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Critics Say Proposed Ban on ‘Less-Lethal’ Weapons Faces Legal, Practical Hurdles

An-Li Herring
90.5 WESA
A column of city police, armed with less-lethal weapons, marched into downtown Pittsburgh on Saturday, May 30, after protesters had already clashed with police.

Critics of a proposal to ban “less-lethal” weapons throughout Allegheny County outlined legal and practical concerns about the measure Wednesday. The bill, pending before the county’s 15-member council, would prohibit munitions such as those police in Pittsburgh used to disperse crowds at recent protests over police brutality and systemic racism.

Democrats Liv Bennett and Bethany Hallam introduced the measure earlier this month. It would prohibit a range of crowd-control tools, including rubber bullets, tear gas, and flashbang grenades. Flashbangs are explosive devices that emit an intensely bright light and loud “bang” to disorient their targets.

Less-lethal ammunition is meant to cause discomfort or pain, not death. But the weapons can be fatal in rare instances, and have critically injured protesters in other parts of the country.

Despite such concerns, council’s solicitor, Jack Cambest, said Wednesday that because the proposal would bar the use of less-lethal weapons countywide, it likely is too broad to pass legal muster. Federal and state law could preempt it, Cambest said, and municipal police forces appear to be exempt under the county’s home rule charter.

“If you adopt an ordinance that says, ‘You can’t use a rubber bullet in Allegheny County or a concussion grenade or whatever,’” the attorney told the councilors, “you can’t force the police department in Mt. Lebanon Township … not [to] use that sort of device.”

Cambest said council probably could require the county's own police department to comply. But he doubted that council would have the same authority over the county sheriff, who is elected independently by voters.

As a practical matter, the head of the Allegheny County Police Department said it would be dangerous to outlaw less-lethal weapons.

“If we get rid of these less-lethal options, we’re still going to have to try to undertake these [crowd-control] missions,” said superintendent Coleman McDonough. “But our options are going to be very limited, and they’re also going to be deadlier.”

Officers could resort to using lethal force, or simply “walk away” from threatening situations “where criminal activity begins, including property destructions, assaults on innocent citizens or officers, or arson,” McDonough said.

“Now I’m not talking about the many peaceful protests that we’ve seen here recently," he added.

McDonough noted, too, that SWAT officers used flashbang grenades against the accused Tree of Life synagogue shooter, Robert Bowers, during the October 2018 attack on the Squirrel Hill synagogue. McDonough said that by disorienting Bowers, the devices allowed SWAT officers to pull one of their comrades from the gunman’s line of fire.

Earlier in 2018, the police superintendent added, a county SWAT team used flashbang grenades to save a 4-year-old boy, whose father had held him at knifepoint for hours, without causing any fatalities.

Wednesday’s meeting came several weeks after Pittsburgh police employed less-lethal munitions at protests Downtown and in East Liberty. A spokesperson for the city’s police bureau, Chris Togneri, has said officers used smoke canisters, pepper spray, bean-bag rounds, and sponge projectiles. Bean-bag rounds are small, lead-filled bags that are fired from a shotgun, while sponge projectiles consist of a dense plastic base and a tip made of foam rubber or sponge-like material. Both types of ammunition can cause intense bruising and even broken bones.

Togneri declined to confirm reports that tear gas had been used at local marches, pending investigations being conducted by the city’s Office of Municipal Investigations and the Pittsburgh Citizen Police Review Board. He noted in an email, however, that “U.S. domestic law enforcement does not generally use rubber bullets.” The president of Pittsburgh’s Fraternal Order of Police union, Bob Swartzwelder, said at the time that the city’s officers do not use rubber bullets, which he called a “very old technology.”

John Sicilia, chief of the Northern Regional Police Department and vice president of the Allegheny County Chiefs of Police Association, added on Wednesday that “in my … almost 25 years of police experience, I’ve never seen [rubber bullets].”

He, too, urged councilors not to adopt the proposed ban on less-lethal weapons.

Health and Human Services Committee Chair Cindy Kirk, a Republican, said proponents of the bill would be invited to make their case Tuesday. Kirk said the committee will then discuss the legislation and any related motions or amendments July 8 or 9.