Behind the Smoke and Tear Gas

June 30, 2020

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PublicSource explores police behavior and legal standards on use of force to help understand the East Liberty standoff between protesters and Pittsburgh police.

The march had been peaceful. One thousand protesters had come together on the afternoon of June 1, looping for three hours around East Liberty, ending under Target’s circular red logo. When Pittsburgh’s wave of Black Lives Matter protests had kicked off two days earlier in Downtown, it had devolved into torched police cars and tear gas. Subsequent protests, including this one, were poised to make the first day the violent exception.

Fewer than 45 minutes later, at the Centre and Negley intersection, a line of police in riot gear faced off with about 100 protesters who had splintered off from Target. Over the course of two hours, police, SWAT officers and state troopers cleared the streets of East Liberty. Their use of force sparked an investigation two days later by Mayor Bill Peduto, who wrote, “[W]ithout question, there is a difference of opinion about what happened that day and the appropriateness of the actions of the Pittsburgh Bureau of Police.”

One thing is certain: there are more complex questions than clear-cut answers arising from the protest.

Some of the many questions surrounding the police response to the June 1 protest may be debated in federal court. On June 29, a coalition of attorneys led by Timothy P. O'Brien filed a lawsuit against the city, Peduto and five public safety officials, alleging the bureau "escalated a peaceful protest into a scene of pandemonium, panic, violence and bloodshed."

The lawsuit, which seeks class-action status, describes the accounts of six protesters, who say they were "gassed," chased, arrested while trying to respect police orders to disperse, and in one case, "shot in the back." It states that officials then sought to falsely justify the response by alleging that protesters first hurled bricks at police.

These allegations connect to a constellation of issues surrounding police use of force that have come to the fore in scores of cities across America rising in sustained protest against the May 25 death of George Floyd at the hands of Minneapolis police.

‘Smoke, not tear gas’

At the close of June 1, the mayor and Police Commander Jason Lando stated at a press conference that “smoke, not tear gas” had been deployed – an assertion that rang hollow with protesters and bystanders with burning eyes, throats and skin. The next day, Public Safety Department spokesperson Chris Togneri hedged this remark, saying it referred only to the munitions initially fired at Centre and Negley. Tear gas had been used in other parts of East Liberty, but he declined to elaborate. 

In a June 23 email to PublicSource, Togneri said the police “have beanbag and sponge rounds” and “does not have or use rubber bullets.” He would not confirm which projectiles were used on June 1, citing pending mayoral and police investigations.

“You're seeing a lot of...sophistry...over what kind of police force is used and when,” said Ekow Yankah, a criminal law professor at Yeshiva University. He noted this “doublespeak” in the NYPD’s denial of using a chokehold on Eric Garner, who had the tragic distinction of coining what has become a protest slogan – “I can’t breathe” – and in the recent dispersal of Black Lives Matter protesters in D.C.’s Lafayette Park to make way for a Trump photo op.

“When...the attorney general...say[s], ‘No, the police didn't tear gas the protesters...they used pepper balls and that's different because [they're] not a chemical agent, they’re a natural irritant, it communicates to citizens a disrespect and willingness to use technicality and not actually address the problem,” Yankah said. “It’s not surprising...the Park Service had to walk those words back.”

Although tear gas and OC/pepper have different chemical make-ups, exposure to them often “feels...the same,” according to David Wright, a 25-year veteran of the Pittsburgh Bureau of Police who retired last year as its chief instructor on use of force and defensive tactics. The type of tear gas most commonly used in America contains the compound CS, he said. Both CS and OC products are chemical irritants that cause burning sensations in the eyes, nose, mouth, lungs and skin.

Wright, who was not at the protest on June 1, suggested the “smoke, not tear gas” statement stemmed from a communication breakdown between various chains of command, adding that operational intelligence can trickle in. “People can mistake smoke for tear gas...but trust me, if you're in smoke and then...[in] tear gas, you're going to notice a big difference,” he added.

Smoke is used more as a “psychological deterrent” in law enforcement and is akin to what one might encounter from a candle or a campfire, causing minor irritation to the eyes and respiratory system. “It’s often a very viable way of getting [large groups] to disperse on the first attempt,” Wright said. “It’s considered a very humane way of getting people to move without [using] an irritant [like] tear gas.”

