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Federal judge restricts use of tear gas, non-lethal projectiles by Denver police
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Federal judge restricts use of tear gas, non-lethal projectiles by Denver police

A federal judge for the district of Colorado issued a temporary restraining order (TRO) against the Denver Police Department (DPD) on Friday.

The TRO was issued in response to a complaint filed by four Denver residents on Thursday. The four have participated in protests in Denver following the May 25 death of George Floyd in Minneapolis at the hands of police. The complaint alleges the DPD has violated their Fourth Amendment right against excessive force and their First Amendment right of free speech. They specifically cite the use of “pepper spray, pepper balls, rubber bullets, flashbang grenades, and tear gas to punish plaintiffs for demonstrating against police brutality.”

In addressing the protestors’ claims, Judge R. Brooke Jackson noted that the behaviors of some police officers in Denver and across the nation “against peaceful protesters … have been disgusting.” Examining the wealth of video and eyewitness evidence, Jackson found a strong likelihood that the DPD did violate the plaintiffs’ First and Fourth Amendment rights. In addition, he found that “irreparable harm” would result if immediate relief were not issued to the plaintiffs, as the protests are ongoing and continued use of chemical agents and non-lethal projectiles will have the effect of “chill[ing] and outright den[ying] … plaintiffs’ speech.”

Jackson did note that limiting officers’ options could theoretically limit their ability to defend themselves, but he also pointed out the range of other non-lethal options officers have, including tasers. “The unlikelihood of such harm to officers is outweighed by the very real harm that has already been caused to plaintiffs,” he determined. He also acknowledged that there could be an increase in property damage but found that the harm to protesters outweighed the threat of harm to property:

    If a store’s windows must be broken to prevent a protestor’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.

The TRO specifically limits the ability of DPD officers to use chemical agents and non-lethal projectiles unless an officer of the rank of Captain or higher is on the scene and orders their use in direct response to “specific acts of violence or destruction of property that the command officer has personally witnessed.” They are also enjoined from firing non-lethal projectiles into crowds, nor may they fire them at a person’s head, pelvis, or back. All officers are additionally required to have body cameras recording at all times, chemical agents may only be used after an order to disperse has been issued, and such orders must be followed by adequate time for protestors to disperse. The TRO provides that officers must allow room for protestors to leave if an order to disperse has been given, otherwise enjoining the practice of “kettling” or forcing crowds into a contained area lacking any egress.

City and county officials filed a motion to modify two parts of the judge’s TRO, to allow officers of rank of lieutenant or higher to authorize the use of chemical agents and non-lethal projectiles, and to eliminate the body camera requirement.