SAN FRANCISCO (CN) — Months after a federal judge ordered police to issue vocal warnings before deploying tear gas at protests, a new motion for sanctions says the directive has gone ignored at recent demonstrations.
“The Oakland Police Department did not exhaust other techniques to mitigate the threat, did not provide any warning prior to the deployment of the munitions, and deployed the munitions directly into the crowd rather than at a safe distance,” says the motion, which was filed Wednesday night by Siegel Yee attorney EmilyRose Johns.
U.S. Magistrate Judge Joseph Spero set the rules on July 29 after a hearing that followed weeks of settlement talks. The preliminary injunction says police officers must give audible warnings before unleashing chemical agents to disperse crowds, and, among other things, that they must wear face masks and gloves when interacting with the public.
In their motion to enforce the injunction and impose sanctions, activists led by the Anti Police Terror Project say that such safeguards were overlooked at protests held in late August and September where Oakland police, not always wearing face masks, fired smoke grenades directly into crowds without warning and crowded demonstrators into tight spaces without routes of escape.
The protests on Aug. 26, 28 and 29 were organized in response to the police shooting of Jacob Blake in Kenosha, Wisconsin, and the latest protest on Sept. 25 followed a grand jury’s decision not to issue an indictment over the police killing of Breonna Taylor in Louisville, Kentucky.
One protestor testified in a declaration that he was hit in the head by a smoke grenade on Aug. 29, despite a requirement in the injunction that flash-bang grenades and gas canisters be deployed “at a safe distance from the crowd to minimize the risk that individuals will be struck and injured by those devices.”
Other protesters described police forming barricades and pushing protesters into tight spaces without prior warnings in violation of the OPD’s October 2013 crowd-control policy, which the police are required to comply with under the terms of the July 29 injunction.
Attorney Johns called this practice especially troubling during the Covid-19 pandemic because it makes it impossible for demonstrators to maintain a safe distance from others.
“They were unable to march six feet distance from another person,” Johns said in an interview. “Police were pushing people forward, stepping on the back of shoes to hurry them because they were walking so fast and pushing the crowd so quickly.”
A volunteer medic named Ella Hansen who was in a medic van trailing a protest march on Aug. 26 testified about being dragged outside of the van along with others, tackled to the ground, sat on and handcuffed.
Hansen, who uses they and them pronouns, says the officers generally were not wearing face masks as required by the injunction or complying with social-distancing guidelines. That night Hansen was sent to Santa Rita Jail.
Johns said the court could fine the city for violating the injunction or issue more clear and targeted instructions to limit the use of smoke grenades and tactics during protests.
“All relief is on the table in our opinion,” Johns said.
Attorneys for Oakland are expected to file their own motion by Monday requesting a modification of the injunction to allow its mutual aid partners to use tear gas and other less lethal weapons with fewer limitations during protests.
The city said a modification is needed after Alameda County Sheriff Gregory Ahern sent a letter on Aug. 3 saying he would not send sheriff’s deputies to help Oakland during protests because the injunction limits his staff’s ability to protect themselves and do their job.
“The inability to utilize effective and safe less-lethal munitions places all peace officers at risk and reduces the options available to deal with violent incidents,” Ahern wrote. “Peace officers would be limited, essentially, to hand-to-hand combat with specific individuals within potentially large crowds. I am not willing to expose my staff to this degree of danger without providing them with the proper equipment and support, most of which is prohibited by the Preliminary Injunction.”
Johns said she finds it “outrageous” that the sheriff insists his deputies be able to use chemical weapons like tear gas that are banned in war by the 1925 Geneva Protocol and international law.
Alameda County Sheriff’s Sergeant Ray Kelly said the county has teams on standby to provide mutual aid to Oakland during emergencies when life-threatening situations or significant crime occur, but he said “property damage, destruction and vandalism may not get a response.”
“We train with certain crowd control tools and management equipment,” Kelly said by email. “These tools are force multipliers that allow us to safely do our job. When we can’t use those tools to disperse violent crowds it poses a threat to officers and members of the community.”
Johns said her team will fight to defend the preliminary injunction order on mutual aid.
The civil rights lawyer added that she wants the dispute over what methods police can use to respond to protests resolved before Nov. 3, Election Day.
“We believe Oakland residents deserve transparency about the kind of force that they may face from the police if they choose to take to the streets on election night,” Johns said.
In an emailed statement the Oakland Police Department said it is committed to “abiding by all aspects of the court order as it continues to work to uphold constitutional rights of free speech and assembly while relying on the minimum use of physical force and authority required to address a crowd management or crowd control issue,” including applying the appropriate level of force to protect life, property, and vital facilities.
OPD said it will respond to claims that it violated the court order in upcoming court filings and hearings.