Protester who lost eye due to tear gas sues Fort Wayne, police for excessive force

A Fort Wayne man who lost his eye during a recent Black Lives Matter protest is now suing the city and local police department for excessive force and violation of his First Amendment rights.

Balin Brake, 21, filed the lawsuit Friday in the U.S. District Court for the Northern District of Indiana. Brake is alleging violations of his First and Fourth Amendment rights after he was struck by a tear gas canister during a May 20 protest in Fort Wayne following the death of George Floyd in Minneapolis.

“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,” Jane Henegar, executive director of the American Civil Liberties Union of Indiana, said in a Friday statement. “The right to protest is fundamental to our democracy and no one should face tear gassing and injury while exercising that right.”

The ACLU of Indiana and Sidley Austin LLP in Chicago are representing Brake.

According to the complaint, Brake was protesting on Clinton Street outside of the Allen County Courthouse in downtown Fort Wayne. He arrived at about 4 p.m., and he was holding his arms in the air around 5 p.m. “when tear gas canisters began to fly.”

“One of these tear gas canisters hit Mr. Brake in the foot, and he turned around and ran towards the Courthouse Green,” the complaint says. “Mr. Brake felt the heat of the tear gas canister through his shoe, and he would later discover that it had disintegrated his shoelaces and burned part of his shoe.”

Next, the complaint says Brake turned around to see if Fort Wayne police officers were still releasing tear gas. It was then, according to the allegations, that Brake was struck directly in the face with a tear gas canister.

“The force pushed Mr. Brake back so hard that his hat fell off, and he collapsed to the ground,” the complaint continues. “Mr. Brake suffered immediate, immense pain from his injuries and the tear gas surrounding him. The right side of his face was numb, and blood streamed from his face and out of his mouth.

“Upon information and belief, the tear gas canister was fired from approximately 40 feet away. The canister sailed through the air and did not skip or bounce before hitting Mr. Brake’s face and eye.”

The officer alleged to have thrown the canister is identified in the case as John Doe but is believed to be part of the Fort Wayne Police Department Public Safety Response Team or the Emergency Services Team.

Another protester carried Brake to a local restaurant, The Hoppy Gnome, while another police officer called an ambulance. Brake was taken to Lutheran Hospital, where he stayed until June 2.

The complaint says Brake suffered two eyelid lacerations, four occipital fractures and permanent loss of vision and light perception in his right eye. Additionally, the tear gas canister cut a nerve in his face, and his right eye was completely ruptured and was eventually surgically removed.

Brake now has a prosthetic right eye that must be treated every day with eye drops. He also has incurred significant medical bills, according to the complaint.

“The loss of Mr. Brake’s right eye has permanently changed his life,” the complaint says. “He experiences severe headaches, and often feels pain where his eye once was. The loss of his eyes has also permanently impacted his depth perception, creating new difficulties in his everyday life that are particularly pronounced when he drives at night.

“Loud, unexpected noises cause him fear and mental suffering,” the Friday filing continues. “Mr. Brake’s prosthetic is noticeable, and it changes the way that others look at and treat him.”

Finally, the complaint alleges Brake now has a reduced ability to work. His injury contributed to his decisions to leave his positions as a part-time weekend editor for a local news station and as a full-time student at Indiana Tech University.

Brake raises claims under 42 U.S.C. § 1983 for violations of his First Amendment rights to free speech and free assembly, as well as violations of Fourth Amendment protections against excessive force and unlawful seizure. He alleges Officer Doe acted with “callous and reckless indifference” and pursuant to the policies and procedures of the city of Fort Wayne and the Fort Wayne Police Department.

“Mr. Brake’s constitutional rights were violated when Defendants, without a proper — or audible — warning, responded to Mr. Brake’s exercise of free speech and peaceful protest by firing tear gas directly at Mr. Brake, destroying his right eye, and causing a permanent loss of vision and other injuries and damages,” the complaint says. It also alleges that “Mr. Brake did not pose a threat to the safety of Defendants or others, had not committed any severe or violent crime, and was neither actively resisting arrest nor attempting to evade arrest by flight.”

The complaint seeks compensatory and punitive damages, as well as attorney fees and costs.

Spokespeople for the Fort Wayne Police Department and the city declined to comment on the litigation.

Online court records on Friday did not list attorneys for the defendants.

The case is Balin Brake v. City of Fort Wayne, John Doe, in his official and individual capacity, 1:20-cv-345.

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