Portland Protests

Federal Court Limits Portland Police Use of Tear Gas at Protests

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From Judge Marco A. Hernandez's decision in Don't Shoot Portland v. City of Portland (D. Ore.), released Wednesday:

On May 29, 2020, citizens of Portland, Oregon, joined nationwide protests against the death of George Floyd and other acts of violence perpetrated by police officers against the African American community. While many demonstrations have remained peaceful, violence and destruction have occurred. Plaintiffs in this case challenge the Portland Police [Bureau's] use of tear gas against protestors participating in these demonstrations.

The Court has reviewed the declarations and video evidence submitted by the parties. Defendant highlights the destruction that occurred on the first night of demonstrations, including a fire instigated by protestors inside the Justice Center [which houses the Multnomah County Detention Center]. Defendant also offers evidence of largely peaceful marches—without any police intervention—and of officers using tear gas in response to individuals shaking fences and throwing projectiles.

Plaintiffs do not dispute that, in some instances, officers deployed tear gas after individuals, within a larger crowd of peaceful protestors, threw water bottles and fireworks. {Defendant also asserts that officers have been targeted with other projectiles, including "bricks, full cans of soup, frozen water bottles, full water bottles, rocks, steel sling shot balls, fireworks, bottles, beer cans, flares and many other items."} But they also offer evidence that, in certain incidents, officers fired cannisters of tear gas at protestors without warning or provocation both in front of the Justice Center and elsewhere in downtown Portland. Plaintiffs also recount multiple occasions in which crowds were surrounded by tear gas without available avenues of escape. Tear gas was also fired at protesters attempting to comply with officers' orders to leave the areas at issue….

Before turning to the TRO analysis, there are four points worth addressing. First, as Judge Jackson noted in resolving a similar motion just days ago in the District of Colorado, people have a right to demonstrate and protest the actions of governmental officials, including police officers, without fear for their safety. This right is enshrined in the First and Fourth Amendments of the Constitution.

Second, police in this country have difficult, dangerous, and often traumatic jobs. As the Supreme Court has recognized, officers are often "forced to make split-second judgments [ ] in circumstances that are tense, uncertain, and rapidly evolving."

Third, this case arises in unprecedented times. COVID-19 is a highly contagious and deadly respiratory virus that has taken too many lives and upended communities throughout this country.

Finally, like Judge Jackson, the Court recognizes the difficulty in drawing an enforceable line that permits police officers to use appropriate means to respond to violence and destruction of property without crossing the line into chilling free speech and abusing those who wish to exercise it….

The Fourth Amendment prohibits unreasonable searches and seizures. Excessive force claims are analyzed under the objective reasonableness standard of the Fourth Amendment. The reasonableness of an officer's conduct must be assessed "from the perspective of a reasonable officer on the scene," recognizing the fact that the officer may be "forced to make split-second judgments" under stressful and dangerous conditions. The Fourth Amendment standard requires inquiry into the factual circumstances of every case. Relevant factors include the severity of the crime, the potential threat posed by the suspect to the officer's and others' safety, and the suspect's attempts to resist or evade arrest.

Here, Plaintiffs provide video evidence and declarations documenting the use of tear gas against protestors. While Defendant points to the destruction that occurred at the Justice Center on May 29, 2020, Plaintiffs offer evidence that tear gas was used indiscriminately in other instances throughout the city. In some of these instances, there is no evidence of any provocation. In others, individuals appear to have shaken fences and thrown water bottles and fireworks at the police.

Either way, there is no dispute that Plaintiffs engaged only in peaceful and non-destructive protest. There is no record of criminal activity on the part of Plaintiffs. To the contrary, there is even evidence that some protesters were confronted with tear gas while trying to follow police orders and leave the demonstrations. Given the effects of tear gas, and the potential deadly harm posed by the spread of COVID-19, Plaintiffs have established a strong likelihood that Defendant engaged in excessive force contrary to the Fourth Amendment….

The First Amendment provides that all citizens have a right to hold and express their personal political beliefs…. At this juncture, the parties' sole dispute is whether Plaintiffs can demonstrate that their protected activity was a substantial or motivating factor in PPB's conduct. Plaintiffs have submitted evidence demonstrating that officers indiscriminately used force against peaceful protestors on multiple occasions. On a few occasions, officers continued to fire tear gas canisters as people attempted to leave the protest area, effectively blocking their escape. One protestor was subjected to rubber bullets, tear gas, and a flash bang at close range as he was calmly walking towards the waterfront, trying to comply with officers' orders. Another was confronted by a group of seven officers, who rolled tear gas down the street towards her even as she informed the officers she was trying to go home.

