When used in the context of protests, certain types of less lethal weapons, like tear gas, rubber bullets, and sonic weapons, are indiscriminate by their very nature. These weapons should never be used in the context of First Amendment assemblies. For an analysis of the most common types of reforms and recommendations on restrictions see ICNL’s briefer on Legislative Options to Restrict the Use of Less Lethal Weapons in Crowd Control.

Tear Gas and Chemical Irritants

Initiatives in at least 19 municipalities, 11 states, and the federal government. 

The 1925 Geneva Protocol and the 1994 Chemical Weapons Convention prohibit the use of agents like tear gas in warfare, yet they remain a tool for many US law enforcement agencies. When deployed via large-scale canisters or through grenades, tear gas and other chemical irritants such as pepper spray can do indiscriminate harm, and as such are an inappropriate response to protests.

Complete Prohibition on Law Enforcement’s Use of Chemical Irritants

• Federal: Rep. Ocasio-Cortez has introduced HR7221; Sen.’s Markey and Sanders have introduced S 4114.
• State: Massachusetts (HD 5218and SD 2968); New York (A 10599, S 8512, S 8514, and S 8516); Minnesota (HF 86); Washington DC (B23-0771); and Ohio (HB 707).
• Municipal: Seattle WA (CB 119805 passed council); Nashville, TN (BL2020-329); Madison, WI (Res. 61265, Ordinance 61250 tabled for a study); Berkeley, CA (Council passed an indefinite ban on tear gas); San Francisco (mayor ban); New Orleans, LA (proposal); Salisbury, NC (proposal); City Council of Charlotte, NC, blocked funding for tear gas for the coming year and police discontinued use.

Prohibiting or Restricting the Use of Chemical Irritants at Protests

Some initiatives prohibit the use of chemical irritants such as tear gas at First Amendment assemblies. In this context, it is particularly important to have strict rules about when law enforcement may disperse a First Amendment assembly and the steps they must take to ensure the protection of protesters’ rights.

• State: Washington DC (B23-0825 enacted); Oregon (HB 4208 enacted); Colorado (SB 20-217 enacted); Virginia (HB 5049 enacted); Massachusetts (S 2820 passed senate/ H 4860 passed House);Virginia (HB 5049 passed House); Virginia (HB 5091); Minnesota (HF 88); California (AB 66); Michigan (HB 5925); Georgia (HB 1206).
• Municipal: Iowa City, IA (20-159 passed council); Olympia, OR (resolution passed council); Portland, OR (mayor directive); Philadelphia, PA (200538 passed City Council); New Orleans, LA (33,106 passed Council); Boston, MA (0811); Columbus, OH (directive of the mayor and 1829-2020); Springfield, IL (2020-356 passed council); Louisville, KY (proposed ordinance failed in Council); Richmond, VA (proposal in Council failed, but a plan from police puts forward new restrictions on tear gas and rubber bullets); Aurora, CO (proposal); Milwaukee, WI (directive from Fire and Police Commission to work towards the elimination of tear gas use).

Rubber Bullets and “Less Lethal” Projectiles

Initiatives in at least 10 municipalities, 7 states, and the federal government.

Rubber bullets and other “less lethal” kinetic projectiles can cause serious physical and psychological harm. They should never be used to control crowds at a demonstration.

Complete Prohibition on Kinetic Energy Projectiles

• Federal: Sen.’s Markey and Sanders have introduced S 4114.
• State: New York (S8516); Minnesota (HF 86); Massachusetts (HD 5218 and S 2968).
• Municipal: Seattle, WA (CB 119805 passed Council); Madison, WI (Ordinance 61250)

Prohibiting or Restricting Use of Kinetic Energy Projectiles at Protests

Some initiatives prohibit the use of kinetic energy projectiles, such as rubber bullets, at First Amendment assemblies. In this context, it is particularly important to have strict rules about when law enforcement may disperse a First Amendment assembly and the steps they must take to ensure the protection of protesters’ rights.

• State: Washington DC (B23-0825 enacted); California (AB 66); Virginia (HB 5049 enacted); Massachusetts (S 2820 passed senate/ H 4860 passed House); Colorado (SB 20-217 enacted).
• Municipal: Iowa City, IA (20-159 passed council); San Jose, CA (20-1046 passed council and police department ban); Philadelphia, PA (200538 passed City Council); Boston, MA (proposed ordinance 811); Columbus, OH (1829-2020); Springfield, IL (2020-356 passed council); Richmond, VA (proposal in Council failed, but a plan from police puts forward new restrictions on tear gas and rubber bullets); Atlanta, GA (20-0-1450).

