“I do solemnly swear . . . that I will support and defend the Constitution of the United States . . . and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”1
“[We]’re gonna start gassing people; start pepperballing. We’re not gonna mess around; they’re gonna move.”2
Introduction
In the wake of the murder of George Floyd, citizens across America launched mass protests that were mirrored around the world.3 Civil society sought to bring attention to the systematic killing of Black and Brown individuals at the hands of police officers and to the lack of accountability that these tragic events have been met by.4 Angry, frustrated, and feeling defeated, protestors took to the streets to chant “Black Lives Matter,” “no justice, no peace,” and “defund the police.”5 In response, police departments met these largely peaceful denunciations of police brutality with the very force being protested.6 Departments responded with tear gas, pepper spray, rubber bullets, and mass arrests—making no distinction between rioters, peaceful protestors, medical staff, legal observers, or journalists.7
Unfortunately, this is not the first time there have been mass attempts to quell the First Amendment rights of citizens in America, particularly the rights of citizens from marginalized communities.8 From Ferguson to Standing Rock, back to the civil rights movement, American police departments have met the exercise of free speech by Black and Brown bodies with the use of force.9 Law enforcement agencies, equipped with military-grade gear, and the frequent calling in of the National Guard are increasingly turning the nation’s streets during protests into something that resembles a battleground.10 Yet, in actual armed conflict, under the laws of war, the United States military is prohibited from using chemical weapons and riot control agents (RCAs) against enemy combatants.11 So why are police officers allowed to use them against our own nationals outside of armed conflict?
The use of chemical agents during demonstrations has a chilling effect on free speech that disproportionately affects minority communities. As such, Congress should pass a statute prohibiting law enforcement from using RCAs against protestors and creating special protections for neutral individuals such as medical aides, journalists, and legal observers.12 Alternatively, states should take it upon themselves to pass legislation to the same effect, given the federalism concerns raised by this Note’s proposal.13
Part I of this Note details the history of the increased militarization of American police forces, the protections offered by the laws of war that the police are not bound by despite their growing paramilitary nature, and the harm caused by chemical agents.14 Part II analyzes how the disparity between the laws of war and domestic laws leaves those seeking to exercise their right to dissent vulnerable to First, Fourth, and Fourteenth Amendment violations.15 Part III proposes how legislators can tackle this pressing issue.16
I. Background
A. The “War on ___” Rhetoric
Congress has historically enacted protections against the use of military forces in civilian law enforcement.17 However, the spirit of existing protections has increasingly been circumvented through a number of loopholes.18 For example, states have the ability to call upon the National Guard after declaring a state of emergency,19 the federal government has the ability to deputize certain federal agents to “protect federal property” during demonstrations,20 and local police departments have increasingly gained access to military-grade weapons.21 While the former two acts—invoking the National Guard and deputizing federal agents—present their own constitutional challenges to the right to dissent,22 this Note mainly focuses on the increased militarization of state police.23
1. How Congress Militarized the Police
The growing parallel between American soldiers and state police has been caused by a number of congressional acts and federal programs that began in 1990.24 In 1990, Section 1208 of the National Defense Authorization Act paved the way for local police departments to gain access to the Department of Defense’s (DOD) surplus military equipment.25 In fact, the DOD has transferred over $4.3 billion of property to state police since 1997 under the rationale of preparing the departments for the “war on drugs” and the “war on terror.”26 The $4.3 billion has been distributed among more than seventeen thousand federal and state law enforcement agencies across the United States.27 Other agencies, such as the U.S. Defense Logistics Agency Disposition Services,28 also issued half-a-billion dollars worth of property to local departments through the DOD’s 1033 program in 2013 alone.29 Another program, 1122, also allows departments to obtain DOD equipment at subsidized rates.30 Under the 1033 and the 1122 programs, local police departments have gained access to “humvees, mine-resistant ambush-protected (MRAP) vehicles, aircraft[s] . . . , sniper scopes and M-16s.”31 Essentially, our police departments have gained the ability to walk (or roll) around American streets in the gear the U.S. military used in war-torn zones like Afghanistan.32 As a predictable—but deeply troubling—result, the use of militarized police units has become the normalized response to prolonged periods of protest.33
2. Access to All of the “Toys” Without the Restrictions
Access to the DOD’s gear has caused many police officers to lose sight of their roles as public servants who are tasked with protecting public safety, rather than as soldiers who are tasked with exerting dominance and control and neutralizing combatants.34 Evidence suggests that the mere availability of militarized weapons incentivizes their use in situations that do not call for their level of force.35 The lack of significant public oversight of the grant programs that have given birth to the phenomena, and the lack of substantial requirements from the agencies that receive the grants, have further exacerbated the potential for the abuse or misuse of the weapons.36 While police departments are reportedly prohibited from selling the equipment and are asked to maintain records of any equipment transfers,37 the DOD is not required to report the impact or the effectiveness of transferring military equipment to local law enforcement to Congress.38