These incidents demonstrate that preventing criminal activity near the Justice Center was not the sole purpose of PPB's use of force. Instead, officers may have been substantially motivated by an intent to interfere with Plaintiffs' constitutionally protected expression….

Plaintiffs have demonstrated a threat of immediate, irreparable harm in the absence of a TRO. Plaintiffs have shown a likelihood of success on the merits on their Fourth Amendment claim and at least a serious question as to whether they have been deprived of their First Amendment rights. There is a real and immediate threat that Plaintiffs will be deprived of these rights as protests continue….

The risk of irreparable harm is further heightened by the context in which these protests are occurring…. [T]he use of tear gas [during the coronavirus pandemic] may put protestors' health at risk, contributing to the increased, widespread infection of this lethal virus….

In theory, limits on the use of tear gas may impede officers' ability to protect themselves against potential violence from demonstrators. But any harm in limiting Defendant's use of tear gas is outweighed by the irreparable harm that Plaintiffs—engaged in peaceful protest—are likely to endure….

The Court therefore orders that PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally. In addition, tear gas use shall be limited to situations in which the lives or safety of the public or the police are at risk. This includes the lives and safety of those housed at the Justice Center. Tear gas shall not be used to disperse crowds where there is no or little risk of injury….

NEXT: Oregon Sup. Ct.: "The Circuit Court Erred in Concluding That the Governor’s [Coronavirus] Executive Orders Violated a Statutory Time Limit"

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  1. No doubt the judge is well meaning.

    However he seems to not realize that the fewer less-lethal options the police have, the more they will defer to lethal options.

    If you want more police brutality this is a dandy way to achieve it.

    1. You know, if the police employ lethal force on protestors after this order, my plan will be to blame it on the police.

    2. I compare this to the rape of UMass (Red Sox Victory in 2004)

      Cops KILLED a girl in Kenmore Square.

      Why are these people more special than we were???

  2. I’m sorry…

    The justification being used against Tear Gas use to break up the protests is that it may increase the spread of COVID-19?

    Despite the protesters breaking the lockdown orders designed to prevent the spread of COVID-19, and the fact their very protests spread the disease? And that breaking up the protests would reduce the spread….

    The circular type of logic here is amazing.

    1. That’s like one factor in prefatory language. The reasoning does not appear to rely on it.

      1. I’m sorry…..what reasoning? Can you point me to it, Sarcastr0? Because I looked in vain for something resembling logic and coherent reasoning in the opinion and I could not find it. Particularly the part where he discusses police tactics. I read it, and I cannot make heads or tails of it. How will a LEO do that, on-site, in the middle of a civil disturbance?

        Is this reflective of the quality of written opinion we should expect from Obama appointed judges?

        1. TRO’s don’t spend a lot of time on the merits, but it looks to me like they find that under the 4A, government sanction is supposed to be individualized, or at least not indiscriminate.
          The fact that the police did not appear to take care to avoid gassing nonviolent innocents, and the plaintiff was one of those triggers 4A concerns, as well as some weaker 1A ones.

          Plaintiffs offer evidence that tear gas was used indiscriminately in other instances throughout the city. In some of these instances, there is no evidence of any provocation. In others, individuals appear to have shaken fences and thrown water bottles and fireworks at the police.

          Either way, there is no dispute that Plaintiffs engaged only in peaceful and non-destructive protest.

          Plaintiffs have established a strong likelihood that Defendant engaged in excessive force contrary to the Fourth Amendment….

          1. “but it looks to me like they find that under the 4A, government sanction is supposed to be individualized, or at least not indiscriminate.”

            I get where you’re coming from, but I’m not sure how, confronted with a mob at a distance, throwing things, it’s even possible to respond in an individualized manner. Sure, only 5% of the mob are throwing things, but you can’t ignore that they’re throwing things, and how as a practical matter are you to distinguish them in the heat of battle? Does the 4th amendment require the government, faced with such a mob, to just retreat?

            1. Brett, if we have learned anything from RFRAs, its that when it comes to enumerated rights the Constitution requires government to tailor all its responses down to the last degree of individual specificity. And government must make that tailoring as minimally burdensome on the individual as a judge could imagine it to be.

