Don’t Shoot PDX Lawsuit Says Using Tear Gas On Protesters Is Unlawful

Civil rights group Don’t Shoot Portland and two residents of Portland, Oregon have filed a class action against the city for allowing its police force to use chemical weapons on Black Lives Matter protesters.

Numerous news reports show the Portland Police Bureau has been using tear gas to clear crowds of Black Lives Matter protesters from the city streets.

Don’t Shoot Portland, a local non-profit organization dedicated to social and racial justice, claims this violates the First and Fourth Amendments of the U.S. Constitution.

The plaintiffs also maintain the use of a chemical specifically designed to attack the respiratory system is a form of police brutality, especially due to the threat of the novel coronavirus.

The lawsuit cites Oregon Health and Science University’s president, who said heavy coughing induced by tear gas could accelerate the spread of the virus — and that the damage tear gas does to the respiratory tract can place victims at greater risk of serious complications if they later contract COVID-19.

“We’re out screaming for justice for Black people and asking the state to stop its violence against us, and the City responds by using tear gas when we’re in the middle of a pandemic of respiratory disease,” Teressa Raiford of Don’t Shoot Portland said in an article published by Oregon Public Broadcasting.

Demonstrations have been taking place worldwide since George Floyd, a black man in Minneapolis, was killed by a police officer who knelt on his neck for nearly nine minutes. The incident has sparked a global revolution against white supremacy and police violence towards black people.

The lawsuit states that videos from Portland and all over the nation are showing police responding violently to mostly nonviolent protests against police brutality. This includes, among other tactics, using massive amounts of tear gas.

A focal point of Portland’s protests has been the Justice Center downtown, which houses the Portland Police Bureau’s central precinct and a jail where hundreds of people — disproportionately black, according to the lawsuit — are kept in small cells.

The plaintiffs note that several of the daily protests have led to standoffs in that area, with the police “indiscriminately spraying demonstrators with tear gas while launching aerial munitions into the air above their heads.”

Plaintiff Nicholas J. Roberts says he attended public demonstrations in Portland May 29-31 and June 2 “because he wanted to protest police brutality and the oppression of black people.” All four days, he claims, the police “launched tear gas at peaceful protesters demonstrating against police violence at the Justice Center who were not engaged in any unlawful conduct.”

The other named plaintiff, Michelle “Misha” Belden, says she participated in the June 2 march in downtown Portland to protest police brutality and racism. “Suddenly, there was a flash bang, then tear gas. Everyone started scattering,” the lawsuit reports. Belden was reportedly “trapped between walls of gas, a fence, and lines of police officers. The air was thick with tear gas. They believed the police were trying to kill them. This continued for several blocks until they reached safety.”

According to an article by KATU News of Portland, some city officials agree wholeheartedly that this policy should change. “There should be no reason, ever, for Portland police officers to surround protesters who are exercising their free speech right and then spray them when they’ve done nothing wrong,” said City Commissioner Jo Ann Hardesty.

Hardesty says she and other commissioners are working towards some form of middle ground, but that it will take time. For now, the plaintiffs in this lawsuit are hoping to win an injunction prohibiting the city from using tear gas for crowd control.

“The use of tear gas is, by its very nature, indiscriminate. Everyone must breathe, and anyone who breathes in the area where police have used tear gas will be harmed by the gas,” the plaintiffs maintain. “The city of Portland knew this when it decided to procure the tear gas, arm police with the tear gas, and authorize police to use tear gas in its downtown core on protesters. The city knew that the gas would harm people who were not engaged in any unlawful activity and where [the police] had no probable cause that individuals had committed any crimes.”

The plaintiffs are claiming violations of the Fourth Amendment of the U.S. Constitution regarding excessive force, as well as First Amendment violations of free speech.

In addition to a permanent injunction, they are seeking court fees and other relief as the court deems proper.

One of the plaintiffs’ attorneys, who is director of the Civil Rights Project at the Oregon Justice Resource Center, believes ending police use of tear gas is long overdue, especially given that the Geneva Convention banned wartime use of it decades ago.

“(The law) is meant to restrain an officer from punishing a lot of people at once for nothing,” the attorney told The Oregonian. “And that’s exactly what tear gas is — punishment. For people who are bystanders, for people who are peaceful protesters. There’s no such thing as a good or bad protester when tear gas is flying.”

The plaintiffs are represented by Jesse Merrithew and Viktoria Safarian of Levi Merrithew Horst PC; Juan C. Chavez, Brittney Plesser, Alex Meggitt and Franz H. Bruggemeier of the Oregon Justice Resource Center; and J. Ashlee Albies, Whitney B. Stark and Maya Rinta of Albies & Stark LLC.

The Don’t Shoot Portland Class Action Lawsuit is Don’t Shoot Portland, Nicholas J. Roberts, Michelle “Misha” Belden, et al. v. City of Portland, Case No. 3:20-cv-00917, in the U.S. District Court for the District of Oregon.

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