Police

He Lost His Eye After a Cop Allegedly Fired a Tear Gas Canister at His Face. The Officer Says He Has Qualified Immunity.

If the officer succeeds, the victim will not be allowed to sue on those claims.

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A man who says he lost an eye last summer while peacefully protesting has filed a lawsuit in the U.S. District Court for the Northern District of Indiana against the police officer who allegedly left him partially blind. The officer accused of firing the tear gas round into Balin Brake's face is requesting qualified immunity, the legal doctrine that often protects state actors from being held accountable in civil court.

Brake, 22, says that on May 30, 2020, he arrived at the Allen County Courthouse in Fort Wayne, Indiana, for a nonviolent demonstration following the death of George Floyd. While standing with his hands up, he claims, a group of officers with the Fort Wayne Police Department (FWPD) fired tear gas into the crowd, prompting them to retreat. One tear gas canister hit his right shoe, causing it to burn; he then looked back, at which point Officer Justin Holmes allegedly fired a canister that hit Brake in the face.

After suffering two eyelid lacerations and four occipital fractures, Brake spent several days in the hospital, during which time his right eye was removed. Previously a part-time editor for a news station and a full-time student at Indiana Tech University, he says he parted ways with both due to his injury, which still causes him severe pain and headaches, the suit claims.

The city denies the allegations and contends that Brake was running toward, not away from, a stationary line of officers. In their response filed this week, Fort Wayne rejects the claim that Brake was protesting peacefully, though they do not provide many specifics on what he was doing otherwise. They do concede at least one very important fact: "Defendants admit that the chemical munition that struck Mr. Brake did not skip or bounce as it was deployed in the air to a previously unoccupied area."

That contradicts the explanation the department gave last year: "According to our officers on the ground, the protester was still in the area after commands to leave the area were given," said FWPD in a May 2020 statement. "Gas was deployed in the area and the protester bent over to pick up the canister to throw it back at officers as many others were trying to do. When he bent over another canister was deployed in the area and that canister skipped and hit the protester in the eye. There was no deliberate deployment of gas to any persons head."

The city says that "no act or omission" caused Brake any injury. Yet they are also seeking qualified immunity for Holmes on the grounds that if he did shoot Brake in the face as he describes, it wasn't "clearly established" at the time that such a course of action was a violation of his rights. The doctrine of qualified immunity says plaintiffs may only sue government officials if the exact misconduct alleged has been explicitly ruled unconstitutional in a prior court precedent.

This standard has produced some stunning legal rulings: Cops who allegedly stole $225,000 while executing a search warrant, for instance, were given qualified immunity because there was no pre-existing court decision declaring that kind of theft in those exact circumstances to be unconstitutional.

Whether or not qualified immunity is deemed appropriate in Brake's situation will likely not just affect him but may also touch other victims. Fort Lauderdale police hit LaToya Ratlieff in the face with a rubber bullet while aiming at someone else; an internal investigation absolved the officer of wrongdoing after confirming that she was not his intended target. Two officers in the same department who were recorded celebrating the mayhem were each suspended for a day.

In February, Ratlieff was mulling a civil suit of her own, though she was willing to desist if the city enacted reforms, according to The Miami Herald.

At least seven other people across the U.S. sustained significant eye injuries and were rendered partially blind by police projectiles on the same day Brake was. Video footage casts doubt on the various explanations offered by local departments.

Overcoming qualified immunity does not mean the plaintiff is entitled to damages, it simply gives that person the right to have their case heard by a jury.

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  1. What’s this world coming to when you can’t even peacefully protest without the riot police being called out to put down a completely unrelated riot taking place nearby?

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    3. That’s right. He should have dressed as ANTIFA and begun throwing Molotov cocktails. he wouldn’t have been shot then.
      Oh, wait a minute, he was dressed as ANTIFA.

  2. I’m honestly a bit curious how he could know the specific officer that hit him in the face with a canister from a ‘stationary line of officers’ firing tear gas.

