tear gas – Techdirt (original) (raw)

Appeals Court Tells Lying Cop No 'Reasonable' Officer Would Think It's OK To Tear Gas Journalists For Performing Journalism

from the pretty-much-as-clearly-established-as-something-can-get dept

For some reason, we, the people, keep having to shell out cash to employ a lot of unreasonable law enforcement officers.

We’ve already seen some federal courts respond to violent law enforcement responses to the mere presence of journalists and legal observers during protests. The targeting of non-participants by law enforcement has been met with injunctions and harsh words for the officers participating in these attacks.

Much of what’s been covered here deals with months of ongoing protests in Portland, Oregon and violent responses by federal officers. But this appeals court ruling (via Mike Scarcella) shows the problem isn’t confined to the Northwest or federal law enforcement. Cops are attacking journalists in other cities as they try to do nothing more than cover highly newsworthy events.

And the problem isn’t new either. This case [PDF], handled by the Eighth Circuit Court of Appeals, deals with an attack on three Al Jazeera reporters covering protests in Ferguson, Missouri following the killing of Michael Brown.

Local law enforcement officers may not have been wearing cameras, but the journalists brought their own. The events that transpired were captured in the course of their attempted coverage of Ferguson protests. Fortunately, this footage exists. The version of events offered by the sued deputy is a lie. Here’s what was captured by Al Jazeera cameras:

The SWAT Team approached the reporters as they prepared the live broadcast, a block and a half from the street where most of the protests occurred. Their video shows a calm scene. An unidentified officer begins shooting rubber bullets at them. They yell, identifying themselves as reporters. Anderson then deploys a single canister of CS gas (also known as “tear-gas”). It lands in front of the reporters. They move away from the camera, but can be heard talking in the background. An unidentified person walks past the camera. Other people stop in front of it. The police do not fire at them. One reporter re-appears in front of the camera, is shot at, and leaves. Another person walks past the camera (possibly the same unidentified person as before). A second group poses in front of the camera, thinking they are on CNN. They talk to the camera for over two minutes.

Minutes later, police deploy another canister of tear-gas at men standing on the corner, several feet from the camera. Over a speaker, the SWAT Team appears to ask the reporters to “turn the spotlight off.” SWAT Team members then lay down the lights and turn the camera lens toward the ground. The reporters re-appear. After speaking to the officers, they pack their equipment and leave.

As the court notes, this narrative (the one captured by cameras) is “disputed.” But it’s only “disputed” because Deputy Michael Anderson (the defendant) would prefer to use an alternate history to exonerate himself.

Anderson claims the reporters were told to disperse and turn off the lights but refused. He also claims he saw projectiles launched from the area of the bright lights. He says he had difficulty seeing what was going on. He believes there was an imminent threat to safety. He stresses that his sergeant ordered him to deploy the tear-gas.

Submitted in support of this narrative is Anderson’s sworn declaration that everything he said is true, even when nothing on record supports his version of the incident.

Before the SWAT Team arrived, the reporters counter that their location was a calm scene. The videos support this. None records any orders to disperse. They also do not show any projectiles thrown from the reporters’ area. They do not show orders to turn off the light before Anderson deployed the tear-gas.

The court doesn’t call Anderson a liar. It might have, if other questions had been presented. It’s limited to determining whether or not Deputy Anderson should be awarded qualified immunity. Once this returns to the lower court, Anderson will get another chance to prove he’s not lying. It seems unlikely he’ll be able to, but he is definitely going back to the lower court and is definitely going to have to defend himself against at least one allegation.

The Appeals Court says Anderson’s actions clearly violated the reporters’ First Amendment rights. No qualified immunity on this count.

The videos confirm the reporters’ version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas. Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. See Duncan, 687 F.3d at 957. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

Even if the court were inclined to believe Anderson’s apparent bullshit, he still wouldn’t be granted qualified immunity.

Anderson is not entitled to qualified immunity even if his sergeant told him to deploy the tear-gas. Anderson cites the Heartland case for the proposition that §1983 “does not sanction tort by association.” Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 806 (8th Cir. 2010). True, but nothing in Heartland says that a government official is immune if a superior instructs him to engage in unconstitutional conduct. Instead, Heartland says that defendants must be individually involved in the unconstitutional act to be liable under §1983. Id. See also White, 865 F.3d at 1076 (“[A] plaintiff must be able to prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’ ”), quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, it is undisputed Anderson was involved. He is the one who deployed the teargas at the reporters.

The deputy argued the reporters weren’t engaged in First Amendment activity. Instead, they were ignoring a dispersal order. Again, the court points to the recording which shows no dispersal order being given during the entirety of the incident. Even if one had been, there’s no reason to assume a dispersal order requires reporters to leave the scene. Reporters reporting on newsworthy events are not engaged in unlawful activity.

The deputy also argued the plaintiffs were required to provide proof of his motive — his alleged desire to retaliate against the reporters for engaging in protected activities. Wrong again, says the court. There’s enough doubt in here a jury should examine it.

