U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:20-cv-01660-JMS-DLP

INDY 10 BLACK LIVES MATTER et al v. CITY OF INDIANAPOLIS Assigned to: Judge Jane Magnus-Stinson Referred to: Magistrate Judge Doris L. Pryor Cause: 42:1983 Civil Rights Act

Date Filed: 06/18/2020 Date Terminated: 12/14/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
INDY 10 BLACK LIVES MATTER

represented by Gavin Minor Rose ACLU OF INDIANA 1031 E. Washington St. Indianapolis, IN 46202 (317) 635-4059 ext.106 Fax: 317-635-4105 Email: grose@aclu-in.org ATTORNEY TO BE NOTICED

Kenneth J. Falk ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 (317) 635-4059 x104 Fax: (317) 635-4105 Email: kfalk@aclu-in.org ATTORNEY TO BE NOTICED

Stevie Pactor ACLU OF INDIANA 1031 E. Washington St. Indianapolis, IN 46202 317-759-6420 Fax: 317-635-4105 Email: spactor@aclu-in.org ATTORNEY TO BE NOTICED

Plaintiff BRE ROBINSON

represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ASIAH BASSETT
Plaintiff SHANIECE LEWIS
V. Defendant CITY OF INDIANAPOLIS

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED
Stevie Pactor (See above for address) ATTORNEY TO BE NOTICED
represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED
Stevie Pactor (See above for address) ATTORNEY TO BE NOTICED
represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED
Stevie Pactor (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Scott Willfond OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS 200 E. Washington Street Suite 1601 Indianapolis, IN 46204

(317) 327-4055 Fax: (317) 327-3968 Email: adam.willfond@indy.gov ATTORNEY TO BE NOTICED
Anne Celeste Harrigan OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS 200 E. Washington Street Suite 1601 Indianapolis, IN 46204 317-327-4071 Fax: 317-327-3968 Email: anne.harrigan@indy.gov ATTORNEY TO BE NOTICED

Date Filed 06/18/2020
06/18/2020 06/18/2020 06/18/2020 06/18/2020

# Docket Text

COMPLAINT for Declaratory and Injunctive Relief and Individual

1

Damages against THE CITY OF INDIANAPOLIS, filed by All

Plaintiffs. (Filing fee $400, receipt number 0756-6038036)

(Attachments: # 1 Proposed Summons, # 2 Sheet)(Falk, Kenneth) (Entered: 06/18/2020)

Civil Cover

2 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Falk, Kenneth) (Entered: 06/18/2020)

3 NOTICE of Appearance by Gavin Minor Rose on behalf of Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Rose, Gavin) (Entered: 06/18/2020)

4 NOTICE of Appearance by Stevie Pactor on behalf of Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Pactor, Stevie) (Entered: 06/18/2020)

5 ***WITHDRAWN PER 59 ORDER ON 10/07/2020*** MOTION for Preliminary Injunction , filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE

06/18/2020
06/19/2020 06/19/2020 06/19/2020 06/22/2020 06/24/2020 06/30/2020
06/30/2020
07/08/2020

ROBINSON. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) Modified on 10/7/2020 (JDH). (Entered: 06/18/2020)
8 SCHEDULING ORDER: Status Conference set for 6/24/2020 02:00 PM (Eastern Time) in Telephonic before Magistrate Judge Doris L. Pryor. The purpose of the conference is to discuss a schedule regarding the Motion for Preliminary Injunction [Dkt. 5 ]. Counsel for Plaintiffs is to serve this order on the Defendant on or before June 22, 2020. Signed by Magistrate Judge Doris L. Pryor on 6/18/2020.(SWM) (Entered: 06/19/2020)
6 Summons Issued as to CITY OF INDIANAPOLIS. (DJH) (Entered: 06/19/2020)
7 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DJH) (Entered: 06/19/2020)
10 PROCEDURES AND PRACTICES before Judge Jane MagnusStinson. (JDH) (Entered: 06/19/2020)
11 NOTICE of Appearance by Adam Scott Willfond on behalf of Defendant CITY OF INDIANAPOLIS. (Willfond, Adam) (Entered: 06/22/2020)
12 NOTICE of Appearance by Anne Celeste Harrigan on behalf of Defendant CITY OF INDIANAPOLIS. (Harrigan, Anne) (Entered: 06/24/2020)
13 MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared by telephone for a Status Conference on June 24, 2020. The parties discussed the Motion for a Preliminary Injunction. A scheduling order will be filed by separate order. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 07/01/2020)
14 PRELIMINARY INJUNCTION SCHEDULING ORDER - The parties appeared by counsel telephonically for a Status Conference on June 24, 2020 pursuant to Rule 16 of the Federal Rules of Civil Procedure regarding the Plaintiffs' Motion for Preliminary Injunction, Dkt. [ 5 ]. The Court establishes the following schedule to prepare this matter for a hearing on that motion (see Order for established deadlines and additional information). Signed by Magistrate Judge Doris L. Pryor on 6/30/2020.(SWM) (Entered: 07/01/2020)
15 NOTICE of Service of Initial Disclosures , filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER,

SHANIECE LEWIS, BRE ROBINSON. (Pactor, Stevie) (Entered: 07/08/2020)

07/08/2020

16 Exhibit List (Preliminary), filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON, Witness List (Preliminary), filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Pactor, Stevie) (Entered: 07/08/2020)

07/08/2020

17 NOTICE of Parties' First Extension of Time, filed by Defendant CITY OF INDIANAPOLIS. (Willfond, Adam) (Entered: 07/08/2020)

07/08/2020

18 Witness List --Preliminary, filed by Defendant CITY OF INDIANAPOLIS, Exhibit List --Preliminary, filed by Defendant CITY OF INDIANAPOLIS. (Willfond, Adam) (Entered: 07/08/2020)

07/10/2020

19 NOTICE of Filing of Exhibits in Support of Motion for Preliminary Injunction by All Plaintiffs (Attachments: # 1 Exhibit 1: Affidavit of Kyra Harvey, # 2 Exhibit 2: Affidavit of Bre Robinson, # 3 Exhibit 3: Affidavit of Asiah Bassett, # 4 Exhibit 4: Affidavit of Shaniece Lewis, # 5 Exhibit 5: Affidavit of Jacob Bower-Bir, # 6 Exhibit 6: Affidavit of Shelby Harper, # 7 Exhibit 7: Affidavit of Sara Lang, # 8 Exhibit 8: Affidavit of Caitlyn Parker, # 9 Exhibit 9: Affidavit of William Sipple, # 10 Exhibit 10: Affidavit of Brandon Arbuckle, # 11 Exhibit 11: Affidavit of Quinn Keitel, # 12 Exhibit 12: Affidavit of Robert Hart, # 13 Exhibit 13: Affidavit of Peter Oren, # 14 Exhibit 14: Affidavit of Sara Cooke, # 15 Exhibit 15: Affidavit of Ryan Bowling, # 16 Exhibit 16: Affidavit of Nicholas Hoagland, # 17 Exhibit 17: Affidavit of Matty Slaydon, # 18 Exhibit 18: Affidavit of Brandon Baker, # 19 Exhibit 19: Affidavit of Christopher Dance) (Pactor, Stevie) (Entered: 07/10/2020)

07/10/2020

20 NOTICE of Manual Filing re 19 NOTICE of Filing, 5 MOTION for Preliminary Injunction , filed by All Plaintiffs (Pactor, Stevie) (Entered: 07/10/2020)

