Last night, US District Court ruled that police in Portland, Oregon are limited in using tear gas against protestors because, inter alia, the risk of irreparable harm given the #covid19 pandemic.
1. A thread on this decision & reflection on evidence between science & law.
1. A thread on this decision & reflection on evidence between science & law.
2. The Plaintiffs claimed use of tear gas violates:
– Fourth Amendment (as excessive force as an unreasonable search and seizure) &
– First Amendment (chilling political speech)
For a restraining order, Ps had to show that irreparable injury is likely w/o injunction.
– Fourth Amendment (as excessive force as an unreasonable search and seizure) &
– First Amendment (chilling political speech)
For a restraining order, Ps had to show that irreparable injury is likely w/o injunction.
3. The Court made this finding after asking parties to provide further evidence on "the science of tear gas" and Covid19.
kptv.com/news/suit-to-s…
kptv.com/news/suit-to-s…
4. Focusing on this irreparable injury point (as it's where #covid19 & use of tear gas intersect), the court found that tear gas "may put protestors' health at risk, contributing to the increased, widespread infection of this lethal virus"... likely to cause irreparable injury. 
5. The case didn't ban the use of tear gas outright. It limits use per policy to where lives at risk and cannot be used to disperse crowds. It gives protestors the ability to go back to the court for any violations as contempt of court in the next 14 days.
6. The Court didn't detail its assessment of the evidence in the ruling, rather it appeared to accept there was sufficient evidence of irreparable harm in using tear gas in context of #covid19.
This is despite no studies (that I'm aware of) specifically on covid19 & tear gas.
This is despite no studies (that I'm aware of) specifically on covid19 & tear gas.
7. You can't just expose people with covid19 to tear gas. It would be unethical for a number of reasons: we know tear gas causes harm (short & long term). We also know tear gas appears to increase risk of respiratory infections.
8. For example, past studies using marine recruits (...) showed exposure to CS gas increased susceptibility to influenza, pneumonia & other acute respiratory illness.
academic.oup.com/milmed/article…
academic.oup.com/milmed/article…
9. Courts can assess this evidence even in the absence of directly relevant studies.
Between science and law, there are also differences in burdens of proof and what is "a fact".
(I studied this exact question in my LLB & it's a tension @MarkRTurner & I work on)
Between science and law, there are also differences in burdens of proof and what is "a fact".
(I studied this exact question in my LLB & it's a tension @MarkRTurner & I work on)
10. For the law, adversarial systems seek to uncover truth through tending competing evidence that seek to meet a particular standard, depending on the jurisdiction & type of procedure. e.g. beyond reasonable doubt, on the balance of probabilities/preponderance of evidence.
11. Even in light of uncertainty, a Court has to make a decision. Science assesses facts differently to rigorous standards, and has the space to actively keep conclusions open. This is a good thing for the pursuit of knowledge, but may fall short for timely public policy action.
12. It's why communication with the public on emerging health risks can so easily become confusing or translate poorly to policy or individual action.
See, e.g. this great thread & pieces by @edyong209
See, e.g. this great thread & pieces by @edyong209
13. There may be more legal cases over the course of this pandemic that require law to assess science. But it's something courts are experienced with: from civil rights, to patent law, to torts. As courts are accountability mechanisms for govt, they can overcome policy inertia.
