Commentary
By Tobias Winright 11-29-2018

When I was in the police academy, each of us recruits were sprayed point-blank in the face with oleoresin capsicum (OC), a cayenne pepper-based spray. This was done for two reasons: first, this experience would help us to know what it feels like when we use it on someone so that we would use it only when truly necessary; second, in case we ever were sprayed unintentionally, we had to still find our radio or a way to safety. Indeed, I’ll never forget the excruciating burning sensation and excessive mucus that put me out of commission for much of the rest of the day.

When I saw a video of U.S. Customs and Border Protection agents firing tear gas at asylum seekerswith mothers and their children fleeing in panic and desperation, I remembered what it must feel like. I wish the border agents, who are not military but a federal law enforcement agency, had remembered and, as a result, felt empathy, too.

Tear gasses were first used during World War I. They are a chemical weapon. When used in war, to control riots, or to disperse crowds, they cannot be controlled. Wind can blow tear gas over noncombatants and bystanders. It can even waft back over those who employed it in the first place. As such, tear gasses are indiscriminate.

In both war and policing, the use of force is supposed to discriminate (i.e., distinguish) between combatants and noncombatants, or threatening civilians and nonthreatening ones. Because chemical weapons such as tear gasses cannot be used discriminately, they have been banned internationally in warfare.

The border agents used CS (2-chlorobenzylidene nalonotrile), which is a more rapidly acting gas than CN or chemical mace (alpha-chloroacetophenone). Unlike the military, police departments in the U.S. and elsewhere have used these three types of tear gas. The effects of OC (with which I was sprayed) are considered more localized and less likely to cause permanent injury than the CS that was used by the border agents.

Tear gas is considered an “intermediate” use of force. As such, their utilization is expected to be consonant with principles such as discrimination and proportionality. Although not considered “lethal,” they have caused death in some extreme cases.

Earlier this year, I wrote an open letter to ICE, urging law enforcement agents to adhere to their oath “to support and defend the Constitution….” According to Article II, Section 2, of the Constitution, international treaties are, like statutes, supposed to count as “the supreme law of the land.” Crossing the border to ask for asylum is an international right, not a breaking of the law.

The use of CS by U.S. border agents against asylum-seekers, in my view, is both unjustified and ethically unjust. Indeed, I think it’s high time for U.S. police to rethink its continued use of tear gas, perhaps even discontinuing its use, like the military. If another such incident were to arise again on the border, like this past week, I pray that law enforcement officers follow a higher law that respects and protects the dignity and rights of others.

As Oscar Romero, Archbishop of El Salvador and now officially a saint, once exhorted, “I would like to make a special appeal to the men of the army, and specifically to the ranks of the National Guard, the police and the military.... No soldier is obliged to obey an order contrary to the law of God. No one has to obey an immoral law. It is high time you recovered your consciences and obeyed your consciences rather than a sinful order.”

Tobias Winwright

Tobias Winright is a contributing writer for Sojourners, and he holds the Maeder Chair in Health Care Ethics and teaches theological ethics at Saint Louis University in St. Louis, MO. 

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"Tear Gas Is a Chemical Weapon, Not a Deterrence Device"
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