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.

INITIATIVES PROHIBITING OR RESTRICTING THE USE OF CHEMICAL IRRITANTS AT PROTESTS

Proposed:

• States: Georgia (HB 107), Massachusetts (S 999), Pennsylvania (HB 1107), Rhode Island (H 5568).

Enacted:

• 7 States and DC: California (AB 48 2021); Colorado (SB 20-217 2020); Massachusetts (S 2963 2020); Nevada (SB 212); Oregon (HB 4208 2020; HB 2928 2021, HB 4008 2022); Virginia (HB 5049 2020); Washington (HB 1054 2021); Washington DC (B23-0825 2020, B24-0320 2021).
• Municipalities: Alameda County, CA (settlement); Berkeley, CA (moratorium); Boston (369 2021); Cambridge, MA (ordinance 2021); Charlotte, NC (blocked funding for tear gas and police discontinued use); Columbus, OH (mayor directive and legislation); Iowa City, IA (20-159 2020); Milwaukee, WI (directive from Fire and Police Commission); New Orleans, LA (new police department policy); New Orleans, LA (33106 2020); Olympia, OR (moratorium); Philadelphia, PA (200538 2020); Portland, OR (mayor directive); San Francisco (mayor directive); Seattle WA (CB 119805 2020; CB 120105 2021); Somerville, MA (ordinance 2021); Springfield, IL (2020-356).

Expired/Did Not Pass:

• Federal: HR 7221; S 4114; S 1579.
• States: Arizona (HB 2385), California (AB 66); Florida (HB 187, HB 878); Georgia (HB 1206; HB 18; HB 107); Hawaii (HB 1381); Indiana (SB 391); Illinois (HB 2788); Massachusetts (HD 5218; SD 2968; S 1637; S 999); Michigan (HB 5925; HB 4292); Minnesota (HF 88; HF 86; HF2546/S2446); Missouri (HB 2260); New Hampshire (HB 564); New Mexico (SB 227; SB 252); New York (A 10599, S 8512, S 8514, S 8516, A 99); North Carolina (HB 589); Ohio (HB 707, HB 293); Pennsylvania (HB 2129; HB 1107); Rhode Island (S 2379; H 5568); South Carolina (H 3049); Texas (HB 2334); Virginia (HB 5091); Washington DC (B23-0771).
• Municipalities: Albany, NY (Local Law C of 2021); Aurora, CO (proposal); Boston, MA (0811); Columbus OH (1829-2020); Louisville, KY (ordinance); Madison, WI (Res. 61265, Ordinance 61250 tabled for a study); Nashville, TN (BL2020-329); Richmond, VA (plan from police); Richmond, VA (proposal in Council); Salisbury, NC (proposal).

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.

INITIATIVES PROHIBITING OR RESTRICTING USE OF KINETIC ENERGY PROJECTILES AT PROTESTS

Proposed:

• States: Georgia (HB 107), New Mexico (SB 252), Pennsylvania (HB 1107), Rhode Island (H 5568).

Enacted:

• 6 States and DC: California (AB 48); Colorado (SB 20-217 2020); Massachusetts (S 2963 2020); Nevada (SB 212); Oregon (HB 2928 2020; HB 2928 2021, HB 4008 2022); Virginia (HB 5049 2020); Washington DC (B23-0825 2020, B24-0320 2021).
• Municipalities: Alameda County, CA (settlement); Boston (369 2021); Columbus, OH (mayor directive and legislation); Iowa City, IA (20-159 2020); New Orleans, LA (new police department policy); Philadelphia, PA (200538 2020); San Jose, CA (police department policy); Seattle, WA (CB 119805 2020; CB 120105 2021); Springfield, IL (2020-356 2020); Somerville, MA (ordinance 2021).

Expired/Did Not Pass:

• Federal: H.R. 8823; S 4114.
• States: California (AB 66); Florida (HB 187, HB 878); Georgia (HB 18; HB 107); Hawaii (HB 1381); Illinois (HB 2788); Indiana (SB 391); Massachusetts (HD 5218, S 2968, S 1637); Minnesota (HF 86, HF2546/S2446); New Hampshire (HB 564); New Mexico (SB 227; SB 252); New York (S8516); Pennsylvania (HB 2129; HB 1107); Rhode Island (S 2379; H 5568); South Carolina (H 3049); Texas (HB 1513 and HB 2334).

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 state of Oregon enacted legislation that prohibits the use of sonic devices for crowd control except to make announcements (HB 2928 2020; HB 2928 2021).
• 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.