In 2015, in an ongoing effort toward reform, the Ferguson Commission criticized the police response to the protests that followed Michael Brown’s death.39 The Commission recommended that “the state . . . cease providing, and local departments . . . cease using, militarized weaponry that does not align with a use of force continuum that authorizes only the minimal amount of force necessary.”40 Nonetheless, little improvement has been made in the area.41 Following the Commission’s recommendations, President Barack Obama issued Executive Order 13688, creating a working group that would oversee the weapons being supplied to local agencies, the weapons’ use, and the training of agents who received them.42 The working group created a list of weapons that it believed should not be supplied to local agencies given the weapons’ militaristic nature and the propensity for their overuse and misuse.43 Nevertheless, Obama’s order was plagued with loopholes and proved an insufficient remedy to deal with the problem.44 More importantly, any success the executive order may have had in curbing the use and acquisition of military-style weapons by local police agencies was short-lived—the order was repealed by former President Donald J. Trump in 2017 via Executive Order 13809.45
The absence of guidelines is further reflected by the lack of parallel between the restrictions faced by the American military in combat and those faced by our police departments in domestic law enforcement. Despite increasingly obtaining military-level capabilities, our police departments have not altered their rules of engagement to match the rising level of force they are capable of exerting.46 Furthermore, while police departments have gained access to military weapons, they have not concurrently been held to the same standards or trained to the same degree as the military.47 For example, the armed forces have very precise regulations regarding the use of force, de-escalation, and who can legally be targeted.48 Moreover, the armed forces must strictly adhere to the laws of war, which police departments are not bound by.49 If our police departments are going to confront dissent in full armored gear, reflecting an intrinsically problematic perspective that facing protestors critical of the police resembles going out to battle,50 should they not be held to the same standards as the military? Should nationals in peace time not, at the bare minimum, receive the same protections civilians and combatants receive under the rules of “real” war?51
B. The Rules of [Real] War52
1. The Chemical Weapons Convention
In armed conflict, jus in bello, prohibits the use of riot control agents against combatants.53 After the horrors of World War II, members of the international community gathered in an effort to restrain the use of chemical weapons in combat and created what came to be known as the Chemical Weapons Convention (CWC).54 It would take almost a decade of treaty negotiations, but the convention finally opened for signatures in 1993 and entered into force in 1997.55 Currently, 193 states are parties to the convention,56 including the United States, which ratified the treaty on April 24, 1997, with a Senate vote of 74-26.57 While the United States only ratified the CWC as a non-self-executing treaty,58 Congress promptly implemented the convention through legislation.59 In 1998, Congress passed 18 U.S.C. § 229—the language of which largely mirrors the CWC’s text.60
2. For All Mankind, Except . . .
“Determined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons,”61 the CWC requires signatory parties to destroy a select list of weapons and to allow for inspections to ensure compliance.62 However, although the treaty opens with such a bold declaration, past its preamble, the CWC quickly fails to cover “all mankind” and to “exclude completely” the use of chemical weapons.63 While the treaty-making body acknowledged the horrors of using chemical weapons against individuals in seeking to outlaw their use in war, the parties did not extend this protection domestically.64 The CWC explicitly permits the use of riot control agents for law enforcement purposes.65 Domestically, 18 U.S.C. § 229 mirrors the treaty. Section 229 outlaws the use and retention of chemical weapons by ordinary persons,66 but exempts law enforcement from its restrictions.67 The CWC furthermore does not require states to report their stock or use of RCAs for law enforcement purposes, wasting a great opportunity to create or retain some level of oversight over the practice.68
Although there are still open questions about the full scope of the law enforcement exception within the CWC,69 experts largely agree that the CWC’s language concerning RCAs and law enforcement was specifically designed to allow domestic police forces to continue their use of RCAs in crowd control uninterrupted.70 In fact, in the transmittal package sent to Congress prior to the treaty’s ratification, then-President Bill Clinton sought to make clear that law enforcement would continue to be permitted to use RCAs under the treaty.71 The U.S. Naval Handbook also adopted the exception.72 Essentially, the negotiating nation states exempted domestic police activities from the CWC, placing state sovereignty and the policing of their own territories above individual rights.73 Whether it was strategic to exclude law enforcement in the treaty is beyond the scope of this Note, as there are questions regarding whether consensus could have been achieved among the drafting nations without such exceptions.74 Nevertheless, the United States can always extend protections above those required by the treaty.75 Domestically, the CWC, like the U.S. Constitution, can, and should, only serve as a floor to the full extent of rights guaranteed to individuals.76
