Court Extends Order Requiring Better Warning Before Tear Gas
Updated January 6, 2015, at 1:15 PM:
A federal judge is extending a court order that requires police to provide sufficient warning before using tear gas to give lawful protesters a chance to leave.
U.S. District Court Judge Carol Jackson on Tuesday gave attorneys representing protesters and police 45 days to continue what one lawyer called “good faith” settlement discussions on policy changes regarding the use of tear gas. Both sides met on Monday and participated in a conference call, and agreed more time was needed.
Jackson had issued a temporary restraining order in December after a federal civil rights lawsuit was filed seeking to limit police’s use of tear gas during lawful assemblies. In that order, Jackson said police could not use chemical agents such as tear gas without first giving “clear and unambiguous warnings” and enough time for people to safely leave the area.
When asked by Judge Jackson why so much more time was needed for negotiations, attorney for the protesters Brendan Roediger said such policy changes need time to be implemented. A defense attorney said at issue is what a new command order regarding the use of tear gas would sound like. That language would then have to be presented to the county police board to see if it would be adopted.
Mark Lawson, the attorney representing St. Louis police chief Sam Dotson, told Judge Jackson that the sides have agreed on general policy changes, but haven’t come to a consensus on the exact language of the warning. He said more time would help the parties to “craft some language that is relatively uniform.”
Our original story from Dec. 12, 2014:
A federal judge issued a temporary restraining order Thursday that requires police to give adequate warning before deploying tear gas at lawful protests and to ensure people have safe exit routes. The ruling came as residents told St. Louis police chief Sam Dotson that the department has a lot to do to regain the trust of the community it is supposed to serve.
"It's like when your teenage daughter is angry and she yells at you, but you still love her," said the Rev. Nora Jones of Samaritan United Methodist Church at a meeting in Tower Grove South. "And I think that sometimes some people aren't feeling like you care for them."
Even though the crowd was much calmer than the one Dotson faced at the Ferguson Commission meeting in the Shaw neighborhood earlier in the week, it was no less critical.
"There are a lot of us who really want to trust you, and have wanted to trust you for a really long time," said Tower Grove South resident Lisa Cagle, setting the tone for the meeting. "But the fact is, we feel like you’ve lied to us, or you’ve not listened to us, or you’ve misrepresented the truth."
The incident that colored the entire meeting happened the night of Nov. 24, when a St. Louis County grand jury announced that it would not file charges against former Ferguson police officer Darren Wilson for the death of Michael Brown. Protesters who had gathered at MoKaBe's, a coffee shop in Tower Grove South that was serving as a safe space, were hit with tear gas. Eyewitnesses said the cafe was targeted without warning, something Dotson disputes.
A federal civil rights lawsuit seeking limits on the use of tear gas specifically sited the incident at MoKaBe's. U.S. District Court Judge Carol Jackson ruled just before Thursday night's meeting that the department would no longer be able to use chemical agents like tear gas without warning people and giving them a chance to leave the area.
Jackson's temporary restraining order says the evidence shows that “law enforcement official failed to give the plaintiffs and other protesters any warning that chemical agents would be deployed and, hence, no opportunity to avoid injury. As a result, the plaintiffs' ability to engage in lawful speech and assembly is encumbered by a law enforcement response that would be used if a crime were being committed.”
Defendants in the suit included leaders of the Unified Command that has handled response to protests — St. Louis Police Chief Dotson, St. Louis County Chief Jon Belmar and Missouri Highway Patrol Captain Ron Johnson. The suit was brought by people who had participated in or observed protest — Alexis Templeton, Maureen Costello, Brittany Ferrell, Steven Hoffman, Nile McClain and Kira Hudson Banks.
The ruling says police can't use tear gas, smoke, pepper gas or other chemical agents to disperse peaceful crowds unless they first:
- Issue “clear and unambiguous warnings that such chemical agents will be utilized” and without providing “sufficient opportunity to heed the warnings and exit the area.”
- Minimize impact on those “who are complying with lawful law enforcement commands.”
- Ensure “there is a means of safe egress.”
Police can't use tear gas on protesters “for the purpose of frightening them or punishing them for exercising their constitutional rights,” the order says.
Slow Pace Of Change
Attendees questioned Dotson on everything from the department's training, to body cameras, to the proposed civilian oversight board, to its use-of-force policies. The chief acknowledged that there were many things the department could do better.
"But a lot of the issues they talked about tonight aren’t things that happened overnight," Dotson said. "They’re systemic problems. A reduction in police officers, not focusing on community policing perhaps as much as we should have been, use of force, violence, all of those things."
While Cagle said after the meeting that she wasn't completely hopeless, she felt like Dotson was still missing the point.
"My trust hasn't been built back up, and that comes through action," she said, adding there were plenty of small steps Dotson could take that he was resisting.
Follow Rachel Lippmann on Twitter: @rlippmann
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