dangerous, riotous behavior.”
If Hernandez rejects the injunction, there’s another barrier that may limit officers’ use of tear gas. On June 6, Mayor Ted Wheeler instructed PPB to not use tear gas "unless there is a serious and immediate threat to life safety." But, while Wheeler’s order is similar to Hernandez’, it doesn’t carry the same consequences if breached. If police violate a federal court order, the City of Portland could be held in contempt of court. If police violate Wheeler’s orders, it’s not clear how he’d be able to hold them accountable.
Regardless, as long as police can argue that someone’s life is at risk. there’s no immediate tool that will keep PPB from using tear gas on large groups of people. There’s not even a guarantee that PPB will acknowledge the nightly demonstrations as what attendees believe them to be—protests. Davis made this clear at the beginning of Wednesday’s press conference.
“There’s a very big difference between protests and the kind of mayhem we’re seen here every night,” said Davis, who refused to call the hundreds who attend the city’s nightly demonstrations “protesters.” “This is not a protest.”
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Editor's Note: The Don't Shoot PDX case isn't the only legal challenge to PPB over its response to recent protests. The ACLU of Oregon has filed a class action lawsuit against PPB officers for limiting journalists and legal observers from documenting police during protests. The Portland Mercury is one of several plaintiffs in this case.