Banning firearms at protests is a straightforward way to address the problems posed by armed individuals at protests. For instance, Washington, DC prohibits firearm possession at all public gatherings and special events, including permitted protests. Authorities may also ban firearms from a designated area that is within 1,000 feet from a public “demonstration,” which is broadly defined and need not have a permit. Maryland has a similar prohibition on firearm possession within 1,000 feet of a public demonstration. States that are considering or have recently enacted similar restrictions include:

• California in 2023 banned carrying firearms in a “public gathering or special event” on public property that requires a permit, as well as adjacent sidewalks and streets up to 1,000 feet from the gathering or event (SB2). The ban excludes licensed firearms carriers who have to walk through such a gathering in order to reach their home, place of business, or vehicle.
• Hawaii in 2023 banned knowingly or recklessly possessing a firearm at “any demonstration, march, rally, vigil, protest, picketing, or other public assembly” on public property that has obtained a permit and posted signs along the perimeter of the assembly. Firearms are also barred from “the sidewalk or street immediately adjacent to” the assembly (SB 1230).
• New York in 2022 banned possession of a firearm at “any gathering of individuals to collectively express their constitutional rights to protest or assemble,” or at any at any special event that has been issued a permit (SB S51001).
• New Jersey in 2022 banned knowingly carrying a firearm within 100 feet of a place where a public demonstration is held that requires a government permit, during the conduct of that demonstration (A 4769).
• Washington in 2021 banned openly carrying firearms while knowingly at a public demonstration, or within 250 feet of the demonstration if notified by law enforcement (SB 5038).
• Recent initiatives that expired or failed to pass include: California (SB 918); Hawaii (SB121) and (HB428); Pennsylvania (HB 869); New Hampshire(HB 1151).

GOVERNMENT BUILDINGS AND THEIR GROUNDS

More than one-third of all armed protests that occurred in 2021 took place on the grounds around statehouses. Most states outlaw guns inside statehouses, but a majority allow for the open carrying of long guns on statehouse grounds. States considering prohibitions on firearms in and around statehouses and other government buildings include:

• California in 2023 banned firearms in buildings and parking areas under state or local government control (SB 2).
• Hawaii in 2023 banned knowingly or recklessly possessing a firearm in any building or office owned, leased, or used by the state or county, as well as its “adjacent grounds and parking areas” (SB 1230).
• Maryland in 2023 banned wearing, carrying, or transporting firearms in a building or any part of a building owned or leased by a state or local government unit (SB 1).
• New York in 2022 banned possession of a firearm in any place owned or controlled by a government entity “for the purpose of government administration”  (SB S51001).
• New Jersey in 2022 banned knowingly carrying a firearm in or on any part of the buildings, grounds, or parking area of a place owned or controlled by a government entity “for the purpose of government administration” (A 4769).
• Washington in 2021 banned openly carried firearms in the state capitol, capitol grounds, and legislative offices (SB 5038).
• Massachusetts has proposed banning knowing possession of firearms in any part of the buildings, grounds, or parking area of a place owned, leased, or under control of state or local government and used forr government administration (H 4135) (See also H 4139 and H 2359).
• Recent initiatives that expired or failed to pass include: California (SB 918); Hawaii (SB 121); Iowa (HF 126); Massachusetts (H 2505/S 1568); Michigan (HB 4024); Oregon (H 2007/S 686).

POLLING PLACES AND VOTE-COUNTING FACILITIES

During the 2020 election, armed protesters showed up at polling places and vote counting facilities, intimidating voters as they cast ballots and election workers who were counting them. Prohibiting firearms at such locations, as six states and Washington DC have done, can help address this challenge. States considering similar bans include:

• California in 2023 banned carrying firearms into polling places, voting centers, and any “other area or location where votes are being cast or cast ballots are being returned or counted,” as well as immediately adjacent streets and sidewalks  (SB 2).
• Hawaii in 2023 banned knowingly or recklessly possessing a firearm at any “voter service center… or other polling place, including adjacent parking areas” (SB 1230).
• Maryland in 2023 banned wearing, carrying, or transporting firearms in a location that is “currently being used as a polling place… or for canvassing ballots” (SB 1).
• Colorado in 2022 banned the open carrying of firearms within 100 feet of a ballot drop box or any building in which a polling location or central count facility is located, while an election is in progress (HB 22-1086).
• New Jersey in 2022 banned knowingly carrying a firearm in or on any part of the buildings, grounds, or parking area of a location being used as a polling place during the conduct of an election (A 4769).
• New York in 2022 banned possession of a firearm in any location that is being used as a polling place (SB S51001).
• Massachusetts has proposed banning knowing possession of a firearm at a location in use as a polling place or for the storage or tabulation of ballots (H 4135) (See also H 4139 and H 2359).
• New Hampshire has proposed banning carry of any firearms, open or concealed, within 100 feet of a polling place during an election (HB 444).
• New York has proposed expanding its prohibition on firearm possession near polling places to any place within 100 feet of a polling place during an election or while early voting is in progress (A 7414).
• Recent initiatives that expired or failed to pass include: California (SB-918); Hawaii (HB 428); Indiana (SB 28 and SB 14); Maryland(HB 30/SB 0329); Massachusetts (H 2505/S 1568); New Mexico (SB 44); Wisconsin (SB 904); Pennsylvania (HB 737); New Hampshire (HB 1096).

