Denver Police Can't Use Tear Gas! And other myths
Originally posted on denverlibertarian.com
The corporate press is the enemy of the people.
In the wake of the murder of George Floyd by a Minneapolis police officer, demonstrations and protests have erupted across the country. Confrontations with riot police have become commonplace and have overwhelmed the news cycle. Amid the demonstrations and rioting, stories abound regarding excessive force being used by police against protesters. According to a recent Denver7 ABC article, on June 5th, U.S. District Judge R. Brooke Jackson issued a temporary restraining order against the Denver Police Department (DPD). The article was delivered via a tweet and if one was to only read the tweet headline (see image below), one would be led to believe that this order prohibits police from using tear gas, pepper balls or "projectiles of any kind" against peaceful protesters. If the reader actually managed to click through and read at least the first half of the article they would again be led to believe that this was a monumental order coming from on high that is going to right all the police wrong-doings with respect to one's right to protest and steadfastly reaffirms one's First Amendment free speech rights. Unfortunately, the reality of the ruling is far cry from where the lofty headline and opening paragraphs would lead one to believe.
As of the writing of this article, the tweet has garnered 296 Retweets and 51 comments. Predictably, half of the comments are exuberantly celebrating this unprecedented ruling in defiance of the police and in support of free speech, while the other half are lamenting at the short sighted nature of this overreaching ruling while fully supporting continued police actions to control the protesters. Lost amid the Twitter cacophony of "my side is more right than yours," is anyone taking the time to read the ruling prior to vociferously proclaiming victory. What we have with this particular order is a tinkering-around-the-edges style of "reform," one that doesn't do all that much in a practical sense within the context of how it will play out given standard police procedures, but with a catchy headline it sounds like it will really do something amazing. The social media mob will take it from there.
The news article checks in at eighteen paragraphs (an eternity for quick hit type news stories), which is more than adequate to cover the finer points of the judge's ruling. One might think that would be the focus of the article: what is the ruling and what is the reality of implementing it? Let's take a look. The article's headline reads, "Judge puts strong restrictions on Denver police use of tear gas, pepper balls during protests." The reality of the judge's order couldn't be further from the truth, but one would be hard pressed to realize that based on the information given at the top of the article. The first two paragraphs do give some basic information about the ruling including how it was based on a lawsuit filed by four Denver residents, how DPD had violated the protesters' constitutional rights and how, of course, this news organization had "obtained a copy of the ruling Friday night," as if that is some amazing feat of journalism. By the time the reader has made it through the headline and the first two paragraphs, they have been told three times that the judge has temporarily halted the use of tear gas, pepper balls, and pepper spray. For most, that's all they need to read. Victory! Alas, as is so commonplace in modern news protocol, from the depths of the article, on paragraph twelve, a portion of the truth begins to peek it's head out. We have all been conditioned to believe that our friends in the news business are just trying to give us the facts so that we might come to our own conclusions. This article is a prime example of leading the witness, where just enough kernels of truth are dropped in at the end of the article to allow for plausible deniability should any criticism arise.
From paragraph twelve the article:
"The judge’s ruling is not an outright ban, however, as the use of tear gas or other non-lethal devices is allowed once “an on-scene supervisor at the rank of Captain or above specifically authorizes such use of force in response to specific acts of violence or destruction of property that the command officer has personally witnessed..." [emphasis added]
The judge has subsequently updated the ruling and modified the above text to read "...the rank of Captain or Lieutenant." This was updated after DPD reviewed the order and assuaged the judge that this modification was necessary.