              So by that standard, the government is not required merely to let “the mob,” just retreat. The government is required to supply an uber for each and every one of them, to convey them safely home.

              Or conversely, the court can decide that RFRAs go too far. It can treat “the mob” collectively, tear gas them as a means of crowd control, and likewise close churches en masse during a public emergency.

              As an avid libertarian, which alternative works best for you?

              1. Yeah, when thinking about the dynamics of a violent mob swarming the streets, the VERY first — and truly the most suitable — parallel that pops into my head is a church service. Good grief.

                Get that one out of your system?

              2. Brett, if we have learned anything from RFRAs, its that when it comes to enumerated rights the Constitution requires government to tailor all its responses down to the last degree of individual specificity.

                That may be what you have learned from RFRAs, but like most of the things you think you know about law, it’s wrong. The RFRAs are statutes, not constitutional commands.

          2. Kind of tough to do when confronted with a mob = government sanction is supposed to be individualized, or at least not indiscriminate.

            1. I do not disagree.

              A proper opinion would lay out some contours for determining when indiscriminate force is allowed, versus when it violates the 4A. This is only a TRO though.

    2. The reasoning is that it is essentially impossible to use a face mask while under the effects of tear gas. Tear gas will get through anything short of a full-blown gas mask. Once exposed, it begins to irritate any moist tissues. Eyes tear up (hence the name) and even sweaty skin starts to burn. But the real effect is that it causes irritation to the mouth, nose and lungs. Your nose starts running profusely and you begin coughing violently.

      COVID-19 attacks the respiratory tract. COVID-19 is spread through respiratory transmission more than any other channel.

      Implications:

      1. If you believe that wearing a facemask and maintaining 6 foot distances reduces the risk of disease transmission (and lots of people up to and including the CDC do believe that) then intentionally creating a situation where wearing the mask is impractical and inducing severe couching is equivalent to intentionally exacerbating their risk of disease exposure. A secondary argument could be made that the tear gas causes panicked fleeing during which people violate the 6-foot rule.

      2. Irritating the respiratory tracts of people at risk to a respiratory infection is just bad.

      The question then is one of balance. If the protestors made a rational choice to accept level of risk x while exercising their constitutional right to seek redress, were the police negligent by raising the risk to y in the specific circumstance of using tear gas against protestors who were not being violent (at least, at that point). If y is only slightly greater than x and the need to disperse the crowd is evident, the use of tear gas is probably justified. However, given what we know about COVID-19 susceptibility, it seems probably that y is much greater than x. And apparently the judge was unconvinced that the need to disperse that particular crowd was evident.

      Not saying I agree with all the logic above but that’s the reasoning implied by the plaintiffs’ complaint.

      1. By the way, it was probably also relevant to the judge that the police’s use of tear gas apparently violated their own use of force rules. It’s one thing to say that police shouldn’t have to stop to consider the intricate details of judicial precedent. It’s quite another to say that they don’t have to know their own department’s policies and procedures.

  3. Well this is going to be interesting! I have no doubt cops are too free with the tear gas, just because it’s a simple decision, and cops have shown themselves to be in favor of simple solutions to non-existent problems rather than hard work to solve real problems (witness the war on drugs and asset forfeiture, and the low clearance rate on murder, assault, and theft).

    But how any judge thinks he can actually objectively decide when and where the police have used too much tear gas, either for this decision or to enforce it afterwards, is beyond me.

    1. But how any judge thinks he can actually objectively decide when and where the police have used too much tear gas, either for this decision or to enforce it afterwards, is beyond me.

      That’s almost certainly not the point. The immediate “benefit” of the order will be its chilling effect, swinging the pendulum hard toward non-use so the police can continue to spend their time on the streets rather than tied up in the inevitable raft of follow-on litigation.

  4. Does all that reasoning just result in the judge saying that tear gas can only be used consistent with dept policy and only if “safety” is implicated (theirs OR the “public’s”)?
    That seems like a pretty weak limitation considering how nebulous the safety requirement is. Police shoot small dogs with impunity out of concern for their safety. All it takes is a protestor to start chucking a plastic bottle of unknown substance or a rock and the occupational safety requirement is met. Then what? You challenge the safety implications of the open water bottle? “Maybe it was acid or pee, how does anyone know in the heat of the moment. Safety first.” You didn’t see the rock get thrown? “C’mon, who you gonna believe?” Didn’t see a risk to the public? “They pushed a counter-protestor, we were worried the situation was dangerously escalating.”
    Seems like not much at all.

