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”.
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.
Jessica Karins is an editorial intern for the St. Louis American from Webster University.
