Ending Use of Chemical Weapons for Crowd Control

Braxton Winston, an at-large member of the Charlotte, N.C., City Council, vividly recalls his first encounter with tear gas at a peaceful protest four years ago.

“Struggling to breathe. Skin burning. Vomiting. Trying to survive. It is something that never leaves you. It is traumatizing,” he wrote in a recent Washington Post op-ed.

Not wanting others subjected to such misery, Winston sought to prevent local police from using chemical irritants on peaceful protesters — and those measures worked for a few years. When the department recently resumed tear gas use during protests over George Floyd’s killing by Minneapolis police, Winston was ready — this time as a council member (having been propelled into politics by his earlier protest experience).

Winston proposed, and the council adopted, measures to review and adjust police policies and spending. It has already cut funding in the next budget cycle for chemical weapons that, in his words, “just make situations worse.”

Charlotte’s example could inspire other locales to acknowledge a truth that should be self-evident: chemically stifling innocent civilians is inhumane and — during a respiratory pandemic — can prove deadly.

‘Pain gas’

Tear gas, pepper balls and pepper spray — distributed through aerosol jets or fired in canisters — are all essentially “pain gasses,” Sven Eric Jordt, an associate professor of anesthesiology at Duke University recently told NPR. They are aerosol formulations of liquids or powders designed to inflame pain-sensing nerves.

“Poisoning by riot control agents,” the Centers for Disease Control and Prevention reports, temporarily makes people “unable to function.” Pepper spray and pepper balls typically contain oleoresin capsicum (OC), an oily substance with a highly concentrated form of the chemical capsaicin derived from chili peppers, while tear gas uses a chlorinated, organic chemical called CS gas.

Chemical agents used in crowd control can contaminate nearby buildings, permeating into carpeting, bedding and furnishings, and leaving a toxic residue on exposed food and countertops.

Aggravating viral exposure in a pandemic 

When police direct chemical weapons into crowds during a respiratory pandemic, they can hasten virus transmission and worsen the medical outcomes of those exposed.

Virus spread can increase because tearing agents make protesters reflexively cough, sneeze and remove their masks (since the burning chemicals linger in clothing). Chemical weapons can also induce terror, prompting people to stampede.

More than 1,200 medical professionals recently signed an open letter supporting Black Lives Matter protests while advocating practices to sustain community health — among them, “Oppose any use of 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.”

A 2012 study found that military recruits exposed to CS tear gas had nearly 2.5 times greater risk of being diagnosed with acute respiratory illnesses such as pneumonia.

Black Mainers already contract COVID-19 at a rate 10 times higher than the state’s white residents. Nationwide, African American men are 2.5 times more likely than their white counterparts to be killed by police and Black citizens are at least twice as likely to be charged with misdemeanors and 3.5 times more likely to be charged with marijuana possession (despite similar use rates). Yet when people gather to protest racial injustice, they risk exposure to a fog of caustic chemicals that raises their odds of contracting COVID-19.

The dubious value of ‘less lethal’ weapons

While law enforcement dubs tear gas “less lethal” than firearms, it is an indiscriminate weapon that subjects innocent people to chemical exposure – including those with heightened vulnerability such as children, pregnant women and the elderly.

One researcher found a major disparity between guidance for tear gas use and its actual deployment — with officers often too close to those targeted. Philadelphia police recently drew scathing criticism after spraying peaceful protesters trapped on a highway embankment, unable to flee from the chemical assault. Earlier this month in Indiana, a young protester lost an eye when a tear gas canister struck him in the face.

The report “Lethal in Disguise: The Health Consequences of Crowd-control Weapons” found in a limited review of cases that “exposure to chemical irritants may result in significant psychological symptoms and long-term disability.” With the pandemic already straining the United States’ capacity to meet mental health needs, adding further psychological trauma through chemical attacks is indefensible.

