This last week's protests have been dominated by stories of Columbus Police officers using tear gas and pepper spray on crowds of protesters. But this isn’t the first time their tactics have drawn criticism.
The ACLU of Ohio filed a lawsuit against the Columbus Police in 2017, accusing them of using pepper spray against peaceful demonstrators. Their suit is being argued in front of the U.S. Sixth Circuit Court of Appeals in Cincinnati next month.
Staff attorney Elizabeth Bonham says the incident happened during a protest against Trump's travel restrictions, which immigration advocates called a "Muslim ban."
“We represented three peaceful protesters who were peppersprayed in the face and eyes,” Bonham says.
At issue now is whether one of the officers is entitled to “qualified immunity,” which allows state actors to defend themselves from liability if they didn’t know their actions were unconstitutional.
Columbus Police Chief Tom Quinlan has defended the department's use of tear gas and pepper spray, arguing it helps avoid arrest.
“That’s the idea of the agents we’re using is to get people to move, not to have to then take people, put a criminal charge on them, have that on their record, have to go to work, have to hire an attorney," Quinlan said Tuesday. "We just want them to leave, stop damaging our city."
On Friday, Quinlan told Columbus' Safety Advisory Commission that officers can use chemical agents after issuing a warning. He said a handful of people can turn a crowd into a "flashpoint," and those devices can "lower the temperature."
In the case of the 2017 lawsuit, Bonham said officers targeted the protesters specifically and it was an unlawful use of force. But she adds the facts of an individual case determine whether a tactic is unconstitutional.
“In a lot of these demonstrations, a range of things is happening," Bonham says. "The legal doctrine is that, on a case by case basis, whether force is excessive needs to be evaluated."
Pepper spray has been used when people have broken the city's 10 p.m. curfew, although officers have used tear gas against crowds in the middle of the day.
The police union in Columbus argues that tear gas or pepper spray constitutes less force than arresting someone, because officers don’t need to put their hands on a person.
Bonham doesn’t believe any action is necessary against protesters, though.
“There’s a very easy alternative. It’s not to escalate what is an otherwise peaceful protest and to let people do, what is their first amendment right to do, which is to peacefully demonstrate,” Bonham says. “Most often in these circumstances, it’s not a question of the degree of force: There’s not any force that needs to be used.”
