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

The New Orleans City Council on Thursday unanimously passed a law intended to put tighter  restrictions on the use of tear gas by law enforcement. The new law would only allow for the deployment of tear gas by police “where its use is reasonably necessary to prevent threat of imminent loss of life or serious bodily injury, or to dislodge a barricaded violent criminal suspect.”

The ordinance was a response to an incident in June, when New Orleans Police Department officers sprayed protesters with tear gas as they were attempting to cross the Crescent City Connection. The department has defended the use of tear gas during the protest, though it led to a dangerous stampede as hundreds of people scrambled to get off the narrow freeway overpass in order to protect their eyes and lungs. The police also shot projectiles at the protesters that night, though officials initially denied it.

It’s not yet clear how the ordinance will be interpreted by New Orleans Police Department officials, or how it will translate to on-the-ground operations. Those details will likely be spelled out in a policy on the use of tear gas that the department is working on. Last week, NOPD Superintendent Shaun Ferguson said that federal monitors who oversee a long-running federal consent decree over the department are vetting a policy draft. 

The protesters were on the Pontchartain Expressway overpass demonstrating against police brutality following the killing of George Floyd by police in Minneapolis.

Following the incident, NOPD was heavily criticized for their decision to use tear gas by protesters, advocacy groups, public health experts, and City Council members

The ACLU of Louisiana said it was “dismayed and horrified” by the decision. And on Thursday, the organization issued a statement praising the council for passing the ordinance.

“Tear gas is a dangerous chemical weapon that should never be used against demonstrators exercising their First Amendment rights,” said Alanah Odoms Hebert, ACLU of Louisiana executive director, in the press release. “NOPD’s attack on protesters attempting to cross the Crescent City Connection in June was an inexcusable and excessive use of force that endangered the health and well-being of protesters who had every right to demand change and make their voices heard. While much more work must be done to ensure protestors are never met with reckless, militarized force, we’re pleased the New Orleans City Council has listened to the community and taken this long-overdue step forward.” 

After the incident, Ferguson defended the decision to use tear gas in June, saying that protesters had chosen to use force against officers blocking them from crossing. But he signaled his support for the ordinance at a criminal justice committee meeting last week

That meeting also led to several amendments to the original ordinance, which the council adopted Thursday. 

Ferguson advocated for an exception that allowed police to use tear gas in the event of a barricaded suspect, which he argued could be necessary in a hostage situation. 

Council President Jason Williams expressed concern that the ordinance as originally written, which allowed NOPD to use tear gas when “necessary to prevent crimes of violence against persons,” was too broad. He suggested that the language be changed to allow deployment of tear gas when necessary to prevent “imminent loss of life or seriously bodily injury.” 

In addition, he suggested a requirement that mandated NOPD give a verbal warning before any deployment of tear gas. 

Each of those adjustments was written as amendments passed into the final ordinance. 

Over 90 public comments were read at the meeting, overwhelmingly in support of the ordinance and opposed to the use of tear gas by the police. Many of the commenters described their experiences on the Crescent City Connection the night of the protest.

Councilman Jay Banks said the council worked with NOPD to draft the ordinance, and that it walked the line between allowing the police to use tear gas in rare circumstances, but not for crowd control.

“The fact that tear gas is outlawed by treaties for use in war, it just makes sense that it should not be deployed unless it is the most dire of circumstances,” Banks said. “I’ve gotten a couple of calls — people called about handicapping the police’s ability to do their jobs. I assure you that this does not do that.”

“If there is a life and death situation, the police have the ability to use this, but something as simple, or benign as crowd control, it should not be used. And this would prohibit that.”

But at least one public commenter on Thursday argued that there should be an outright ban on tear gas, and that the exceptions in the ordinance were too loosely written to ensure they would be followed by NOPD, pointing to the fact that nothing in the ordinance provided instructions for what action would be taken if NOPD officers violated the ordinance. 

“You still want to allow the NOPD opportunity to commit war crimes with this amendment,” the person wrote. “We should completely ban the use of riot control agents. … Anything less than a complete ban is a disservice to this city.”

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...