    Maybe this was the only officer using it? Seems…a little unlikely but hey maybe that’s the truth.

    1. No, knowing that seems entirely plausible. In a line of riot cops there may only be one or two firing tear gas. And they will not be standing side by side.

      Then there will be the paperwork. Accounting for spent munitions if nothing else.

      1. Also lots of video these days. Cops love the surveillance state when it helps them “get the bad guys”. I suspect they would be less thrilled when it’s used against them if not for the get-out-of-jail-free card that is qualified immunity.

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  3. “If the officer succeeds, the victim will not be allowed to sue on those claims.”

    Is this statement accurate?

    Or is it the case that if the officer succeeds, then the plaintiff will need to sue the government rather than the officer?

    1. “Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.”

      —-Cornell Law School, Legal Information Institute.

      https://www.law.cornell.edu/wex/qualified_immunity

      1. So this is a case of crossing every “t” and dotting every…lower case “j”

        1. I’ll invoke Poe’s law here and say I’m not sure whether you’re being sarcastic–but I think you probably are!

          Yeah, saying that the plaintiff can’t sue when he can is kind of a big miss, and if it’s only technically true when you squint at the statement and stare at it long enough from the left, that doesn’t make it right either.

          1. Yes. Being sarcastic.

          2. I’ll invoke Poe’s law here and say I’m not sure whether you’re being sarcastic–but I think you probably are!

            It’s a most excellent Wayne’s World reference. The bureacrat they’re getting a license from is wearing an iPatch.

    2. “Or is it the case that if the officer succeeds, then the plaintiff will need to sue the government rather than the officer?”

      In virtually all of these cases, the plaintiff files a single lawsuit under Section 1983 against both the individual officer and the municipality. When you hear about a municipality settling a case with a plaintiff, they are almost always resolving all of the claims, including the claims against the individual officer (municipalities are generally required to defend and pay any judgment against the individual officer by the collective bargaining agreement).

      Despite all you’ve read about the horrors of qualified immunity, and they are true, it’s still generally easier to prevail on the claim against the individual officer than it is against the city. There is no respondeat superior doctrine for municipalities making them liable for the constitutional violations of their employees. Instead, the plaintiff has to prove that the constitutional violation resulted from the (1) formal policy of the municipality, (2) an informal custom promulgated by the municipality that is essentially equivalent to a formal policy, or (3) a failure to train its employees to the extent that it demonstrates a deliberate indifference. It is very difficult to tie the actions of an individual officer to any of these categories. The city almost certainly does not have a policy directing officers to shoot tear gas canisters at people’s faces, and probably has one saying not to. One recent plaintiff was able to do so when the municipality’s training manual included cartoons joking about constitutional violations. This is a summary of the Monell doctrine for municipal liability, which is actually more hopeful than most, but make sure not to ignore the end about how it works in practice.
      https://www.lawfareblog.com/municipal-liability-police-misconduct-lawsuits

      And while it’s certainly true that Section 1983 and qualified immunity wouldn’t be such a big deal if prosecutors would prosecute officers, that misses the point. Congress enacted Section 1983 specifically to give people a remedy when the state and local officials were not doing an adequate job of protecting them.

    3. Actually, it is accurate because the claims against the government would have to substantially different. Consider a private situation – you work in a soda store and assault me. I can sue you directly for the assault and pretty much only have to prove that the assault happened. To sue the soda store, I have to prove not only that the assault happened but also that your manager was on notice that you are the kind of reckless or irrational person who conducts random assaults. In the case above, the plaintiff would have to prove not only the loss of his eye and that the officer’s improper behavior was responsible for it but also that the city’s policies and practices were deficient to reasonably anticipate and prevent that improper behavior.

      So it’s a related claim but different.

    4. “Or is it the case that if the officer succeeds, then the plaintiff will need to sue the government rather than the officer?”

