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

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);Virginia (HB 5049 2020); Washington (HB 1054 2021); Washington DC (B23-0825 2020).
• Municipalities: 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); 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).

Pending:

• Federal: S 1579.
• States: Georgia (HB 18); Hawaii (HB 1381); Illinois (HB 2788); Massachusetts (S 1637); Michigan (HB 4292); Minnesota (HF2546/S2446); Missouri (HB 2260); New Hampshire (HB 564); New York (A 99); North Carolina (HB 589); Ohio (HB 293); Pennsylvania (HB 2129); South Carolina (H 3049).

Expired/Did Not Pass:

• Federal: HR 7221; S 4114.
• States: California (AB 66); Florida (HB 187, HB 878); Georgia (HB 1206); Indiana (SB 391); Massachusetts (HD 5218and SD 2968); Michigan (HB 5925); Minnesota (HF 88 and HF 86); New Mexico (SB 227); New York (A 10599, S 8512, S 8514, and S 8516); Ohio (HB 707); 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

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); Virginia (HB 5049 2020); Washington DC (B23-0825 2020).
• Municipalities: Boston (369 2021); 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).

Proposed:

• States: Georgia (HB 18); Hawaii (HB 1381); Illinois (HB 2788); Massachusetts (S 1637); Minnesota (HF2546/S2446); New Hampshire (HB 564); Pennsylvania (HB 2129); South Carolina (H 3049).

Expired/Did Not Pass:

• Federal: H.R. 8823; S 4114.
• States: California (AB 66); Florida (HB 187, HB 878); Indiana (SB 391); Massachusetts (HD 5218 and S 2968); Minnesota (HF 86); New Mexico (SB 227); New York (S8516); Texas (HB 1513 and HB 2334).
• Municipalities: Albany, NY (Local Law C of 2021); Atlanta, GA (20-0-1450); Boston, MA (ordinance 811); Columbus, OH (1829-2020); Madison, WI (Ordinance 61250); Richmond, VA (proposal); Richmond, VA (plan from police); San Jose, CA (20-1046).

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:

• Washington State enacted a ban in 2021 on openly carrying firearms while knowingly at a public demonstration, or within 250 feet of the demonstration if notified by law enforcement.
• Pennsylvania has proposed prohibiting a person from possessing or having immediate access to a firearm if participating or attending a public demonstration, or 1,000 feet from a public demonstration if notified by law enforcement (HB 869).
• New Hampshire has proposed a ban on openly displayed firearms at a parade, picket line, march, rally, vigil, or demonstration (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:

• Iowa has proposed prohibiting the carrying, transportation, or possession of firearms in the capitol building and on capitol grounds (HF 126).
• Massachusetts has proposed banning possession of a firearm in a statehouse building or on statehouse grounds, or “at a demonstration in a public building.” Notably, “public building” is defined to include “its grounds or curtilage,” so the ban could apply to plazas and grounds near government buildings other than the statehouse (H 2505/S 1568).
• Michigan has proposed banning concealed carry of a firearm inside the capitol building, on capitol grounds, and in house and senate office buildings (HB 4024).
• Washington banned openly carried firearms in the capitol, capitol grounds, and legislative offices in 2021; it has proposed extending that ban to concealed firearms (HB 1234).

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:

• Colorado has proposed banning 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).
• Indiana has proposed prohibiting firearm possession within 50 feet of a polling place, any room where ballots are being counted, and “any area where voters congregate or are likely to congregate for any purpose related to voting or the casting of ballots” (SB 28).
• Maryland has proposed prohibiting a person from carrying or displaying a firearm within 100 feet of any building or property being used as a polling site during an election (HB 30/SB 0329).
• Massachusetts has proposed banning possession of a firearm “on the grounds of or in any portion of a building that is designated a polling place or a place to be used for counting ballots” (H 2505/S 1568).
• Wisconsin has proposed prohibiting an individual from intentionally carrying a firearm within 40 feet of any part of a building that is being used as a polling place, or any other location where election officials are conducting a canvass (SB 904).
• New York has proposed prohibiting possession of a firearm within 100 feet of a polling place during an election or while early voting is in progress. The offense would be a Class E felony (A 7414).
• Pennsylvania has proposed banning knowingly possessing a firearm in any building, property, or parking area of a polling place holding an election (HB 737).
• New Hampshire has proposed banning individuals from openly carrying firearms within 100 feet of a polling place during an election (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).
• 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).
• New York is considering legislation that would prohibit law enforcement from procuring lethal or offensive weapons through the 1033 Program (S 1134),
• 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)