07/10/2020 21

BRIEF/MEMORANDUM in Support re 5 MOTION for Preliminary Injunction , filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Pactor, Stevie) (Entered: 07/10/2020)

07/13/2020

22 NOTICE of Manual Filing - USB drive received re 20 NOTICE of Manual Filing, filed by ASIAH BASSETT, INDY 10 BLACK

07/28/2020 07/28/2020
08/06/2020 08/07/2020 08/07/2020 08/12/2020 08/13/2020

LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON (JDH) (Entered: 07/15/2020)
23 Unopposed MOTION for Extension of Time to File Response to August 17, 2020 re 5 MOTION for Preliminary Injunction , filed by Defendant CITY OF INDIANAPOLIS. (Attachments: # 1 Text of Proposed Order Granting motion)(Willfond, Adam) (Entered: 07/28/2020)
24 ORDER GRANTING EXTENSION OF TIME - The Defendant, by counsel, has moved the Court for an extension of time to file its response brief to the Plaintiffs' motion for preliminary injunction. This also necessitates extending the Plaintiffs' reply brief deadline. The Plaintiffs do not object to this motion. The Court finds that good cause exists to grant the Defendant's motion 23 . Accordingly, the Defendant's response brief is now due August 17, 2020, and the Plaintiffs' reply brief is now due August 24, 2020. Signed by Judge Jane Magnus-Stinson on 7/28/2020. (JDH) (Entered: 07/28/2020)
25 Defendant's ANSWER to 1 Complaint , filed by CITY OF INDIANAPOLIS.(Willfond, Adam) (Entered: 08/06/2020)
26 Witness List Updated and Supplemental, filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON, Exhibit List Updated and Supplemental, filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Falk, Kenneth) (Entered: 08/07/2020)
27 Witness List Updated, filed by Defendant CITY OF INDIANAPOLIS, Exhibit List Updated, filed by Defendant CITY OF INDIANAPOLIS. (Willfond, Adam) (Entered: 08/07/2020)
28 NOTICE of Error, filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON, re 20 NOTICE of Manual Filing. (Pactor, Stevie) (Entered: 08/12/2020)
29 NOTICE of Evidentiary Submissions, filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON (Attachments: # 1 Exhibit Barker Deposition - Part 1, # 2 Barker Deposition - Part 2, # 3 Barker Deposition - Part 3, # 4 Barker Deposition - Part 4, # 5 Exhibit Harvey Deposition, # 6 Exhibit Civil Unrest Incidents) (Falk, Kenneth) (Entered: 08/13/2020)

08/13/2020 08/13/2020
08/14/2020 08/14/2020 08/14/2020 08/17/2020 08/17/2020
08/17/2020

30 NOTICE of Manual Filing re 29 Notice (Other), filed by All Plaintiffs (Falk, Kenneth) (Entered: 08/13/2020)
31 NOTICE of Evidentiary Submission, filed by Defendant CITY OF INDIANAPOLIS (Attachments: # 1 Affidavit #1, # 2 Affidavit #2, # 3 Exhibit #3, # 4 Exhibit #4, # 5 Exhibit #5, # 6 Exhibit #6, # 7 Exhibit #7, # 8 Exhibit #8, # 9 Exhibit #9, # 10 Exhibit #10, # 11 Affidavit #11, # 12 Affidavit #12, # 13 Affidavit #13, # 14 Affidavit #14, # 15 Affidavit #15) (Willfond, Adam) (Entered: 08/13/2020)
32 NOTICE of Manual Filing re 31 Notice (Other), filed by CITY OF INDIANAPOLIS (Willfond, Adam) (Entered: 08/14/2020)
33 Unopposed MOTION for Leave to File Supplemental Evidentiary Submission, filed by Defendant CITY OF INDIANAPOLIS. (Attachments: # 1 Text of Proposed Order Granting motion)(Willfond, Adam) (Entered: 08/14/2020)
34 Receipt of one USB drive re 32 NOTICE of Manual Filing, filed by CITY OF INDIANAPOLIS (Attachments: # 1 Notice of Manual Filing, # 2 Cover Letter) (JDH) (Entered: 08/14/2020)
35 RECEIPT of one USB drive re 30 NOTICE of Manual Filing, filed by ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON (Attachments: # 1 Notice of Manual Filing, # 2 Envelope) (JDH) (Entered: 08/17/2020)
36 ORDER GRANTING LEAVE TO SUPPLEMENT EVIDENTIARY SUBMISSION - The Defendant, City of Indianapolis, by counsel, moved the Court for leave to supplement its evidentiary submission [Dkt. 31] to include two additional exhibits which the Defendant's counsel was unable to timely submit due to file size and technological issues. Having considered the Defendant's motion, the Court now GRANTS 33 the same. Accordingly, the Defendant is permitted to supplement its evidentiary submission to include the two exhibits described in its motion in appropriately-sized files. Signed by Judge Jane MagnusStinson on 8/17/2020. (JDH) (Entered: 08/17/2020)
37 NOTICE of Supplemental Evidentiary Submission, filed by Defendant CITY OF INDIANAPOLIS, re 31 Notice (Other). (Attachments: # 1 Affidavit Supplemental Affidavit of Joshua Barker, # 2 Exhibit BlueTeam reports for May 29, 2020, # 3 Exhibit BlueTeam reports for May 30, 2020, # 4 Exhibit BlueTeam reports for May 31, 2020, # 5 Affidavit Affidavit of William Carter (with timeline exhibit attached), # 6 Exhibit Use of Force Case Reports

08/17/2020 08/17/2020 08/18/2020
08/21/2020 08/25/2020
08/25/2020 08/26/2020

for May 29, 2020, # 7 Exhibit Use of Force Case Reports for May 30, 2020, # 8 Exhibit Use of Force Case Reports for May 31, 2020) (Willfond, Adam) (Entered: 08/17/2020)
38 Unopposed MOTION for Extension of Time to File Reply to August 31, 2020 re 5 MOTION for Preliminary Injunction , filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 08/17/2020)
39 RESPONSE in Opposition re 5 MOTION for Preliminary Injunction , filed by Defendant CITY OF INDIANAPOLIS. (Willfond, Adam) (Entered: 08/17/2020)
40 ORDER - Plaintiffs, having filed their Unopposed 38 Motion to Extend Time to File Reply Memorandum, and the Court having read the motion and being duly advised finds that good cause exists to grant the motion 38 , and IT IS THEREFORE ORDERED that the time within which plaintiffs must file a reply memorandum in support of their 5 motion for preliminary injunction is extended to, and including, August 31, 2020. Signed by Judge Jane MagnusStinson on 8/18/2020.(NAD) (Entered: 08/18/2020)
41 Unopposed MOTION for Leave to File Excess Pages in Reply in Support of Motion for Preliminary Injunction, filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 08/21/2020)
42 ORDER - This matter comes before the Court on the Plaintiffs' Unopposed Motion to File Oversized Reply in Support of Motion for Preliminary Injunction, Dkt. [ 41 ]. The Court, having considered the same and being duly advised, hereby GRANTS said Motion. Plaintiffs are permitted to file an oversized reply in support of the Motion for Preliminary Injunction that does not exceed twenty-five (25) pages. Signed by Magistrate Judge Doris L. Pryor on 8/25/2020.(SWM) (Entered: 08/25/2020)
43 REPLY in Support of Motion re 5 MOTION for Preliminary Injunction , filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Rose, Gavin) (Entered: 08/25/2020)
44 ORDER SETTING HEARING - The Plaintiffs' Motion For Preliminary Injunction 5 is set for a hearing on September 15, 2020 at 9:30 a.m. in Courtroom 202, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Further direction concerning the hearing will