      And if the officer is an employee of the state rather than a municipality, such as a state highway patrolman, then you can’t sue the state for damages (you can get other types of relief) because it’s protected by sovereign immunity and a state doesn’t count as a person under Section 1983. Many (all?) states have passed laws allowing people to sue the state in certain circumstances, but these laws typically do not include anything allowing a plaintiff to sue the state for damages inflicted by the discretionary actions of state employees.

      The link is to an article about the State of California settling a lawsuit for excessive force against a CHiPs officer for $2.5 million dollars. While the lawsuit initially named CHiPs as a defendant, the plaintiff agreed to dismiss CHiPs and its commissioner almost immediately and when the case went to trial the only defendant was the individual officer. So while California settled the case, it was settling the case against the individual officer, not California.
      https://www.eastbaytimes.com/2015/02/03/state-to-pay-2-5-million-to-settle-chp-excessive-force-lawsuit/

    5. Get rid of ALL cops as they are at best useless, and at worst dangerous. How many more black men will die from having their ability to breathe taken away? Cops do little to NOTHING to reduce crime, and are often the criminals themselves, as is the case above and the murder of Daunte Wright show

  4. “Peaceful protests” nothing to see here move along we told you everything you need to know.

  5. The protest was so peaceful that he was hit with, not one, but two tear gas canisters?!? I think someone is lying.

  6. Reason frets about protesters getting hit with teargas canisters when it’s a lefty protest, but can’t seem to give a fuck about police deliberately shooting an unarmed woman and getting away with it at a pleb protest.

    Fuck you Reason. You’ve not only become hypocritical, you’ve become evil.

    1. Does Binion know that qualified immunity doesn’t mean the plaintiff can’t sue the government for damages, or does he have a fundamental misunderstanding of qualified immunity?

      And what’s worse?

      Sometimes, I suspect they think they’re doing a good job by going after these issues on illegitimate grounds, but they’re really just undermining their credibility–and ours along with it.

      Maybe it’s unintentional. Maybe I don’t understand qualified immunity in this case! Maybe I’m wrong. If I am, I hope someone shows me why.

      Doesn’t this article allege that the plaintiff can’t sue anybody because of qualified immunity?

      The bias you’re talking about–across the whole spectrum of these cases–is made explicit if he can’t even cover this one story without being . . . ahem . . . inaccurate about what qualified immunity really means. IF IF IF he’s wrong about that because of his biases, where else are his biases misleading him?

      Yeah, let’s talk about Ashli Babbitt.

      1. Does Binion know that qualified immunity doesn’t mean the plaintiff can’t sue the government for damages, or does he have a fundamental misunderstanding of qualified immunity?

        Reason writers seems to be increasingly composed of woke leftists who think that “libertarianism” means “f*ck the government” in the sense that leftist radicals mean the phrase. They are libertarians in name only.

        Whether Reason writers are merely ignorant or whether they are deliberate propagandists is anyone’s guess. It’s probably a little of both.

        1. Pretty obvious the assignment workers are chosen for general ignorance and principle malleability. The senior types are deliberate propagandists.

          1. Binion, Boehm, and the other stringers don’t actually write these stories. They are given a narrative and their only task is to fill out the bullet points into paragraphs.

            You can’t expect them to perform any sort of logical analysis.

      2. Are we sure, at this point, that Reason wants credibility?

        I had an interesting thought. What if a credible libertarian news outlet was taken over by leftists? Would those leftists strive to maintain credibility?

    2. Yeah. I’m gonna need to see footage. Teargas cannisters aren’t targeted munitions by design. The idea that you shot someone in the eye with one at 50, 40, or even 25 yds. the same way you shoot someone in the neck at 50, 40, 25 ft. with a pistol is itself pretty absurd.

  7. I like how the “video footage” link seems to go to a Washington Post video recreation of the video footage. Besides the fact that I’d trust a WaPo link just as much as a Brietbart link because they both have zero credibility, a video “recreation” is not anywhere near being the same as actual video. Hell, I can show you multiple “video recreations” of Godzilla attacking Tokyo if you want, but I’m pretty sure that never happened either.

