Judge: St. Louis Cops Can't Spray Chemicals on Non-Violent Protestors w/o Probable Cause & Warning

From [USNews] Responding to an American Civil Liberties Union (ACLU) lawsuit against the City of St. Louis, a federal judge has limited St. Louis police response to protests, issuing a preliminary injunction against using chemical agents on peaceful protesters.

Judge Catherine Perry ordered the St. Louis Metropolitan Police Department (SLMPD) to refrain from using chemical agents “including, but not limited to, mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, skunk, inert smoke, pepper pellets, xylyl bromide, and similar substances” against anyone engaged in “expressive, non-violent activity.” SLMPD officers, she ordered, can only use chemical agents against nonviolent protesters when they have probable cause to arrest them and have issued clear, unambiguous warnings and given the person adequate opportunity to comply.

Perry also ordered the police department not to use chemical agents for dispersing crowds without giving adequate warnings and providing an opportunity to disperse, and forbid the use of chemical agents for “the purpose of punishing the person for exercising constitutional rights”.

Her order permits police to halt protests, but only if demonstrators pose "an imminent threat to use force or violence or violate a criminal law with force or violence."

In testimony during a preliminary hearing the ACLU suit, Perry heard testimony from protesters and bystanders about the use of chemical agents with no audible warning and about other police misconduct, including the use of “kettling” tactics during mass arrests.

The ACLU argued the SLMPD frequently uses pepper spray and other chemicals to retaliate against citizens protesting police brutality. ACLU Legal Director Tony Rothert called the use of pepper spray “the new firehose”.

City attorneys, however, argued the police were responding to protesters’ conduct, not initiating conflict.

The injunction further orders the SLMPD to declare a protest an unlawful assembly “unless the persons are acting in concert to pose an imminent threat to use force or violence or to violate a criminal law with force or violence”.

This was a topic of contention in the legal arguments, with the city attorneys arguing protests could be declared unlawful simply for blocking city streets and the ACLU’s attorneys arguing this represented a First Amendment violation, since St. Louis does not issue protest permits. Perry sided with the ACLU.

The injunction will remain in effect until Perry issues further instruction.

The case will now proceed to court-ordered mediation between the city and the ACLU. Mediation must be completed by February 1. The ACLU is seeking damages from the city and more permanent restrictions on SLMPD tactics.

"We want to be treated like the Constitution says and not like terrorists," said Cori Bush of the Frontline protest movement. "We're only protesting injustice against the black community."

A white judge's ruling on Sept. 15 acquitted white police officer Jason Stockley of first-degree murder in the death of Anthony Lamar Smith, a black drug suspect who was fatally shot by Stockley after a dangerous chase. Within minutes of the announcement of the ruling, protests broke out.

"If St. Louis is to address its long-standing racial inequities, the community must be able to safely express its outrage and pain through nonviolent freedom of speech," ACLU of Missouri Executive Director Jeffrey Mittman said in a statement.

In addition to the court case, St. Louis aldermen are considering a bill limiting how police respond to protests. Alderwoman Megan Green's proposal would repeal an existing ordinance on unlawful assemblies, limit when officer can use tear gas and pepper spray, and prohibit use of chemical agents on people who are already restrained. It's unclear when the measure will get a final vote.