Government Use of Tear Gas Is Illegal in War


By Jamil Dakwar

Pictures of migrant women and children fleeing in panic as tear gas canisters were fired at them by U.S. border agents this week shocked many Americans, but the Trump administration praised the Border Patrol for responding “admirably and responsibility” in deploying the “accepted use of nonlethal force.”

But using tear gas on a crowd of unarmed, largely peaceful migrants, including children, is far from “accepted.” Under international human rights law, U.S. border officials may use force only when necessary, and the force used must be proportionate to the seriousness of the offense and the legitimate objective to be achieved — when it is necessary to maintain order and protect lives. By the Border Patrol’s own unverified account, only four of its agents were hit by rocks or other projectiles, and their protective gear ensured that they were not injured. That clearly doesn’t justify hurling Triple-Chaser tear gas grenades against a crowd of a few hundred largely peaceful men, women, and children.

And while tear gas has been outlawed as a method of warfare on the battlefield by almost every country in the world, that prohibition does not apply to domestic law enforcement officers using tear gas on their own citizens. Unfortunately, U.S. law enforcement personnel use tear gas all too often against peaceful crowds.

The use of this chemical agent, which can cause physical injury, permanent disability, and even death, is often excessive, indiscriminate, and in violation of civil and human rights. Studies suggest that children are more vulnerable to severe injuries from chemical toxicity: Infants exposed to tear gas can develop severe pneumonitis and require weeks of hospitalization. Using it on a crowd of people who were exercising their right to seek asylum at an international border indeed violated human rights norms; using it on a crowd of U.S. citizens engaged in protest is more common and also fraught.

The first reported domestic use of tear gas was during the 1935 timber workers strike when the National Guard used tear gas against picketers in Tacoma, Washington. During the civil rights movement, the use of tear gas — along with police dogs, fire hoses, whips, and nightsticks — by law enforcement officers against peaceful protesters helped rouse Americans’ sympathies for the demonstrators.

In the 1980s, as international negotiators were drafting an international convention to ban chemical weapons, there were heated debates about the use of tear gas by law enforcement — and calls for its use to be banned. Eventually, negotiators reached a compromise. The Chemical Weapons Convention, which was opened for signature on Jan. 13, 1993, and entered into force on April 29, 1997, banned tear gas (“riot control agents”) as a method of warfare but permitted its use in law enforcement, a decision that has been controversial ever since.

During protests in Ferguson, Missouri, following the police shooting of Michael Brown, police fired tear gas into people’s backyards and set it off near children. Protester Tory Russell was tear gassed over several days in Ferguson, causing him to panic and choke as he struggled to breathe. Russell described the experience to the BBC: “You no longer feel American.” One day during protests, when police fired tear gas into a crowd, people ran into a nearby coffee shop that filled with gas, creating a toxic environment in a confined space. Several sued and reached a settlement with Missouri law enforcement agencies to give proper warnings, adhere to minimum force guidelines, and refrain from using tear gas against lawful protesters.

Over the past several years, the ACLU has filed lawsuits challenging unconstitutional excessive use of force, including tear gas, to disperse peaceful protesters. As one lawsuit in Arizona charged, officers at an anti-Trump rally fired more than 590 projectiles “indiscriminately” into a crowd that “included children, elderly people, disabled people, and pregnant women.” A Phoenix police internal investigation noted that there was a 17-minute gap between when police began deploying smoke, pepper balls, and tear gas on the crowd and the first time officers made a widespread warning to disperse.

Another suit by the ACLU of Utah alleged that correctional officers fired tear gas inside the Utah State Prison after an inmate refused to return to his cell. The gas then traveled through air vents into the cells of other inmates, who suffered burning eyes, lungs, and skin. According to the complaint, prisoners, many of whom thought the jail was on fire, began “desperately trying to get the attention of prison officials by, among other things, kicking, screaming, and repeatedly pressing their emergency response buttons.” They were ignored and left in their cells for 20 to 30 minutes. (An official with the Utah Department of Corrections told the Salt Lake Tribune that tear gas is used infrequently at the prison.)

Not every use of tear gas by police is illegal. But it’s an indiscriminate weapon: Tear gas cannot distinguish between the young and the elderly, the healthy and the sick, the peaceful and the violent; it cannot tell whether a person is an unarmed rallygoer or a curious bystander. That is why it is rarely appropriate to use against protesters, and why its use should be regulated.

The United States has no specific rules regarding tear gas and requires no particular training for its use. When law enforcement officers do use tear gas, they should give clear and easily audible warnings beforehand, ensure that anyone who is not violent is far enough away to be unaffected, and provide prompt medical attention to everyone — violent or not — who is affected.

In a 2016 report on the health consequences of crowd-control weapons, the International Network of Civil Liberties Organizations and Physicians for Human Rights urged law enforcement when using tear gas to exercise special caution to stop the effects from spreading to unintended targets and bystanders and to minimize the risk of overexposure, which causes increased risk of injury. Law enforcement agencies must not exceed the minimum amount of chemical irritant necessary to achieve the effect of irritation and transient incapacitation. Higher concentrations of chemical irritants, which could easily be achieved by firing multiple canisters in the same spot or repeatedly, could cause serious injury or even death and must be avoided. Firing grenades or canisters containing chemical irritants into closed spaces or open space where there is no safe egress should be prohibited, as this significantly increases the gas’s risks.

Contextual factors must always be considered before deploying indiscriminate chemical irritants (the geographical nature of the deployment site, wind patterns, or the existence of hospitals, schools, or dense, uninvolved populations in the vicinity). Firing gas canisters or grenades directly into a crowd or toward individuals must be prohibited.

The use of tear gas against unarmed people fleeing violence in one country — many of them seeking asylum — is cruel and inhumane; it violates U.S. international human rights obligations. By using tear gas against them, our government mocks our obligation to protect the world’s most vulnerable. But the United States needs to rethink how it deploys chemical weapons against its own people, too, especially those who are exercising their right to protest.

Jamil Dakwar is the director of the American Civil Liberties Union’s Human Rights Program

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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32 thoughts on “Government Use of Tear Gas Is Illegal in War”

    1. Eric Gelber

      “But Obama …” is not an excuse for failing to acknowledge or refusing to address every issue. The fact that a problematic practice also occurred during the Obama administration is not a reason to ignore it now.

      It should be noted that the use of tear gas significantly decreased in the last years of the Obama administration and has significantly increased under the Trump administration.  But we can only correct what’s happening now, not what happened in the past.

      1. Keith O

        Where were you Eric Gelber, the ACLU and The Vanguard when Obama was doing the same thing?  I don’t remember the Vanguard posting any articles or you complaining about Obama’s policies of sending troops to the border or tear gassing illegal immigrants?

        1. Keith O

          I have no problem with it.  They’re illegally trying to storm the border so I didn’t complain with Obama and won’t be two-faced by now complaining about Trump.  What’s the alternative?  Shoot them?

          1. Don Shor

            What’s the alternative? Shoot them?

            Establish an orderly process for applying for asylum. Increase the number of personnel who deal with that process. Work with the government of Mexico to ensure that their basic human needs are being met. Work with the governments of Guatemala, El Salvador, and Honduras to try to implement economic development and foster conditions that will reduce the number of people who are literally fleeing for their lives.
            In other words, treat them humanely and recognize the causes of the problem.

        2. Jim Hoch

          “Establish an orderly process for applying for asylum” Not sure how that would work. Anything short of open borders will result in people continuing to march on the border. 

          Do you really think a denial after an orderly process will persuade to give up their ambition?

        3. Jeff M

          There is an existing process for asylum requests.  Go to a local embassy and/or port of entry and apply.   It is intellectually dishonest to make the claim that there is not a process.


          1. Don Shor

            There is an existing process for asylum requests. Go to a local embassy and/or port of entry and apply. It is intellectually dishonest to make the claim that there is not a process.

            I have not said there is no process. I said an orderly process. Please refrain from calling people intellectually dishonest.
            The major change implemented by the Trump administration is the requirement that one can only apply at a port of entry. Those sites are understaffed and this has created long lines and delays, contributing to the bottleneck of applicants at those points, especially Tijuana. To some extent this is largely a logistical issue requiring more staff and more facilities to house them once they have applied for asylum. The unilateral declaration that they must remain in Mexico is not really a solution. Ultimately it becomes a humanitarian crisis.
            I’m not a big fan of the Vox site, but this appears to be a good overview of the current situation. We need to work with the neighboring governments to try to deal with this. In my opinion we also need to be cognizant of why these folks are fleeing their homes and coming here, and stop demonizing them.

        4. Jeff M

          Ok… let me intellectually and honestly respond to your argument for an orderly process.

          First… we are talking about a process that is dealing with some of the most disorderly people.  80% of asylum claims are declined by the US, so it is clear that the vast majority are NOT asylum candidates and are just pursuing greater income and the great social benefits of the US.  I don’t blame them for that, I blame us for not putting an end to the scamming of our system.

