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Law360 (June 8, 2020, 6:22 PM EDT ) The city of Portland, Oregon, has been hit with a proposed class action over the use of tear gas by police to disperse protesters rallying against police brutality, with protesters saying the use of chemical agents violates their constitutional rights and increases the risk of COVID-19 infections.
The suit was filed in Oregon federal court late Friday by two protesters, Nicholas Roberts and Michelle Belden, along with social justice advocacy group Don't Shoot Portland, and seeks to obtain a temporary restraining order and permanent injunction preventing police from using tear gas as a crowd control tactic.
The protesters say that even though they are exercising their free speech rights to hold nonviolent demonstrations and marches to protest the killing of George Floyd, the Portland Police Bureau "has responded with indiscriminate, unchecked, and unconstitutional violence against protesters," which is a prohibited use of excessive force under the Fourth Amendment, according to the complaint.
"In particular, PPB has repeatedly used chemical agents ('tear gas') against crowds of protesters, including plaintiffs who had committed no criminal acts, posed no threat of violence to any person, and were merely engaged in protected speech," the suit said.
In addition, the use of tear gas is especially dangerous because it acts as a respiratory irritant that causes people to expel mucus and saliva, which could increase the risk of spreading the novel coronavirus, according to the suit.
"In the midst of a global pandemic, the deadly novel COVID-19 virus is known to spread principally through aspirated saliva and mucus," the suit said. "The use of tear gas by the city violates plaintiffs' rights under the First and Fourth amendments to the United States Constitution."
Portland Mayor Ted Wheeler acknowledged the protesters' demands regarding the use of tear gas and announced Saturday that he has advised the city's chief of police to only use tear gas if absolutely necessary.
"Gas should not be used unless there is a serious and immediate threat to life safety, and there is no other viable alternative for dispersal," Wheeler said via Twitter. "I strongly believe that gas should not be used to disperse crowds of non-violent protestors or for general crowd management purposes. It should only be used in response to violence that threatens life safety."
An attorney for the protesters and a representative with the Portland mayor's office did not immediately respond to requests for comment Monday.
The protesters are represented by Jesse Merrithew and Viktoria Safarian of Levi Merrithew Horst PC, Juan C. Chavez, Brittney Plesser, Alex Meggitt and Franz H. Bruggemeier of Oregon Justice Resource Center and J. Ashlee Albies, Whitney B. Stark and Maya Rinta of Albies & Stark LLC.
Counsel information for Portland was not immediately available.
The case is Don't Shoot Portland et al. v. City of Portland, case number 3:20-cv-00917, in the U.S. District Court for the District of Oregon.
--Editing by Abbie Sarfo.
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