Tear gas was first used as a weapon of psychological and physical torture during World War I. But subsequent international agreements, most recently the 1993 Convention Chemical Weapons Convention, banned its wartime use. While agreeing not to subject enemies to this treatment, signers reserved the right to subject their own citizens to chemical weapons.

By the 1930s, U.S. police departments were employing it for riot control, writes Anna Feigenbaum, author of “Tear Gas: From the Battlefields of World War I to the Streets of Today”: “The psychological impacts of tear gas gave police the ability to demoralize and disperse a crowd without firing live ammunition. Tear gas was also ephemeral and could evaporate from the scene without leaving traces of blood or bruises, making it appear better for police-public relations than crowd control through physical force.”

‘A kind of chemical cattle prod on nonviolent demonstrators’

Under international law, the use of chemical weapons against civilians must be legal, necessary and proportionate — wording that suggests they might only be used when crowds are demonstrably violent, all means of de-escalation and dispersal are exhausted and people have been clearly and repeatedly warned.

Yet U.S. protests in recent weeks reveal countless violations of these strictures — including flagrant examples (such as a New York City police officer removing a young protester’s protective face mask and pepper-spraying him at arm’s length).

As early as 1999, lawyers for the ACLU wrote that “the use of pepper spray as a kind of chemical cattle prod on nonviolent demonstrators resisting arrest constitutes excessive force and violates the Constitution.”

Recent demonstrations of force

That prod was on display June 1 outside the White House in Lafayette Square. Federal law enforcement officers, with few identifying badges and no clear audible warning, forcibly drove off peaceful protesters with a combination of pepper balls, horses, batons and shields to make way for a presidential photo op.

This frightening assault on citizens, what Princeton scholar Eddie Glaude Jr. calls “the theater of dictatorial power,” drew harsh rebukes. It provoked Maine Sen. Angus King, the ranking member of the Energy and Natural Resources Committee’s Subcommittee on National Parks, to send a pointed letter of inquiry to the Secretary of the Department of the Interior — seeking answers to the many questions the incident raised about “infringing upon the American liberties that are supposed to define our nation and democratic government.”

Portland residents voiced similar concerns after local police used pepper spray and pepper balls on a crowd of largely peaceful protesters June 1 and 2. First-hand accounts of protesters, reported by Jordan Bailey in the Portland Phoenix, suggest that not all of the officers adhered to the Portland Police Department’s “less lethal weapons policy,” which requires officers to issue clear advance warnings before discharging pepper spray, use it “with caution in crowd control situations” and “decontaminate a person” promptly following OC exposure.

Rachel Bernstein, a Cape Elizabeth resident who joined the protest, told Bailey that from what she could see, about 10 people, mainly “drunken white males,” started throwing water bottles from the back of the crowd. “Without any warning, (police) pepper-sprayed the entire front line of the crowd where I was standing,” Bernstein said, “which of course is not near where people were throwing water bottles whatsoever.”

Voicing dissent without chemical assaults

The cities of Charlotte and Berkeley, Calif., are already showing a path to redefining community safety — enabling citizens to gather and demonstrate free from the fear of chemical weapon exposure.

That transition is happening in Denver and Seattle as well, thanks to judges instituting temporary bans on the use of tear gas, pepper spray and flash-bang devices. Washington State Patrol Chief John Batiste has signaled that its officers will stop using tear gas at least through the pandemic.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) is sponsoring the Prohibiting Law Enforcement Use of Chemical Weapons Act, but federal legislation is unlikely to pass both houses of Congress soon.

Maine could act now to embody its “Dirigo” motto, with Gov. Mills becoming the nation’s first state executive to order a moratorium on using chemical weapons at civilian protests. When the pandemic subsides, the Legislature could decide whether to make that ban permanent.

By then, perhaps, it won’t be such a radical idea for police to resist gassing fellow citizens who are peacefully exercising their democratic rights.

© Marina Schauffler, 2020. All Rights Reserved. Column reprints available upon request