08/26/2020 08/27/2020 08/28/2020 09/03/2020

provided in a separate entry. Signed by Judge Jane Magnus-Stinson on 8/26/2020.(JDH) (Entered: 08/26/2020)
45 SCHEDULING ORDER-TELEPHONIC Status Conference set for 9/2/2020 at 12:30 PM (Eastern) before Magistrate Judge Doris L. Pryor. The purpose of the conference is to discuss case status. Counsel shall attend the conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF System. Signed by Magistrate Judge Doris L. Pryor on 8/26/2020.(CBU) (Entered: 08/26/2020)
46 Joint MOTION for Continuance of Preliminary Injunction Hearing, filed by Defendant CITY OF INDIANAPOLIS. (Attachments: # 1 Text of Proposed Order Granting motion)(Willfond, Adam) (Entered: 08/27/2020)
47 ENTRY SETTING TELEPHONIC STATUS CONFERENCE - The above cause is set for an attorney only telephonic status conference on September 3, 2020 at 9:30 a.m. The purpose of the conference is to discuss the Joint Motion for Continuance of Preliminary Injunction Hearing 46 . Call-in information for the telephonic status conference will be provided by separate entry. Signed by Judge Jane Magnus-Stinson on 8/28/2020.(JDH) (Entered: 08/28/2020)
50 MINUTE ORDER for proceedings held before Judge Jane MagnusStinson. On September 3, 2020, the Court held a telephone conference. Plaintiffs Indy 10 Black Lives Matter, Bre Robinson, Asiah Bassett, and Shaniece Lewis were present by counsel Kenneth Falk, and Defendant the City of Indianapolis was present by counsel Adam Willfond. The Court reporter was Jean Knepley.The purpose of the telephone conference was to discuss the parties' Joint Motion to Continue and Reschedule Hearing, [Filing No. 46]. The Court advised the parties that an evidentiary hearing including live witness testimony would be necessary to resolve factual disputes concerning Plaintiffs' Motion for Preliminary Injunction, [Filing No. 5]. The parties represented that they are currently working with the Magistrate Judge to attempt to reach an agreed resolution to this matter.Accordingly, the parties' Joint Motion to Continue and Reschedule Hearing, 46 , is GRANTED to the extent that the Court VACATES the preliminary injunction hearing presently scheduled for September 15, 2020. The parties are DIRECTED that, within 14 days after their upcoming settlement conference presently scheduled for September 25, 2020, they shall confer and file a joint report stating whether an agreed resolution was reached. If no resolution is reached, the parties shall indicate how they wish to proceed with the evidentiary hearing on Plaintiffs'

Motion for Preliminary Injunction, including how much time they estimate they will need to present evidence and whether they request that any witnesses be permitted to testify remotely. If necessary, the Court will schedule a hearing by separate order following the receipt of the parties' joint report. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley.)(MRI) (Entered: 09/03/2020)

09/03/2020

51 MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: Parties appeared by telephone for a Status Conference on September 2, 2020. The parties reported on the status of and future plans for discovery and potential settlement conference. This matter is scheduled for a settlement conference on September 25, 2020 at 1:00 p.m. (Eastern), by telephone, before Magistrate Judge Doris L. Pryor. The parties shall attend the conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 09/03/2020)

09/30/2020

54 MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared in person and by counsel for a settlement conference on September 25, 2020. This matter is CONTINUED to October 5, 2020 at 11:30 a.m. (Eastern) by telephone. Counsel shall attend the status conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 10/01/2020)

10/05/2020 57

ORDER - The Court has been advised by counsel that a settlement has been reached in this action. Therefore, all pending motions, if any, are now DENIED AS MOOT and all previously ordered dates relating to discovery, filings, schedules, conferences and trial, if any, are VACATED. IT IS ORDERED that within sixty days of this date, counsel for the plaintiff shall file a motion to dismiss this cause or a stipulation of dismissal. Signed by Magistrate Judge Doris L. Pryor on 10/5/2020.(SWM) (Entered: 10/06/2020)

10/06/2020

58 MOTION to Withdraw Motion for Preliminary Injunction, filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 10/06/2020)

10/07/2020

59 ORDER - Plaintiffs, having filed their Motion to Withdraw Motion for Preliminary Injunction, and the Court having reviewed the motion 58 , and being duly advised, finds that good cause exists to

grant it, and, IT IS THEREFORE ORDERED that plaintiffs' Motion for Preliminary Injunction Dkt. 5 is WITHDRAWN. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 10/7/2020. (JDH) (Entered: 10/07/2020)

11/29/2020

60 Unopposed MOTION for Extension of Time to January 4, 2021 to File Dismissal Papers, filed by Plaintiffs ASIAH BASSETT, INDY 10 BLACK LIVES MATTER, SHANIECE LEWIS, BRE ROBINSON. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 11/29/2020)

12/03/2020

61 ORDER - This matter comes before the Court on Plaintiffs' Unopposed Motion for Extension of Time to File Dismissal Papers, Dkt. 60 . The Court, being duly advised, hereby GRANTS said Motion. The parties shall have to and including January 4, 2021 to file dismissal documents. Signed by Magistrate Judge Doris L. Pryor on 12/3/2020.(NAD) (Entered: 12/04/2020)

12/11/2020

62 STIPULATION of Dismissal with Prejudice, as to Defendant CITY OF INDIANAPOLIS, filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 12/11/2020)

12/14/2020 63

CLOSED DISMISSED - The parties having filed their Stipulation to Dismiss with Prejudice and the Court having reviewed the filing hereby acknowledges that this case is DISMISSED with prejudice, with each party to pay its own costs and attorneys' fees 62 . Signed by Judge Jane Magnus-Stinson on 12/14/2020. (MAC) (Entered: 12/14/2020)

Case #: 1:20-cv-01660-JMS-DLP

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 Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 1 of 18 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-1660 JURY TRIAL REQUESTED

Complaint for Declaratory and Injunctive Relief and Individual Damages

Introduction

1. The right to engage in peaceful protest is a right enshrined in the First

Amendment. So is the Fourth Amendment right to be free from objectively unreasonable

force from police authorities. Yet, when the plaintiffs in this case, and the members of the

organizational plaintiff, sought to exercise this right, they were met with violent

responses from the City of Indianapolis that included the use of tear gas, flash grenades,

and pepper-ball projectiles, and shows of force by members of the Indianapolis

Metropolitan Police Department (“IMPD”). This violated both the First and Fourth

Amendments to the Constitution. The plaintiffs wish to continue to engage in their

constitutional right of assembly and protest, but they justifiably fear a repetition of the

improper behavior that was previously directed towards them by police authorities. They
[1]

Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 2 of 18 PageID #: 2
seek declaratory and injunctive relief to ensure that the constitutional violations are not repeated, and the individual plaintiffs also seek their damages. Jurisdiction, venue, cause of action 2. This Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331, 1343. 3. Venue is proper in this district pursuant to 28 U.S.C. § 1391. 4. Declaratory relief is authorized by 28 U.S.C. §§ 2201, 2202 and Rule 57 of the Federal Rules of Civil Procedure. 5. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the Constitution of the United States. Parties 6. Indy10 Black Lives Matter is a membership organization based in Marion County, Indiana. 7. Bre Robinson is an adult resident of Marion County, Indiana. 8. Asiah Bassett is an adult resident of Marion County, Indiana. 9. Shaniece Lewis is an adult resident of Marion County, Indiana. 10. The City of Indianapolis is a municipal entity located in Marion County, Indiana. Facts
Introductory facts 18. Following the murder of George Floyd in Minneapolis on May 25, 2020, protests have spread throughout the United States as persons have demonstrated against systemic
[2]

Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 3 of 18 PageID #: 3
racism and the manner in which systemic racism has negatively influenced police actions towards persons and communities of color. 19. The protesters have demanded changes in policing practices and the structure of police forces. 20. In Indianapolis there have been protests beginning on May 29, 2020 and continuing through today’s date with more protests planned in the future. 21. Many of these protests are located in downtown Indianapolis. 22. The protests have been almost entirely peaceful, although there was limited and isolated vandalism, looting, and violence on May 29 and 30, leading to a series of curfews imposed by the Mayor of Indianapolis, with the first curfew on May 31, 2020. 23. The protests have been marred by officers of IMPD taking violent and unwarranted actions against peaceful protesters who were not engaged in any unlawful activity and who were not protesting during the curfew times. 24. Unreasonable force has been utilized against persons who were protesting after curfew. 25. Among other things protesters have been teargassed, attacked with pepper-balls shot from mechanical devices, and have been assaulted with flash grenades. IMPD officers have also used rubber bullets. 26. Protesters have been met by IMPD officers who are wearing “battle-ready” riot garb.
[3]

Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 4 of 18 PageID #: 4
27. Some of the officers have had police canines with them. Indy 10 Black Lives Matter (“Indy 10 BLM”)
28. Indy 10 Black Lives Matter (“Indy 10 BLM”) was organized by ten Indianapolis residents in the aftermath of Michael Brown’s shooting in Ferguson, Missouri in 2014. 29. Indy 10 BLM is a membership organization that is dedicated to serve, support, and love black people. It desires to, among other things, lift unheard voices of people of color and to build and grow local community. 30. Indy 10 BLM is particularly concerned about systemic racism in policing and the criminal justice system and the violence that is frequently perpetrated by police against persons of color. 31. To advance these goals, Indy 10 BLM, among other things, organizes community events and demonstrations, participates in task forces, holds press conferences, and meets with political leaders. 32. Following the murder of George Floyd in Minneapolis on May 25, 2020, Indy 10 BLM, in conjunction with other groups, planned and organized peaceful protests in Indianapolis that continue on a daily basis to this day. 33. These protests are designed to bring attention to the systemic racism in the criminal justice system and to police practices that negatively impact the black community and to effect positive changes in police practices.
[4]

Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 5 of 18 PageID #: 5
34. The first such large scale demonstration occurred on Friday, May 29, 2020 and was centered in and around Monument Circle (“the Circle”) in downtown Indianapolis. 35. Indy 10 BLM worked with other organizations to organize and publicize the demonstration. 36. Members of Indy 10 BLM were present for the protest on May 29, 2020. 37. On the 29th, after a peaceful day of protests at or near the Circle the group peacefully marched towards the State House but were met by IMPD officers in riot gear around Market and Illinois Streets. 38. Some in the group attempted to walk back to Monument Circle but were blocked by another group of IMPD officers. 39. Without warning IMPD officers then proceeded to throw and fire tear gas cannisters into the crowd causing pandemonium and dangerous conditions as persons, many blinded by and suffering the negative influences of being tear gassed, tried to escape. 40. IMPD officers also used pepper balls that were shot into the crowd. 41. “Tear gas” consists of aerosolized chemicals that cause severe irritations in the eyes, mouth, lung, and nose. It causes difficulty in breathing, pain in the eyes, uncontrollable watering in the eyes, and coughing.
[5]

Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 6 of 18 PageID #: 6
42. Pepper-balls are projectiles that contain a powdered chemical that irritates the eye, nose, skin, and respiratory system. They are launched by a device similar to a paintball gun and open up upon impact, dispensing the chemical irritant. 43. It is painful to be hit by a pepper-ball or a tear gas container and being hit by either of these items may cause serious injury, particularly if an individual is struck in the head or neck with the device. 44. These aggressive actions by IMPD officers were without justification or cause. There was not adequate warning that the crowd needed to disperse. Nor was there any warning that chemical weapons were to be deployed. 45. Indy 10 BLM had members present at the demonstration as well as SURJ Indy and street medics. 46. SURJ Indy is a group of white allies of Indy 10 BLM. 47. The street medics were present to attend to any medical needs of protesters, although the hope was that it would not be necessary. 48. Indy 10 BLM expended money to buy medical supplies to care for protesters and helped to supply the street medics. 49. On May 30, BLM assisted in organizing another demonstration in downtown Indianapolis. 50. The demonstration started in the early afternoon with a rally at the Circle.
[6]

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51. Later in the day, while it was still light outside, 200-300 persons, including Indy 10 BLM members, peaceably marched toward the City County Building in downtown Indianapolis. 52. They were met at the intersection of Alabama and Market Streets, immediately east of the City County Building, by IMPD officers in riot gear. 53. IMPD officers were also in front of the City County Building. 54. Some of the IMPD officers had leashed police canines with them. 55. The assembly of persons was peaceful. 56. One of the police officers announced that the assembly was illegal. 57. There was no cause to declare the peaceful assembly “illegal.” 58. Almost immediately after this, IMPD officers began to indiscriminately throw or fire tear gas cannisters into the crowd. 59. They also shot pepper-balls into the crowd. 60. IMPD officers also exploded stun grenades, also called flash or flashbang grenades. These are explosive devices that emit an extremely loud sound and bright light upon detonation. They can cause temporary loss of sight and temporary hearing lost and are designed to disorient persons. 61. Stun grenades can be as loud as 175 decibels when they are detonated. A jet engine at 100 feet is only 140 decibels. 62. Again, as occurred the night before, the crowd dispersed in a dangerous panic.
[7]

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63. On May 30, 2020, members of Indy 10 BLM met with the Mayor of Indianapolis. The Mayor spoke of his concerns about the destruction of property that had occurred during earlier protests. He did not comment on IMPD’s use of force against peaceful protesters and he did not commit to not using force against peaceful protesters in the future. 64. On May 31, 2020, there was another demonstration sponsored by Indy 10 BLM in conjunction with other groups. 65. A curfew had been declared in Indianapolis on May 31, 2020, for 8 p.m. No curfew was present on May 29th or 30th. 66. On May 31, 2020, prior to the time that the curfew went into effect IMPD officers unnecessarily and without notice used tear gas on numerous occasions and in numerous locations to disperse peaceful protesters. 67. After the curfew went into effect IMPD officers unnecessarily used rubber bullets and batons to subdue protesters. 68. Since May 31, 2020, Indy 10 BLM has helped organize numerous protests and marches that its members and other persons have attended to challenge systemic racism and police practices. 69. Indy 10 BLM intends to continue to organize and assist with the organizing of such protests and marches and its members will continue to attend them.
[8]

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70. Because of the violent response of IMPD officers fewer persons are attending these events than would otherwise attend if they could be assured of their safety. 71. In order for Indy 10 BLM to get its message across to decision makers and other persons, it is imperative that it has the maximum number of persons attending these events. 72. Indy 10 BLM has had to expend its scarce resources to prepare for police violence at protests by buying medical supplies and by expending time in obtaining donated supplies. This has caused the organization to divert necessary financial and other resources away from its overall mission. 73. Indy 10 BLM is therefore injured by the City’s use of force against protesters and its members and those aligned with it.
Plaintiff Bre Robinson 74. On May 29, 2020, Bre Robinson was among the peaceful group of protesters, referred to above, near Illinois and Market Streets in downtown Indianapolis around 9:30 p.m. 75. She and the other protesters were exercising their First Amendment rights to engage in peaceful protest directed towards what they perceived as systemic racism affecting the actions of IMPD and other police officers towards persons and communities of color and demanding changes to IMPD and policing practices in Indianapolis and in the United States at large.
[9]

