Judge Unlikely to Ban Police Use of Tear Gas During Oakland Protests

A road sign warns protesters of the use of chemical agents for failure to disperse after a protest was declared unlawful on Saturday in Oakland, Calif. The protest was organized in support of the city of Portland and against the presence of federal agents in US cities. (AP Photo/Christian Monterrosa)

SAN FRANCISCO (CN) — Despite claims that using tear gas and other non-lethal weapons on protesters violates the First Amendment, a federal judge indicated Tuesday he would not outright ban the Oakland Police Department from deploying those tools when demonstrations turn violent or destructive.

“What’s the proper response when a group of police officers is in front of a crowd that is demonstrating and a significant number of people in that crowd start throwing rocks and bottles at them,” U.S. Magistrate Judge Joseph Spero asked during a hearing in a lawsuit challenging Oakland’s use of tear gas, flash grenades and foam-tip bullets during protests.

After two weeks of settlement talks with plaintiffs who sued the city over the deployment of non-lethal weapons during a series of protests between May 29 and June 3, Oakland agreed to abide by some terms of a limited preliminary injunction while the lawsuit remains pending.

The city consented to require that its officers will wear prominent badges or identifications on their uniforms during protests, turn their body cameras on, not use vehicles or motorcycles for crowd control and hold special crowd management training for commanders.

City officials refused to ban the use of tear gas and other non-lethal weapons, however, arguing police should be allowed to use them to target a “specific imminent threat” after announcing they will be used and giving adequate time for crowds to disperse “to the extent reasonably possible.”

During a video conference hearing Tuesday, civil rights attorney Dan Siegel denounced the city’s position as unacceptable. He said officers shouldn’t be allowed to deploy tear gas and other weapons on crowds because a few people in that crowd are breaking the law.

“Collective punishment is not appropriate in any circumstance,” Siegel said.

David Pereda of the Oakland City Attorney’s Office replied that an outright ban on non-lethal weapons would prevent officers from protecting themselves and the public. He cited destruction that occurred on July 25 in Oakland when a group of rioters broke the windows of occupied apartment buildings and tried to set a county courthouse on fire.

“Are the officers supposed to be injured?” Pereda asked. “Are we supposed to let courthouses be burned and threaten people’s safety?”

The city says an injunction banning the use of tear gas and other non-lethal weapons would cause other law enforcement agencies to stop helping Oakland during protests. It cited a June 3 email from the Alameda County Sheriff’s Office stating it will not provide mutual aid during Oakland protests if the city bans outside officers from using “crowd management tools to protect themselves from violent encounters.”

On June 10, U.S. Marshal Donald O’Keefe told the city in an email that he would recommend closing the Oakland federal building and courthouse and moving all operations to San Francisco and San Jose if the city “refuses to allow the use of chemical agents as a last resort to quell rioting and violence.”

Representing the plaintiffs, attorney Walter Riley argued that in situations where a small group in a larger crowd of protesters start throwing projectiles, officers could retreat or identify the individuals who are breaking the law and try to arrest them later. 

Judge Spero was not especially receptive to that suggestion.

“The Constitution doesn’t require them to retreat,” Spero said. “In some cases, it could be inconsistent with law enforcement objectives such as protecting public property.”

Spero said he was struggling to craft an injunction that strikes the right balance between protecting the right to assemble and voice dissent against the need to protect public safety and property.

Another dispute involves whether officers from neighboring police departments that assist Oakland police during protests should be bound by the same restrictions as Oakland police officers. According to Oakland’s October 2013 crowd control policy, the incident commander in charge during protests must make sure mutual aid agencies understand they should not use non-lethal weapons unless authorized by the Oakland police commander in charge.

Spero said he could not hold the city liable if an officer from a neighboring police department deploys tear gas or rubber bullets without authorization. He said he could hold the city liable, however, if it failed to inform the outside agency that such weapons should not be used unless authorized by the Oakland police commander in charge.

Oakland police do not shoot rubber bullets or pepper balls, but not all law enforcement agencies have the same restrictions.

Spero also indicated that he would require Oakland police officers to wear face masks while interacting with the public during protests while the Covid-19 pandemic is raging. Spero said he was dismayed to see officers not wearing nose-and-mouth coverings when he reviewed videos of police responding to the protests.

“Why is there any excuse for anybody not wearing a mask out there?” Spero asked.

In a 5-page ruling issued Wednesday, Judge Spero barred Oakland from deploying non-lethal weapons during protests “except where an immediate risk to public safety or of significant property damage makes it impossible to do so” and after the police give two loud warnings and adequate time for protesters to disperse.

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