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Was it legal for police to use tear gas against protesters with emergency reform legislation in place?

A Senior Fellow on the First Amendment with the Freedom Forum said it's complicated, and will ultimately be up to courts to decide.

WASHINGTON — DC Police confirmed they used tear gas and sting balls against protesters at Black Lives Matter Plaza Saturday and Sunday night. But, emergency police reform legislation signed into law prohibits those tactics against First Amendment protesters.

WUSA 9 spoke with Gene Policinski, Senior Fellow on the First Amendment with the Freedom Forum, for insight on the legality of police using those tactics.

“I don’t think you can craft an ordinance that would say according to this set of acts at this given moment, that was illegal," Poilcinski said. "That’s really why we have courts.”

Policinski said the courts would look at the ordinance language and the evidence available, like videos from demonstrators or body camera footage from police, to determine if using the chemical irritant, in this case, was legal.

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“Those representing police would say the ordinance allows police to use chemical irritants and other non-lethal force if they are in fear of bodily injury," Policinski said. "Probably a reasonable person, the standard, will say if it’s dark and there’s a huge crowd of people and things are being thrown… the standard I think we’re going to hold police based on what the courts have done in the past is tilted to some degree in their favor, because they recognize how difficult it is to be a police officer.”

DC Police Chief Peter Newsham said his officers were only responding to objects being thrown at them when they deployed tear gas and OC spray.

Police officers are humans, too," Chief Newsham said. "When you throw bricks and rocks and bottles and urine, and you set fires, there is going to be a police reaction. So folks who want to suggest or paint a picture that this was somehow peaceful and the police indiscriminately used munitions against them, they’re not being honest.”

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Some people who were out protesting over the weekend, like Arianna Evans with Freedom Fighters DC, denied the assertion that they used violence against police.

“We’re absolutely not going to go out with the intention of harming police officers," Evans said. "We absolutely understand that right now we have to live under this system of law and that it’s not going to be productive for what we want. And what we want is real structural change…for the officers to comply with the rules that are put on them.”

She is left wondering if the ordinance holds any power to protect people protesting like she said she was.

“I think a good way to look at the ordinance is that it’s a part of a series of actions, so there’s an ordinance on the books that make it clear what police should do, and makes clear that they should not use these non-lethal weapons or chemical irritants to break up an assembly that is simply peaceful, that is First Amendment," Policinski said. "And remember the First Amendment does not protect violent conduct. It protects peaceably assembling…I think these are all part of a step by step process by which we try to provide greater protection.”

He said for anyone who feels like their First Amendment rights were violated in instances like this, there are a few steps they can take to give themselves the best chance of winning their legal argument.

“These cases almost always depended on the exact facts rather than saying having a broad policy that you can have under any circumstance, so again preserving the facts through video and eyewitness testimony is very important," he said.

The author of the original reform bill, Councilmember Charles Allen, sent the following statement in response to this weekend's events:

“Everyone is welcome in the District to peacefully protest, and I expect the Metropolitan Police Department and other law enforcement agencies to hold that right sacred, especially when the message is in support of police accountability for racism and brutality. Dialogue, passion, outrage – they are all healthy and necessary to weave a new fabric to our country that disavows white supremacy. That said, I do not condone violence – violence by or against government; is it not the path to change. It will only further divide us and close off opportunities for accountability and healing. My focus is to ensure we act together to make change by reimagining public safety.

To that end, we have a hearing set on police reform legislation on October 15. This will hearing will include my own bill on updating the District’s rioting laws and legislation to restrict the use of riot gear and chemical irritants by police. I was hesitant to include the banning of chemical irritants in the original bill in June (you’ll recall they were added by amendment) because we needed more time to properly craft the law to be responsive to all of the complexities of protests.”

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