          Second, go ahead and name any federal government program that deals with a seething mass of needy humanity as being orderly.   And oh, I am talking about programs for existing Americans.  Maybe Veterans healthcare is one of your ideas of an orderly system.  Or maybe you like the way the state runs the DMV.

          Your point is intellectually dishonest because it is a placeholder of irrational absurdity to deflect from the obvious and rational.  A process exists.  And everyone has access to that process.  It is as good as any other government process that deals with this needy people challenge.  And it is probably as good as it will every be.  I think you probably know that.  And there are many fewer true asylum candidates than attempt to make that claim, and THAT, combined with our asinine Democrat resistance for accepting true border control as it will stop their baby-vote factory,  is why it is disorderly.

          Frankly, my belief is that open borders access from our resisting politicians on the left and cheap labor establishment GOPers, foments the disorder by causing so many to try and exploit the system.  If we simply cut off fake and illegal access (get here with children and get a free pass) and force everyone to go through the existing asylum vetting process, the number of fakes would fall and the lines would shrink.

        5. Jeff M

          I checked the Homeland Security statistics and it is about 90% of people claiming asylum are scammers.

          Migrants who are apprehended or unable to enter the country legally can claim “credible fear” in order to get a hearing before an immigration court.

          In 2007, 5,171 people claimed credible fear and had their cases reviewed.  In 2016, it was 91,786.

          Surprise, surprise… 2007 was the last year before our disaster Obama era.

          Between 60 and 80 percent of those cases have been approved for further court review. Overall, 20 percent of applicants were ultimately granted asylum in fiscal year 2017.

          Do the math… that is about 10% of the claims being validated.  90% scammers.

          So the “disorderly” challenge is brought to us by a growing US safety net, and increase income gap between those in the US and south of the US (thank you minimum wage!)… and an EXPLOSION of applicants because of this greater prize… but mostly because of the telegraphed liberal Obama response which was pretty much an advertisement for scammers to illegally immigrate here.

          Obama had to pepper spray these left-welcomed invaders many times.  Trump at least made the case that these people would be turned away, and that caused many to turn back and many more are turning back after being stopped.  This will cause the word to get out that no longer will the US allow scamming of the system, and there will be shorter lines.  And the people truly having a valid claim of asylum will have a more orderly process.

          Truth hurts, but like medicine that is good for you, liberals should swallow it whole.

          1. David Greenwald

            My cursory examination of your 90 percent claim suggests that you didn’t find that from a credible source. In fact, there is no credible data on fraud in the system at all. It appears at best you are equating denials with fraud. That’s erroneous. It’s difficult to gain approval for asylum in the US and a denial is not fraud necessarily.

            According to WOLA: “U.S. agencies have not collected strong evidence showing that the U.S. asylum system is “currently subject to rampant abuse and fraud,” as stated by Attorney General Jeff Sessions in remarks to Congress on Oct. 12, 2017.” Moreover, “Federal agencies have not collected data on the extent of possible asylum fraud, according to a 2015 report by the United States Government Accountability Office. That same report found that U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review have the tools they need to investigate fraud cases, although they lack a system for regularly assessing “fraud risks across the asylum process.””

            Politifact called Sessions claims half-true: “The number of claims by immigrants citing credible fear to return to their home countries has significantly increased from 2009 to 2016. While there has been fraud in the asylum system, it’s uncertain and difficult to determine whether the percentage of “genuinely meritorious” credible fear claims is down, experts said.”

            Also according to Newsweek: “Under President Donald Trump, CBP’s use of the substance has hit a seven-year record high, with the agency deploying the substance a total of 29 times in fiscal year 2018, which ended on September 30, 2018, according to the agency’s data.”

        6. Jeff M

          Uh.  No.

          That is the ramblings of a social justice activist, but not fact based.

          The “Credible Fear” standard was implemented in 1980 for exactly this reason that the pain of a US liberal activist bleeding and bleating heart is not a valid criteria for vetting.

          As we noted, the overall grant rate for all asylum applications nationwide was 20 percent in fiscal year 2017, a percentage hasn’t changed much since 2012.

          That is 20 percent of the application where officials decided there was enough of a case that it needed to be vetted at the next level.   And at that level only 10% get in.


          Just say it… Trump was accurate.

          This is a tired and overly emoted situation by the left.  These places are not that bad.  Americans vacation to all of them.  They have economies.  They have jobs.  They are not Syria.  It is just a bunch of hogwash.  There are operatives of the US left down there stirring it up… pushing people to come.

          If you try and fail to make a case for asylum in this country… the most generous about immigration on the planet… then you are a scammer.

