The Journal Gazette
Friday, October 29, 2021 1:00 am

Portion of protest lawsuit dismissed

Police outline modified approaches

DEVAN FILCHAK | The Journal Gazette

The 12 people who sued the city of Fort Wayne following protests in May 2020 have dismissed part of their pending lawsuit after coming to an agreement with the city.

The federal lawsuit, on behalf of plaintiffs represented by the American Civil Liberties Union, alleges police used “unreasonable force” during the demonstrations downtown. 

The original lawsuit asks a judge to bar officers from interfering with protests or using tear gas, rubber bullets and pepper spray in similar situations in the future. It also asks for a declaration that the defendants' and officers' actions violated and continue to violate constitutional rights.

The plaintiffs plan to dismiss some claims but can continue to sue for monetary damages if those issues aren't resolved by joint agreement. The plaintiffs' decision was made following multiple discussions, many of which were with a neutral mediator.

John Perlich, Mayor Tom Henry's spokesman, released a statement jointly prepared by the city and ACLU. The city and police department deny any wrongdoing, and the two sides still disagree on what happened during the protests, the statement said. 

The lawsuit was initially filed by 13 plaintiffs against the city and Allen County Sheriff David Gladieux. One of the plaintiffs withdrew from the lawsuit, and the ACLU voluntarily dismissed the sheriff as a defendant, the document states. 

City police will use only less-lethal, impact munitions when “it is objectively reasonable to do so” and target only people who resist or interfere with an arrest or are perceived to be an imminent threat. They will also “consider the safety of uninvolved citizens and those persons not engaged in unlawful activity,” the statement said.

People have the right to protest nonviolently in parks, sidewalks and on streets that have been closed to traffic, consistent with city police policies. Police will take “reasonable measures” to temporarily close streets if non-violent protesters enter public streets unlawfully until the streets are cleared.

“FWPD, in accordance with its existing policies and procedures and applicable governing law, including the Fourth Amendment to the United States Constitution, will use force that is objectively reasonable under the circumstances presented,” the joint statement said. “Whenever circumstances permit, FWPD will continue to make reasonable efforts to deescalate any potentially unlawful situation presented during a protest prior to using force.”

Police can establish an emergency incident area, declare an unlawful assembly or make other dispersal orders if protesters do unlawful activities, according to the statement. Unless there's an emergency, city police will reasonably try to notify people in the area to leave and what routes they should take and to warn people approaching the area, which could include notifying people verbally; by loudspeakers, on the ground or through drones; and geofencing.

Without dispersal orders, people who are on sidewalks or in parks and are not breaking the law will not be ordered to disperse and force will not be used against them unless they “are perceived to present an imminent threat,” the statement said.

As part of the jointly prepared document, Fort Wayne police acknowledge the use of any chemical agent – including pepper spray and tear gas – is a use of force. And should be used only under reasonable circumstances.

The statement said warnings should be given before chemical agents are deployed whenever feasible.

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