Calls Grow for Oakland Police to Halt the Use of Tear Gas

The Oakland Police Department has come under increasing scrutiny from city officials, civil rights lawyers and even public health experts for shooting tear gas and rubber bullets into crowds during recent protests ignited by the Minneapolis police killing of George Floyd.

In a letter Wednesday, civil rights attorneys James Chanin and Rachel Lederman said that Oakland police violated its own crowd-control policies and that its actions were “precipitous, excessive and endangered innocent people.”

Lederman and Chanin took particular issue with the use of tear gas at a Monday night protest around City Hall that was characterized as largely peaceful.

“The policy specifies that ... crowd control chemical agents shall be used only if other techniques, such as encirclement and multiple simultaneous arrest or police formations have failed,” Lederman and Chanin wrote.

Lederman said her office received a complaint from a 30-year-old Oakland resident who was caught in the smoke as she led students away from the demonstration before the curfew on Monday night.

“We were not given any time to disperse,” said the resident, who is not identified in the letter. “I believe I began to pass out as I felt my body start to keel over, and braced myself for losing consciousness by getting almost on all fours. I believe that another 20-30 seconds in that environment would have led to a loss of consciousness and possibly asphyxia.”

At a press conference Wednesday, Oakland interim Police Chief Susan Manheimer defended the department’s actions, saying that their policy allows the “use of gas or other distractors, such as smoke, when there's an immediate threat of violence to our community or our officers, when there's damage and destruction of property.”

Theft, vandalism and violence have occurred alongside some of the protests around the Bay Area and in Oakland, and Manheimer added that crowd-control tactics are used “judiciously.”

“It is specifically a tool for those violent disruptors who would seek to destroy parts of Oakland and cause fear amongst our community,” she said.

But Lederman said that these tactics put protestors — including the elderly or young children, journalists and bystanders — at risk of injury or even death. Lederman reported that two people, one of them a photographer, were struck with rubber bullets during the protest Monday.

“We've also seen quite a bit of use of the impact munitions, like the large rubber bullets and other munitions that are fired from a gun or launcher," Lederman said. “Those aren’t supposed to be fired into the crowds either because of the serious risk of hitting an innocent person. And they're supposed to only be aimed at safe or target areas.”

Oakland’s crowd-control policy requires the department to use minimal physical force when controlling an assembly — whether lawful or unlawful.

During Occupy protests in 2014, Oakland police shot a non-lethal projectile that struck an Iraq war veteran in the head, causing permanent brain damage. The city settled that case for $4.5 million.

Mayor Libby Schaaf's office said the use of tear gas in recent protests will be investigated.

“Any use of chemical agents is extremely unfortunate and will be thoroughly investigated afterwards to ensure its use was in strict compliance with policy," said Justin Berton, a spokesperson for the mayor's office, in an email. "Any Oakland officers who violate polices will be held accountable. Oakland has been reviewing and re-examining all of its use-of-force policies under the leadership of our Citizen Police Commission.”

Also on Wednesday, three Oakland City Council members urged Schaaf and law enforcement to halt the use of tear gas on protesters.

City Council President Rebecca Kaplan said she’s received complaints that tear gas has crept into residential homes, hurting elderly residents and people uninvolved in the demonstrations. She also criticized the department for pushing protesters into small business districts like Chinatown.

“If the purpose of the police is not to serve and protect the communities then what is their purpose?” Kaplan said. “If they are making things worse for small businesses like those in Chinatown, then what is their goal?”

Kaplan also said that the use of tear gas could increase the risk of spreading the coronavirus, because protesters may be forced to remove masks that have been contaminated with tear gas chemicals.

Infectious disease experts, including UCSF professor Dr. Peter Chin-Hong, have called for police departments to stop using tear gas during the current public health pandemic. Getting tear gassed increases the risk of becoming infected with COVID-19, as well as the risk of spreading it, he said.

"If somebody has COVID-19 and they get tear gassed, they're going to be coughing more. They're going to be spitting more. They're going to be shouting more in pain ... so that's one risk," Chin-Hong said.

The other risk is that tear gas could degrade the lungs and make a protester more susceptible to coronavirus infection down the line, he added.

“Tear gas cannot be aimed. If you have a group of people doing nothing wrong and one or two that are doing something wrong, you can't solve that with tear gas," Kaplan said.

Kaplan and council members Nikki Fortunato Bas and Sheng Thao, who co-signed the letter, are calling on the Schaaf and Manheimer to answer questions about the use of tear gas during a special meeting next Monday.

KQED's Julia Scott contributed to this story.