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76. Protesters linked arms and faced a number of Indianapolis Metropolitan Police Department Officers who were in front of them. 77. She and the other protesters noted that a number of IMPD officers in vehicles pulled up on the other side of the group so that the protesters were between two groups of IMPD officers. 78. One of the officers, using a bullhorn, announced that this was no longer a lawful protest. He did not indicate why or what power he had to suspend the First Amendment in this way. Nor did he give any instructions as to how the crowd should disperse. 79. Within sixty seconds IMPD officers proceeded to throw or shoot tear gas cannisters into the crowd and fire pepper-balls at protestors. 80. A tear gas cannister landed next to Ms. Robinson causing her to immediately have intense stinging and burning in her eyes and respiratory difficulties. 81. She managed to get away from the officers and returned to her home where she attempted to remedy the pain and discomfort she was still feeling. 82. She suffered extreme respiratory problems for the next few days. 83. On May 30, 2020, she returned to engage in the protest march, described above, near the City County Building in downtown Indianapolis. 84. It was before dark and the crowd was peaceful. 85. The crowd marched north on Alabama Street, past the City County Building and then turned around.
[10]

Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 11 of 18 PageID #: 11
86. All of a sudden, without warning or cause, the crowd was blanketed by tear gas being thrown and shot into the crowd by IMPD officers. 87. Pepper-balls were also shot. 88. The police detonated stun grenades, which were terrifying. 89. She and others ran into the pedestrian walkway that runs between Alabama and Delaware Streets directly north of the City Market. 90. She stopped to help protesters who had fallen to the ground and who were at risk of being crushed by the crowd. 91. Police followed them into this area and either fired or threw more tear gas at the protesters who, at this point, were just trying to get away. 92. She saw a young baby who had been exposed to the tear gas and was foaming at the mouth. 93. She saw a person who was in a wheelchair who was overcome by tear gas and was being attended to by street medics. 94. Since that time she has gone to a few protests but has restricted the amount of protest activities because of her fear of being once again exposed to tear gas, pepper spray and stun grenades. 95. When she has gone to protests, she has been extremely fearful and apprehensive, and she has passed up other opportunities to protest because of these fears.
Plaintiff Asiah Bassett
[11]

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96. On May 30, 2020, Asiah Bassett was also in the large group of protesters near the City County Building in Indianapolis protesting what they perceived as systemic racism affecting the actions of the IMPD towards persons and communities of color and demanding changes to the IMPD and policing practices in Indianapolis and the United States. 97. The demonstration was entirely peaceful. 98. There were a large number of IMPD officers between the protesters and the City County Building. 99. At one point the protest moved away from the City County Building 100. However, after the group moved for a short distance, it reversed itself and moved back towards the City County Building 101. At that point, without any violence or threat of violence by the assembled protesters, a number of the IMPD officers fired or threw tear gas cannisters into the crowd, causing mass pandemonium. 102. Ms. Bassett, with a friend, tried to run away from the tear gas and ended up, with a number of persons, in a nearby alley that was relatively free of tear gas. 103. However, as Ms. Bassett and the group of 20-30 people stayed in the alley to seek shelter, IMPD officers came up behind them and lobbed tear gas cannisters in front of them.
[12]

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104. The gas spread immediately coating Ms. Bassett’s skin, burning her eyes, and getting into her throat. 105. She and her friend ran through the gas to get away from the police. 106. For a few minutes she could not see, and she had difficulty breathing. 107. This caused her a great deal of physical discomfort. 108. Ms. Bassett has returned to subsequent protests in the Indianapolis downtown area and will continue to do so as she thinks it is immensely important that these protests continue. However, she is concerned that her peaceful protests will again be met with violent reactions by IMPD.
Plaintiff Shaniece Lewis 109. On May 30, 2020, Shaniece Lewis was engaged in the peaceful protest, as set out above, near the City County Building in Indianapolis. 110. She had been protesting for 4-5 hours at Monument Circle before the crowd marched towards the City County Building. 111. She was present when IMPD officers fired or threw tear gas cannisters into the crowd. 112. A cannister exploded directly in front of her, causing a great deal of irritation, pain, and distress. 113. She also heard loud explosions that she assumes were flash grenades.
[13]

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114. She saw IMPD officers lined up in front of the City County Building with dogs on leashes. 115. She and a friend who was with her left and attempted to alleviate the pain and discomfort by drenching their facers with milk and water. 116. She has been back to other protests. However, she is now extremely reluctant to engage in protest activities in the early evening or night as she believes that this is the time that it is most likely that IMPD officers will react with violence as they did on May 30, 2020.
Concluding allegations 117. At no point has any representative of the City of Indianapolis indicated that it was a mistake to use tear gas, stun grenades, and pepper-balls against peaceful protesters. At no point has a representative of the City promised not to use similar weapons in the future to suppress peaceful protest. 118. The violent response to the peaceful protests by the City of Indianapolis has led to persons being unwilling to exercise their rights to engage in peaceful protest. 119. During a meeting with a City-County Council committee on June 10, 2020, IMPD’s police chief described the chemical agents utilized as “’our best line of defense for dispersing crowds without really doing harm.’” Fox 59. IMPD chief addresses use of tear gas, Dreasjon Reed case in public safety committee meeting, June 11, 2020, https://fox59.com /news/impd-chief-addresses-use-of-tear-gas-dreasjon-reed-case-in-public-safety-comm
[14]

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ittee-meeting/ (last visited June 13, 2020) (quoting the police chief). He also indicated that Indianapolis had recently ordered tear gas. 120. The Chief of Police also acknowledged that riot control agents had affected those peacefully protesting, including a group of protesters from a church. 121. The items used by IMPD to interfere with and disperse peaceful protests are dangerous. 122. It is the practice or policy of the City of Indianapolis to utilize these items if deemed necessary by the City. 123. In addition to the tearing of eyes, blurred vision, respiratory difficulties, and burning and irritation caused by tear gas in general, these common side effects are particularly dangerous during the current pandemic as they may promote the spread of the diseases. 124. Moreover, serious injuries may occur if a protester is hit by a tear gas cannister. For example, it has been reported that a demonstrator in Fort Wayne has lost his eye after being hit in the face by a tear gas canister. Fox 55- WFFT.com, Fort Wayne man loses eye after tear gas cannister hits him in face, May 31, 2020, updated June 2, 2020, https://www. wfft.com/content/news/Fort-Wayne-teen-loses-eye-after-struck-by-tear-gas-canister570911221.html (last visited June 13, 2020). 125. The 1993 Chemical Weapons Convention, signed by the United States, explicitly forbids the use of “riot control agents” like tear gas and pepper balls, “as a method of
[15]

