The Chilling Indictment of Alejandro Orellana

As tensions continue to roil between federal immigration enforcement and communities across the nation, the first federal indictments are beginning to emerge from last month’s notable flashpoint in Los Angeles. Federal prosecutors in Los Angeles recently filed what Ken White of The Popehat Report termed “a propagandistic paean to authoritarianism” in charging local activist Alejandro Orellana with 18 U.S.C. § 371 (Conspiracy to Commit Civil Disorders) and 18 U.S.C. §§ 231(a)(3), 2 (Aiding and Abetting Civil Disorders). Orellana’s offense, according to the complaint, amounts to distributing masks that would allow demonstrators to protect themselves from CS gas (commonly known as “tear gas“). While the government briefly attempts to tie a slingshot found in Orellana’s apartment to an intent to assault cops, the only crimes he’s charged with are connected to distributing the masks.

I’ll direct any questions on its legality or propriety to Ken, one of the leading experts on the First Amendment (and a former prosecutor in the office that filed it). Here, we’ll focus on the broader implications of the prosecution’s theory, if we take them at face value. It’s not a stretch to say that, if that theory withstands scrutiny, the right to peacable assembly might turn on whether you could survive how the authorities intend to deal with that protest.

Anti-Mask Law Justifications Don’t Apply to the Mask Orellanas Was Using

The modern history of anti-mask laws dates to 20th century efforts to inhibit the Second Klan. While they made sense at the time—allowing violent extremists to hide their identity hindered prosecution—they’ve always stood on questionable First Amendment ground, especially after their revival to control COVID-era protests.

Those well-meaning and narrow justifications don’t apply here: the mask Orellana is accused of supplying, the Uvex Bionic Shield, is just a clear plastic face shield with a headband.

No would-be rioter is using this to hide their identity. While it offers protection against “chemical splashes and flying debris,” it doesn’t seal to the face, meaning that it wouldn’t allow a person to remain in a tear-gas-filled environment for any significant amount of time. The mask’s sole use in a protest situation would be allowing quick escape from such an environment, something the police would theoretically welcome in an unlawful assembly.

Tear Gas Is Unpredictable, Dangerous, and Harder on the Medically Fragile

For the majority of people who experience CS gas, the symptoms are deeply unpleasant but survivable. There’s a smell, something like a jalapeno air freshener, then your eyes quit wanting to work, then everything on your face starts to leak. You cough and stagger to a less affected area, wash your eyes, and go about your business. (I remember telling an unaffected colleague he could “go ahead and laugh, this [was] very funny.“)(1)

That majority, however, is made up of “previously healthy individuals in controlled settings“ like police and military trainees; one study relied on by manufacturers to demonstrate the safety of tear gas had a sample of just seven “healthy military volunteers.“ Unlike test subjects, however, the actual populations on which tear gas is deployed aren’t preselected for the ability to handle it.

The chemical receptor on which CS gas works, TRPA1, is responsible for a host of environmental irritant-related neurological responses (which is why it triggers every throw-the-bums-out response in your face, from tears to snot to coughing). However, as we discussed with synthetic cannabinoids, even identifying these receptors is a new science (TRPA1 wasn’t discovered until 2008), and our knowledge of how to target them is still in its infancy, meaning that a shotgun approach risks a lot of adverse effects. One patient from a prison episode reported reactive airway dysfunction syndrome (an asthma-like condition where the airway tries to flush out a foreign substance) for weeks after his exposure. Large-scale tear gas deployments in Turkey resulted in more than 30 patients coughing up blood for up to two weeks after exposure. One Tunisian case report even linked CS gas exposure to a heart attack in a previously healthy 24-year-old; while that paper didn’t mention a cause, rat and mice studies show that even a single exposure to one tear gas component reduces the baroreflex response, which speeds or slows heart rate to control blood pressure. Close-range exposure also resulted in significant erosion of the corneas.

Existing TRPA1 studies also point out that its activation tends to exacerbate existing health conditions like asthma, and noted that the most severe reactions to CS gas tend to come from people with a history of asthma. Noting that “TRPA1 activation may aggravate preexisting pulmonary inflammation, injury,“ the authors of a major epidemiological review of tear gas deployments speculated that its use on people with preexisting medical conditions could turn manageable conditions into long-term disabilities.

Criminalizing Countermeasures Is Awfully Convenient

We cannot ignore the context of this indictment.

First, there’s the legally fraught but common use of “kettling,” in which police will surround a crowd and limit its opportunity to disperse. There’s also the context of this year’s protests, notable for both their sheer size and demographic diversity. Also, while unrest has been confined to a relatively small area, the spread of tear gas is—as my own story notes—unpredictable, and there’s no guarantee for innocent bystanders. Criminalizing safety precautions against “riot control“ means limiting protesters to those (probably) healthy enough to withstand it. That population is both smaller and likely more representative of the “military-age males“ of border hawk propaganda, in turn reducing the PR consequences of more draconian crowd control.

A common refrain throughout the history of American mass demonstrations is that protest is not only legal but admirable, so long as it’s easily ignored. The prosecutor’s theory appears to be something much darker: protest at your own risk…of us.

_{(1) The story in brief: a gaggle of sloths with badges were too lazy to drive the extra few miles to their own training ground, and apparently didn’t think to tell the firefighting class—who had the temerity to use their own turf—that they’d be playing riot cop a football field away. Your mileage may vary if you are ever intentionally targeted with CS gas.}