Most major cities haven't banned tear gas during protests. Will Philadelphia be different?

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Protesters run as police fire multiple canisters of tear gas toward them at 52nd and Walnut Streets in West Philadelphia on Sunday, May 31, 2020. - TIM TAI/The Philadelphia Inquirer/TNS

PHILADELPHIA — After hours of listening to Philadelphia residents testify about the physical and emotional scars they carry as a result of police firing tear gas or rubber bullets at them, city councilmembers pledged it wouldn’t happen again, introducing a bill Thursday that would permanently ban the use of such tactics against protesters in the city.

Philadelphia would be among the first major cities in America to institute such a ban through legislation. Law enforcement advocates say there’s good reason for other cities’ reluctance.

As the nation grapples with how best to confront police reform, bans on the use of tear gas — and other munitions such as pepper spray, flash-bang devices and rubber bullets — have proved to be a sticking point.

Those in favor of such prohibitions say tear gas is a chemical weapon banned in warfare under the Geneva Protocol and should never be used on American streets. Philadelphia police used it and other munitions as a crowd-control technique during protests this year, and dozens of demonstrators, protesters, and city residents said they were injured and traumatized by the unprecedented show of force.

But some experts say taking away these tactics could have the opposite of the intended effect: It could cause more aggressive, physical force.

“I applaud City Council for trying to address the problem. But we need to be really, really cautious,” said Lorenzo Boyd, an expert in police-community relations and vice president for diversity and inclusion at New Haven University. “If we remove tear gas and pepper spray and rubber bullets, we leave the police with real bullets.”

At-large City Councilmember Helen Gym introduced the bill with the backing of the entire committee on public safety, meaning it’s already supported by eight of Council’s 17 members. The committee Wednesday heard testimony from about 30 Philadelphians impacted by the police’s use of force amid the national uprising following the killing of George Floyd.

On May 31, officers in armored vehicles indiscriminately fired tear gas, pepper spray and rubber bullets at protesters and residents in West Philadelphia. The next day, they launched tear gas at protesters who’d gathered on an embankment along I-676 and had no clear exit, leaving hundreds stranded on the hill and breathing in the chemicals. Dozens of protesters and residents have sued the city, and Police Commissioner Danielle Outlaw in June instituted a moratorium on using tear gas against peaceful protesters.

Gym’s bill would permanently ban — in the case of protests, demonstrations and “First Amendment activities” — weapons like tear gas, rubber bullets, pepper spray, flash grenades, long-range acoustic devices and stinger balls.

Gym said Philadelphia police know how to safely control crowds without resorting to weaponry, pointing out that officers have been operating under a tear-gas moratorium for months and, prior to this summer, hadn’t deployed gas in decades.

“I don’t know why suddenly people are reaching,” she said, “for this idea that somehow we’re going to be shooting people down in the streets because they are demonstrating.”

Mary Catherine Roper, deputy legal director at the ACLU of Pennsylvania, said police in the city long used barricades, bicycles, and other tactics outside of chemical irritants and projectiles to control and disperse crowds. In West Philly and on I-676, she said, they abandoned those techniques.

“Our experience at the end of May and the beginning of June shows us that, if there were a strategic way to use these kinds of weapons,” she said, “our police department doesn’t know what it is.”

Philadelphia police declined to comment on the pending legislation.

Police in 100 American cities deployed tear gas at demonstrators this summer, and elected officials in a handful are trying to institute bans similar to the one introduced in Philadelphia.

Seattle’s City Council passed a bill in June banning crowd-control weapons like tear gas, but a federal judge blocked its implementation, siding with the city and the Department of Justice, which argued the ordinance would result in police using more force. The mayor of Portland, Oregon, banned tear gas during protests in September.

Local officials in San Francisco; Charlotte, North Carolina; and Aurora, Colorado, are considering measures that would ban the use of tear gas and rubber bullets during protests, and the New Orleans City Council this year put tighter restrictions on the use of chemical weapons, saying police could only deploy tear gas to prevent “major bodily harm.”

State lawmakers in Virginia and New York have introduced bills, and so did Democrats in Congress, who propose banning tear gas use on protesters nationwide.

Efforts elsewhere have been scuttled. A bill to ban less-lethal munitions in Richmond, Virginia, died in a City Council committee when officials worried: If you ban non-lethal options, we are only left with nothing or lethal options.” Local leaders in Madison, Wisconsin, rejected a proposal to ban tear gas and pepper spray this month and instead approved a study examining its use and alternatives.

In Berkeley, California, though, the council voted in June to ban the use of tear gas during protests, according to the Los Angeles Times, “after a council member asked the Berkeley police chief what he would do to disperse protesters if he couldn’t use tear gas, and he jokingly responded: ‘We could shoot them.’”

Frank Straub, director of the Center for Mass Violence Response Studies at the National Police Foundation, said officials are right to be concerned, but he worries they’re implementing blanket bans instead of strengthening procedures to ensure proper use of the tactics.

“It’s not the techniques and equipment that are bad,” he said. “It’s the application of the techniques and the equipment.”

Boyd said elected officials should instead fund programs to retrain officers and emphasize cultural competency.

But Roper, of the ACLU, said Philadelphia police shouldn’t get another chance to use chemical weapons to “punish” people for congregating. She pointed to Outlaw, who weeks after the gassing on I-676 admitted she had relayed incorrect information about why officers resorted to the tactics.

“This PD has forfeited any grace and any benefit of the doubt,” Roper said, “by coming out and lying about the use of those weapons, which was simply punitive.”

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