Appeals Court Considers If Police Use of Blast Balls on Recording Protesters Is Unconstitutional

By Robert Phillips, Deputy District Attorney (Ret).

Legal Issues and Case Citation 

• Use of force and blast ball grenades 
• Use of force at civil disturbances (i.e. riots) 
• The Fourth Amendment and the use of force 
• The First Amendment freedom of speech and retaliation 

Rule: The act of shooting and injuring a person by law enforcement with the intent to restrain that person constitutes a Fourth Amendment seizure. This, however, does not include either accidental force or force intentionally applied for some other purpose. The use of an OC blast ball in an attempt to disperse a rioting crowd that accidentally hits and injures a person is not a Fourth Amendment violation. Law enforcement’s use of force in retaliation for a person filming civil unrest violates that person’s First Amendment freedom of expression rights. However, no such retaliation occurs absent evidence that law enforcement was motivated by an intentional attempt to interfere with the person’s act of recording the officers’ actions. 

Facts: Plaintiff Taylor Cheairs was enjoying dinner on the evening of June 7, 2020, in Seattle, Wash., in the Capitol Hill area. Not too far away and in other parts of the city, a considerable amount of civil unrest was taking place. This was a continuation of unrest in Seattle that stemmed from the killing of George Floyd on May 25 by a Minneapolis police officer, who was later convicted of murder in the case. Demonstrations began in Seattle a few days after Floyd’s death. Some of these degenerated into violent protests, resulting in significant property destruction in Seattle. This included Capitol Hill, where at least one of Seattle Police Department’s precincts was located. (Considerable more detail is provided by the court describing the unrest in Seattle during this time period.)  

Just after midnight (12:04 a.m.) on June 8, with the situation escalating, the Seattle Police Department incident commander authorized the officers to begin using “less-lethal weapons.” This included the deployment of what ....