• Washington D.C. enacted legislation in 2021 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 in 2021 that prohibits law enforcement agencies in the state from acquiring weaponized drones, combat aircraft, grenades, grenade launchers, standard-issue military rifles, combat configured armored vehicles, or camouflage uniforms (HB 5049).
• Washington state enacted legislation in 2021 that prohibits law enforcement agencies in the state from acquiring “military equipment.” Additionally, any law enforcement agency in possession of military equipment must either return it to the federal government or destroy it by Dec. 31, 2022. Military equipment includes firearms and ammunition of .50 caliber or greater; armed helicopters, drones, vessels, vehicles, and aircrafts; long-range acoustic devices, directed energy systems, and electromagnetic spectrum weapons (WA HB 1054).
• California enacted legislation in 2021 that increases transparency and local control over the acquisition of federal surplus military equipment for law enforcement agencies. Local officials are required to comply with heightened reporting requirements and provide opportunities for public participation in decisions over agency decisions to fund, acquire, or use military equipment (CA AB 481).
• New York is considering legislation that would prohibit law enforcement from procuring lethal or offensive weapons through the 1033 Program (S 2139).
• Madison, WI City Council passed legislation in 2021 that prohibits the police department from procuring property from the 1033 program (61252).
• The Demilitarizing Local Law Enforcement Act of 2021 (HR 7143) would end the 1033 Program.
• The Stop Militarizing Law Enforcement Act of 2021 (HR 1694) would place restrictions on the types of military weapons that can be transferred to local law enforcement and creates reporting and tracking requirements.

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.

• New York City enacted 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.
• Massachusetts enacted legislation that prohibits government agencies from using facial recognition technology without a warrant (S 2963).
• Virginia enacted legislation that bans local law enforcement agencies from purchasing facial recognition software unless expressly authorized by state legislation (H 2031).
• 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.

At the federal level, several legislative initiatives have been introduced to combat the use of surveillance technology and AI. While these bills are not directly addressed to the needs of protestors, they have an outsized impact on the right to freedom of assembly because these technologies have been increasingly used to track and monitor movement leaders and protestors.

• The Fourth Amendment is Not for Sale – Sponsored by Senators Wyden and Rand Paul it would both ban law enforcement agencies from circumventing warrant requirements by purchasing cell phone location data from third parties as well as ban purchasing social media data from brokers like Clearview AI. (more information)
• Facial Recognition and Biometric Technology Moratorium Act – Sponsored by Sen. Markey and Rep. Jayapal it would prohibit the use of facial recognition and other biometric technology (like voice recognition) by federal entities as well as any state and local entities that accept federal funding. (more information)

• Washington DC introduced the Riot Modernization Amendment Act, which among other elements would eliminate the incitement to riot provision of the DC’s anti-riot act and require that those charged under the statute actually have to commit violence themselves. (Bill 230723 2020)
• Legislators in Kentucky introduced legislation that would amend its anti-riot act to ensure that those charged under it had to actually commit violence themselves and that rioting was not triggered by the mere “danger” of damage to property or violence. (HB 246 2021)
• Lawmakers in Oregon enacted a bill that better targets criminalizing failure to follow a police order to disperse an unlawful assembly. (HB 3059 2021)
• Legislators in Oregon introduced a bill that would narrow the crime of interfering with a police officer so that it would not apply if a person refuses to follow an officer’s order, such as in passive resistance. (HB 3164 2021)
• Lawmakers in Colorado introduced a bill that would limit government responses to protesters by limiting when police can disperse protesters except when a significant number of persons acting in concert pose a threat of imminent violence. Those engaging in a peaceful, lawful assembly must be allowed to do so. (SB 21-031 2021)
• Councilmembers in Washington DC introduced the “Bias in Threat Assessments Evaluation Amendment Act of 2021” that would require the DC Attorney General to study all injuries, arrests, fatalities, and officers deployed (including weapons and riot gear) at First Amendment demonstrations between Jan. 2017 and Jan. 2021 and review if the response and threat assessments varied based on race, religion, sex, national origin, or gender of protesters. (Bill here)

• Washington D.C. repealed its anti-face covering law in its entirety (B23-0825 2020).
• New York state repealed its anti-face covering law in its entirety (S 8415 2020).

• 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 2020)
• A bill enacted in Oregon requires all law enforcement involved in crowd control in cities over 60,000 to display on the front and back of a uniform the officer’s name or unique id number, along with information identifying the officer’s agency. Upon request from the public, the officer, when feasible, must provide their name and badge number or unique id number. (HB 3355 2021)
• Legislation introduced in Texas would require enhanced officer identification for officers in riot gear. (HB 496 2020)
• 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)