Wright confirmed that to his knowledge, the Pittsburgh police sources its riot control agents from Combined Systems, the defense manufacturer based in Jamestown, Pennsylvania. Togneri confirmed the bureau “has purchased items from that company in the past.” A wide variety of the company’s CTS-branded products was photographed by news media on the scene, including OC grenades, flashbangs, tear gas and smoke blended with CS. While authorities have not acknowledged its use that night, OC, rather than tear gas or smoke, may explain the strong irritation experienced by some protesters on Centre Avenue.

Less lethal is still lethal

For other protesters, the effects cannot be washed away. A local man, who requested anonymity, had been watching the face-off, leaning against the fence by the Szechuan Spice restaurant on Centre Avenue. The next thing he remembers is waking up briefly in the car of a stranger driving him to the hospital and hearing someone say there was a lot of blood.  His hospital report notes skull fractures and epidural hematoma (bleeding between the skull and the brain).

Considering the force with which he was hit and his location toward the side and back of the crowd, he believes he was struck by a police projectile. It is unclear which type of projectile may have caused his injuries.

Judging from photographs, Wright said the gold cartridges loaded in the orange shotguns shouldered by police at the intersection appeared to be beanbag rounds.

Recent protests across America have seen a combination of what law enforcement terms “less lethal impact munitions” (e.g. beanbags, sponge rounds, rubber bullets, flashbangs) and “chemical munitions” (e.g. smoke, OC/pepper products, tear gas).

Wright said chemical munitions are generally deployed to disperse a large group, while less lethal projectiles single out “riotous behavior of specific individuals.” For the latter, police are trained to strike Zone 1 of the body — below the waist excluding the groin. Zone 3, which comprises the head, chest, neck and spine, “carries the greatest potential for serious...or fatal injury and should be avoided when possible – that would be using [the round] in a deadly force manner.”

While he said the police are well-trained, Wright acknowledged the potential for “human error,” noting many possible factors behind the Centre and Negley shooting. For example, unexpected movement by the intended target could have cleared the way for a bystander to be hit.

“All of those things can kill,” said University of Pittsburgh law professor David Harris, an expert on police behavior and racial profiling. “It's a question of using them properly and with appropriate restraint. Just because they're called less lethal doesn't mean they're not dangerous.” He cited the 2004 case of Victoria Snelgrove, a bystander fatally shot in the eye with a pepper projectile, as Boston police acted on rioters after a game at Fenway Park.

‘Objectively reasonable’ use of force

In his letter ordering an investigation, Peduto specifically inquired about the times and locations of tear gas use, and the identities of the officers who had requested and approved the “switch from smoke.”

After the 8:30 p.m. curfew had passed on June 1, this reporter witnessed an officer near Target firing a canister of what appeared to be tear gas next to a protester to subdue and arrest him. The young man was engulfed in a cloud, screaming on the ground while two officers tied his hands behind his back.

“When verbal commands are no longer working, then you would act,” Wright said. “I don’t ever like Monday morning quarterbacking... If...I would choose to go with pepper spray and [another officer] would choose to go with CS, that's still going to be right around the same levels in many ways. I’m always going to give the officer the benefit of the doubt...Officers are required by law to use what is referred to as objectively reasonable force.”

“There's a lot of slack in that definition [of objectively reasonable], and it's generally favorable to police. It's one of the reasons why that use of force law is starting to change.”

Wright is pointing to the 1989 Supreme Court ruling in Graham vs. Connor that established a standard of “objective reasonableness” in police use of force.

Harris, who had watched a similar arrest earlier that night via live TV coverage, said it “raises some red flags.

“Do you really want police officers using toxic gas as a weapon not to just move people...but actually to disable them for arrest?...But the argument on the other side would be...‘Should you hit them with a club...?’”

Harris said the question of whether subduing a single person with tear gas constitutes excessive use of force was a matter for the courts.

“There's a lot of slack in that definition [of objectively reasonable], and it's generally favorable to police,” he said. “It's one of the reasons why that use of force law is starting to change.”

After Antwon Rose II was fatally shot in 2018 by an East Pittsburgh police officer when running from a traffic stop, state legislators proposed a bill to amend Pennsylvania law to permit officers to use deadly force only against a person whom they reasonably believe poses imminent harm to them or others. The two-year anniversary of Rose’s death on June 19 prompted new calls to champion House Bill 1664.

Qualified immunity

The real question is not whether the police can do something, but subsequent to the event, how to handle it in court, said Lenese Herbert, a former assistant U.S. attorney and criminal law professor at Howard University. The courts are the only avenue for redress, although an ordinary citizen lacks the resources to pursue a contentious lawsuit.

