Philly police commissioner sought to use tear gas against protesters as Kenney hesitated, investigation says

Philadelphia Police Commissioner Danielle Outlaw sought to use tear gas during protests against police brutality last spring, even as Mayor Jim Kenney and at least one top police official expressed hesitation, according to an independent investigation commissioned by the City Controller’s Office.

The report released Wednesday portrays the city’s actions through early June as the most aggressive Philadelphia police response to civil unrest since the 1985 MOVE bombing. Police were initially caught off guard as protests began in late May, the result of a failure of leadership by top officials, the report says.

Controller Rebecca Rhynhart said Kenney failed to protect the city and its residents.

“The ultimate responsibility for any city response lies with the mayor and he did not exercise the leadership that was necessary throughout the unrest,” Rhynhart said. “This lack of leadership and planning had cascading negative consequences.”

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Ballard Spahr LLP and AT-RISK International Inc. conducted the investigation, reviewing 1,700 documents and interviewing more than two dozen city officials, as well as civilians and officials on local university police forces.

In a statement Wednesday, city spokesperson Mike Dunn said the Kenney administration rejects Rhynhart’s “unsubstantiated claims that the Mayor and members of his Administration did not exercise ‘leadership.’ ”

Dunn said Rhynhart “appears fixated on platitudes and attempts to cast blame for mistakes that have been acknowledged on multiple occasions.”

The report offered new details about internal conversations and Outlaw’s decision-making during three days of unrest, especially regarding the use of tear gas. Most strikingly, it revealed how she was on the scene at critical moments. Along with previous Inquirer reporting, it showed how she either observed without taking command, or left as the situation escalated.

In a statement, Outlaw said the decision to use tear gas “was not predetermined ahead of the initial demonstration.” She said specific incidents are still under review. And she said the controller’s report “seems to politicize” the police response, decrying comparisons to the MOVE bombing as “repugnant.”

Police ultimately deployed tear gas three times that weekend: on May 31 in residential areas of Kensington and West Philadelphia, and on June 1 on I-676 in Center City, where protesters were trapped in a ravine. Outlaw was in a parked SUV on a 676 overpass at the time, according to the report.

City officials told investigators Outlaw also requested to use tear gas on May 30 in Center City after protests began near City Hall and devolved into unrest. That request was denied by top members of Kenney’s administration. Outlaw told investigators she didn’t recall making the request, but didn’t deny it.

The next day at about 12:30 p.m., before crowds gathered in West Philadelphia, Outlaw and top brass discussed using tear gas during a meeting with SWAT. According to the report, a “senior longtime official with the Department” said he was opposed to using the chemical.

No officer interviewed by investigators could recall a time since MOVE when SWAT was deployed to a protest or when tear gas was used to quell civil unrest. Philadelphia police in the 1980s used aggressive tactics against MOVE, the Black liberation group, and in 1985 dropped a bomb on its West Philadelphia compound, killing 11 and destroying dozens of homes.

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During the May 31 meeting with SWAT, according to the report, Outlaw said she wasn’t opposed to tear gas and was familiar with chemical irritants. She approved their use against protesters in 2018 when she was police chief in Portland, Ore., a decision that drew national scrutiny.

At the end of the meeting, the report says, Outlaw, her driver, and other commanders were fitted for gas masks.

Outlaw told investigators she spoke with Kenney later that day, and that while he said he was personally against using tear gas, it was up to her as commissioner. Outlaw, who was hired six months earlier, said she didn’t go back to Kenney for a go-ahead, the investigators wrote.

By 4:40 p.m., an officer on the ground in West Philadelphia first requested tear gas authorization there, asking over police radio for “approval for a chemical dispersal of 52nd Street, just one block north of Market.”

A supervisor responded: “You’ve got the green light for that.”

» READ MORE: ‘I couldn’t breathe’: Inside the West Philly neighborhood teargassed by police

That authorization was only for tear gas deployment on one block: 52nd Street between Market and Chestnut Streets, Outlaw told investigators. But SWAT officers fired dozens of canisters of tear gas along a half-mile stretch for more than two hours at protesters, agitators, and bystanders.

Outlaw told investigators she tried to reach 52nd and Market Streets after she authorized using tear gas and rubber bullets. But she said she could “not advance past 50th and Market Streets,” where the air was thick with gas.

