Extract
[...] In this case, the potential engagement of the State's liability under its activity of maintaining and/or restoring public order during the Yellow Vests protests, which are often highly disrupted, remained subject to the characterization of a serious fault by the law enforcement forces, which was not retained. In fact, the Council of State, as a court of cassation, considers that « Throughout the afternoon of Saturday, January law enforcement faced incessant projectile fire, including stone-throwing, from protesters who had deviated from the declared procession, some of whom were in possession of arms, particularly homemade bombs. [...]
[...] However, many technical developments have taken place since that time and things may have changed. In addition to the outdated positioning, there was also the question of the potential « tense shot to be resolved Regarding the question of the « tense shot, the Council of State considers that the evidence of such a shot, which is formally prohibited by the texts, is not brought by the victim. Subsequently, regarding the dangerosity of the weapon, it is considered that the MP7 tear gas grenade is a weapon of « intermediate force authorized by the Code of Internal Security and its implementing decrees as a dispersal device for protesters and restoration of order on public roads3. [...]
[...] Gross negligence excluded in this case The Conseil d'État judgment also has a pedagogical dimension in that it is very clear in the liability regimes it successively examines. Thus, it indicates that it specifically dedicates point 7 of the judgment to examining the possibility of gross negligence in the conduct of operations to restore public order. To recall the maxim of Professor Chapus, « the history of gross negligence is that of its retreat, this aiming to engage more easily the responsibility of the administration within the framework of a regime of responsibility for fault. [...]
[...] Following the conclusions of the rapporteur public, Maxime Boutron, on this case, the applicant has not « never, throughout the procedure, clearly indicated, on what grounds of liability he was asking the State to be condemned. The judgment thus raises interest by the multiplicity of regimes of responsibility of the State that it considers for possibly indemnifying the applicant. - Could the State be held responsible for the alleged damages suffered by the applicant during the 'yellow vests' demonstration on 12 January 2019? [...]
[...] In addition, even if it had been necessary to retain the regime of state liability for the use of dangerous weapons or equipment. B. The exclusion of the object used by the law enforcement forces from the regime of responsibility based on exceptional danger The question of the nature of the object used by the law enforcement forces during the operation determines the applicability of the regime2. Classic firearms enter de facto within the framework of this jurisprudence but over the years other types of non-lethal weapons have developed renewing the question In this case, it is indicated that the device causing the damage was a « tear gas grenade of type MP7 It was therefore a matter of knowing if such an arm could enter the category of dangerous devices The jurisprudence for tear gas grenades was old (CE March 1956, n° 25468) and considered that the regime of state liability for things and dangerous activities was not applicable to them. [...]
