City of Fort Wayne says injury to protester hit by gas can ‘result of his own actions’

Local News

FORT WAYNE, Ind. (WANE) — The city of Fort Wayne said in court documents this week that a protester who lost his eye received the injury because of his own actions.

The city filed a response to Balin Brake’s lawsuit against the city and Officer Justin Holmes.

Brake, with the help of the ACLU of Indiana, alleged the officer used excessive force when he fired a tear gas canister at the then-21-year-old’s face while he was protesting in downtown Fort Wayne May 30, 2020.

Brake lost his eye as a result of the incident.

In a response to the lawsuit, the city claimed Brake was not peacefully demonstrating that day. The city maintained that Brake was struck by a gas canister “when he ran into an area, approaching police officers, which area had previously been unoccupied and was struck by a chemical munition that had been deployed into that previously unoccupied area,” the lawsuit said.

Brake said he did not hear warnings to leave the area. The city denied that claim.

In the response, the city said the use of force by police was reasonable in the protest and that the officer was “acting in the course and scope of his employment under color of law.” The city also denied liability.

“Plaintiff’s injuries were the result of his own actions,” the city wrote in the response. “To the extent Plaintiff’s injuries were not the result of his own actions, they were the result of the actions of other non-parties and not Defendants.”

The city has asked for the case to be tried by a jury.

WANE 15 is hosting a panel discussion to learn how the relationship between police and the community has grown since the protests in downtown Fort Wayne a year ago. Watch live on wane.com May 18 at 7 p.m.

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