          1. David Greenwald

            I don’t know how you say no – I posted sources of data. You didn’t. Your comment isn’t accurate. I posted data, you’ve responded with emotion (which you actually acknowledge below).

            This comment is without basis: “If you try and fail to make a case for asylum in this country… the most generous about immigration on the planet… then you are a scammer.” But at least you now admit that you’ve conflated the denial rate with fraud without any sort of corroborating evidence. For example, I can sue someone in court for damages. I can lose a case without it being frivolous. The case for asylum is subjective and it is also fairly rigorous. The people applying for asylum are by no means experts in asylum law. A scammer is someone who knowingly is attempting to manipulate the system rather than someone who honestly believes they have a case for asylum but simply does not qualify under existing standards. Really your comment undermines your entire argument and I don’t think you understand as to why that’s the case.

            I agree with you that the number of “credible fear” applications have increased greatly in recent years – even before the Trump administration the applications increased from 56K in 2014 to 115K in 2016. But Trump’s claim is about fraud, not just numbers. As I pointed out in my comment, if you bothered to read, Politifact found Sessions 2017 claim to be partly true.

        7. Tia Will


          Your memory is faulty with regard to postings on the Vanguard critical of Obama’s border policy. I wrote an article likening the policy to the social structure depicted in the movie Snowpiercer. Perhaps you did not read it, but some of your “conservative” colleagues here did as it received quite a negative reception.

          The point is the morality of an action lies in and of itself, not whose “side” is doing it. If one cannot appreciate that if an action was wrong when Obama did it, it is equally wrong for Trump to do the same, then one simply does not understand what it means for an act to be moral.

        8. Keith O

          So Tia, you wrote an article complaining about Obama’s use of tear gas on the border, separating families and sending troops to the border?  I don’t remember that, can you post a link?

          1. David Greenwald

            She said that she wrote an article critical (here) of Obama’s border policy, not that she wrote an article critical of Obama’s use of tear gas on the border.

    1. Jeff M

      Yup.  And they also voted 49 – 51 against yet another woman appointed to a cabinet position by Trump.

      Looks like the Democrat-media is missing the direction of misogyny.

    1. Jim Hoch

      Trump has gotten so lucky with this caravan that I suspect he is financing it. The author is correct that people are “shocked” but not by the tear gas.

      1. Eric Gelber

        Right. Tear gas gets more attention now because it’s in the context of an overall immigration policy that includes racist slurs, fear mongering, misuse of the military for political advantage, abusive family separation on a massive scale, etc.

  1. Jeff M

    I should not comment here because I am beyond disgusted with the dripping hypocrisy of Democrats and leftists.  I am again reminded of the saying “without double standards Democrats would have no standards”.

    Keith points out the obvious that the ACLU and lefties on this comment section never emitted a sound when the Obama administration was doing the same and worse, and yet without even acknowledging this accurate and valid point… without any self-reflection… they just dismiss it and proceed with their Trump hating screeds.

    How can you people that behave this way feel so righteous in demanding civility and decorum from those that disagree with you?  Clearly you are not worthy of that demand if you cannot even acknowledge when there is a clear partisan double-standard that you benefit from politically.

    I might be direct in my partisan tone, but your passive voice and deflection is just as nasty in fanning the flames of partisanship.  Try admitting the truth every now and then and then maybe you will own some credibility for demanding respect for you views.

    1. Keith O

      Well Jeff in about a months time they can all come here and Trump hate in unison without fear of any dissenting alternate views or facts.  It will be an almost daily TDS fueled Trump hateathon.

      1. Jeff M

        You know that many churches would not let a vocal atheist come in to preach his views.  But most churches tolerate some level of debate within their religious boundaries of faith.   It seems exactly the same here.   The Vanguard represents the pious liberal community and can only barely tolerate those that argue against the core liberal orthodoxy.


  2. Jerry Waszczuk

    Alexandria Ocasio-Cortez Compared the Migrant Caravan to Jews Fleeing Nazi Europe. Is It a Fair Take?
    “Mort Klein, president of the Zionist Organization of America and the son of Jewish refugees, has become the most outspoken defender of Trump’s immigration policies among Jewish organization heads. In a series of tweets Sunday, Klein suggested that the Central American migrants aren’t actually refugees.
    “Stop illegal immigration. They’re mostly healthy looking young men,” he said in one tweet, referring to the migrants at Tijuana.
    He also asserted, “If these illegals were all conservatives who would likely vote republican, none of these leftwing supporters of these illegals would be supporting the illegals. None!”

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