Case 1:20-cv-01660-JMS-DLP Document 1 Filed 06/18/20 Page 16 of 18 PageID #: 16
warfare.” Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Art. I(5),opened for signature Jan. 13, 1993, 1874 U.N.T.S, available at https://treaties.un.org/doc/Treaties/1997/04/199704 29%2007-52%20PM/CTC-XXVI_03_ocred.pdf (last visited June 15, 2020). 126. Stun grenades may cause permanent hearing loss. They have also caused serious burns and injuries to persons struck by them. 127. The actions and the inactions of the defendant, its officers, agents, and employees, have had the effect of denying persons the ability to peaceably assemble and protest. They also represent objectively unreasonable uses of force. 128. The plaintiffs are suffering continuing harm in that their rights to peaceable protest have been and continue to be chilled by the actions and inaction of the defendant, its officers, agents, and employees. 129. The plaintiffs are suffering continuing harm in that they are threatened with the objectively unreasonable use of force by defendant, its officers, agents, and employees. 130. The individual plaintiffs have been damaged by the actions and inaction of defendant, its officers, agents, and employees. 131. Plaintiffs are being caused irreparable harm for which there is no adequate remedy at law. 132. At all times defendant, its officers, agents, and employees have acted under color of state law.
[16]

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Jury demand 133. Plaintiffs request a trial by jury on all claims so triable. Legal claim 134. The actions of the City of Indianapolis in attempting to interfere with and stop lawful protest activities in Indianapolis through the use of tear gas, stun grenades, pepper-ball projectiles, police dogs, rubber bullets, and other actions, violates the First Amendment to the United States Constitution. 135. The use of such things as teargas, stun grenades, pepper-ball projectiles, and rubber bullets against peaceful protesters was and is objectively unreasonable force in violation of the Fourth Amendment to the United States Constitution.
WHEREFORE, plaintiffs request that this Court: 1. Accept jurisdiction of this case and set it for hearing at the earliest opportunity. 2. Declare that the actions of the defendant, its officers, agents, and employees violated, and continue to violate, the First and Fourth Amendments as noted above. 3. Enter a preliminary injunction, later to be made permanent, enjoining defendant, its officers, agents, and employees from taking any actions designed to interfere with or stop protest activities, including, but not limited to, employing objectively unreasonable force through the use of tear gas, pepper-ball projectiles, stun grenades, and rubber bullets. 4. Award the individual plaintiffs their damages following a jury trial. 5. Award plaintiffs their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
[17]

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6. Award all other proper relief.

Kenneth J. Falk Gavin M. Rose Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org spactor@aclu-in.org
Attorneys for Plaintiffs

[18]

 
 Case 1:20-cv-01660-JMS-DLP Document 5 Filed 06/18/20 Page 1 of 3 PageID #: 30

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

Motion for Preliminary Injunction

Plaintiffs, by counsel, say that:

1. They are likely to prevail on their claim that the actions of defendant, its officers,

agents, and employees, as outlined more fully in their complaint (Dkt. 1), violated both

the First and Fourth Amendments to the United States Constitution.

2. Defendant has done nothing to indicate that this conduct will not be repeated and

as the individual plaintiffs, and the members of Indy 10 Black Lives Matter, continue to

peacefully assemble and demonstrate they continue to be threatened with the

unconstitutional actions summarized in their complaint.

3. Plaintiffs are being caused irreparable harm for which there is no adequate remedy

at law.

4 The balance of harms favors the plaintiffs.

[1]

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5. A preliminary injunction is in the public interest. 6. A preliminary injunction will not expose the defendant to the risk of any monetary harm. Accordingly, the preliminary injunction should issue without bond. 7. In support of this motion plaintiffs will timely submit both evidentiary material and their memorandum of law.
WHEREFORE, plaintiffs request that this Court: a. Establish a briefing schedule in this matter followed by a preliminary injunction hearing. b. Enter a preliminary injunction, without bond, enjoining defendant and its officers, agents, and employees from
i. taking any actions designed to interfere with or stop lawful protest activities. ii. utilizing objectively unreasonable force against protest activities including, but not limited to, employing tear gas, pepper-ball projectiles, stun grenades, and rubber bullets. c. Award all other proper relief.
Kenneth J. Falk Gavin M. Rose Stevie J. Pactor ACLU of Indiana 1031 E. Washington St.
[2]

Case 1:20-cv-01660-JMS-DLP Document 5 Filed 06/18/20 Page 3 of 3 PageID #: 32
Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org spactor@aclu-in.org Attorneys for Plaintiffs
Certificate of Service I certify that a copy of the foregoing was served on the below named persons by first class U.S. postage, pre-paid, on this 18th day of June 2020. City of Indianapolis c/o Office of the Mayor Suite 2501 200 E. Washington St. Indianapolis, IN 46204
Kenneth J. Falk Attorney at Law
[3]

Case 1:20-cv-01660-JMS-DLP Document 5-1 Filed 06/18/20 Page 1 of 2 PageID #: 33

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

Order

Plaintiffs, having filed their Motion for Preliminary Injunction, and the Court

having reviewed the motion, and being duly advised, finds that the matter should be set

for a briefing schedule followed by a hearing.

IT IS THEREFORE ORDERED that the motion for preliminary injunction shall be

briefed according to the following schedule:

-Plaintiffs’ memorandum in support due no later than July 6, 2020

-Defendant’s response in opposition due no later than 21 days after the filing of plaintiffs’ memorandum in support

-Plaintiffs’ reply memorandum due no later than 10 days after the filing of defendant’s response

IT IS FURTHER ORDERED that this matter is set for hearing on the ____ day of

______________, 2020 at __M.

[1]

Case 1:20-cv-01660-JMS-DLP Document 5-1 Filed 06/18/20 Page 2 of 2 PageID #: 34

_____________ Date

________________________________________________ Judge, United States District Court

To: ECF registered counsel of record

[2]

 
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Case 1:20-cv-01660-JMS-DLP Document 19-2 Filed 07/10/20 Page 1 of 6 PageID #: 87

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 1:20-cv-1660-JMS-DLP

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

Declaration of Bre Robinson

Bre Robinson, being duly sworn upon her oath, says that:

1. I am an adult resident of Marion County, Indiana.

2. After the murder of George Floyd, I felt that it was extremely important to gather

for public protests to challenge systemic racism in policing and how it affects police

practices towards people and communities of color.

3. I believe that this is a problem in Indianapolis as well as in the United States.

4. I believe that peaceful protest can bring needed changes in policing practices.

5. Therefore, I thought it was extremely important to add my presence and voice to

the peaceful protest that took place in downtown Indianapolis on May 29, 2020.

6. I joined up with a group protesters who marched around downtown, including to

the Circle and then in the direction of the Indiana Statehouse.

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Case 1:20-cv-01660-JMS-DLP Document 19-2 Filed 07/10/20 Page 2 of 6 PageID #: 88
7. I was among the peaceful group of protesters who assembled near Illinois and Market Streets in downtown Indianapolis. 8. At that time I believe the street had been closed to vehicular traffic. 9. The demonstrators filled the street and sidewalks. 10. Around 9:30 p.m protesters linked arms and faced a number of Indianapolis Metropolitan Police Department (“IMPD”) officers in front of them. I was behind these protesters. 11. I noticed that a number of IMPD officers in vehicles pulled up on the other side of the group so that we were between two groups of IMPD officers. 12. At that point, an IMPD officer, using a bullhorn, announced that this was no longer a lawful protest. 13. No curfew had been established on that date and the officer did not specify what power he, or other officers, had to prevent us from engaging in our peaceful protest. 14. The officer did not tell us how we were to disperse as there were officers in front of us and behind us. 15. Within 60 seconds, IMPD officers proceeded to indiscriminately throw or shoot tear gas canisters at us in the crowd and to also wildly fire pepper-balls at the crowd of protesters.
[2]