    1. The Washington Post is now suffering some embarrassing revelations about the coverage of its owner’s behavior.

      The allegations The Washington Post made against the Saudi intelligence services and his girlfriend’s Trump supporting brother all turned out to be bogus.

      https://nypost.com/2021/05/13/jeff-bezos-affair-saga-is-even-more-embarrassing-than-you-thought/

      He claimed they were targeting him because he criticized them, but it was Bezos’ own mistress who was forwarding the texts he sent her. The Washington Post was just making shit up.

  8. The cop’s name is Justin Holmes. What a guy.

    1. I’m sure you are deeply concerned about the so far unnamed cop who killed Ashli Babbitt.

      1. You mean David Bailey, a Brazilian immigrant and member of Black Lives Matter.
        https://populist.press/cop-who-murdered-ashli-babbitt-is-an-immigrant-and-black-lives-matter-militant/

  9. Look…there’s a lot to dislike about qualified immunity. But generic collateral damage during a sanctioned and properly executed riot control activity isn’t one of them. Was riot control necessary here? I have no idea. Did this specific officer fail to execute his duty properly while executing a riot control action? No evidence of that is provided.

    1. I have to agree. There is no credibility left about classifying things as a “peaceful protest”. How many buildings were destroyed at this riot? The only reporter I trust on their word on this is Rommellman. Everyone else must bring evidence. The fact that the police felt it necessary to use tear gas makes me question the basic premise of the lawsuit.

      This seems to fall under the category of expected risk for rioting. Additionally, there doesn’t seem to be any reasonable chance that the officer was aiming for the guy’s eye, or even the guy in general. It’s not like it’s a sniper rifle.

  10. Huge swing and a miss, Billy. Strike 27. You’re out.

  11. This guy has been arrested repeatedly for recklessly “driving” his Tesla from the back seat.

    “Sharma spent a night locked up, and he “committed the same crime shortly after being released from jail,” according to a story yesterday by KTVU Fox 2 . . . .

    —-Ars Technica

    https://arstechnica.com/tech-policy/2021/05/tesla-owner-jailed-for-leaving-driver-seat-empty-says-he-feels-safer-in-back-seat/

    He says he feels safer riding in the back seat. He posts videos of himself riding in the backseat of his Tesla. When his Tesla gets impounded for his reckless driving, he just goes out and buys another one.

    He might be ahead of the curve. He might be a dangerous nut. He could be a dangerous nut who’s ahead of the curve, but he’s also an asshole.

    1. Wrong thread!

      1. There is no such thing with “reason”.

  12. In the world of LEOs, guess it is an eye for a QI.

  13. Now do Ashli Babbit.

  14. Rioting has consequences. live with it you punks. this is a clear case where QI is needed

    1. Then by the same logic the cop who killed Robert Paulson Ashli Babbit deserves QI, right?

      Or does it depend on the politics of the person who is shot by the cops? Rhetorical question, because we all know the answer is a resounding yes.

      1. And which cop would that be? What cop? No cops here. Move along.

      2. Oh, this guy got shot in the face with a live round? That actual would change my opinion… quite a bit. Thanks for the info.

  15. Why won’t Binion or anyone else at Reason write about the reportedly black Capitol Police Officer who shot and killed (er murdered) unarmed Trump supporter Ashli Babbit without any warning.

    Seems like Reason (and all other left wing propaganda outlets) have given that Capitol Police Officer qualified immunity by not revealing his name, or acknowledging that he grossly violated many police trainings and procedures by shooting an unarmed Trump supporter for merely trespassing.

    1. Shot and killed someone literally surrounded by armed law enforcement.

      Someone who posed no apparent threat to anyone. So apparent that another LEO was calmly walking by a moment before she was shot.

