IMPD settles lawsuit, agrees to curb tear gas use

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INDIANAPOLIS– The City of Indianapolis and the Indianapolis Metropolitan Police Department (IMPD) have agreed to settle a federal lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of protesters from this spring’s social justice demonstrations that will curb police use of tear gas in future attempts to control peaceful crowds.

Indy10 Black Lives Matter filed the suit in July claiming the First and Fourth Amendment rights of demonstrators to peacefully protest were violated when IMPD resorted to tear gas to break up crowds and respond to widespread looting and rioting that followed.

“This agreement…specifically recognizes the rights to engage in peaceful protest, prohibits tear gas and other riot control agents from being used against persons involved in passive resistance, persons engaged in peaceful protest even though there may be unlawful activities occurring elsewhere and against people who are protesting solely to deter their movement,” said ACLU Legal Director Ken Falk. “The agreement does recognize that there may be people in an otherwise peaceful crowd that may be committing unlawful acts, but absent imminent threat of serious bodily injury or death or other exigencies, chemical or related weapons shall not be used against crowds.”

After details of the settlement were announced, the City issued the following statement:

“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. 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.”

FOX59 obtained an internal IMPD report detailing the response of officers on the nights of May 29 – 31 as social justice protesters filled downtown in demonstrations that were followed by looting, arson, rioting, vandalism and murder.

Two men were killed, 174 people were arrested and financial losses are estimated to exceed $7 million.

“I would say that both days the protests were largely peaceful until IMPD began throwing tear gas at protesters,” said Bre Robinson, a law school student and plaintiff in the lawsuit, “and that is when things started to get more ugly.”

The internal IMPD report documents through computer-aided dispatch messages and Blue Team reports on Use of Force incidents that during the first four hours of the demonstrations that Friday night, as mostly downtown police were ill-equipped and outmanned without the appropriately trained officers and without specific crowd control equipment to respond to the protests and the accompanying riot.

“We had quite a few ERG officers downtown and prepared to respond and they were responding,” said IMPD Assistant Chief Chris Bailey, “but as it grew, we realized we needed more personnel.”

By 7:11 p.m., IMPD officers reported that, “Crowd is becoming more aggressive” and “throwing projectiles at officers.”

Within 20 minutes, IMPD responded with its first deployment of chemical spray.

“From the very beginning, one thing that we did notice that folks were bringing shields and other sticks and other things with them on that Friday night, which is not something typical what we see out of the protests that we’re used to dealing with here,” said Bailey, “so right then and there we knew something was going to be different about what happened.”

During the next several hours, lightly-armed patrol officers watched as the crowd circulated through downtown, jumping on cars and breaking windows.

“Stay in your cars,” was the order from an IMPD commander as police continued to de-escalate their response to the crowd with the assistance of Deputy Mayor David Hampton. “We’re giving up New York and Penn to them,” officers were advised.

“You have any further guidance on what to do at this time as far as dealing with the crowd causing damage, property damage at this time?” one officer asked.

“Our directive has been to stay away from them,” responded a commander.

Jess Louise said she was part of an Indy10 BLM medic team that had stashed medical supplies on the Circle in order to assist protesters impacted by the effects of tear gas.

“IMPD besieged that supply of ours, took and destroyed our medical supplies,” she said. “And less than hour later, tear gassed people that were in the area and it looks like it was done knowingly that we would not have access to those supplies.

“We didn’t hear any orders to disperse when we returned to the Circle having followed the crowd that was marching through downtown and at that time was not engaging in any stores or vandalism.

“On Saturday, there was a very large number of protesters at the City County Building and I was probably in the middle of that group and then all of a sudden tear gas began to get deployed and flash grenades were being used. We had no notice of what was being used at the front but then tear gas began to follow us as we ran away. Officers chased us down alleys to get us to leave but we didn’t even know what happened but it sounds like some individuals threw water bottles at officers at the front and that’s what led to that escalation.”

In the minutes before IMPD launched tear gas into the protesters at Market and Alabama Streets, CBS4 spotted a freshly broken window on the City County Building and fireworks and water bottles being launched by members of the crowd at officers while IMPD reported a sport utility vehicle with flashing lights attempted to block an intersection in order to thwart IMPD officers responding to the scene.

“I can say personally it was like I couldn’t breathe, I was blind and I couldn’t see anymore and a lot of choking,” said Kyra Harvey, one of the lawsuit plaintiffs. “The tear gas was from 2002 which caused a lot of issues for people and I don’t think IMPD realized that people could have died from the expired tear gas.”

(Fox 59 News has reviewed photographs of tear gas canisters with expired dates from that weekend. IMPD has not been able to confirm the status of its arsenal, though the last time city police dispersed chemical weapons in widespread response was during civil unrest at the intersection of 38th Street and College Avenue in the summer of 1995.)

“That weekend I was really ill after inhaling so much tear gas,” said Robinson. “I kept coughing to the point where I almost vomited several times.”

Blue Team reports reviewed by CBS4 indicate officers justified their use of tear gas as in response to violent actions by individuals within the crowds.

Subjects were spotted with semi-automatic rifles at Meridian and New York Streets while the windows were being broken out at the TJ Maxx store at Illinois and Market Streets with, “subjects inside.”

IMPD fired tear gas outside the store minutes later to disperse the crowd.

At two minutes before midnight, windows were broken and looters entered the CVS store up the block at Ohio and Illinois Streets while $50,000 worth of windows were being smashed at 1 American Square across the street.

At 11:36 p.m., IMPD advised that IndyGo Red Line service was suspended downtown.

Less than a half hour later, a Red Line driver on Capitol Avenue approaching the statehouse spotted protesters at the corner of Capitol Avenue and Washington Street and attempted to perform a U turn of the 60-foot long articulated bus to avoid the crowd.

The vehicle became stuck in the middle of the street and, according to IMPD reports, the driver fled, leaving a handful of ERG officers to hold off an approaching mob intent on reaching the bus.

Three tear gas foggers were deployed to buy the officers and an IndyGo supervisor enough time to hold back the crowd and remove the bus from the riot scene.

“For us there was not an appropriate use of these expired chemical agents on the community, with an entity that is not engaged in the community, outside of using force, surveillance and incarceration to engage us,” said Louise. “I don’t think that they acted in ways that were beneficial to the community or in the scope of their jobs.”

Falk said the settlement with IMPD does not preclude officers from using tear gas or other riot control agents on persons involved in illegal activity in the future.

“We are not in any way saying that the First Amendment extends to the violence that occurred later in the evening on those dates and this agreement in no way constrains the police response to that,” he said. “The significance of the agreement is that it sets out in clear principles that we have to first consider the forms of the rights of protest here and minimize any disruption with that even in a situation where there are some people in a crowd who are behaving unlawfully.

“Before chemical or other weapons are used against crowds, announcements must be made and made continuously to disperse so that people can disperse and force will not be used against people who are dispersing.

“We won’t see the scenes of people kneeling in the streets, clearly engaged in passive resistance, being sprayed or being pursued as they’re trying to leave.

“Adoption of these procedures should go a long way in preventing what we saw in late May in Indianapolis from ever occurring again.”

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