C. Chemical Weapons
1. Toxic Romance: The United States & RCAs
Unfortunately, the United States has a long history of wanting to hold on to the use of RCAs.77 Before the creation of the CWC, the United States was a party to its predecessor, the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.78 Even then, the United States resisted the treatment of tear gas as a chemical weapon.79 In 1930, after finding a discrepancy in the French and English versions of the Protocol, the United States declared that the Protocol did not prohibit the use of tear gas, directly in opposition to the assertions of France, the United Kingdom, and eleven other nations.80 Then–Secretary of State Dean Rusk asserted that the United States was not engaged in chemical warfare in Vietnam because tear gas was not prohibited by the 1925 Geneva Convention and did not constitute what was typically understood in reference to the “use of gas.”81 In 1969, the U.N. General Assembly sought to settle the matter through Resolution 2603A, which definitively declared that tear gas was included in the Protocol.82 It would consequently take fifty years for the United States to become a party to the Protocol—President Ford finally signed the treaty in 1975.83
While the issues regarding the proper interpretation of the 1925 Geneva Convention were resolved, and the CWC did not leave room for such ambiguities, the dialogue between the United States and its counterparts in the intermediate period demonstrates the United States’ long-standing resistance in acknowledging the harm caused by these chemical agents.84 However, the U.S. view runs counter to the medical data.85 Tear gas and other RCAs do not just make you cry; they have serious short- and long-term effects.86
2. Tear Gas Doesn’t Just Make You Cry
RCAs, rubber bullets, bean bag launchers, and the like, are often referred to as “non-lethal”87 weapons, but this is a misnomer.88 RCAs, which include tear gas (CN or chloroacetophenone gas), CS (2-chlorobenzylidene malononitrile) gas, pepper spray (OC or oleoresin capsicum), and other irritants that cause tears (lacrimators) or coughing and sneezing (sternutartors),89 are deployed in various forms including as bombs, spray tanks, and grenades.90 Despite their unique attributes, all RCAs seek to cause pain to the nearby person’s eyes, skin, mouth, lungs, and nose in an effort to subdue, incapacitate, and assert control over them.91 The Center for Disease Control notes that exposure to large doses of RCAs can lead to blindness, glaucoma, respiratory failure, and chemical burns to the throat and lungs.92 Additionally, the use of RCAs on particularly vulnerable populations, such as individuals with respiratory illnesses or pregnant women, can be especially dangerous,93 possibly leading to miscarriages in the case of pregnant women.94 Even the deployment of the agents themselves can be dangerous when improperly done.95 An RCA projectile deployed from a grenade launcher can create shrapnel and can even penetrate wood.96
II. Analysis
A. The Use of RCAs Is Antithetical to Individual Rights
Beyond the serious health effects of RCAs, the use of RCAs against protestors is constitutionally problematic due to their inherent indiscriminate nature.97 RCAs, once deployed, cannot be controlled and do not discriminate between rioters, peaceful protestors, and those who are merely bystanders98—assuming that the officer deploying them initially even attempted to do so.99 As such, this Part explores why the breach in protection to civilians via the CWC frequently presents a challenge to individuals’ First, Fourth, and Fourteenth Amendment rights.
The use of RCAs has not been limited to the demonstrations that took place during the summer of 2020.100 As previously stated, the indiscriminate use of RCAs has been a long-standing practice in the United States.101 In the summer of 2020 alone, however, there were voluminous reports of police officers using chemical agents as crowd dispersal tools against peaceful protestors.102 Police were documented deploying tear gas without giving demonstrators any warning or opportunity to leave the area.103 Police were also documented throwing flash-bang grenades and blast balls—explosives filled with pepper spray—into crowds where there was no specific imminent threat of harm against the officers and where they had no clear target.104 Similarly, videos surfaced showing police lowering the masks of demonstrators—worn to protect them from the COVID-19 pandemic—to spray their faces with RCAs.105 As such, individuals and civil rights organizations across the nation filed numerous lawsuits against police departments for retaliation under the First Amendment and excessive force under the Fourth or Fourteenth Amendment.106
1. “Gas and Run”: The First Amendment
The First Amendment, incorporated by the Fourteenth Amendment’s Due Process Clause,107 protects citizens’ rights to free speech, to free press, to peaceful assembly, and to petition the government to redress their grievances.108 As such, citizens have the right to participate in demonstrations in public forums such as streets, parks, and sidewalks.109 The right cannot be abridged simply because an individual is protesting against an unpopular view, such as protesting against the police.110 The Court has consistently held that restrictive views of speech are incompatible with the Constitution as they amount to a standardization of ideas by the party seeking to impose such a view.111
When confronted with a protest in a public forum, police should not order a crowd to disperse, unless there is a “clear and present danger” of a disorder or some other form of threat to public safety,112 “far above public inconvenience, annoyance, or unrest.”113 Speech, likewise, cannot be suppressed for fear that some trivial harm may result from it, including some violence or destruction of property.114 Once an order to disperse has been issued, police must give protestors an opportunity to comply with the order before they begin to arrest participants or use other methods of dispersal, such as chemical agents.115 As previously mentioned, the police have not been adhering to the aforementioned constitutional requirements.116
