The Tenuous Ethicality and Legality of Tear Gas
By Reetesh Sudhakar and Margaux Bauerlein, 8/29/2020
Panic in Portland: The Unseen Violence
Over the past month, officers have been equipped with iron-clad riot gear, marching through Portland, Oregon in response to current protests. Dispatching federal troops has been a timeless response from the federal government to quell domestic unrest. In this instance, President Trump sent forces to several American cities, Portland included, in the name of protecting federal properties and combating violent crime. Although violent crime and property damage were the primary justifications provided by the Trump Administration, federal troops targeted many nonviolent protesters and bystanders in Portland after arriving on July 4th.
Using the diverse array of law enforcement agencies at his disposal, President Trump deployed forces that blended in with local residents to avoid deploying the US Military itself. Federal authorities used unmarked vehicles to detain and arrest bystanders and protestors throughout Portland. However, despite the unusual circumstances of this year, the legal obligation to maintain order and restore peace still falls squarely on the shoulders of local law enforcement, rather than any federal force.
In the past, federal forces have been deployed to cities simply because they hadn’t been functioning to the president’s satisfaction. The exact scope of presidential discretion allowed in interpreting the phrase “extraordinary circumstances,” the legal requirement to enable troop deployment, has been the source of much debate today, and Oregon officials have denied federal assistance for dealing with the protests occurring throughout Portland.
While President Trump publicly stated that the lack of peace and order justified a federal presence in Portland, the Trump campaign simultaneously began airing advertisements portraying several other cities as overrun and without order. This suggests that the optics and potential political capital could have been the underlying motivation for the significant federal presence in Portland.
In an attempt to control protests, federal agents have used tear gas and rubber bullets in an attempt to control protests. Because of the ambiguity around police power, the government can only carry out powers outlined in the Constitution. However, the federal government does have the ability to override state and local law enforcement in the name of constitutional authority. Furthermore, the Insurrection Act of 1807 allows the president to call upon the military to enforce federal law when the state or local authorities do not comply. Although, if the federal government deploys large numbers of officers and agents away from federal property without evidence of federal crimes, any presence of agents would be unlawful. Congress does have the constitutional authority to authorize such actions, but as of late, it has not done so.
More recently, the presence of federal troops has begun to decrease, but their presence depends on the location of protests. Chad Wolf, Secretary of the Department of Homeland Security (DHS), stated that DHS troops will remain stationed in Portland until federal facilities and courthouses are no longer under threat. Law enforcement agencies have used November as a target date for departure because they believe the 2020 presidential election significantly contributes to the protests.
The federal government used protests and civil unrest around federal properties as justifications for a Homeland Security, FBI (Federal Bureau of Investigation), and CBP (Customs and Border Protection) presence in downtown Portland. However, the questionable actions taken by agents with riot control weapons and unmarked vehicles have raised a question of the constitutional authority that the president wields. These objections will persist as the violence ensues and activists continue to protest throughout countless cities in the United States.
Using the diverse array of law enforcement agencies at his disposal, President Trump deployed forces that blended in with local residents to avoid deploying the US Military itself. Federal authorities used unmarked vehicles to detain and arrest bystanders and protestors throughout Portland. However, despite the unusual circumstances of this year, the legal obligation to maintain order and restore peace still falls squarely on the shoulders of local law enforcement, rather than any federal force.
In the past, federal forces have been deployed to cities simply because they hadn’t been functioning to the president’s satisfaction. The exact scope of presidential discretion allowed in interpreting the phrase “extraordinary circumstances,” the legal requirement to enable troop deployment, has been the source of much debate today, and Oregon officials have denied federal assistance for dealing with the protests occurring throughout Portland.
While President Trump publicly stated that the lack of peace and order justified a federal presence in Portland, the Trump campaign simultaneously began airing advertisements portraying several other cities as overrun and without order. This suggests that the optics and potential political capital could have been the underlying motivation for the significant federal presence in Portland.
In an attempt to control protests, federal agents have used tear gas and rubber bullets in an attempt to control protests. Because of the ambiguity around police power, the government can only carry out powers outlined in the Constitution. However, the federal government does have the ability to override state and local law enforcement in the name of constitutional authority. Furthermore, the Insurrection Act of 1807 allows the president to call upon the military to enforce federal law when the state or local authorities do not comply. Although, if the federal government deploys large numbers of officers and agents away from federal property without evidence of federal crimes, any presence of agents would be unlawful. Congress does have the constitutional authority to authorize such actions, but as of late, it has not done so.
More recently, the presence of federal troops has begun to decrease, but their presence depends on the location of protests. Chad Wolf, Secretary of the Department of Homeland Security (DHS), stated that DHS troops will remain stationed in Portland until federal facilities and courthouses are no longer under threat. Law enforcement agencies have used November as a target date for departure because they believe the 2020 presidential election significantly contributes to the protests.
The federal government used protests and civil unrest around federal properties as justifications for a Homeland Security, FBI (Federal Bureau of Investigation), and CBP (Customs and Border Protection) presence in downtown Portland. However, the questionable actions taken by agents with riot control weapons and unmarked vehicles have raised a question of the constitutional authority that the president wields. These objections will persist as the violence ensues and activists continue to protest throughout countless cities in the United States.
Protest amidst Pandemic
In August of 1914, tear gas was used for the first time as French soldiers lobbed gas-filled grenades into German trenches at the Battle of the Frontiers. Tear gas was originally developed by French scientists as a way to control riots while navigating around restrictions imposed by an international treaty adopted during the Hague Convention of 1899 which prohibited “projectiles filled with poison gas.” An invisible gas that causes the burning of the eyes and skin, tearing, coughing, and gagging, tear gas strikes fear into the heart of civilians and soldiers. Ninety-four years later, the same chemical weapon has seeped into the arsenals of American police officers as a method of dispersing crowds using “less-lethal force.”