Sonic Weapons

Long Range Acoustic Devices (LRADs), or “sound cannons,” can be used as a sonic weapon by emitting loud and painful levels of noise that can cause long-term hearing loss. Human rights advocates have called for a suspension on their use to police crowds until their effects are better studied.

• The City Council of Seattle, WA, prohibited the police’s use of acoustic weapons against crowds (CB 119805).
• The Mayor of Portland, OR, directed police to only use LRADs as a communication device and to not use their “sonic warning tone” against crowds.

Local law enforcement has increasingly used inappropriate and intimidating military gear to police protests, including grenade launchers, armored vehicles, and military drones. The militarization of local law enforcement is partly the result of the federal government’s 1033 program, which allows for the transfer of weapons and equipment from the military to local law enforcement.

• Washington D.C. enacted legislation that banned the city from acquiring certain military equipment from the federal government, including armored or weaponized vehicles and drones, grenades and grenade launchers, and firearms above a certain caliber (B23-0825).
• Virginia enacted legislation that prohibits law enforcement agencies in the state from acquiring weaponized drones, combat aircraft, grenades, and grenade launchers, standard-issue military rifles, combat configured armored vehicles, or camouflage uniforms (HB 5049).
• New York state lawmakers introduced legislation that would prevent law enforcement from receiving certain military equipment from the federal government, including grenades and grenade launchers, armored vehicles, and armored or weaponized drones (S 8507 / AB 10660).
• Madison, WI City Council passed legislation that prohibits the police department from procuring property from the 1033 program (61252).
• The City Council of Pittsburgh, PA, is considering legislation that would prohibit the city from receiving any military weapons from the Department of Defense (2020-0406).
• The City Council of Atlanta, GA, introduced an ordinance that would prohibit the use of military-style vehicles (20-0-1450).
• Members of Congress have proposed adding new restrictions to the federal 1033 program. The Obama administration had limited the program, including by banning the transfer of certain types of military weapons and heightening training and other requirements for the transfer of other weapons, but these restrictions were lifted by the Trump administration.

Police forces have acquired increasingly sophisticated surveillance technology, such as aerial and drone surveillance technology, facial recognition technology, and cell-site simulators. This technology has often been used to disproportionately surveil communities of color and it raises particular concerns in the context of demonstrations.

In response, cities across the nation, such as Nashville, Seattle, and Oakland, have adopted Community Control Over Police Surveillance legislation. The measures in this legislation vary but generally include transparency requirements for the procurement of new surveillance technology; a community advisory committee to create standards for procurement; reports on the technologies’ anticipated impact; and ongoing reporting requirements on their use. Some cities, such as San Francisco and Oakland, have prohibited the use of facial recognition technology by the government altogether.

• The City Council of New York City passed legislation that requires the police department to issue an impact and use report for surveillance technologies that is open for public comment. The use of the technologies is periodically audited.
• The City Council of Boston, MA, passed an ordinance that prohibits the use of facial recognition technology by the city of Boston.
• The City Council of Portland, OR, passed two ordinances that prohibit the use of facial recognition technology by both government agencies and private entities in places of public accommodation.
• Members of Congress introduced the Facial Recognition and Biometric Technology Moratorium Act that would place a temporary prohibition on the use of facial recognition and biometric technology by the federal government and state and local governments that receive federal funding.

Seventeen states have anti-face covering laws. These laws have been used in the past to target protesters, and during COVID-19 create a unique danger to public health. For more information, see ICNL’s briefer on anti-mask laws, COVID-19, and the First Amendment.

• Washington D.C. repealed its anti-face covering law in its entirety (B23-0825).
• New York state repealed it anti-face covering law in its entirety (S 8415)

In order to enhance law enforcement’s accountability during demonstrations, law enforcement officers should prominently display identification, including a name or badge number, as well as their law enforcement agency.

• Washington D.C. already required enhanced identification of police officers’ names and badge numbers at First Amendment assemblies; new legislation passed by the City Council requires that the uniforms and helmets of officers responding to a First Amendment assembly also prominently identify them as D.C. police, as opposed to the National Guard or federal law enforcement (B23-0825).
• An amendment introduced by Senator Murphy to the National Defense Authorization Act in Congress would require all federal officers or members of the armed forces engaged in crowd control to visibly display identifying information (S 3909).
• A legislative proposal in Oregon would require all law enforcement involved in crowd control to display on the front and back of a uniform an a peace officer’s last name, badge number, or other identifying information. Upon request from the public, the officer would have to provide their name and badge number. A violation would be an official misconduct of the 2nd degree. (LC 743)

Last Updated: October 30, 2020

For more information contact Nick Robinson at nrobinson@icnl.org or Elly Page at epage@icnl.org.