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
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 is an inappropriate response to protests.
Initiatives Prohibiting or Restricting the Use of Chemical Irritants at Protests
- 6 States: Massachusetts (S 2963 2020); Washington DC (B23-0825 2020); Oregon (HB 4208 2020); Colorado (SB 20-217 2020); Virginia (HB 5049 2020); Washington (HB 1054 2021); Nevada (SB 212).
- 12 Municipalities: Seattle WA (CB 119805 2020); New Orleans, LA (33106 2020); Philadelphia, PA (200538 2020); Iowa City, IA (20-159 2020); Portland, OR (mayor directive); Berkeley, CA (moratorium); Olympia, OR (moratorium); San Francisco (mayor directive); Charlotte, NC (blocked funding for tear gas and police discontinued use); Boston (369 2021); Cambridge, MA (ordinance 2021); Somerville, MA (ordinance 2021); Springfield, IL (2020-356); Columbus, OH (mayor directive) Milwaukee, WI (directive from Fire and Police Commission).
Expired/Did Not Pass:
- Federal: HR 7221; S 4114.
- States: New York (A 10599, S 8512, S 8514, and S 8516); Washington DC (B23-0771); Minnesota (HF 88 and HF 86); California (AB 66); Michigan (HB 5925); Georgia (HB 1206) Massachusetts (HD 5218and SD 2968); Ohio (HB 707).
- Municipalities: Richmond, VA (proposal in Council); Boston, MA (0811); Nashville, TN (BL2020-329); Columbus OH (1829-2020); Louisville, KY (ordinance); Salisbury, NC (proposal); Madison, WI (Res. 61265, Ordinance 61250 tabled for a study) Aurora, CO (proposal).
Rubber Bullets and “Less Lethal” Projectiles
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
Expired/Did Not Pass:
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).
- Hawaii is considering legislation that would prohibit law enforcement from acquiring a range of military equipment including military rifles, camouflage uniforms, sound cannons, and armored vehicles unless approved by the director of public safety for specialized teams (HB 1381).
- Madison, WI City Council passed legislation that prohibits the police department from procuring property from the 1033 program (61252).
- The Demilitarizing Local Law Enforcement Act of 2020 (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.
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.
- 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)
Public order laws, such as unlawful assembly, disorderly conduct, and rioting, that have overbroad provisions are often used to arrest peaceful protesters. Some states have introduced bills to better target these laws to limit their abuse.
- 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 introduced a bill to repeal a provision of the penal code that criminalizes failure to follow a police order to disperse an unlawful assembly, as Oregon has no unlawful assembly crime, providing officers overbroad discretion. (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 response and threat assessments varied based on race, religion, sex, national origin, or gender of protesters. (Bill here)
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)
- Legislation in Texas would require enhanced officer identification for officers in riot gear. (HB 496)
- 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: June 10, 2021