Avoiding the gas: Journalists, police clash over gas mask policies

Lisa Burgoa | Newsgathering | News | January 10, 2017

Visual journalist Armando Gallardo, a freelancer for the news and entertainment network Fusion, was arrested Sept. 26 by the Charlotte-Mecklenburg police and charged with an “extraordinary event” violation while covering protests in Charlotte over the fatal shooting death of Keith Lamont Scott.

His crime? A gas mask, tucked away into his backpack as he snapped photos and spoke with members of a community reeling from violence.

In a city where officers are permitted to deploy chemical agents for domestic riot control, a gas mask provides journalists the means to circumvent police dispersion measures. But Gallardo’s arrest presents a conundrum: does public interest in the Charlotte protests supersede Gallardo’s duties to comply with law enforcement’s orders to evacuate the scene?

Gallardo allegedly infringed upon regulations specified in Charlotte’s Code of Ordinances prohibiting “body armor, shield, helmet, protective pads, or gas masks carried or worn with the intent to delay, obstruct or resist the lawful orders of a law enforcement officer” during an extraordinary event – a “large scale special event of national or international significance ... expected to attract a significant number to a certain portion of the city.”

The tension arises when journalists covering the scene clash with police officers striving to maintain order over crowds in intense public situations.

“This case illustrates what can happen when municipalities and local governments try and pass or adapt emergency orders so that they try and maintain some peace and order in the community,” said Eric Lieberman, general counsel for Fusion. “These can be used as an overly blunt instrument to keep reporters from doing the important job that they do as they stand for the eyes and ears of the public while covering how police deal with citizens engaging in protest.”

Gas masks and flak jackets may seem removed from the typical paraphernalia coveted by reporters – notebooks, cameras and, increasingly, phones – but they previously arose as a matter of contention between coalitions of journalists and police departments during the party convention season last summer.

The Republican National Convention in Cleveland, Ohio, saw police barring gas masks within a 1.7 square mile “event zone” adjacent to the Quicken Loans Arena where the convention was held. Other materials, including most weapons (but not guns), bags exceeding certain sizes and sound amplification equipment, were also banned.

The Philadelphia Police Department, which provided security during the Democratic National Convention, does not use chemical agents to disperse crowds in a protest situation and did not prohibit gas masks at the event. No journalists were arrested in either location as a result of carrying gas masks.

The Reporters Committee for Freedom of the Press issued a July 14 letter signed by 22 other media organizations -- including the New York Times Company, the Washington Post and Fox News Network -- urging Cleveland Mayor Frank Jackson and Chief of Police Calvin Williams to allow credentialed members of the media to possess and wear gas masks during the conventions.

“If law enforcement officers decide to use tear gas on a crowd, that becomes a newsworthy event warranting media attention. Allowing journalists to be present and witness the events benefits everyone involved, including the police,” the letter states. “The journalists who are not interfering with police operations and are simply trying to cover the event should be permitted to protect themselves, and should not be forced to try to cover such activity while suffering the sting of tear gas.”

Another letter, written by the Society of Professional Journalists, the National Press Photographers Association and the Radio Television Digital News Association further condemned Cleveland’s policy of banning bags exceeding 18” x 13” x 7” sizes as failing to recognize the amount of gear carried by journalists.

“While we believe that the press may not have any greater right than the public to access, we also think that it is short-sighted for municipalities that fail to recognize valid exceptions to any rule,” the letter, dated July 17, reads.

NPPA general counsel Mickey Osterreicher has worked to train police officers across the country about the First Amendment rights of citizens and journalists to photograph and record in public. Nevertheless, Osterreicher advises journalists must also exercise common sense during confrontations with police.

“The time to argue about the First Amendment is usually not in the street while an event is happening,” Osterreicher said. “Usually, at the end of day, if you’re arguing with someone with a badge and a gun, you’re going to lose that argument. They may eventually lose it in court, but in the meantime, you job is to be out there and be reporting, not be getting arrested.”