RCAs have facilitated the police’s violations of these constitutional requirements by making it far easier to incapacitate protestors and to force them to retreat, even when the police do not have a legal right to disperse them. The RCAs have also aided police departments in their efforts to respond to protests decrying their acts with a disproportionate amount of force compared to demonstrations against other causes.117
Beyond protecting individuals’ rights to speech, the First Amendment also prohibits officials from retaliating against individuals for exercising their rights.118 In order to allege a retaliation claim, an individual must prove, among other things, that there is a causal connection between the actor’s “retaliatory animus” and the plaintiff’s injury, i.e., that the injury was caused as a direct result of the defendant’s retaliatory motives.119 In the case of protestors, the causation that must be shown is that, but-for the officer’s animus towards demonstrations decrying police brutality, the officers would not have sought to abridge the protestors’ First Amendment rights. The plaintiff must show that the police would not have sought to disburse peaceful gatherings without a clear or present danger and would not have attempted to do so without warning or through the use of force, including RCAs. A number of courts have found that certain plaintiffs have sufficiently demonstrated retaliatory intent as to warrant a grant of a temporary restraining order against the police.120 Courts have also found that evidence showing police officers using RCAs against individuals who are not engaged in unlawful activity has exhibited intentional targeting, which has demonstrated a retaliatory intent.121 Again, the availability of RCAs has facilitated the police’s ability to retaliate against demonstrators.
2. Can’t Breathe: Excessive Force Under the Fourth & Fourteenth Amendments122
The Fourth Amendment protects an individual’s right to “be secure in their persons . . . against unreasonable searches and seizures.”123 A “seizure,” per California v. Hodari D., only occurs when there is a “laying on of hands” or the “application of physical force to restrain movement,” or a “submission to the assertion of authority.”124 Consequently, the Fourth Amendment also protects individuals against the use of excessive force during “seizures.”125 To determine whether an officer’s use of force is “excessive” a court must determine whether the force used was objectively unreasonable “in light of the facts and circumstances confronting [the officer], without regard to [the officer’s] underlying intent or motivation.”126 The inquiry requires courts to look at each case individually and assess “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”127 The court must also weigh the nature of the intrusion on the individual’s Fourth Amendment rights against the government’s interest at stake.128 Courts tend to be very deferential in these cases, citing that police officers need to make a number of “split-second judgments” in stressful, high-stakes situations.129
The use of RCAs against peaceful protestors in the frequently employed “gas and run” techniques do not comport with the reasonableness standard required by the Fourth Amendment.130 Because of their indiscriminate nature, RCAs apply the same level of force against all nearby persons, instead of allowing for individualized threat assessments.131 The level of force, therefore, frequently does not equate to—and often exceeds—the level of force actually needed against specific individuals.132 When used without a specific target, RCAs raise the risk, not only that peaceful demonstrators and bystanders will be illegally gassed, but also that the projectile used to deploy the RCA will injure a person.133 When used with a specific target, the risk of serious injury is equally as high, or even higher; depending on the level of misuse.134 The gravity of the harm RCAs cause, the capacity for their misuse, and the propensity for such misuse support the conclusion that RCAs cause far greater harm and trauma than can be justified by the level of any threat posed by the majority of individual demonstrators during many of the cited protests.135
As aforementioned, for there to be a Fourth Amendment violation, there must first be a “seizure.”136 However, in the context of protests, force is often used for crowd dispersal purposes, rather than to effectuate an arrest.137 As such, seizure, as defined in Hodari D., may mean that an act such as deploying a tear gas canister against a crowd of demonstrators for the purpose of forcing them to disperse—and which also does not result in a submission to detention—may not invoke the Fourth Amendment.138 In instances of use of force in crowd dispersals, the use of force may instead be governed by the Due Process Clause of the Fourteenth Amendment.139
When only the Fourteenth Amendment applies, allegations of substantive due process violations are evaluated under a “shocks the conscience” standard.140 In order to meet the requirements for a due process violation, the plaintiff must show that the officer acted with an intent to injure an individual in some way that cannot be justified by any governmental interest—there must be a deliberate attempt to deprive an individual of life, liberty, or property.141 The Court has fashioned “shock the conscience” to ward against only “arbitrary” government actions that constitute the most “egregious” of official conduct.142 The Court has also noted that the Fourteenth Amendment is not meant to supplant tort law—in the case of the use of RCAs, negligence or battery.143 While there existed a conflict among the circuits regarding whether the “shock the conscience” standard required a subjective or an objective standard, the Court settled the matter in Kingsley v. Hendrickson.144
