WA Supreme Court Nullifies Portion of Tear Gas Law

In a 5-4 decision last Thursday, Washington's Supreme Court nullified some restrictions that the Washington State Legislature placed on law enforcement's use of tear gas for riot suppression.

The State law, passed in 2021, required law enforcement to receive deployment approval from the highest elected official in the jurisdiction where tear gas may be used. In many counties this official is the chair of county commission.

The case was taken to court after several sheriffs and commissioners sued the state, claiming the restriction both violated the state constitution's separation of powers and interfered with sheriffs' department duties. This ruling holds that when applied to sheriffs in Washington's non-charter counties, this section of law is unconstitutional.

The requiring of approval from a public official was a compromise between House and Senate lawmakers as they attempted to build police reform legislation, which came shortly after the 2020 Black Lives Matter riots.

The court decision will not affect other sections of the law, which require officers to exhaust all alternatives to tear gas, announce that tear gas will be used, and allow sufficient time and space for people to disperse before it is deployed.

Justice Charles Johnson wrote for the majority decision, “We conclude quelling riots is a core function of the sheriff’s office. We emphasize discretionary use of lawful force in riot suppression is a core function of the sheriff’s office.”

He added, “Permitting the legislature to redefine a county office’s core functions would dilute the office’s position.”

Justice Sheryl Gordon McCloud argued in decent that, "while quelling riots is a core function of the sheriff’s office, using tear gas is not fundamental to quelling a riot."