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U.S. District Judge Marco Hernandez tonight handed protesters a partial victory in their effort to force the Portland Police Bureau to stop using tear gas or similar substances for crowd control.
The black activist group Don't Shoot Portland went to U.S. District Court in Portland last week seeking to stop the bureau from using tear gas, CS gas or other aerosol crowd control agents.
Hernandez weighed numerous factors in his decision: protesters' First Amendment rights to free speech; the difficult jobs police face in trying to maintain public safety; the unprecedented complexity COVID-19 adds to large public protests; and "the difficulty in drawing an enforceable line that permits police officers to use appropriate means to respond to violence and destruction of property without crossing the line into chilling free speech and abusing those who wish to exercise it."
As The Oregonian reported earlier, attorneys for the two parties offered oral arguments today. Attorneys for Don't Shoot hoped Hernandez would stop the police from propelling crowd control agents into the air, while attorneys for the city sought to preserve maximum flexibility.
In his ruling, Hernandez split the baby, granting in part the plantiffs' plea for a temporary restraining order but also telling the city it could continue to use tear gas or similar substances—but only in narrowly defined circumstances.
"The Court therefore orders that PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally," Hernandez wrote in his order. "In addition, tear gas use shall be limited to situations in which the lives or safety of the public or the police are at risk. This includes the lives and safety of those housed at the Justice Center."
That probably won't change anything on the streets.
Mayor Ted Wheeler has already ordered the Police Bureau to restrict the use of tear gas to situations where it is absolutely necessary, and it is the bureau, of course, not Hernandez or anybody else, that defines what is necessary.