  5. A ruling so stupid only an intellectual could support it.

  6. If I were the cops I would get some lawn chairs, a big popcorn machine, sit back, and watch the fun.

    1. Gonna be a lot of early retirements.

      1. Even more sick days – – – – – – –

        1. If the supposed national union plan which is going around social media is true, it will mean both.

          Maximize sick time.
          Loiter on the job to the extent political oversight will permit.
          Keep it together enough so that those with pending retirements can get those in within the next 12 months.
          Sit back and see if the communities that are “defund the police” like slow 911 call response times.
          Start looking for other careers.

          In two years local governments will be so desperate for anyone who will become an officer it will probably attract the exact opposite type sought by protesters. Only a half insane adrenaline junky would take the job. But, it comes with guns and other fun toys the previous professional force left behind. What could go wrong?

          1. In two years local governments will be so desperate for anyone who will become an officer

            I’ll repeat what I said elsewhere: there are 40 million unemployed people. Police aren’t that hard to replace.

            1. They are if the consequence of joining the police is social ostracism and financial ruin.

  7. “Often libertarian”

    That apparently means authoritarian right-wingers strolling around in unconvincing libertarian drag.

  8. Employment of LTL was a mistake from the beginning as it enables irresponsible force. Use of deadly force brings the whole moment of the judicial system with it, like recoil.

    Mayberry SO Deputy Fife carried one round for his career and did not have the LTL option.

    1. This may be one of those “unintended consequences” that progressives are incapable of acknowledging.

  9. It’d be nice if the police had a way to individually target looters, arsonists, and rock throwers who mingle with the crowd of peaceful protesters, and have the ability to take action that only affects them. Accurate sniper fire, however, is probably right out.

    1. I think technology is approaching the point where it might be possible to build an AI vision system that was up to that. I wouldn’t arm it with anything more than paint pellets, though.

  10. I feel like there’s a fundamental difficulty with mass protests because they are so easy to sabotage. Just plant one or two neer-do-wells in there to chuck rocks, and here comes the tear gas.

    I have no idea what the solution is.

    1. Protests, not riots?

    2. I’ve been at multiple mass protests, and curiously enough, this doesn’t seem to happen at gun rights protests. Maybe the neer-do-wells aren’t willing to mingle with people who might turn on them the moment they throw something, and beat the crap out of them themselves, without waiting on the police?

      1. I’ve been at multiple mass protests, and curiously enough, this doesn’t seem to happen at gun rights protests.

        What, out of control police officers making up claims of violence?

  11. “The Court therefore orders that PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally .. . ”

    OK, so explain to me what this accomplishes?? Portland should follow the rules for tear gas?? So what. Drivers should follow the rules for speed limits on highways, pedestrians should follow the rules for jaywalking, people who borrow books from the library should follow rules for returning the books on time, etc, etc, etc.

  12. I assume Judge Marco A. Hernandez has qualified immunity from suits arising out of the soon to come use of lethal force?

    It makes no tactical sense to me to remove ranged force and thereby require close combat.
    Oh, yeah, and all that Communist Chinese Virus verbiage is pure bullshit. Every member of both the ‘peaceful protests’ and the ‘riots’ were violating existing executive orders being enforced as laws.

  13. But the “protesters” were violating the COVID restrictions just by being out.
    How does the increased risk become the fault of the police who should be arresting them all for violating COVID restriction?

    1. Silly ghost,
      Only white people protesting get arrested.
      Don’t you know anything?

      1. Literally thousands of protestors have been arrested nationwide.

  14. Many of the comments here are awfully weird, in the sense of very reflexively pro-police. Where are the libertarians?

    1. I’m not really reflexively pro-police, so much as I’m reflexively anti-rioter. Probably dates back to my family having to move thanks to the Detroit riots, leaving an impression on me.

      1. Makes sense. I am not pro-riots either. But police shouldn’t be using tear gas indiscriminately on protesters who are not rioting.

        I think most of us believe that we are responsible for our own actions and should not be punished for the actions of others.

