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.


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.