In Kingsley, the Court declared that in order for a plaintiff to prove a substantive due process violation of excessive force, the plaintiff does not need to prove the defendant’s state of mind, although a showing of maliciousness can factor into the analysis.145 A plaintiff is only required to show that the force “purposefully or knowingly” used against them was “objectively unreasonable.” To determine if a use of force is “objectively unreasonable” the trier of fact can consider: the relationship between the need for force and the amount of force used; the extent of the resulting injury; any efforts made to temper or limit the amount of force used; the threat reasonably perceived by the defendant; the severity of the security problem at issue; and whether the plaintiff was actively resisting. Prior to the shift in standards, proving that an officer meant to deliberately cause injury to a particular protestor by shooting a canister into a crowd was a difficult feat, as RCAs, when used to disperse crowds, are often not used with an intent against any one specific target. However, there remain open questions amongst the circuits regarding the application of the Fourteenth Amendment to the use of force in crowd control contexts.146 As long as the uncertainty remains, substantive due process may be a poor fit for protecting the rights of individuals at demonstrations when RCAs are used against them—leaving individuals vulnerable as a result of the inconsistency between the purpose of the CWC and its law enforcement exception.147
3. I See Neon Green: Legal Observers, Journalists & Medics
“Neutral” parties such as legal observers, journalists, and medics have not been spared from the threat of RCAs.148 Police officers were documented arresting legal observers and journalists, shooting flash-bang canisters directly at them and using pepper spray on medics during the protests of the summer of 2020.149 Whether these individuals currently have any more legal protections against having to comply with an order to disperse than any other individual present at a demonstration remains undecided.150 However, meeting the legal threshold to use chemical agents against these individuals becomes even more difficult.151 These individuals do not directly “participate” in the demonstrations so as to make way for any plausible claim that they presented a danger to the public or the police.152 Legal observers, known for their neon green hats, are trained by organizations like the National Lawyers Guild to simply observe demonstrations and document any improprieties.153 Legal observers do not mix with demonstrators, they do not participate in any sort of chanting, do not confront the police, and are not present at demonstrations to support any particular cause, save for the rule of law.154 Journalists, similarly, are present at demonstrations—donning their press passes—as observers.155 Medical staff members have increasingly begun to attend demonstrations as well, to offer aid to protestors in need, including treating individuals who have been subjected to chemical agents.156
Not only do legal observers, journalists, and medics, in their professional capacities—like peaceful protestors—not present a threat to public safety, they are all distinctively identifiable by the police—such that any argument that the police may have mistaken them for anyone else who was engaging in a violent act becomes very difficult to sustain.157 Documenting police misconduct is not illegal.158 Offering medical aid to a person in need who is lawfully present in a public forum is not illegal. Without legal cause to disperse or use chemical agents against neutral parties, police engagement in either act is a violation of their First, Fourth, and Fourteenth Amendment rights.159 Even in situations where these individuals may be in the vicinity of others who may be engaged in unlawful acts, the police must engage in an individualized threat analysis before deploying any RCA against them.160 As the Court has noted in NAACP v. Claiborne Hardware Co., citizens retain their constitutional right to associate, even when certain members of a group may have participated in or advocated for conduct that is not itself protected.161 Nevertheless, various journalists reported ceasing to cover the events of the summer of 2020 for fear of being injured by the police—the journalists’ speech was effectively chilled by the use of RCAs.162 Coincidently, under the laws of war, targeting a medical staff member or a journalist is a violation of international humanitarian law.163 Hence, even in the most tumultuous of scenarios, such an act is considered egregious.164 If Congress is to give any effect to the First Amendment, it should follow suit and extend extra protections to these individuals.165 Legal observers, journalists, and medics are an integral part of ensuring that the rights and safety of others, as well as the rule of law, continue to be protected.166
III. Proposal
Courts have acknowledged the dangers of the use of RCAs against protestors and have issued a number of temporary restraining orders against their use.167 However, courts cannot put an end to this practice ad hoc.168 Congress needs to take action through the enactment of legislation. Naturally, given that law enforcement is quintessentially a function of local state government, this Note’s proposal may present Tenth Amendment concerns.169 Part III explores how Congress can pass legislation banning the use of RCAs against protestors without violating the Tenth Amendment. This Part goes through the challenges of using the treaty-making power as well as the possibility of using the Spending Clause,170 while acknowledging the obstacles that South Dakota v. Dole, National Federation of Independent Business v. Sebelius, and the anti-commandeering principle present.