To support its conclusion that the reporters had alleged enough about causation to survive summary judgment, the district court noted that the videos show a peaceful scene interrupted by Anderson’s tear-gassing of the reporters, but not others. Quraishi, 2019 WL 2423321, at *7 (“The raw footage from Al Jazeera, however, showed that numerous people came into the area where the reporters were standing, but only the reporters were shot at and tear gassed.”). The reporters were singled out—other people were in their immediate area but only the reporters were tear-gassed at the scene. (Minutes later, men were tear-gassed several feet from the camera.) Anderson’s motive is not “so free from doubt as to justify taking it from the jury.”

And, again, the court highlights the video that shows a chain of events that contradicts Anderson’s claims.

The district court’s summary judgment facts are not based on allegations of actions by unknown individuals. They come from videos showing Anderson deploying the tear-gas. As noted, the district court does not have to rely solely on Anderson’s account of events to discern what motivated him.

It is clearly established that firing tear gas at journalists to prevent them from covering newsworthy events is a violation of their rights, the Appeals Court says, rattling off a list of ten previous decisions reaching the same conclusion. Any assumption otherwise is unreasonable.

A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible.

Deputy Anderson is headed back to the district court to face the reporters’ First Amendment allegations, as well as state-level excessive force claims. (The Appeals Court grants qualified immunity on the Fourth Amendment claims, noting that being tear-gassed is not a “seizure” as there is no detention or other form of police custody.) And it would seem he’s destined to lose. His version of the events isn’t supported by anything tangible. The other side has plenty of footage showing things didn’t happen the way Deputy Anderson apparently wishes they would have happened. This isn’t a “factual dispute.” This is a recording contradicting a law enforcement officer’s lies. Hopefully, the district court will further highlight this, shall we say, “disparity” upon his return.

Filed Under: 8th circuit, journalism, michael anderson, police, protests, qualified immunity, tear gas
Companies: al jazeera

Tear Gas Is A Banned Chemical Weapon, But US Lobbying Made It Okay For Domestic Use… And, Boy, Do We Use It

from the because-we-can dept

If you’ve been watching what’s going on in Ferguson, Missouri, lately, you’re quite well aware that the police have been basically spraying tear gas almost everywhere they can. Suddenly, articles are springing up all over the internet about the use of tear gas — which, it turns out is technically banned for use in warfare as a chemical weapon. The history of how that came about, however, is a bit complicated, as this State Department notice on tear gas discusses. Basically, there was a dispute over whether or not tear gas violated the Geneva Conventions. Here’s a snippet:

In 1966 the Communist countries strongly criticized the United States for using tear gas and chemical herbicides in Vietnam. In the General Assembly, Hungary charged that the use in war of these agents was prohibited by the Geneva Protocol and other provisions of international law. The United States denied that the protocol applied to nontoxic gases or chemical herbicides. Joined by Canada, Italy, and the United Kingdom, the United States introduced amendments to a Hungarian resolution that would have made the use of any chemical and bacteriological weapons an international crime. In its final form the resolution called for “strict observance by all states of the principles and objectives” of the protocol, condemned “all actions contrary to those objectives,” and invited all states to accede to the protocol. During the debate the U.S. Representa-tive stated that it would be up to each country to decide whether or how to adhere to the protocol, “in the light of constitutional and other consider-ations.”

Interpretation of the protocol remained a thorny problem. In his foreword to a U.N. report on chemical and biological weapons (July 1, 1969), Secretary General Thant recommended a renewed appeal for accession to the protocol and a “clear affirmation” that it covered the use in war of all chemical and biological weapons, including tear gas and other harassing agents. Discussion in the Conference of the Committee on Disarmament (CCD) showed that most members agreed with the Thant recommendations. Swedish Ambassador Myrdal, a strong advocate of the broad interpretation, stressed the danger of escalation if nonlethal chemical agents were permitted. She also pointed out that the military use of tear gases should be distinguished from their use for riot control and that there was a similar difference between using herbicides in war and employing them for peaceful purposes. On the other hand, U.K. Disarmament Minister Mulley held that only the parties to the protocol were entitled to say what it meant.

Years later, there was a push to officially renounce the use of chemical weapons in war, which became the chemical weapons treaty… but it included exceptions for domestic use. Those exceptions were mainly pushed by the US:

The 1993 Chemical Weapons Convention doesn’t apply to domestic law enforcement. (The United States was a major proponent of the exemption, fearing that the convention might be interpreted to prohibit lethal injection.)

The Washington Post has a detailed look at how it’s being used in Ferguson, and how the police there seem to think it’s perfectly safe:

Ferguson police chief Tom Jackson has defended the use of tear gas. ?There are complaints about the response from some people,? he said, ?but to me, nobody got hurt seriously, and I?m happy about that.?

But another report highlights that the negative health effects of tear gas are severely underestimated by law enforcement groups who use it. In an interview with Vox.com, Sven-Eric Jordt, a scientist who studies tear gas, warns that law enforcement has become too complacent with this narrative that tear gas is a harmless way of dispersing crowds:

I frankly think that we don’t know much about the long-term effects, especially in civilian exposure with kids or elderly or people in the street who might have some kind of lung disease already. There’s very few follow-up studies. These are very active chemicals that can cause quite significant injury, so I’m concerned about the increased use of these agents.

[….]

I’m very concerned that, as use has increased, tear gas has been normalized. The attitude now is like, this is safe and we can use it as much as we want.

Even as it’s been banned for use in war. Something seems… very, very wrong with this situation.

Filed Under: chemical weapons, crowd control, geneva conventions, riot control, tear gas