Case 1:20-cv-01660-JMS-DLP Document 19-2 Filed 07/10/20 Page 3 of 6 PageID #: 89
16. A tear gas canister landed next to me at my feet and I immediately was engulfed by the gas, causing intense stinging and burning in my eyes and causing me to suffer respiratory difficulties. 17. In my efforts to get away I initially ran into a parking garage because I did not know where to go as police were both in front of me and behind me and were shooting or throwing tear gas from both sides. 18. I made my way to my home where I attempted to remedy the pain and discomfort that I was still feeling. 19. Despite the pain and distress I suffered on May 29, I thought it was important on May 30 to return to add my presence and voice to the protests. 20. I participated in a march that ended up near the City County Building in downtown Indianapolis. 21. It was before dark and the crowd was peaceful. 22. At one point we marched north on Alabama Street, past the City County Building and then turned around. 23. Again, I believe the streets where we congregated had been closed to vehicular traffic. There were protesters in the street and there were also people on the sidewalks and in the public places, not the street, adjacent to the City Market. 24. I heard no warnings and I saw nothing that would have given IMPD officers any cause to react at all.
[3]

Case 1:20-cv-01660-JMS-DLP Document 19-2 Filed 07/10/20 Page 4 of 6 PageID #: 90
25. Nevertheless, all of a sudden, the crowd was blanketed by tear gas being thrown and shot by IMPD officers. I saw the tear gas and felt its effects. 26. Additionally, pepper balls were shot into the crowd. I saw this. 27. The police detonated stun grenades, which were extremely bright and extremely loud and were terrifying. 28. I and some others ran into the pedestrian walkway that runs between Alabama and Delaware Streets, directly north of the City Market. 29. I stopped for a moment to help protesters who had fallen while trying to get away from the chemical weapons and the stun grenades and who were at risk of being crushed by the crowd that was trying to escape the actions of the police. 30. Even though we were all trying to get away and were now physically removed from the front of the City County Building, IMPD officers followed us into this area and either fired or threw more tear gas canisters at us. 31. I saw a young baby who was obviously suffering the effects of the chemical weapons and was foaming at the mouth. 32. I also saw a person who was in a wheelchair who appeared to have been overcome by the effects of the chemical weapons and who was being attended to by persons who were attempting to function as street medics. 33. Once again, I suffered from the effects of chemical weapons and I went home.
[4]

Case 1:20-cv-01660-JMS-DLP Document 19-2 Filed 07/10/20 Page 5 of 6 PageID #: 91 34. Since that time I have attended a few protests, but I have restricted the number of protests I have attended and how long I stayed at the protests because of my fear of once again being exposed to tear gas, pepper spray, and stun grenades. I have also passed up going to protests because of what happened to me and because of what I saw. 35. I would like to be able to return to the protests and rallies without being afraid of being attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.
[5]

Case 1:20-cv-01660-JMS-DLP Document 19-2 Filed 07/10/20 Page 6 of 6 PageID #: 92
Verification I hereby verify, under penalties for perjury, that the foregoing statements are true and correct to the best of my information and belief.

(D 71015/ 207 °
Dat
Prepared by:
Kenneth J. Falk ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

Bre Robinson

[6]

Case 1:20-cv-01660-JMS-DLP Document 19-3 Filed 07/10/20 Page 1 of 4 PageID #: 93

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF ASIAH BASSETT

COMES NOW Asiah Bassett, being first duly sworn upon her oath, and states as follows:

1. I am an adult resident of Marion County, Indiana.

2. On May 30, 2020, I was part of a large group of protesters near the City County Building

in downtown Indianapolis protesting systemic racism that affects the actions of the

Indianapolis Metropolitan Police Department (“IMPD”) and other police agencies towards

persons and communities of color and demanding changes to the IMPD and policing

practices in Indianapolis and the United States.

3. The demonstration was entirely peaceful.

4. There were a large number of IMPD officers between the protesters and the City County

Building.

5. At one point the protest moved away from the City County Building. However, after the

group moved for a short distance, it reversed itself and moved back towards the City

County Building.

1

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6. There were no vehicles in the street at that time and I believe that the streets that we had been on and were on had been closed by the police.
7. At that point, without any violence or threat of violence by the assembled protesters, a number of the IMPD officers fired or threw tear gas cannisters into the crowd, causing mass pandemonium. There was no prior warning that tear gas cannisters, other weapons, or force was going to be deployed. The protest was entirely peaceful and it was still light outside.
8. Not only were I and the people around me engaging only in peaceful protest activities, but at the time that the tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity.
9. With a friend, I tried to run away from the tear gas and ended up, with approximately twenty or thirty other protesters, in a nearby pedestrian walkway that was relatively free of tear gas. The pedestrian walkway is located directly behind the City Market building between Alabama and Delaware Streets, and is only a short distance from the City County Building.
10. However, as the group of twenty or thirty protesters, including myself, remained in the pedestrian walkway to seek shelter, IMPD officers came up behind us and lobbed tear gas cannisters in front of us. Again, they provided absolutely no warning that they were going to deploy this force and the group of protesters was not engaging in any violent or threatening behavior—we were simply trying to seek shelter from the tear gas.
11. The gas in the pedestrian walkway spread immediately, coating my skin, burning my eyes, and getting into my throat. My friend and I ran through the gas to try to get away from the police. For a few minutes I could not see, and I had difficulty breathing. The tear gas
2

Case 1:20-cv-01660-JMS-DLP Document 19-3 Filed 07/10/20 Page 3 of 4 PageID #: 95 burned my eyes, my skin, and my throat, and it caused me a great deal of physical discomfort.
12. Since May 30th, I have returned to subsequent protests in the Indianapolis downtown area and will continue to do so as I believe it is immensely important that these protests continue. However, I am extremely concerned that these peaceful protests will again be met with violent reactions by IMPD, and that I will again be subjected to unwarranted and excessive uses of force.
13. I would like to be able to return to the protests and rallies without being afraid of being attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.
3

Case 1:20-cv-01660-JMS-DLP Document 19-3 Filed 07/10/20 Page 4 of 4 PageID #: 96
VERIFICATION I hereby verify, under penalties for perjury, that the foregoing statements are true and correct to the best of my information and belief.

Date
Prepared by: Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

Asiah Bassett, Affiant

4

Case 1:20-cv-01660-JMS-DLP Document 19-4 Filed 07/10/20 Page 1 of 4 PageID #: 97

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF SHANIECE LEWIS

COMES NOW Shaniece Lewis, being first duly sworn upon her oath, and states as

follows:

1. I am an adult resident of Marion County, Indiana.

2. On May 30, 2020, I participated in a protest rally on Monument Circle in downtown

Indianapolis. The rally was organized to protest the systemic racism that affects the actions

of the Indianapolis Metropolitan Police Department (“IMPD”) and other police agencies

towards persons and communities of color and to demand changes to the IMPD and

policing practices in Indianapolis and the United States.

3. I had been participating in this protest rally at Monument Circle for four or five hours

before the crowd began marching peaceably towards the City County Building, also in

downtown Indianapolis. There were a couple hundred persons participating in the protest

at this point, and we were entirely peaceful. It was still light outside when we marched

towards the City County Building.

