IMPD, BLM reach settlement on tear gas use against protestors

Editor’s note: This story has been updated with comments from the Indianapolis Metropolitan Police Department.

Indianapolis police officers will not deploy tear gas or use similar acts of force against peaceful protestors or those engaging in passive resistance during a protest, pursuant to a new settlement between the police and a local Black Lives Matter organization.

The group known as Indy10 Black Lives Matter as well as three individual protestors sued the Indianapolis Metropolitan Police Department in June following the sometimes violent protests in Indianapolis related to the death of George Floyd in May. The American Civil Liberties Union of Indiana, which represents the plaintiffs, announced the settlement Thursday.

“There is no more important right than the right to protest,” ACLU of Indiana legal director Ken Falk said during a virtual press conference. “The right to raise our voices loudly and peacefully and to confront our government is the hallmark of our democracy.”

The ACLU filed the suit in the Southern Indiana District Court on behalf of Indy10, Bre Robinson, Asiah Bassett and Shaniece Lewis. The plaintiffs alleged that peaceful protestors in downtown Indianapolis were struck with tear gas, rubber bullets and pepperballs while engaging in activity protected under the First Amendment.

Per the terms of the settlement, the use of such force will not be permitted “to deter protestors from going to another location,” “against protestors because elsewhere in the City there are unlawful activities taking place,” or “against protestors engaged in passive resistance.”

The settlement – which will become an official part of IMPD policy – covers three types of force:

• Impact weapons, which include “any form of less than deadly force that is designed to strike a subject and deter conduct by inflicting pain through blunt force.”
• Less lethal devices, including chemical agents and pepperball guns, that can be deployed by officers without command approval.
• Riot control agents, or RCAs, which include “all devices that … required command approval.”

RCAs can only be deployed by members of the Event Response Group, or ERG, the division of IMPD that responds to large events in the city. It was members of the ERG who deployed tear gas on the protestors, Falk said.

“This section does not prohibit the objectively reasonable use of RCAs or less lethal devices against persons who are not protestors or against persons engaged in rioting or other unlawful behavior within an otherwise peaceful crowd or protest,” the settlement says. “However, absent an imminent threat of serious bodily injury or death or other exigent circumstance, RCAs or less lethal devices will not be used on a crowd of protestors. And, consistent with IMPD standard operating procedures, IMPD personnel shall, prior to deploying RCAs or less lethal devices that will affect a crowd of protestors, consider the number of person(s) around the person(s) engaging in rioting or other unlawful behavior who are not engaged in activity that, in and of itself, would justify the deployment of RCAs or less lethal devices, and shall, if possible, not deploy the RCAs or less lethal devices if those latter persons would be adversely affected.”

Falk stressed that the settlement does not prohibit IMPD from using tear gas or similar force against a person not engaging in conduct that is protected under the First Amendment. That would include violence similar to what was seen in some parts of downtown Indianapolis during the George Floyd protests.

However, if officers believe tear gas is necessary, they must make an announcement to disperse “in a manner reasonably calculated to permit all persons sufficient time to disperse before deployment of riot control agents and lethal devices. The announcement[s] must continue while persons disperse.”

While only members of the Event Response Group can deploy RCAs, all IMPD are equipped with “less lethal devices.” The settlement notes that its terms do not prohibit officers from carrying those devices as part of their official equipment.

Officers’ use of an impact weapon, specifically, “shall be targeted on persons upon whom the use of force is reasonable and appropriate.”

Falk was joined at the virtual press conference by Robinson and two representatives of Indy10 Black Lives Matter, Kyra Harvey and Jess Louise. All three were hit by tear gas during protests in Indianapolis following the death of George Floyd.

Responding to a question from Indiana Lawyer, Louise said she did not hear an order from police to disperse. The gas “crept up” on the crowd, she said, even though it was “overwhelmingly peaceful at the time.”

Harvey recalled having trouble breathing and feeling like she was blind after being exposed to the tear gas. Robinson said she coughed so much that she thought she would vomit, and she had to ask for extensions on her law school assignments due to tear gas-related illness. Harvey and Louise said they even experienced disruptions to their menstrual cycles following their exposure to the gas.

Asked if the eventual violence in the downtown area justified IMPD’s use of tear gas, Louise said the use of the chemical weapons was never appropriate during the George Floyd protests in Indianapolis. She added that the tear gas was expired, dating back to 2002.

“In short, no,” she said. “They did not act in ways that were not beneficial to the community or were within the scope of their jobs.”

The terms of the settlement do not include any findings of liability or wrongdoing related to IMPD’s actions during the May protests.

Falk described the settlement as a recognition by IMPD “that there’s something special about protests.” Having the terms of the settlement incorporated into official department policy is a positive step, he said, though he noted that future allegations of police violence could still be challenged in court.

“The global effect of the settlement is to elevate the importance of the protestors’ rights and to make sure they’re better protected,” Falk said, “but we’ll see.”

In a statement to Indiana Lawyer, Indianapolis police said the practices outlined in the settlement were already part of department training and practice.

“This settlement reaffirms IMPD’s commitment to being responsive to how our community wants us to serve – adding to written policy the safety measures and de-escalation tactics recommended by the ACLU that were already part of training and practice for the Event Response Group,” the department said. “It is our hope that this agreement brings us one step closer to healing the division in our community and building the types of police-neighborhood partnerships that reduce violence and create a better Indianapolis for all to enjoy.”

The case is Indy 10 Black Lives Matter, Bre Robinson, Asiah Bassett, Shaniece Lewis v. The City of Indianapolis, 1:20-cv-1660.