      That Reason will not even discuss the incident speaks volumes.

      1. Too local.

    2. Vox Light writers – zero credibility. No matter how you “feel” about the small group of people that trespassed into the Congress building, Ashli Babbit was murdered elsewhere. Could you imaging the outrage with MSM and Vox Light, the same I know, if a black protester was murdered, unarmed, at a “mostly peaceful” protest?

      Seriously, Vox Light, fuck you all. You are worthless.

    3. David Bailey ……also a member of BLM.

  16. “for merely trespassing”

    Haaaaaaaa ha ha ha ha ha ha!

    That’s just as dishonest as calling what happened an insurrection, or saying every BLM march was a riot.

    Partisan politics makes people stupid.

    1. Oh look, It’s the toast of the Glibertarians. I think you’re dreadfully missed sarc, you better go back. They need your stories about shooting guns with all your “friends”.

  17. I looked this up. A shit load of white people at protest feeling guilty I guess? Maybe feel bad for the OK. race killings in the 20’s?

  18. I’m all for completely restructuring qualified immunity, but this case does not move the needle for me.

  19. “While standing with his hands up, he claims, … One tear gas canister hit his right shoe, causing it to burn; he then looked back, at which point Officer Justin Holmes allegedly fired a canister that hit Brake in the face.”

    Beta male was too stupid to put his hands in front of his face even while surrendering. Probably thought his mask would protect him. Sue Fauci. Should have assumed his reflexive fetal position instead. Did not learn from the bible (Sodom & Gomorrah) how foolish it is to look back at imminent danger. On the upside, at least that eye won’t tear up on him at the next riot, I mean, peaceful demonstration.

  20. I remember laughing at the video of this idiot bleeding last summer. IN THE FACE!

  21. Is no one ever going to explain to these young people that protesting never accomplished anything?

  22. So it’s wrong to shoot tear gas at someone in a riot, but perfectly okay to shoot an unarmed woman? (Ashli Babbitt?)

  23. Play stupid games, win stupid prizes.

    Do you guys think he should dress up as Odin or Thor at his next LARPing event?

    1. Maybe Scott Summers lest he end up like Matt Murdock?

  24. Law Enforcement officers – Protected sovereign citizens living above the law and protected by the law!!
    Possessing a mere 6 months of training, which is far less training than the person is required to have who cuts your hair, carrying a weapon while possessing absolute control over your life and future!!! Whether right or wrong, whether upset and vengeful due to having a bad day – The vast majority of the time they’re right even when they’re wrong in the eyes of the court!

    1. Nah, you just need enough black people to riot and then get a few activists to lie and get on the jury so that the cop is found guilty regardless of facts.

  25. To know how to “lean” (i.e., which side to favor) in this case requires one to know which direction the “shootee” was facing, how he was moving, and how the “shooter” aimed the round. Considering the inclination of many (not all) police to lie, the perceived obligation of many protesters to lie, and the sworn duty of lawyers to lie at any and every opportunity, it is unlikely we’ll ever know unless somebody had a smartphone videoing the incident.

    Police should become leery of the unlimited use of qualified immunity, however, because if those injured by their actions routinely cannot obtain justice in a courtroom, their are other venues in which they can seek it, albeit likely in a harsher, more immediate, and non-appealable form.

  26. What is the legal element that moots QI, is it present here? I doubt it.

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  28. While standing with his hands up, he claims, a group of officers with the Fort Wayne Police Department (FWPD) fired tear gas into the crowd, prompting them to retreat. One tear gas canister hit his right shoe, causing it to burn; he then looked back, at which point Officer Justin Holmes allegedly fired a canister that hit Brake in the face.

    Retreating with his hands up? Not retreating? Facing the officers, turned his head and got shot from behind? Hands up facing the officers, dropped his hands to retreat, turned and got shot? Accuracy of the weapon aside, the ambiguity certainly doesn’t dissuade any reasonable doubts.

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