ANOTHER VIEWPOINT: Police deal leaves much latitude for use of force

The (Fort Wayne) Journal Gazette

Demonstrators were angry after downtown protests last year.

Fort Wayne police lobbed tear gas into crowds gathered in the streets near the Allen County Courthouse in late May 2020, and protesters reported being shot with rubber bullets. One man lost an eye after being struck with a tear gas canister.

A federal lawsuit filed weeks later by the local protesters and the American Civil Liberties Union asked a judge to bar officers from using “unreasonable force … including, but not limited to, employing tear gas, rubber bullets, pepper ball projectiles and stun grenades.”

“Police must not respond to protesters speaking out against police brutality with yet more brutality. We will not let these violent attacks on our constitutional rights go unchecked,” Ken Falk, legal director for ACLU of Indiana, said at the time.

“Excessive use of force against protesters chills free speech and widens the rift of distrust between communities and the police that are sworn to serve them.”

The ACLU later backed away from its request to prohibit police from acting similarly in the future and agreed to mediation with the city.

The result: a five-page statement released Thursday that says officers have agreed to act differently.

But the statement — a “memorialization of agreed principles concerning protest activity in public places” adopted by Fort Wayne officials and the ACLU — is littered with phrases that seemingly allow officers wide latitude in determining what actions to take and when.

On “less-lethal impact munitions,” the agreement says they should “be used only when it is objectively reasonable to do so and shall only be used to target persons engaged in conduct reasonably perceived to pose an imminent threat” to others or property.

On warnings made before using “crowd control-type chemical agents,” police will take “reasonable measures” to announce the intention to use them, “absent exigent circumstances.”

Also “absent exigent circumstances,” officers will announce those intentions “in a manner to allow protesters and others the opportunity to comply and to leave the area.”

One section of the agreement says police — “when feasible” — will give directives and warnings about “deployment of personal protective devices.”

Unspoken are the questions of: Who decides whether a situation is “objectively reasonable?” How will officers determine when warning demonstrators is feasible? What is a reasonable measure?

The ACLU in June 2020 also sued the city of Indianapolis on behalf of protesters there, making claims similar to those in the Fort Wayne lawsuit. That resulted in a settlement in which police agreed not to use tear gas and other “riot control agents” to quell peaceful protests.

The local resolution to the case — protesters and the ACLU plan to dismiss their claims — makes clear the citizens “have the right to engage in nonviolent protests within constitutional and legal bounds.”

Rules for those charged with protecting that right should also be clear.

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