“Our system is set up for [the police] to win and to win handily, so much so that...to challenge the police is really an endeavor,” she said. Citizens seeking legal redress against excessive force by a police officer would file a Section 1983 civil action, alleging a state employee’s violation of their constitutional rights. The federal analog is the Supreme Court’s 1979 “Bivens” ruling, which allows individuals to sue for violations of their Fourth Amendment rights by federal officers.

Section 1983 and Bivens suits are often met with a defense of police officers invoking the qualified immunity doctrine established by the Supreme Court in 1961. The doctrine affords them significant discretion to prevent frivolous civil lawsuits.

“The concept of discretion is so significant …[that it] trickles down to the granular, micro levels of the police departments, the chiefs and the supervisors on scene,” Herbert said. “That discretion will always be couched in terms of public safety, threat to property or threat to life or limb.”

“Our system is set up for [the police] to win and to win handily, so much so that...to challenge the police is really an endeavor.”

The status quo that “we shouldn't ‘Monday morning quarterback’ law enforcement” because their decisions are made in quickly-unfolding scenarios amounts to a “refusal to...hold them to any other standard than [what] they themselves set,” she added.

Plaintiffs not only face the hurdle of broad discretion that qualified immunity affords the police. They must also prove their violated right was “clearly established” in practice, such that it would be known by a reasonable officer. This requirement seems straightforward, but Herbert said it is anything but.

Under the premise of qualified immunity, officers are reasonably exercising discretion when using tactics that are part of their training, the police union’s understanding or national law enforcement practices, Herbert said. Uses of force that might not be covered by qualified immunity would thus involve an officer flagrantly violating departmental policy or legislation.

However, a standard set by police policies or legislation is not necessarily “clearly established” per qualified immunity. New York’s ban on chokeholds following Floyd’s death, coupled with Trump’s executive order against the tactic, offers the public a false sense of comfort, Herbert argued. Inconsistent implementations of new rules at the state or precinct levels would mean the ban is not “clearly established.” And as Trump’s executive order bans chokeholds unless an officer perceives their life is at risk, Herbert argued it is “standard-less.”

The government will often settle civil rights suits against the police to avoid court. Herbert noted that the taxpayer dollars used to pay settlements are typically left out of discussions about defunding the police, despite running into the hundreds of thousands or even millions annually, depending on the jurisdiction.

From lawful to unlawful

On June 1, this reporter left the peaceful march shortly after it ended, but witnessed the face-off forming just more than half a mile away between police and the splinter group of 100 protesters at Centre and Negley. She heard the police deliver six warnings within 10 minutes, declaring the group had formed an “unlawful assembly” and must “immediately disperse” before they fired ‘smoke not tear gas.’

What transpired in the intervening half hour when this reporter had stepped away, shifting the protests from lawful to unlawful? While some protesters did throw plastic water bottles and rocks at the police, this reporter saw that activity begin after the first warning to disperse had been given. (This timing is likely still up for debate in the mayoral and police investigations and the federal lawsuit).

News reports indicate that after the march had ended, a few protesters had broken the windows of a bank and shoe store by Target. These one-off incidents were quickly contained. Could they nevertheless be grounds for clearing all protesters from all of East Liberty?

“There's a fine line when lawful assembly becomes unlawful,” Wright said, meaning that someone may start to impede people’s movement, stop traffic, destroy property, endanger lives or throw things at the police. “When you cross that line, there’s no going back [to lawful].”

Yankah posed the question of whether the police response was necessary, not just “reasonable,” per the legal minimum. “When police say, ‘We had no choice but to react in this way...’ it often ignores...that the spots of violence are quite small [and] contained,” he said. “It is often the case that it’s police action that takes...combustible situations and ignites them.

“The core truth is police officers have incredibly wide discretion as to what and when they’re going to declare unlawful behavior...Discretion is the better part of valor, and thoughtful policing would be, ‘There's no current danger...we should let this run its course.’”

The future of reform

While Yankah said it’s too soon for optimism, he has been impressed by the “broad,” “interracial” and “sustained” protests sweeping the country, and hopes they have staying power, at least until the November presidential election.

Herbert said the “historically accurate understanding is...[the police are] working exactly the way it was always to work. It's just being made more public.” While the footage of Floyd’s death is not the first time police officers have been filmed using excessive force to kill a Black man, she said it made the general public feel complicit because it was much longer and more graphic: “You could literally see his life leaving.”

The outcry has led to “more movement on police reform and even more questioning about the need for [it] in these last few days...than there’s been in decades.”