In July, Kenney defended the use of tear gas in West Philadelphia in an interview with The Inquirer, saying he feared for the lives of officers and residents. He later apologized in a statement “for my own actions and for my delay in offering a substantive comment on what occurred that day.”

The report was also critical of the use of tear gas and rubber bullets on I-676 the next day, when police fired at protesters who spilled onto the highway and were largely peaceful.

Outlaw and Kenney initially defended the tactics, saying protesters were throwing projectiles at police, then apologized weeks later after the New York Times published a video compilation of footage from 676. Outlaw said after seeing the video that she was “extremely disturbed.”

According to the report, Outlaw and then-deputy commissioner Dennis Wilson discussed potentially using tear gas on 676, “however, she said that she directed him to call her before deploying it.”

But, as she did in West Philadelphia, Outlaw left, following the events from a command center in Center City.

“Shortly thereafter, and although she had not given explicit approval, she recalled hearing that it had been deployed on the highway,” the report said.

Wilson was demoted.

To her critics inside the department, Outlaw’s actions during the unrest are part and parcel with her tenure: a lack of leadership during critical junctures, from the pandemic, to the unrest, to the skyrocketing murder rate.

According to law enforcement officials with knowledge of the response in West Philadelphia and on I-676, Outlaw’s failure to take command and provide definitive directions added to the confusion and chaos.

“She abandoned the scene and the tactical operation she was in charge of,” said one high-ranking law enforcement official, who spoke on condition of anonymity because they weren’t authorized to discuss the matter. “She gave orders and left without seeing that they were carried out as she commanded.”

On a phone call Tuesday with commanders, Outlaw said she didn’t know what was in the comingreport, but that it would be “another shot at the department,” according to law enforcement sources with knowledge of the call.

The report calls on police to ensure tear gas is deployed only in extreme circumstances, such as if someone is barricaded and violent, and not as general crowd control. In October, City Council banned police use of tear gas, pepper spray, and rubber bullets during “First Amendment activities.”

Rhynhart said she was not involved in the investigation itself. But in a briefing with reporters, she said the most important takeaway was a need for “stronger leadership in charge.” Since taking office in 2018, Rhynhart has frequently clashed with the Kenney administration. She is up for reelection this year, and is widely seen as a possible candidate for mayor in 2023.

Kenney was not interviewed as part of the investigation. He offered to sit for an interview only if the questions were provided in advance and if follow-up questions were submitted in writing, the report said. Investigators declined to proceed under those terms.

The Kenney administration released the findings of its own independent report last month, which found that police and city officials “were simply not prepared” for the protests that followed the police killing of George Floyd in Minneapolis. Kenney said he accepted the critiques in that report, which was completed by two outside firms.

“I fully accept the criticisms in the report of how our administration conducted itself this past summer,” Kenney said in December.

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Investigators did interview former Managing Director Brian Abernathy, who resigned amid criticism of the city’s response to the protests. He told investigators he did not believe there was a way for the city to plan for the unrest — but investigators said the city had a blueprint for maintaining peace.

Outlaw said that’s not the case, and that previous protests “were not of the scale” seen last year. She said police have already revisited department policies and practices related to mass gatherings.

The report’s recommendations include that the city have an independent director of the Office of Emergency Management. Fire Commissioner Adam Thiel currently serves in that role, and told investigators that he deferred to police when deciding whether to activate the Emergency Operations Center. The police declined to do so on May 29, the day before protests began, and first activated it on May 30.

The position of police inspector of homeland security had been vacant since March. That position “historically had the responsibility for planning for large protests,” the report said.

While the investigation focused on May and June, investigators also noted the October police killing of Walter Wallace Jr., and the protests and unrest that followed, in emphasizing the need for better police training and preparedness.

“Until the findings in this report are addressed,” investigators wrote, “there is a significant concern that the city could experience the same level of unrest, destruction to property, and harm to individuals that occurred in May and June 2020.”

John McNesby, president of Fraternal Order of Police Lodge #5, didn’t single out Outlaw, but said the failed planning and response to the unrest was the result of an “absence of leadership” from the Managing Director’s Office down to the Police Department.

“The bottom line is it didn’t make the police look good,” he said of the report. “It didn’t make the city look good.”

Below is the controller’s full report: