When Protesters are Powerless: A Nexus with Protest Policing and Cruel, Inhuman and Degrading Treatment

[Kathryn Hampton is a senior program officer with Physicians for Human Rights, based in New York City.]

On 31 August, a Portland, Oregon, police officer was filmed by a journalist as the officer ran after retreating protestors in a Black Lives Matter protest: he is shown tackling one protestor to the pavement at a full run and then repeatedly punching him. The protestor was pinned under the officer’s body and can be heard crying out multiple times, presumably in pain. The video has been viewed almost 2 million times on Twitter. The protester is an ICU nurse named Tyler Cox who was later diagnosed at the ER with “a hematoma of scalp, close head injury initial encounter”.

After the police killing of George Floyd, Black Lives Matter protests took place in all 50 U.S. states, perhaps the largest movement in U.S. history. Citizens in other countries also joined the rallying cry against racial injustice, with Black Lives Matter protests taking place in over 60 countries, on six continents. In the United States, law enforcement responded with use of force, including 125 documented incidents of police violence against protesters in 40 states in May and June 2020, and at least 115 people who were shot in the head or neck with kinetic impact projectiles from May 26 to July 27, 2020. Severe injuries through use of crowd control weapons is not a new phenomenon, and have also been inflicted in response to other popular protest movements, including in Argentina, Kenya, Canada, Turkey, Paris and Hong Kong.

Public debates about the right to peaceful assembly often hinge on whether state use of force is justified, and under which circumstances. State use of force in law enforcement is lawful or justified under international human rights principles only when it is legal, necessary, proportionate and has been planned with precaution to avoid use of force if possible. Under U.S. law, use of force must be “objectively reasonable” in light of the overall circumstances. Determining reasonableness and proportionality calls for a careful balancing, a calculation of whether the harm caused by use of force can be justified by the threats to which it is intended to respond.

When considering when use of force may constitute cruel, inhuman or degrading treatment, Professor Manfred Nowak, the former UN Special Rapporteur on Torture, has argued that powerlessness is a factor that overrules this proportionality paradigm—”from the moment the person concerned is under the de facto control of the police officer, the proportionality test ceases to be applicable and the use of physical or mental coercion is no longer permitted.” The Istanbul Protocol, a manual establishing the global practice on the effective documentation of torture and other cruel, inhuman or degrading treatment, which Physicians for Human Rights (PHR) played a key role in drafting, also stresses in its forthcoming updated edition that powerlessness of the victim is a key consideration for evaluating whether inflicted pain or suffering violates the prohibition on cruel, inhuman and degrading treatment.

In the example above, the target of force, a protestor pinned down and unable to move, has “lost the capacity to escape the infliction of pain or suffering,” as per the definition of powerlessness by the current UN Special Rapporteur on Torture Nils Melzer. Infliction of pain on such persons is clearly unjustifiable under any circumstance.

However, even when the person is not in the direct custody of a police officer as Tyler Cox was, use of crowd control weapons can create situations of powerlessness. There are numerous examples of such situations. For example, powerlessness could occur in a protest setting when a direct hit to the head results in loss of consciousness, when simultaneous deployment of munitions and tear gas incapacitates a protestor from moving from the area, or when an unescapable stampede is caused by law enforcement actions. Such powerlessness may be compounded if medics, who volunteer to safely move incapacitated people and to lead people out of tear gas clouds, are themselves also incapacitated due to being targeted by law enforcement.

In PHR’s investigation in Portland in July, a combination of direct hits by kinetic impact projectiles or other munitions and extensive use of tear gas resulted several times in documented cases where protestors could not leave the protest area without assistance, which may have resulted in a situation of powerlessness, including:

• A protestor hit near his eye who could not see due to the impact and was surrounded by tables in a supply tent, without a respirator, unable to breathe or see due to the heavy tear gas cloud fired after the munition;
• A protestor who had already had a broken ankle in a cast when bones in her other foot were broken by a rubber bullet, also has severe asthma and was wearing a respirator which became saturated with tear gas, causing her to be unable to see or determine which direction she should go on her  broken limbs to escape the tear gas cloud; and
• A group of five individuals were unable to move, on all fours, wheezing, coughing and vomiting due to the tear gas, including a young man with a walker and a teenage girl having a panic attack, who was crying and screaming, but the police kept firing tear gas and flash bangs in their immediate vicinity.

“Less lethal” or crowd control weapons are designed to avoid loss of life; however, they are also designed to inflict pain and to incapacitate. According to Melzer, the current UN Special Rapporteur on Torture, when law enforcement intentionally inflicts suffering on an incapacitated, or powerless, person, that conduct will always amount to an aggravated form of cruel, inhuman or degrading treatment, regardless of the purpose, necessity or proportionality.

Governments must fully consider the nexus between powerlessness and infliction of pain in the context of protest policing, in order to prevent cruel, inhuman or degrading treatment when crowd control weapons are used.

Steps to ensure that law enforcement does not inflict pain on powerless individuals might include law enforcement agencies prohibiting simultaneous use of tear gas and kinetic impact projectiles. It also requires ending the use of tactics such as kettling, where protestors are driven into a small area, while also being subjected to crowd control weapons, as PHR has documented at recent protests in both Portland and New York City. Even better, law enforcement agencies could outright prohibit use of chemical irritants and kinetic impact projects in crowd control situations given the high risk of improper use and serious injury. Formal prohibition of weapons and tactics must be accompanied by rigorous training and accountability for law enforcement to implement those directives; the Portland mayor issued a directive banning use of tear gas on 10 September, which is a good start, but police have been recorded threatening to use tear gas on protestors as of 29 September.

Protests are not going away. Health harms caused by misuse of crowd control weapons only generate new injustices and new reasons to protest. If the primary concern for the national, regional or local governments is the safety and well-being of the community, adhering to basic principles of human rights and established law should be the foundation for protest response. It’s not possible to meaningfully address the serious concerns of protesters about racism and systemic injustice while we’re mainly intent on mowing them down.