A page from EPD's redacted use of force document

Gas Lighting the First Amendment

He wasn’t with the crowd. He was holding up a press pass.

On May 31, Eugene Weekly staff writer Henry Houston says his constitutional rights were violated when the Eugene Police Department shot pepper balls and threw a tear gas canister at him from 30 feet away, hitting him in the chest with the canister as he held up that press pass yelling that he was a journalist.

Outraged by the police killing of George Floyd in Minneapolis, protesters in Eugene marched through the streets during the last weekend of May, the events leading to a riot and then curfews the following nights. In reporting on the events, journalists followed along.

After the incident, EPD refused to release records on the correct use of tear gas and other riot control weapons, instead sending a heavily redacted PDF and referencing general policies found on the city’s website. 

Houston and the Civil Liberties Defense Center have filed a lawsuit with the U.S. Federal District Court against EPD, claiming a violation of constitutional rights.

Despite the lack of transparency, EW’s investigation found that the officers may have violated policies on correct uses of gas munitions, which could have caused extensive injury, and directly violated Houston’s First Amendment rights of the freedom of the press.

Credentialed Media

After the chaotic first nights of protests, City Manager Sarah Medary enacted a curfew of midnight for downtown Eugene on May 31, which was suddenly changed to 11 pm only minutes before it went into effect. It encompassed the entire city. The curfew specifically exempted “credentialed media.”

People continued to protest after curfew, and that night, journalists followed EPD’s armored BearCat while officers told protesters to disperse over a loudspeaker and shot them with rubber bullets and pepperballs. 

But even then it was clear EPD would not distinguish between reporters and others. In a video recorded by The Register-Guard, an EPD officer tells a group of journalists to “roll out.”

An RG reporter can be heard saying that they are journalists.

“Doesn’t matter,” the police responded.

Later that night, Houston began following  the BearCat in a parking lot near the University of Oregon campus on Alder Street, holding up his press pass as a group of about 20 protesters ran away. The loudspeaker told him to disperse and he yelled back that he was a journalist, filming and continuing to show his press pass seen in the distance on the RG video.

The BearCat drove near Houston, and was less than 30 feet away as measured by the width and number of parking spots, visible in the video. He was hit in the chest with a tear gas canister as it spewed gas, and shot at with pepper balls — weapons that are similar to paintballs, but release pepper spray. When the canister hit the ground, sparks flew around and Houston jumped back. In the video taken on his phone, he shouted again that he was a journalist. The lights were on inside the vehicle.

“I can see you smiling at me,” he said in horror as he ran back towards the other journalists. Houston says EPD threw more tear gas canisters at the group of reporters as the BearCat drove away.

“Reporters, we’re reporters,” they yell in the video.

No Accountability

After Houston was tear gassed, he reached out to EPD, asking why police were ignoring the media exception for the curfew. In response, EPD spokesperson Melinda McLaughlin wrote in an email to EW that he was subject to risk by being out with protesters.

“While I feel it unfortunate you have experienced this, there is no way to discern whether or not someone is credentialed media if they are embedded or mixed in with a large group violating curfew,” she wrote.

Police Commissioner Sean Shivers says that allegations against officer behavior must be reviewed every 60 days. Back in June, he told EW that the commissioners and Civilian Review Board have requested an expedited process. But it’s been more than two months, and no information has been released.

The day after he was gassed, Houston called and spoke with Chief Chris Skinner, who apologized for the incident. Medary reached out to EW and also apologized. Seeking accountability for police actions and use of tear gas on May 31, EW filed a public records request with EPD, asking for their training and guidance for the correct usage of such weapons.

The record received was a PowerPoint PDF, with most of the bullet points redacted. EPD cited ORS 192.345 which exempts the release of “records or information that would reveal or otherwise identify security measures, or weaknesses or potential weaknesses in security measures, taken or recommended to be taken to protect an individual, buildings or other property.”

That public records exemption was changed in 2003 from “public buildings” to all buildings and individuals. The reasoning for expanding this was explained in a Oregon House Judiciary Committee meeting.The bill was meant to protect buildings after the 9/11 terrorist attacks, specifically infrastructure and utilities. The committee said it did not want to go too far with the exemption, because “people need these records.”

Police policies are not mentioned in the context of the records exemption, and the records request was not geared towards individuals or buildings. The public would be served by having the information on EPD’s training and guidelines for the use of tear gas. If the public knew the information, such as the de-escalation processes and when an officer would be required to use tear gas, it could potentially help deter a riot or similar instance.  

By not releasing the information to be disseminated to the public, EPD shows a lack of transparency. To redact the document without considering the public interest or citing the security reasons for doing so is to hide key information that can hold authorities accountable.

Incorrect Usage

Without records from EPD explaining the correct usage of those weapons, EW set out to find its own information about what happened.

Commissioner Shivers says that he wouldn’t be surprised if policies weren’t followed that night:

“It wouldn’t be surprising if officers aren’t following policies. Forty percent of our officers are under five years of experience.”

During a June 5 EPD press conference, officers explained some of the weapons they use in crowd control. EPD buys its weapons from Combined Systems, a weapons company based in Pennsylvania. One of the main munitions they use is a CS canister grenade, which after the pin is pulled, breaks into three separate sections, releasing gas from all three. 

Michelle Heiser is the medical director of Physicians for Human Rights, a global non-governmental organization that uses medicine to promote human rights. She says that because of the chemicals in tear gas, it should always be used as a last resort. She adds that canisters themselves can be used as a weapon.

“That is absolutely against international and national guidelines. Tear gas canisters are never supposed to hit human beings,” Heisler says. “Whatever officer did that should be held accountable. There should be criminal penalties.” She adds that she recently traveled to Portland to conduct research on the Portland Police Bureau’s use of gas.

Houston says that he experienced chest bruising from the canister and the after effects of inhaling the tear gas and fumes from the pepper balls. Several days after the incident, he went to the hospital to get his injuries checked out. 

The canister can cause organ damage or arrhythmias if it hits someone in the chest, Heisler says. In addition, people inhale the smoke in front of their faces, which causes irritation to the skin, eyes and lungs.

This is also dangerous because, Heisler says, companies that produce weapons often lack transparency when it comes to what chemicals are actually used. 

“We are not getting information so it is hard to know how to treat it,” she says. 

There have also been reports of EPD using expired tear gas on protesters. Captain Eric Klinko addressed this at the press conference by explaining that the expired gas is just “less potent,” comparing it to old medicine. On the label of the canister it clearly says, “Do not use after expiration date.”

“I don’t think that is good research,” Heiser says. If the chemical makeup of these weapons are unknown, the effects of the expired chemicals are also not understood.

In response to EW’s record request, EPD also referenced its policy on tear gas use, which does not explain how it is used, and mostly focuses on who has the authority to use it. 

The city of Sacramento has a long list of instructions on when and how to use chemical munitions for controlling crowds. In its instructions for arming a smoke grenade and throwing a riot smoke grenade, it advises never to throw it overhead. 

“Do not throw the grenade using the overhand lob or overhand baseball throw. This could result in an air-burst, causing unnecessary, accidental injury to individuals in the vicinity of the air-burst,” the manual says.

But in the RG video footage, the arc of the canister appears to be thrown overhead from the turret at the top of the BearCat. At the June EPD press conference, Klinko said that it is supposed to be tossed underhand, but someone from the BearCat could potentially need to throw it overhand.

“In a turret, for instance, if only this much of your body is out, you might need to overhand toss it,” Klinko said. “Someone getting hit is not the objective. It’s absolutely not.”