The Journal Gazette
Saturday, October 03, 2020 1:00 am

Man who lost eye in protest suing city

Also targets unidentified officer who fired tear gas

MATTHEW LEBLANC | The Journal Gazette

The Fort Wayne man who lost an eye after being struck by a tear gas canister fired by police left school at Indiana Tech, finds it difficult to work, suffers from severe headaches and fears loud noises. 

It's hard to drive at night because of changes in depth perception, he says, and people now look at him differently because of a prosthetic right eye. 

Balin Brake, 21, argues in a federal lawsuit filed Friday in U.S. District Court in Fort Wayne the injury “has permanently changed his life” and led to mounting medical bills.

He is suing the city and the unidentified officer who fired the canister May 30, alleging constitutional rights were violated and excessive force was used during protests against systemic racism downtown. It's at least the second legal challenge to officers' response to demonstrations downtown this year. 

The ACLU of Indiana, which is representing Brake with lawyers from Chicago firm Sidley Austin LLP, is suing the city and Allen County Sheriff David Gladieux in a separate lawsuit on behalf of protesters. 

“FWPD have shown a reckless indifference to constitutional rights in their attempt to deprive the Fort Wayne community of their right to free speech, leaving Mr. Brake with a permanent loss of vision in his right eye,” said Jane Henegar, executive director at the ACLU of Indiana. “The right to protest is fundamental to our democracy and no one should face tear gassing and injury while exercising that right.”

Brake was among hundreds of demonstrators gathered near the Allen County Courthouse “to peacefully demonstrate in the wake of the murder of George Floyd in Minneapolis by police officers,” a 12-page complaint written by ACLU of Indiana attorney Kenneth J. Falk says. Brake began to run from officers after officers fired tear gas and was struck first in the foot by a canister, according to court documents. 

“When Mr. Brake briefly turned to look behind him, an unidentified police officer ... fired a tear gas canister that hit Mr. Brake directly in his right eye,” records said. “The impact threw him to the ground where he stayed, coughing from the tear gas and hunched over in pain.”

The lawsuit seeks damages for injuries and punitive damages against the officer, listed as defendant John Doe. It also seeks a judge's order declaring the city violated Brake's First and Fourth Amendment rights. 

Court filings include a picture of a bloodied Brake, who has been vocal about the case on Twitter. He could not be reached for comment Friday. 

City spokesman John Perlich declined to comment on pending litigation. 

Police have told a different story about what happened. 

A statement issued May 31 from police department spokeswoman Sofia Rosales-Scatena said a protester stayed in the area after commands were given to leave. Tear gas was used, according to the statement, and the protester bent over to pick up a canister to throw back at police.

“When he bent over, another canister was deployed in the area and that canister skipped and hit the protester in the eye,” Rosales-Scatena wrote. “There was no deliberate deployment of gas to any person's head.”

Brake has denied reaching for a canister to throw and hearing warnings to leave. The statement does not name him, though it says police believe the protester to be the same person reporters sought information about. 

A Washington Post investigation in July rebuts claims by police. Reporters for the newspaper analyzed video from the May 30 protest and said Brake had his hands raised and was moving away from police when he was struck. The canister did not skip or bounce, according to a more than 15-minute video posted to the Post's website. 

No hearings are scheduled in Brake's lawsuit. 

The ACLU sued the city and Gladieux on behalf of protesters in June, alleging officers used excessive force when tear gas and other tactics were used to displace demonstrators in May and June. That lawsuit also seeks damages and asks a judge to bar officers from using such tactics in similar situations. 

The city and Gladieux have denied claims they violated demonstrators' rights.

U.S. District Court Judge Damon R. Leichty on Friday approved a request from the ACLU to withdraw a motion for an injunction that would have barred police from using the tactics while the case is pending. 

An Oct. 15 hearing on the injunction had been scheduled, but it was canceled Friday.

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