Perhaps the headline of the article should have read: Judge puts strong words down on paper and waxes philosophical as to whether or not it's acceptable to damage private property in the name of free speech. In reading the actual text of the ruling, it applies specifically to peaceful protests or demonstrations. Ask yourself, who determines the definition of a peaceful protest or demonstration? To the demonstrator, everything is a peaceful protest, to police, everything is violence (in more ways than one). Who is going to win that court case? Rulings in favor of the police are incredibly high, to put it mildly. Delving into the details a bit further, the judge's order indicates that the Court temporarily enjoins the City of Denver and DPD (and other associated jurisdictions) from employing chemical weapons unless an on-scene supervisor specifically authorizes such use of force in response to specific act of violence or destruction of property that they have personally witnessed. There are two major things to note, first and most importantly, despite the news article's headline, Denver police can use chemical weapons, that is abundantly and unquestionably clear. Secondly, who determines the definition of specific act(s) of violence? Given the fog of the situations on the ground at a protest, there are endless opportunities for false testimony, even with body-cams and citizen phone cameras recording multiple angles.
Moving on to some of the other aspects of the order, the judge has indicated that Kinetic Impact Projectiles (“KIPs”) and all other non- or less-lethal projectiles may never be discharged to target the head, pelvis, or back and that KIPs and all other non- or less-lethal projectiles shall not be shot indiscriminately into a crowd. These sound great, but in the context of a riot or protest, plausible deniability abounds. The fluid nature of how protesters and police officers are continually moving makes this section irrelevant. In any event, keep your cameras rolling. The ruling also stipulates that body cameras must be on at all times and not blocked. There is no shortage of stories where mysteriously, the body camera has magically turned itself off, right at the most critical moment. More importantly, these recordings are often held back from the public for several months, if not years, after the event has occurred as it is a part of the "official investigation" and cannot be released to the public (for your safety and protection, of course). Again, keep your cameras rolling.
Finally, the order asserts that chemical weapons may only be used after an order to disperse is issued. This is akin to the police yelling STOP RESISTING ARREST as they wrestle someone to the ground or the no knock raid where they are "required" to announce themselves prior to blowing up your residence and shooting you dead at four in the morning (see Duncan Lemp and Breonna Taylor and countless others). This is a weak provision that can be twisted and easily dispensed with, in favor of the police, during court proceedings.
An odd section of the order and what became the primary focus in the news article revolves around the judge pontificating and waxing philosophical with respect to property damage and protesting. This section has no legal ramifications with respect to the order but makes for good fodder for news stories, apparently.
The section reads thusly:
"Plaintiffs do not expressly discuss the potential harm to the public interest. The most likely potential harm is an increase in property damage. Although I do not agree with those who have committed property damage during the protests, property damage is a small price to pay for constitutional rights—especially the constitutional right of the public to speak against widespread injustice. If a store’s windows must be broken to prevent a protester's facial bones from being broken or eye being permanently damaged, that is more than a fair trade. If a building must be graffiti-ed to prevent the suppression of free speech, that is a fair trade. The threat to physical safety and free speech outweighs the threat to property." [emphasis added]
Why take the time to write it specifically to include a private store's window? I'm sure the same standard would hold for a sacred government building? And what does a store's window have to do with preventing someone's facial bones being broken? Police break your facial bone, so you get to destroy someone else's property? You don't seek retribution from the police? What is this madness? In what other context does that apply? You see judge, my enemy over there killed my friend, so I went and killed my neighbor, who had nothing to do with anything. We're good judge, right? Regardless, speech is not violence, when you equate the two, violence will be excused.
It should be clear that I'm not a fan of modern warrior police tactics nor our current police state. The continued militarization of police forces across the country is a detriment to society. The odds are stacked against you if you happen to encounter the police, for the system is set up to protect them, not you. They aren't lying when they say that anything you say can be used against you in a court of law. It's best to say nothing at all. There is no crime so small and insignificant (Eric Garner, George Floyd, among so many others) over which the police won't kill you. This is a reality that we have seen time and again.