Although tear gas was later outlawed in warfare at the Geneva Convention, its use against civilians was permitted at the Chemical Weapons Convention of 1992. At that time, some convention attendees pushed to ban chemical weapons used among law enforcement. However, many country representatives argued that without the use of tear gas, law enforcement would be forced to resort to more lethal weapons for crowd control. The compromise reached stated that only law enforcement would be permitted to use chemical weapons against civilians. Today, police officers consider using tear gas as “less-lethal force” when it is deployed outdoors. It is an indiscriminate weapon that makes no distinction between young and old, people with pre-existing health issues, or peaceful protestors and violent agitators. Its use has proven fatal resulting in miscarriages and the asphyxiation of children and adults.
The use of tear gas against protestors during a global pandemic has sparked outcries from public health officials, physicians, and average Americans alike. Supporters of the Black Lives Matter movement have also commented on the irony of using an irritant which clogs air inhalation against peaceful individuals trying to use their voice to air their grievances with police brutality. In the ICU clinic, where thirteen out of fifteen coronavirus patients are black, University of Pennsylvania researcher Dr. Joseph Nwadiuko says that “[he worries] that one of the compounding effects of structural racism is that you’ll see a second wave of black patients, including those who were out there defending their lives.” In early June, nearly 1,300 physicians and public health officials encouraged police officers to stop using, “tear gas, smoke, or other respiratory irritants, which could increase risk for COVID-19 by making the respiratory tract more susceptible to infection, exacerbating existing inflammation, and inducing coughing.”
Treatment of Portland protesters has drawn national ire as reports of police aggression have been recorded. Just after 11 PM on August 10th, Portlander protesters in support of the Black Lives Matter Movement watched as police officers sprayed a chemical irritant in the air in response to their peaceful assembly. This was caught on video by protestors at the demonstration but later, police officers denied deploying an irritant. Another viral video from the Portland protests shows a police officer beating and tear-gassing Navy veteran Christopher David as he stands still. There is widespread public support for the Portland’s peaceful demonstrators with the Portland General Defense Committee’s GoFundMe Page showing that the organization raised over $1 million since protests began in May. The group reports that they have spent over $187,000 on bail, legal fees, medical bills, and other forms of aid for protestors.
Measures of support extend far outside the city limits, with multiple congressional representatives of Oregon calling for an investigation into the use of force by police in Portland. U.S. Senators Jeff Merkley and Ron Wyden and U.S. Representatives Earl Blumenauer and Suzanne Bonamici were successful in getting the Department of Justice to open up an investigation to review the way law enforcement officers have responded to protests.
Within the city, many are working to prevent future deployment of chemical agents. Legislation has been introduced in Portland to ban the use of chemical agents by law enforcement. Supporters of the law pose the question: How are we to build a better society that protects our civil and human rights when peaceful demonstrations and demands are met with violence?
Although tear gas was later outlawed in warfare at the Geneva Convention, its use against civilians was permitted at the Chemical Weapons Convention of 1992. At that time, some convention attendees pushed to ban chemical weapons used among law enforcement. However, many country representatives argued that without the use of tear gas, law enforcement would be forced to resort to more lethal weapons for crowd control. The compromise reached stated that only law enforcement would be permitted to use chemical weapons against civilians. Today, police officers consider using tear gas as “less-lethal force” when it is deployed outdoors. It is an indiscriminate weapon that makes no distinction between young and old, people with pre-existing health issues, or peaceful protestors and violent agitators. Its use has proven fatal resulting in miscarriages and the asphyxiation of children and adults.
The use of tear gas against protestors during a global pandemic has sparked outcries from public health officials, physicians, and average Americans alike. Supporters of the Black Lives Matter movement have also commented on the irony of using an irritant which clogs air inhalation against peaceful individuals trying to use their voice to air their grievances with police brutality. In the ICU clinic, where thirteen out of fifteen coronavirus patients are black, University of Pennsylvania researcher Dr. Joseph Nwadiuko says that “[he worries] that one of the compounding effects of structural racism is that you’ll see a second wave of black patients, including those who were out there defending their lives.” In early June, nearly 1,300 physicians and public health officials encouraged police officers to stop using, “tear gas, smoke, or other respiratory irritants, which could increase risk for COVID-19 by making the respiratory tract more susceptible to infection, exacerbating existing inflammation, and inducing coughing.”
Treatment of Portland protesters has drawn national ire as reports of police aggression have been recorded. Just after 11 PM on August 10th, Portlander protesters in support of the Black Lives Matter Movement watched as police officers sprayed a chemical irritant in the air in response to their peaceful assembly. This was caught on video by protestors at the demonstration but later, police officers denied deploying an irritant. Another viral video from the Portland protests shows a police officer beating and tear-gassing Navy veteran Christopher David as he stands still. There is widespread public support for the Portland’s peaceful demonstrators with the Portland General Defense Committee’s GoFundMe Page showing that the organization raised over $1 million since protests began in May. The group reports that they have spent over $187,000 on bail, legal fees, medical bills, and other forms of aid for protestors.
Measures of support extend far outside the city limits, with multiple congressional representatives of Oregon calling for an investigation into the use of force by police in Portland. U.S. Senators Jeff Merkley and Ron Wyden and U.S. Representatives Earl Blumenauer and Suzanne Bonamici were successful in getting the Department of Justice to open up an investigation to review the way law enforcement officers have responded to protests.
Within the city, many are working to prevent future deployment of chemical agents. Legislation has been introduced in Portland to ban the use of chemical agents by law enforcement. Supporters of the law pose the question: How are we to build a better society that protects our civil and human rights when peaceful demonstrations and demands are met with violence?