A. Resistance in the Courts: Why It Isn’t Enough
After numerous incidents of forced crowd dispersals through the use of chemical agents during the summer of 2020, some demonstrators turned to the courts to request temporary restraining orders (TROs) against police departments.171 TROs, however, are not courts’ preferred method of remedy.172 As such, anyone requesting an order carries the burden of showing: (1) the likelihood of success on the merits; (2) the likelihood that irreparable harm will occur in the absence of preliminary relief; (3) that the balance of hardships tips in their favor; and (4) that a TRO is in the public’s interest.173 While not all courts have been open to the idea of granting TROs, some courts have issued orders.174 Nevertheless, the orders have had limited success in curbing the actual use of chemical agents.175 The case of Black Lives Matter Seattle-King County v. City of Seattle is an excellent example of why turning to the courts is not a sustainable solution.176
1. Case Study: Black Lives Matter Seattle-King County v. City of Seattle
In Seattle, the protests following George Floyd’s death began on May 29, 2020.177 The Seattle Police Department (SPD) responded to the demonstrations of grief by firing tear gas and flash-bang grenades and by beating protestors.178 Two days later, Seattle Police Chief Carmen Best formally approved a request to authorize the use of tear gas on protestors.179 On June 5, Mariko Lockhart, the city’s director for the Office for Civil Rights, issued a statement denouncing the police’s use of chemical agents, stating that the city leadership feared for its safety—not as a result of the protestors, but as a result of the police.180 The Seattle Community Police Commission (CPC), Office of Inspector General (OIG), and Office of Police Accountability (OPA), similarly issued a joint memorandum citing concerns over the use of CS gas on protestors and asking that the SPD cease its use until proper oversight could be established and written into SPD policy.181 In response, the City of Seattle finally announced that it would temporarily cease its use of tear gas on demonstrators, but it excluded flash-bang grenades and pepper spray from the order.182 Despite the city’s order, however, SPD resumed using tear gas, reportedly engulfing an entire city block just three days later.183 In response, on June 9, the ACLU of Washington filed a motion for a TRO against the City of Seattle and the SPD on behalf of Black Lives Matter (BLM) Seattle-King County and several other plaintiffs.184 The motion sought an order enjoining the city from “the indiscriminate use of less-lethal [weapons] on peaceful demonstrators.”185
On June 12, Judge Jones of the U.S. District Court for the Western District of Washington granted plaintiffs’ request for a TRO in part.186 Finding that SPD had “used [chemical agents] disproportionately and without provocation,” Judge Jones enjoined the Seattle Police Department from “employing chemical irritants or projectiles of any kind against persons peacefully engaging in protests or demonstrations. . . . includ[ing]: (1) any chemical irritant . . . and (2) any projectile such as and including flash-bang grenades, ‘pepper balls,’ ‘blast balls,’ rubber bullets, and foam-tip projectiles.”187 However, the order would not mark the end of the legal struggle.188
On June 26, the Seattle City Council passed an ordinance banning the use of RCAs—to take effect on July 26.189 Disgruntled, Mayor Jenny Durkan and Chief Best responded by filing a notice with the court to enjoin the ordinance, which the court subsequently denied.190 As if there were not enough parties involved, the DOJ responded by filing its own TRO seeking to enjoin Chief Best’s directive giving effect to the city’s ordinance.191 Finding that “[t]he issuance of this immediate change, without time for additional direction or training, is likely to result in officer confusion,” Judge Robart granted the DOJ’s TRO in United States v. City of Seattle.192 Judge Robart enjoined the directive and postponed the date when the ordinance would take effect until the ordinance could be reviewed under the terms of a consent decree that was entered into by the city of Seattle and the DOJ in 2011.193 Nevertheless, Judge Robart’s order left the TRO from BLM v. City of Seattle intact.194 SPD seems to have missed the latter part of that memo.195
On July 27, BLM filed a motion for contempt, alleging that, only a day after the court granted the DOJ’s TRO, SPD trampled journalists, maced medics, used chemical agents against protestors, and shot legal observers at close range.196 Judge Jones subsequently granted an order clarifying and expanding BLM v. City of Seattle’s original TRO,197 but the struggle continued. BLM filed another contempt motion on September 30, following the use of chemical agents on four more separate occasions.198 This time, Judge Jones found that SPD’s response to the protests during those four days had been more “targeted,” “proportional,” and “restrained”; for example, no use of tear gas was reported.199 However, he also declared that the court could not ignore the clear violations of the TRO that had occurred during those four days and granted the motion in part and denied it in part.200