        1. I’m reflexively suspicious of police, long a critic of militarization, QI, casual law-making and the accompanying selective law enforcement – also reflexively anti-riot BUT have next to zero patience with people who disobey blatant “clear the area” orders. Tear gas is preferable to billy clubs. If people don’t vacate a public area when the “public” tells them to, my sympathy declines precipitously. Motivators to make people move that don’t involve CQC have a lot to be said for them vs the alternative.

          1. How about we throw police in prison who use billy clubs on peaceful protesters?

            Because what you describe is clearly illegal and not some sort of alternative. Excessive force is not merely a violation of policy. It is a violation of the criminal law.

            Again, as the judge described the situation, police even used tear gas on people trying to leave. If you are going to argue to try to justify that to me, you are wasting your time.

          2. Caphon — “If people don’t vacate a public area when the “public” tells them to, my sympathy declines precipitously.”

            Where in your sympathy does that leave room for a right of assembly? Or do you disagree with me that freedom to choose a particular time and place to assemble is essential to the right?

            1. Or do you disagree with me that freedom to choose a particular time and place to assemble is essential to the right?

              I disagree with you that the freedom to choose to assemble, for example, in the middle of a highway during rush hour is essential to the right.

              I’d be surprised if you truly disagree with that, but I’ve been surprised before.

            2. “freedom to choose a particular time and place…”

              ‘Time and place’ … now where have I heard a phrase like that before in first amendment discussions??

    2. It’s hardly anti-libertarian to think judges shouldn’t micro-manage police with respect to future tactical decisions in unpredictable future situations. They’re not exactly qualified by training or experience to do so, and it’s not their job.

      1. Yes it is anti-libertarian. It is anti-libertarian to write government agents a blank check and say to them “we will never question your decisions, we are sure you will always do what is best.”

        If police wanted more autonomy, they should have thought about that BEFORE incidents like the George Floyd killing happened. If you don’t successfully police yourself, you can’t complain when others step in to police you. Maybe the police unions who thought they should protect all the bad apples on the police force should have thought more carefully about whether such an approach was REALLY in the interests of police officers in the long run.

        And one does not need “training or experience” to say that you don’t use tear gas on people who are trying to leave. Really, you think we all have been lobotomized that when police say the sky is really blood red instead of blue, we will just defer? You “training” and “experience” lead you to the conclusion that the sky is red and I should listen to you rather than my lying eyes?

        Sorry, but blind deference to the government (even if based on arguments from “training” and “experience) is as anti-libertarian as you can get.

        You should read 1984 to get an idea of where that idea, if taken to its logical limits, could lead.

        If police choices are justified, they should be able to convince a neutral judge of that. And there is a basic and ancient legal principle at play here as well. “[N]o-one is judge in his own cause.”

        I firmly believe that the George Floyd case is about people giving police too much deference. And it is also about police not policing their own.

        That police are using tear gas in an excessive manner against peaceful protesters reinforces the basic point. There are systematic problems with the way force is used by the police nowadays. Ultimately, We the People get to decide when police are authorized to use force. They serve us.

        1. David….I would be a lot more sympatico with the decision if there were scads of injured people, maimed by the police. That just did not happen. The mob refused to disperse after multiple warnings, there were people throwing things at the police, and that is that. Tear gas comes out and the mob disperses. You do not, do not, do not throw things at the police. Period. Hard stop. People who do that belong in a cage.

          The police tell you to leave, then you leave. You have a problem with it? Take it up with the judge (hey…these people did).

          Judges, as a rule, should not step into these matters unless something egregious happens, and there is a violation of the law. And nothing egregious happened. This judge overstepped his bounds. If it gets appealed to the circuit court, the TRO will probably be stayed.

          1. “That just did not happen. The mob refused to disperse after multiple warnings, there were people throwing things at the police, and that is that.”

            Except according to the court the the plaintiffs alleged and had enough evidence to show (for purposes of a TRO) that the police were NOT just using tear gas on violent mobs.

            That tear gas was used at protests where there was no violence at all (until the police started using it). That tear gas was used on people attempting to obey police orders to disperse/leave the area.

          2. The police tell you to leave, then you leave. You have a problem with it? Take it up with the judge (hey…these people did).

            Why is there such a huge overlap between people who think that requiring masks for shopping at Costco is tyranny and people who think that if the police tell protesters to leave then protesters have to leave?

            1. I am not one of them = people who think that requiring masks for shopping at Costco is tyranny and people who think that if the police tell protesters to leave then protesters have to leave

              You’d have to ask someone like that.

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