Can You Use CN Tear Gas? Can ‘Media’ Access Your Command Post?

By: Shaun Rundle, CPOA Deputy Director.

The Legislature is attempting to answer these questions and more with a series of legislation that while well intended, would cause more harm than good. All bills must be heard in committee by August 14th, and then we have until the 31st to lobby the governor to sign or veto various measures. Over the last few weeks, bills that CPOA has opposed on dangerous use of force or crowd control reform, loosely defined ‘media’ access to command post areas, and detainee transport positions have inched closer to Governor Newsom’s desk.

Let’s start with bills listed under use of force reform, which are being pushed by the Legislative Black Caucus.

AB 66 (Gonzalez D) seeks to limit the use of kinetic energy projectiles and chemical agents to disperse lawful assemblies, enforce curfews, in response to verbal threats, or to enforce mere non-compliance with law enforcement directives. The problem here, of course, is that under the “non-compliance” language, such projectiles (CS or CN gas, rubber bullets, etc.) cannot be used to apprehend someone who has barricaded themselves, and possibly a hostage, because they were not following your commands. I lobbied that point against the bill, as well noted that such ‘less lethal’ tactics are used instead of resorting to lethal force, hence it will not accomplish what the author and supporters want with this bill.

Due to recent events where protestors were hit with such projectiles (even in non-First Amendment assemblies) AB 66 passed the Senate Public Safety Committee is scheduled to next be heard in Appropriations on August 17th. CPOA opposes the bill.

AB 1196 (Gipson D) started out by not allowing agencies to authorize carotid restraints and choke holds. This was in the wake of the governor’s call for agencies to discontinue the practice. Most agencies took it out of their policy or moved it under deadly force. Our Law & Legislation Committee agreed that the profession could work with that, so we ‘watched’ the bill. The author, a former police officer, then amended the bill to its current language, which additionally outlaws “techniques or transport methods that involve a substantial risk of positional asphyxia.”

That addition caused many law enforcement groups like CPOA to oppose the bill, which we still do. The definition of ‘positional asphyxia’ in AB 1196, which includes leaving a subject in control restraints lying on their back or stomach, and putting weight on their back for a ‘prolonged period’ would severely impede your ability to use techniques like the Wrap while holding or transporting subjects.

The Legislature simply took a bill that was workable for law enforcement and turned it into one that most organizations now oppose. AB 1196 is also scheduled for hearing August 17th in Appropriations.

SB 776 (Skinner D). The author of 2018’s SB 1421, which has sternly crippled agency ability to release personnel and critical incident records via the Public Records Act, is at it again. Senator Skinner further attempted to lower the access threshold to such records by using SB 776 to remove the standard that records be sustained. The bill now, with August 10th amendments, goes further to even remove the “complaint was not determined to be frivolous” language. This is another bill that we have opposed, and it does not yet have an Appropriations Committee hearing.

On the topic of media access to incident command posts, SB 629 (McGuire D) deals with that subject. The bill allows ‘duly authorized’ members of the press to enter areas that have been closed by law enforcement due to a demonstration, march, protest, or rally and prohibits officers from citing members of the press for failure to disperse, a violation of a curfew, or a violation of resisting, delaying, or obstructing, as specified. I have engaged in various conversations with Senator McGuire’s office, but the focus on ‘duly authorized’ has been and continues to be of concern. As written, someone could essentially print their own business cards form Office Depot, have a nice camera and claim to be from the media, thereby granting them access to peace officers trying to protect First Amendment demonstrators. That simply cannot happen.

The impetus for the bill was to mirror PC 409.5 language regarding media access to a command post area during an emergency or disaster but having access during a protest or riot is a different matter. I stressed that to the Senator’s office, as well as the Assembly Public Safety Committee, where the bill was heard last week. It too has no hearing date yet in Appropriations.

An old Capitol saying goes “you can’t amend a bad bill.” Yet 2020 has yet again shown us, as the last few years have as well, that ‘criminal justice reform’ fails to account for ‘victim justice.’ Legislation based upon emotion and not grounded in fact and data is becoming the new norm in Sacramento. For your sake, know that CPOA is here to fight the fights as needed. Stay tuned, and if so inclined to lend your voice, join our Law & Legislation Committee by emailing me at