As of August 2021, both the BLM v. Seattle and the United States v. City of Seattle cases are ongoing.201 After over a year of motions, litigation, demonstrations, and countless uses of chemical agents, all that the BLM v. Seattle plaintiffs obtained is a repeatedly violated TRO and an order sanctioning the city of Seattle with $81,997.13 in attorney’s fees—a small solace for those protestors, medics, legal observers, and journalists who have participated, and seek to continue to participate, in demonstrations in the city of Seattle.202 Yet despite its mixed results, the BLM v. Seattle case presents one of the better case scenarios. The court granted the TRO, numerous individuals in the government spoke out against the use of chemical agents, and the city even sought to pass an ordinance banning its use.203 Nevertheless, none of it was enough to seriously curtail the use of chemical agents by SPD or to protect the rights of those present in the demonstrations.204 BLM v. Seattle presents a “better case scenario” because often the enormity of the burden imposed by TROs and the general deference shown to law enforcement within the legal system makes TROs difficult to obtain at all.205 Yet, even when they are granted, as demonstrated by this case, they are but a mere “band-aid” to the problem—and a temporary one by nature.206 As such, TROs—although they currently serve as the first, and often only, line of defense in protest cases—are an impractical and inadequate solution to the use of chemical agents on demonstrators.207
B. Enter Article I: How Congress Can Solve the Issue
1. The Treaty-Making Power
Traditionally, Congress can pass legislation to implement an international agreement, such as the CWC, through its treaty-making powers. In Missouri v. Holland, the Supreme Court declared that “if [a] treaty is valid there can be no dispute about the validity of [a] statute [implementing it] under Article I, § 8, as a necessary and proper means to execute the powers of the Government.”208 Hence, the Tenth Amendment provides no bar to such legislation; Congress need only stay away from enacting legislation that violates “prohibitory words” in the Constitution.209 However, while a ban on the use of riot control agents against protestors would not violate any prohibitory words in the Constitution, as aforementioned, the use of such weapons in a law enforcement capacity is not prohibited by the CWC.210 As such, unless the exception in the CWC was to be interpreted as only applying to riots, as opposed to lawful exercises of free speech, Congress arguably could not pass the legislation as a way of implementing the treaty because the proposed legislation would fall outside of what the text of the treaty requires.211 Although the CWC explicitly names “riot control,” “riot control” is preceded by the word “including,” which gives states the discretion to use the RCAs for other purposes that fall under “law enforcement.”212 As such, using the treaty power to pass the legislation proposed here would be a tough sell as necessary and proper to carry out the CWC for Congress. Therefore, Congress would have to turn to another one of its enumerated powers, which may present Tenth Amendment challenges.213
2. In Pursuit of the General Welfare: The Spending Clause
Under the Tenth Amendment, any power not delegated to the federal government is reserved to the states.214 As a result, generally, “Congress may not simply ‘commandeer the legislative process of the States by directly compelling them to enact[,] enforce[, or administer] a federal regulatory program.’”215 Congress similarly cannot conscript the states’ officers directly by issuing directives requiring the state to address particular problems, or by commanding the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.216 A law requiring state officials to ban the use of chemical weapons by state police officers against protestors may be seen as commandeering and an interference with the literal and figurative state police powers.
While the federal government cannot commandeer state officials into adopting federal programs or passing specific laws, they can offer states financial incentives to adopt said regulations through conditional spending programs under the Spending Clause.217 Fortunately, regulations passed under the Spending Clause are presumptively constitutional.218 The ruling case for such programs is South Dakota v. Dole, decided in 1987.219 In Dole, the Court established the following test:
(1) “the exercise of the spending power must be in pursuit of ‘the general welfare’”;
(2) “if Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation’”;
(3) “conditions on federal grants [may be found] illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs’”;
(4) “other . . . provisions [of the Federal Constitution] may provide an independent bar to the conditional grant of federal funds”; and
(5) “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’”220
Despite these requirements, Dole alone should not bar the legislation proposed in this Note.221 Applying the Dole test to the proposal outlined here: (1) protecting citizens’ ability to exercise their free speech and assembly rights, while simultaneously protecting their bodily integrity, can easily qualify as the general welfare;222 (2) Congress can undoubtedly write legislation that explicitly states that states will (not may)223 lose their funding if they do not ban the use of chemical weapons against protestors and offer special protections to neutral individuals; (3) the proposed regulation is rationally related to the federal interest of ensuring the protection of citizens’ First, Fourth, and Fourteenth Amendment rights.224 Similarly, a ban on chemical agent use by federal law enforcement officials (which Congress can do without barriers)225 can serve as the national project or program; (4) this proposal does not require the states to violate any part of the Constitution—on the contrary, it ensures the protection of citizens’ constitutional rights; and (5) the fifth factor would present the biggest challenge to this proposal for reasons discussed below. Important to the analysis of the fifth factor is a determination of what percentage of a state’s total budget is being used as inducement.226 In effect, Congress will have to examine how much funding each state gets and only threaten to remove less than ten percent of the state’s funding.227
3. Congress Giveth, Congress Can Taketh Away
