Protesters blocked by police on the Crescent City Connection. (Charles Maldonado/The Lens)

Over three months have passed since the New Orleans Police Department deployed tear gas on protesters attempting to cross the Crescent City Connection in the wake of the police killing George Floyd in Minneapolis, leading to a chaotic and dangerous stampede of people attempting to escape the elevated freeway overpass in order protect their eyes and lungs. 

Now, the New Orleans city council is considering an ordinance that would make it illegal for law enforcement to use tear gas in the city — with certain exceptions. On Thursday, the ordinance was recommended for passage in a unanimous vote by the Criminal Justice Committee. It will soon be considered by the full council.

While the June 3 incident was referenced at the meeting, there was no direct discussion of whether or not the ordinance being considered would have made NOPD’s actions that night illegal. 

NOPD Superintendent Shaun Ferguson attended the Thursday meeting and said he was in support of the ordinance. He also said that NOPD was developing its own internal policy with regard to the use of tear gas. The proposed policy is currently being vetted by the U.S. Department of Justice and monitors that oversee the NOPD’s federal consent decree, he said. 

The confrontation between NOPD and protesters on June 3  was the first time in decades the police department had deployed tear gas for the use of crowd control, and in the immediate aftermath of the incident, NOPD was heavily criticized for the decision. (What was not immediately acknowledged by the department, but later confirmed, was that some officers used projectiles as well.)

Hundreds of upset citizens flooded the public comments during city council meetings to demand that NOPD be condemned for their actions. Activist groups seized on the incident to support efforts to defund the department. Alanah Odoms Hebert, ACLU of Louisiana executive director, said she was “dismayed and horrified by the violent and unlawful deployment of tear gas against demonstrators.”

Dozens of healthcare professionals signaled their outrage as well, signing a letter to the city and the police chief calling the decision to use tear gas “unconscionable,” particularly given the coronavirus pandemic. 

“Its use can increase the risk of infection with COVID-19 by irritating the respiratory tract, increasing inflammation and inducing cough, thus dispersing droplets throughout the surrounding environment,” they wrote. “To use a chemical that increases the risk of these symptoms in the midst of one of the deadliest infectious disease outbreaks in modern day history is irresponsible and could contribute to overwhelming an already overburdened healthcare system.”

Critics of the decision also pointed to the fact that tear gas and other “riot control agents” are banned for use in warfare by international law. 

Ferguson, however, defended the decision to use tear gas in front of the council, calling the use of tear gas “best practice across the country” and “less lethal than us using batons or tasers or stunning someone and having them fall over.”

“We did not attack anyone,” he told reporters. “We did not deploy gas on a peaceful protest. We did deploy gas on people who chose to use force.”

A day after the incident, City Councilmember Jay Banks announced his staff was working on an ordinance to “outlaw the use of tear gas in Orleans Parish.” City Council President Jason Williams, who called the NOPD’s decision  “deeply problematic and deeply concerning,” said he would help out. 

The ordinance, as currently written, would make it illegal for “any employee of the New Orleans Police Department or any other law enforcement officer operating within the city of New Orleans to use or dispense a riot control agent against any person for any purpose, except in circumstances where it’s use is reasonably necessary to prevent crimes of violence against persons, loss of life or serious bodily injury.”

The ordinance defines  “riot control agent” as “tear gas and other chemical compounds intended to disable individuals temporarily by causing irritation to the eyes, mouth, throat, lungs, or skin,” which is similar to the definition used by the U.S. Center for Disease Control and Prevention.  

But at the meeting on Thursday a few changes were suggested, which councilmembers said would be considered as amendments to the ordinance when the ordinance is heard by the full City Council. 

‘The absolute direst emergency’

One of the questions raised at the meeting was whether or not the language of the ordinance went far enough to limit the use of tear gas by law enforcement.

“The purpose in this is clear,” Banks said. “A chemical weapon that is outlawed in war should not be allowed on the streets of the city unless it is in the absolute direst emergency.”  

“We have worked intentionally with the police force, with the ACLU, and with all interested parties to try and come up with an ordinance that limits the use to only the most specific circumstances necessary to save lives.” 

But Williams questioned whether the language of the ordinance, which allowed the use of tear gas if it is “necessary to prevent crimes of violence against persons,”  was “potentially too broad or too vague.”

“I ask the question because theoretically if one person in a protest of a hundred were to throw a cup of water or beer towards an officer and then the entire crowd gets tear gassed because of that one individual’s actions,” he said. 

Williams suggested that language be changed to “prevent imminent loss of life or serious bodily injury.” 

“I think I can agree with that,” Ferguson said.

Williams also suggested adding language that would require law enforcement to issue an audible command before deploying tear gas.  Ferguson said that was already part of the internal policy that the NOPD was developing. 

Those changes to the ordinance will be considered at the full council meeting, committee members suggested. 

Ferguson also pointed out at the meeting that tear gas would potentially need to be used in a hostage situation. 

“I just wanted to bring to the council’s attention that this is one of the instances in which we do have that as a resource, or a potential tool to be used if necessary,” Ferguson said. “I did not want everyone to just think it’s restricted to just protest.”

Earlier in the meeting, Ferguson said that “with regards to any protest, we also encourage safety during any peaceful protest, and encourage any and everyone to take advantage of that opportunity to exercise their constitutional right, without any interference from law enforcement or anyone. As long as it is peaceful.” 

The ordinance received over 200 public comments, which were overwhelmingly in support of the ordinance and restricting the use of tear gas by law enforcement. 

“It’s promising to see elected leaders side with hundreds of our members and New Orleanians who submitted public comments in support of the ordinance to ban the use of tear gas on protestors,” said Orleans Parish Prison Reform Coalition executive director Sade Dumas, in a statement to The Lens. 

“Our collaborative work with Councilmember Banks and the ACLU to advocate for this ordinance is a small step to protect our community from violence at the hands of the New Orleans Police Department. We look forward to NOPD Superintendent Shaun Ferguson fulfilling his promise to involve the community in crafting new departmental crowd control policies.”

Some individuals and advocacy organizations suggested that while they supported it, the ordinance didn’t go far enough, given the totality of the June 3 events on the Crescent City Connection.

“While we strongly support the aims of this legislation, we respectfully urge Council to adopt additional provisions to strengthen it,” said Chris Kaiser, advocacy director of the ACLU of Louisiana, in a public comment. “Our experience on June 3 shows that amid a generally militarized response to protest, the threat to free speech and assembly does not end with tear gas.”

“At a minimum, NOPD should be prohibited from firing projectiles into crowds and from using these weapons for the purpose of crowd control,” he said.

Nicholas Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...