Currently, there are calls to defund the police, which sounds great, but there are no proposals to reduce the number of victimless crimes that are on the books. Any replacement force will be stuck enforcing veritable tomes of laws. There are no conversations about the 1994 crime bill proffered by presidential candidate Joe Biden and signed into law by Bill Clinton. There are no conversations about the drug war led by Ronald Reagan and the devastation that these two items have wrought for the last forty years. There have been "major" reforms in the past, such as in the aforementioned crime bill, known as the Violent Crime Control and Law Enforcement Act of 1994, which drastically increased subsidies to local law enforcement and subsequently massively increased incarceration rates. One other provision in the bill required the attorney general to collect data regarding the use of excessive force by law enforcement officers. Sounds great, right? However, two years later, not much collection had occurred and the Justice Department indicated that, "systematically collecting information on use of force from the nation's more than 17,000 law enforcement agencies is difficult given ... the sensitivity of the issue," as conveyed by Jim Bovard in this recent article. Sorry, we tried, but it was just too difficult to track all these killings.
But I digress, when it comes to news coverage and police actions, the press are always eager to please the chief of police and the status quo, lest they not be given priority access the next time they are on the scene of a high profile case. This, of course, is to say nothing of the Orwellian phraseology that is used to describe police atrocities on the nightly news. Think of headlines like the following: The officer involved shooting involved the bullet exiting the weapon and entering the mass of the criminal. Sure, it's a fictional headline, but it's not that much of a stretch.
Here is a more concrete example: Denver police recently fired a literal police officer for an inciteful Instagram post. The news story states that it was three "apparent" police officers. Sigh.
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I do give credit to the author of the news article for one thing in that he did provide a direct link to the judge's order, a rarity these days. Typically, the reader is given links to other stories from the same news service, which in turn leads to other stories from the same news service, which never give the reader the original source material as if to say, "we, the news experts, have read it, we'll tell you what to think about it."
If nothing else, perhaps the legs that this story has grown based on the Twitter headline alone will be a net good, in that despite its weakness in the details, maybe overzealous police departments might see the story and start thinking twice about their policing procedures, but I'm not holding my breath. I don't know. What the heck, leave the order in place, maybe it'll help slightly. Oh wait! Did I forget to tell you that this order is only in place for fourteen days! Back to business as usual in two weeks.
At any rate, below is the text of the order, verbatim, which is found at the end of the document. Again, here's the link to the full document, if you need it.
If you take nothing else from this article, I encourage you to go read the whole thing for yourself and make your own judgement.
ORDER
Plaintiffs’ motion for a temporary restraining order, ECF No. 10, is GRANTED in PART. The Court temporarily enjoins the City and County of Denver, and specifically the Denver Police Department and officers from other jurisdictions who are assisting Denver Police Officers, from employing chemical weapons or projectiles of any kind against persons engaging in peaceful protests or demonstrations. To be better assure that this idealistic order is carried out, the Court temporarily enjoins the Denver Police Department and officers from other jurisdictions working with Denver Police Department officers from using chemical weapons or projectiles unless an on-scene supervisor at the rank of Captain or above specifically authorizes such use of force in response to specific acts of violence or destruction of property that the command officer has personally witnessed.
Kinetic Impact Projectiles (“KIPs”) and all other non- or less-lethal projectiles may never be discharged to target the head, pelvis, or back.
KIPs and all other non- or less-lethal projectiles shall not be shot indiscriminately into a crowd.
Non-Denver officers shall not use any demonstration of force or weapon beyond what Denver itself authorizes for its own officers. Any non-Denver officer permitted to or directed to be deployed to the demonstrations shall be considered an agent of Denver such that Denver shall ensure such officer is limiting their use of force to that authorized by the Defendant.
All officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording at all times, and they may not intentionally obstruct the camera or recording.
Chemical agents or irritants (including pepper spray and tear gas) may only be used after an order to disperse is issued.
Any and all orders to disperse must be followed with adequate time for the intended audience to comply, and officers must leave room for safe egress. If it appears that the intended audience was unable to hear the order, the order must be repeated prior to the use of chemical agents or irritants.