National Federation of Independent Business v. Sebelius offers us one of the most recent Supreme Court applications of the Dole factors.228 In Sebelius, Congress sought to incentivize states to expand their Medicaid coverage.229 In exchange, Congress offered increased federal funding to cover the states’ cost, but also threatened the loss of all of the states’ preexisting federal Medicaid funding if they did not comply.230 In Sebelius, the Court reinforced the idea that Dole’s fifth factor is especially important and provides the origin of the ten-percent cap.231 While Chief Justice Roberts argued that he was not drawing a bright line in the case, he also fashioned “[t]he threatened loss of over 10 percent of a State’s overall budget . . . [to] economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”232 As such, we know that the less than half of one percent at issue in Dole was not commandeering, but ten percent is probably too much.233 Similarly, Chief Justice Roberts thought that it was important that the legislation at issue provided a change in kind, rather than just a change in degree of coverage.234 From Chief Justice Robert’s perspective, the states could not have anticipated that Congress was reserving the right to change the Medicare program so “dramatically” when they initially signed up for it and therefore there was inadequate notice.235 While this portion of the Court’s opinion was dicta, it presents a challenge to the use of the spending power for the proposal if it is applied to a preexisting program.236 In the age of “defund the police,” creating a new spending program—offering more money to police departments to persuade them not to interfere with citizens’ constitutional rights—has poor political optics to say the least.237
Congress currently provides grants to local law enforcement agencies through a number of federal programs, including the Community Oriented Policing Services (COPS) program.238 In June of 2020 alone, the DOJ announced that it would award $400 million in funds for the COPS program, providing awards to 596 law enforcement agencies to hire an additional 2,732 law enforcement officials.239 The DOJ also allocated $61 million to local agencies to combat violent crime through the so-called Operation Relentless Pursuit (OPR) initiative.240 The COPS program was established in 1994 by former President Bill Clinton as part of the Violent Crime Control and Law Enforcement Act of 1994, more commonly referred to as the 1994 Crime Bill.241 Local police departments have obtained $14 billion in funding from the program since it was established.242 The DOJ also provides funding to departments through the Edward Byrne Memorial Justice Assistance Grant Program, providing $264 million to law enforcement agencies and corrections programs in 2019 alone.243 Similarly, the Patrick Leahy Bulletproof Vest Partnership, created by the Bulletproof Vest Partnership Grant Act of 1998, provides funds for the purchase of bulletproof vests, distributing $522 million as of November 2020.244
The DOJ is not the only department that provides funds for the hiring, training, and arming of police officers; even the Department of Agriculture is involved in such projects.245 Under Rural Development’s Community Facilities grant, funding is available for public safety services such as police stations and police vehicles.246 Likewise, the Department of Homeland Security has made over $1.8 billion available for law enforcement agencies since the World Trade Center attacks in 2001.247 Essentially, there are a plethora of existing programs that Congress can use to incentivize local law enforcement agencies to prohibit the use of RCAs against protestors. The limitation of using the Spending Clause is that states can always choose to opt out of receiving the attached funds and continue their use of RCAs.248 In such an instance, at the very least, such legislation would limit police departments’ source of funding and access to militarized weapons. It would then be incumbent upon the individual state legislatures to continue the mission and protect their own citizens.
Conclusion
The importance of the right to dissent cannot be overstated;249 public protests have been a pivotal aspect of numerous social movements and victories in the United States since its founding.250 However, the unchecked availability of RCAs has had a grave effect on citizens’ rights to participate in such demonstrations.251 The use of RCAs by law enforcement officers has led to serious physical injuries and grave violations of citizens’ First, Fourth, and Fourteenth Amendment rights—while simultaneously hindering social and political progress.252 The physical, psychological, and constitutional violations will only likely get worse given the increased development of weapons and the growing paramilitary nature of our police.253 Public trust in our institutions and the relationship between police departments and the communities they are meant to serve will likewise continue to deteriorate if our legislators do not act.254
Given that Congress took great part in creating the issue through its arming of law enforcement via the weapons program, Congress should use its enumerated powers to leverage the funds in the aforementioned projects in an effort to restore and expand the First Amendment rights of individuals. As the Supreme Court has stated, “free speech . . . may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”255 Unpopular protests—particularly civil rights and anti–police brutality protests—are exactly the type of speech our Constitution was designed to protect.256 However, historically, this is not how they have been treated.257 By mirroring our jus in bello obligations through outlawing the use of RCAs against protestors and extending greater protections to legal observers, journalists, and medics, Congress could better ensure that law enforcement is respecting the letter and spirit of the Constitution and that the rights of persons seeking to participate in political dissent—often in an effort to ensure equal protection258—become as tangible as the gas that currently permeates their lungs.