It was a clear day on June 1 in Washington, DC when thousands of people protesting racial injustice and police brutality, in the aftermath of George Floyd’s death, congregated in a perimeter around the White House. The peaceful crowd stretched out past Lafayette Square, a traditional rallying ground for protests and marches in DC. But on June 1, this intersection – recently named Black Lives Matter Plaza – would become known for something quite different.
At around 6:40pm, with no warning, U.S. National Park Police Officers began firing tear gas, stun grenades and rubber bullets into the peaceful crowd. The explosions could be heard far from the scene. As plumes of gas and smoke unfolded into the sky, protestors were caught on camera desperately running from the square and the front of St. John’s Episcopal Church: crying, coughing, choking, and screaming in agony as they frantically tried to catch their breath.
On the same day that U.S. National Park Police used tear gas on peaceful protesters to clear a path for the President through Lafayette Square, law enforcement in Philadelphia tear-gassed hundreds of protesters marching on Interstate 676. The protesters were screaming “I can’t breathe” – not in the uniform chant symbolically raised at Black Lives Matter movement protests – but in vain, as they threw themselves against a fence lining the expressway, desperately trying to escape the open tear gas canisters police fired at them.
The feeling of inhaling tear gas is like inhaling one thousand pins and needles set on fire. Victims say the sensation quite literally burns their throat. True to its name, it causes intense tearing and irritation in the eyes, nose, and mouth but more significantly, tear gas attacks the lungs. A 2016 academic article on the effects of tear gas explains how the noxious chemicals in the gas “contribute to incapacitation by obstructing normal breathing and eliciting the fear of suffocation.” Tear gas can also badly affect those suffering from asthma and chronic obstructive pulmonary disease. The gas can also cause severe injuries and sometimes death when deployed in close range and in massive scales, as occurred in Egypt in early 2011, when doctors reported that a “significant proportion of deaths were caused by teargas canisters fired at close range” during violent crackdowns on protests.
One would hope this long list of direct and devastating health effects would dissuade law enforcement from considering tear gas their first-choice for crowd control. In the midst of a pandemic with potentially deadly effects on the respiratory system, using tear gas on peaceful protesters – many of whom are members of populations already disproportionately affected by COVID-19, such as Black, Latinx, LGBTQ and Native American populations – is profoundly reckless and dangerous.
Protesters who were tear-gassed instinctively ripped off their medically-recommended facemasks to cough and scream, spewing droplets of phlegm and mucus into the air which poses a clear risk of spreading the novel coronavirus, leading many to believe that this tactic of crowd control should be avoided completely.
The use of tear gas in the United States, however, is not regulated. While many are appalled by its use on June 1 against peaceful protestors, using tear gas on peaceful crowds is not illegal. But it should be, especially now.
From Vietnam War protests in 1969 to the 2014 Black Lives Matter demonstrations after the killing of Michael Brown in Ferguson, there is a long history of law enforcement in the United States using tear gas against peaceful protestors. Particularly egregious examples of what should be considered its “misuse,” especially against Black and Brown people, abound in recent years. Police used tear gas on largely peaceful crowds that included women, children and elderly people at an anti-Trump rally in Phoenix in 2017. The ACLU filed lawsuits “challenging the unconstitutional excessive use of force including tear gas” at the rally where officers “fired more than 590 projectiles ‘indiscriminately’ into the crowd.”
This sequence of concerning events makes clear that tear gas misuse is not going away. It is time we clearly define what “misuse” means and that law enforcement agencies implement measures to regulate the use of this powerful and dangerous chemical.
International law has already established a framework around the use and misuse of tear gas. Tear gas is considered a chemical weapon according to the 1993 Chemical Weapons Convention (CWC), which outlawed its use in war. The CWC, which the United States signed and ratified, recognizes tear gas as a “riot control agent” which it broadly defines as “any chemical … which can produce rapidly in humans sensory irritation or disabling physical effects.” Article 1(5) of the CWC states “each State Party undertakes not to use riot control agents as a method of warfare.” While the convention leaves open the opportunity for states to use tear gas domestically, it establishes a clear norm: tear gas is a harmful chemical weapon that is not even condoned as a method of warfare.
The International Criminal Court’s (ICC’s) Rome Statute reinforces this norm. Article 8 of the Statute includes several provisions that can be interpreted as being applicable to tear gas. Article 8(2)(b) and Article 8(2)(e) establish that the use of “poison or poisoned weapons” and “employing asphyxiating poisonous or other gases, and all analogous liquids, materials or devices,” are war crimes in both international and non-international armed conflict. Although the Statute does not explicitly reference tear gas, these provisions seem to encompass tear gas as either a “poisoned weapon” or an “other gas” weapon.
Questions arising around the use of force and use of chemical weapons domestically should lead states to more seriously consider replicating international norms at national levels regarding the use of tear gas. If tear gas is considered an unacceptable instrument in war, then it is certainly worth limiting or banning its use against peaceful protestors at home.
In a recent report tracking the use of tear gas around the globe, Amnesty International advocates that authorities impose strict controls on the use of and trade in tear gas. The policies that should govern its use and define its misuse are simple:
- Tear gas should not be used on crowds of peaceful protesters – peaceful protest is a fundamental right and any attempt to clear the streets of peaceful protesters with tear gas should be made illegal;
- Tear gas should only be used to the minimum extent necessary in cases of widespread violence that cannot be addressed by dealing directly with specific violent individuals, and only for the purpose of dispersing the crowd;
- It should only be used after audible and clear warnings are issued and enough time has passed for the crowd to leave the vicinity;
- It should only be used in situations where there are adequate exit points and opportunities for crowds to disperse;
- It should never be fired directly at individuals;
- It should never be used in confined spaces;
- It should never be used against vulnerable individuals, including elderly people, children, or pregnant women;
- It should never be used in excessive quantities or with high toxicity levels.
Some of these ideals are reflected in legislation recently proposed by Rep. Alexandria Ocasio-Cortez (D-NY), which would prohibit law enforcement’s use of chemical weapons. Regardless of how this legislative effort proceeds, local law enforcement agencies should start developing their own rules and norms around the use of tear gas.
While Americans become more familiar with tear gas and its effects here at home, it is important that the advocacy community not turn a blind eye to the reality of tear gas use in countries all around the world. On June 12, Amnesty International published an online report, “Tear Gas: An Investigation,” which offers a living databank of over 100 videos of tear gas misuse in 22 countries, including one of Iranian security forces firing tear gas canisters outside the entrance to a hospital in Isfahan, and another of police in Honduras deploying a tear gas canister inside a school bus.
As we work towards a better future of policing, we must recognize the urgency in regulating the use of chemical weapons as riot control agents here at home. How we handle the use of weapons at home effects the legitimacy of their use elsewhere.
The United States is responsible for the production and trade of a significant portion of the world’s supply of tear gas and only once we establish guidelines for tear gas use here, can we advocate with credibility for regulation in the trade and export of tear gas abroad. In the meantime, we must encourage U.S. companies manufacturing and supplying tear gas to ensure that their products do not end up in the hands of those likely to misuse this powerful weapon. In tandem, the United States should also scrutinize the export of tear gas and suspend exports to places where there is credible evidence that it is being misused, especially in patterns of human rights violations.
Suspending the export of U.S.-produced tear gas to the 21 other countries where Amnesty has documented its improper use would be a good start. Seeing that the United States is the 22nd country where Amnesty has documented such improper use, reviewing the report might help U.S. law enforcement agencies that rely on tear gas to realize the company they keep.