Gunning for the Last Resort

In the George Floyd protests, eager police abuse of “less lethal” weapons is causing unconscionable escalation and injury.

Police in tactical gear carry guns and throw tear-gas canisters.
Police fire tear gas at protesters during a protest in Walnut Creek, California, on Monday. Jose Carlos Fajardo/Digital First Media/the Mercury News via Getty Images

Some of the most indelible images coming from the protests over George Floyd’s death have featured protestors hit by a class of weapons deemed “less lethal”: rubber bullets, beanbags, pepper balls, pepper spray, and tear gas. These are ostensibly crowd-control tactics used at the far end of a spectrum of escalation; however, videos, photos, and eyewitness testimony seem to capture police officers using these methods punitively, or even out of malice.

On Saturday, my colleague Rachelle Hampton’s brother filmed a video at a protest in Denver that shows an officer on a truck passing by and taking aim at him, firing a pepper pellet that “smashed the back of his phone and exploded in his face.” That same day, a woman and her 3-year-old, driving home in Fort Wayne, Indiana, ran into a protest and were tear-gassed out of their car; the toddler’s mother told reporters that a police officer then gassed them again, even as protestors were rendering first aid. On Sunday, in a tweet, Adolfo Guzman-Lopez, a reporter in Los Angeles, said he had just finished an interview when “a police officer aimed and shot me in the throat” with a rubber bullet. On Monday, we got video of protesters scrambling up a bank on the Vine Street Expressway in Philadelphia, trapped and panicked, as police sprayed tear gas. And there are many more.

“We are seeing absolutely indefensible and unconstitutional uses of less lethal crowd control methods, including impact munitions and chemical agents,” Edward Maguire, professor of criminology and criminal justice at Arizona State University, said. “There will be many, many federal civil rights lawsuits.” What happened on the Vine Street Expressway crossed a “bright line,” according to Maguire. “You can’t corral protesters and then fire crowd control agents at them.”

Police in the United States use tear gas, originally a weapon of war, for dispersal at protests. Some don’t believe that tear gas should be used on civilians at all, especially in the middle of a pandemic of a severe respiratory disease. But before it is deployed, typical practices of engagement dictate that the police order to disperse has to be given “loud enough for members of the crowd to hear it,” Maguire said. He mentioned that he had been in many protests, in his capacity as an observer, where police claimed to have given an order to disperse but he never heard it; police then began using chemical agents. “That’s completely inappropriate. Police need to give an order to disperse, and they need to give the crowd time to disperse,” he said. Police using gas or spray on peaceful protesters sitting on the ground would be another example of an out-of-bounds use: “Chemical agents are not supposed to be used as a means of punishment.”

I asked Frank Straub, director of the Center for Mass Violence Response Studies at the National Police Foundation and former chief of the Spokane Police Department, to explain when in the process of policing a protest officers might use these “less lethal” methods. Straub described a spectrum of crowd control that might start with speaking with protesters, then, “assuming the individuals that are protesting don’t follow the guidelines, don’t want to stay on a predetermined route, don’t want to be escorted by police bicycles,” police might put “skirmish lines” in place to restrict movement. Then “it becomes this decision that in order to protect individuals, to protect property, whatever the case may be, the line has to be drawn and held, and that’s when you get confrontation.” The idea would be to identify individual protestors engaging in violence or destruction as “instigators”—Straub mentioned a tactic of using a paintball gun to hit such a person and mark them, so that they can be “removed from the crowd,” “hopefully in a very methodical and measured way.” Then after that, the police might fire chemical agents, and then projectiles: “The idea with those is to aim below the waist.”

But the words methodical and measured don’t seem to apply to a lot of what we’re seeing. The problem, Maguire said, comes “when police make the decision to treat the crowd as homogenous.” Maguire said that he was involved in writing a guidebook for police on handling protests and mentioned that he found that where police “really seemed to struggle” was in implementing what he called a “differentiated response”: treating the crowd as a whole as peaceful, while arresting anyone who engages in “property damage or violence.” “It gets difficult because police tend to have two modes,” he said. “There’s peaceful protest mode and riot mode, but there’s an in-between where you’re extracting troublemakers who are breaking the law, damaging things, and being violent, while still allowing protests to continue. … The biggest issue is when you handle a protest like a riot, prematurely.”

The consequences of unnecessary police escalation can be huge. In addition to generally throwing fuel on the fire of unrest, “kinetic impact projectiles,” which include rubber bullets, are called “less lethal” because they sometimes kill. They’re deadly at close range and often inaccurate when fired from farther away. As Kaiser Health News reporter Liz Szabo wrote in a piece about research on the use of rubber bullets, there aren’t national standards for when or how police should use projectiles, or data on the actual rate of use of rubber bullets. But after conducting a 2017 literature review on deaths, injuries, and disabilities caused globally by rubber and plastic bullets, beanbag rounds, and other projectiles, researchers found that 3 percent of the people injured by projectiles whose experiences were captured in this literature died, and 15 percent were permanently injured.

The George Floyd protests are making it clear that the use of “less lethal” methods, in situations like the ones we’re seeing where police choose to escalate, can be terrifying and dangerous. “We have 18,000 police departments in the United States,” Maguire said, “and you’ve got massive levels of variation in their preparation and capacity to handle these kinds of events.” As Straub said, “There’s a wide variety in terms of what type of force is used, and how it’s used, sometimes even in the same setting,” pointing to Atlanta, where two officers were fired on Monday for tasing two college students over the weekend, even as other officers spoke with protesters and kneeled alongside them.

In a 50-year history of American police responses to protest, Maguire summed up a couple of decadeslong swings: from widespread police use of escalated force in the 1960s (use of dogs, fire hoses, tear gas, electric cattle prods), to “negotiated management” in the 1980s and 1990s (permitted protests, preplanned arrests), back to escalation, in the years since the protests at the WTO in Seattle in 1999. The old “escalated force” model is what Donald Trump, ever stuck in the past, has in mind when he asks governors to “dominate” their cities. But research shows it doesn’t work to defuse protests, and actually makes things worse.

On Tuesday night, Los Angeles Mayor Eric Garcetti told protestors that he had asked police to “minimize” their use of rubber bullets. Might this year’s massive publicity around misuses of “less lethal” weapons on peaceful protestors provoke another swing, away from escalation, toward … something else? Like so many things in 2020, it’s up in the air.