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Judge Marco A. Hernandez granted a request for a temporary ban on local police's use of tear gas on Tuesday, June 9.

PMG PHOTO: JONATHAN HOUSE - Portland Police Bureau officers have unleased CS gas, commonly called tear gas, on downtown protesters during multiple days of protests. A federal judge ordered a partial ban on Portland's use of tear gas on Tuesday, June 9.

District of Oregon Judge Marco A. Hernandez ruled that local police cannot use the gas except "as provided by its own rules generally" or when "lives or safety" are at risk. The 10-page decision stipulates that Portland cannot use the gas to disperse crowds when there is little risk of injury.

The order expires in 14 days.

The ruling appears to align with Portland Mayor Ted Wheeler's June 6 directive to limit the use of tear gas to situations where there is an immediate threat to "life safety" and no other alternative.

PMG PHOTO: ZANE SPARLING - A canister of gas sat on the streets of Portland during the aftermath of a recent protest. The plaintiffs, Black Lives Matter activists with nonprofit Don't Shoot Portland, had sought both a temporary restraining order and a permanent injunction against Portland's use of CS gas — which causes tears, lung irritation and coughing. Activists' lawyers noted that coughing is a primary vector for the spread of COVID-19, a respiratory illness that attacks the lungs.

Attorney Jesse Merrithew claimed during arguments delivered by video conference that the city has violated protesters' First and Fourth Amendment rights by deploying the gas on thousands, merely because a handful of people in a crowd were lobbing bottles and projectiles.

"You have to do an individualized determination for every person who is affected by a use of force to determine whether that use of force is constitutional," he said, "and they're just not doing that."

Playing defense, city attorney Naomi Sheffield said Portland supports peaceful protests — calling them essential bulwarks against the "pandemic of racism" — but said it had a duty to protect the prisoners inside the Multnomah County Justice Center and can't just "pluck out" troublemakers from the fray.

"PPB's policy provides strict limitations on the use of riot control agents," said Sheffield. "It doesn't mean it will never happen."

Court documents filed by the city have focused on the events of Friday, May 29, when an angry mob burst into the Justice Center and set fires that were extinguished by overhead sprinklers. County Sheriff Mike Reese said about 250 inmates and 70 jail employees were inside the downtown lock-up at that time.

Judge Hernandez prodded plaintiffs as to whether tear gas was truly unwarranted in those circumstances, but also chided law enforcement's helter-skelter deployment of gas on later nights.

"Many of the plaintiffs were trying to get away when all of this was happening, chaos going on," he said, "and in fact, there was tear gas to be deployed that would make it difficult for them to escape the area."

"The city is not perfect, and its response to protests is not always perfect," responded Sheffield.

But PPB also says it has at least 30 reports of injuries to police during the prolonged series of nightly protests, including one officer who needed multiple stitches after being hit in the face by a projectile, another set alight by an incendiary device and an instance on June 6 when three sheriff's deputies were injured by an improvised explosive "equal to one quarter stick of dynamite."

City attorneys say the bureau has not used CS gas since Mayor Ted Wheeler's June 6 directive to limit the use of tear gas only when there is an immediate threat to "life safety" and no other alternative.

Zane Sparling
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