1

Case 1:20-cv-01660-JMS-DLP Document 19-4 Filed 07/10/20 Page 2 of 4 PageID #: 98
4. After a while, we began to retrace our steps towards Monument Circle. We were met at the intersection of Alabama and Market Streets, immediately east of the City County Building, by IMPD officers in riot gear. IMPD officers were also positioned in front of the City County Building, and some of the IMPD officers had leashed police canines with them.
5. I believe that the streets that we were on had been closed to vehicles. 6. There were persons in the street. But there were also persons on the plaza and walks of the
City Market. 7. The assembly of persons was peaceful. It was getting dark. I did not hear any warnings
from the police who were assembled there. Instead, IMPD officers began to indiscriminately throw or fire tear gas cannisters into the crowd. Absolutely no warning was provided that the officers were going to deploy tear gas cannisters or other force. Not only were I and the people around me engaging only in peaceful protest activities, but at the time that the tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity. 8. A tear gas cannister exploded directly in front of me, causing a great deal of irritation, pain, and distress. The tear gas burned my eyes, my skin, and my throat. 9. I also heard loud explosions that I assume were flash grenades and which were deafening and terrifying. 10. Due to the force deployed by the officers, a friend (who was with me) and I ran down a pedestrian walkway away from the area. The pedestrian walkway was located directly behind the City Market in downtown Indianapolis, a short distance from the City County Building. As we were running away, another tear gas canister exploded a short distance in front of us, even though we were simply trying to leave to protect ourselves. We were
2

Case 1:20-cv-01660-JMS-DLP Document 19-4 Filed 07/10/20 Page 3 of 4 PageID #: 99 ultimately able to make it away and attempted to alleviate the pain and discomfort by drenching our faces with milk and water.
11. I have been back to other protests since May 30th, and will continue to attend these protests given the overwhelming importance of the message we are spreading. However, I am now extremely reluctant to engage in protest activities in the early evening or night as I believe that this is the time that it is most likely that IMPD officers will react with violence as they did on May 30th.
12. I would like to be able to return to the protests and rallies without being afraid of being attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in a park, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.
3

Case 1:20-cv-01660-JMS-DLP Document 19-4 Filed 07/10/20 Page 4 of 4 PageID #: 100

VERIFICATION

I hereby verify, under penalties for perjury, that the foregoing statements are true and

.•6 correct to the best of my information and belief.

CJ ID 2D2D

4 : ie. Lewis, Affiant

Prepared by:
Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

4

Case 1:20-cv-01660-JMS-DLP Document 19-5 Filed 07/10/20 Page 1 of 6 PageID #: 101

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF JACOB BOWER-BIR

COMES NOW Jacob Bower-Bir, being first duly sworn upon his oath, and states as

follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 30, 2020, I was participating in nonviolent protest activities by joining a mass of
people marching northeast along Massachusetts Avenue around 8:00 p.m. 3. We marched through several streets, ending our parade in the area between the City Market
and the City County Building. There, I was positioned at the intersection of Market and Alabama Streets. 4. Police officers were arrayed north-to-south along Alabama Street, blocking Market Street. I heard no instruction or communication from police. 5. Those police officers held weapons that I recognized as canister-launchers. Some held large-barrel guns similar in appearance to shotguns, but of larger caliber. 6. I saw someone lob a plastic water bottle into the air in the general direction of the police blockade. The police had no apparent reaction.

Case 1:20-cv-01660-JMS-DLP Document 19-5 Filed 07/10/20 Page 2 of 6 PageID #: 102
7. Two young protesters also in my vicinity ignited a handful of bottle rockets in an upward direction toward the blockade. The police had no visible reaction.
8. Several minutes elapsed while we stood at this intersection, and I heard no instruction or communication from police.
9. Without warning that force would be used, the police launched tear gas canisters into the crowd, and I heard objects bouncing and ricocheting around me.
10. Protesters began a hasty, erratic retreat. 11. I experienced the effects of the tear gas, including burning eyes, difficulty breathing, and
disorientation. 12. A few fellow protesters and I attempted to escort from the area people who seemed
especially debilitated by the gas and resulting disorder. Many people were directly injured by the gas, and by the tumult it caused, and evacuating protestors blindly collided into one another in their retreat to safety. 13. Police continued to fire additional canisters of tear gas while we attempted to disperse and well after the mass of protestors had scattered. 14. At the time that the tear gas was deployed, I did not see any protesters in the vicinity engaging in looting, property destruction, violence, or any other similar activity. 15. Using the camera on my smartphone, I took photos of the immediate aftermath of the events described in paragraphs 9 through 14. True and correct copies of those photos have been submitted to the Court as. 16. On May 31, 2020, I was participating in planned nonviolent protest activities, including gathering at the War Memorial and marching in the downtown vicinity.

Case 1:20-cv-01660-JMS-DLP Document 19-5 Filed 07/10/20 Page 3 of 6 PageID #: 103
17. As we were marching south on Pennsylvania Street, the police began arraying themselves from east to west across Pennsylvania, blocking our movement.
18. While the group was still a measurable distance from the blockade, the police, without warning or any other order to disperse, launched canisters of tear gas into the crowd, and continued their advance toward the protesters.
19. I suffered the same physical effects from the tear gas that I had the day before.

Case 1:20-cv-01660-JMS-DLP Document 19-5 Filed 07/10/20 Page 4 of 6 PageID #: 104

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Case 1:20-cv-01660-JMS-DLP Document 19-6 Filed 07/10/20 Page 1 of 4 PageID #: 107

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF SHELBY HARPER

COMES NOW Shelby Harper, being first duly sworn upon her oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 30, 2020, I was participating in peaceful protest activities by joining with a group
of protesters who were marching close along Massachusetts Avenue. 3. We ultimately ended up at the intersection of Market and Alabama Streets, where we
reached a police barricade. 4. I looked inside the City-County Building as we walked past and noticed a large number of
police officers inside, lined up, holding rifle-like weapons. 5. We stood there for approximately 5 to 10 minutes. I heard no warnings or other
communications from the police. 6. I heard a few popping sounds, and the crowd began to turn and run past me. 7. I then felt the effects of tear gas, and my eyes started to burn. 8. I began to run west on Market Street, and I saw officers begin to exit the City-County
building.

Case 1:20-cv-01660-JMS-DLP Document 19-6 Filed 07/10/20 Page 2 of 4 PageID #: 108
9. We then turned back east, and ran up Alabama Street, through the tear gas, to try to escape. 10. By that time, I was heavily affected by the tear gas, and a friend supported me as I attempted
to run. 11. After getting a few blocks away, we stopped, and a volunteer medic approached us with
milk to treat our eyes. 12. I then assisted another protester who was overcome with tear gas by helping her with
breathing exercises and treating her eyes with milk. 13. Not only were I and the people around me engaging only in peaceful protest activities, but
at the time that the tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity. 14. I also participated in peaceful protest activities the following day on May 31, 2020. 15. I joined the protest at Monument Circle, and we walked throughout downtown. 16. We ultimately ended up at the intersection of Vermont and Pennsylvania Streets. 17. Police appeared to be blocking traffic at the corner of Vermont and Meridian Streets, so there was no vehicular traffic along the road. 18. An officer then yelled that this was an unlawful protest, because some protesters were in the street. 19. I was standing on the sidewalk at the corner of Vermont and Pennsylvania Streets. 20. After a few minutes, and without further communication, officers fired tear gas into the crowd. 21. We then retreated into University Park. 22. I assisted in treating people who were affected by the tear gas, and handing out water, for approximately fifteen minutes.

Case 1:20-cv-01660-JMS-DLP Document 19-6 Filed 07/10/20 Page 3 of 4 PageID #: 109
23. As we were standing in University Park, police again without warning fired tear gas into the crowd assembled in the park.
24. We wanted to continue our protest activities, but many streets were blocked off by police. 25. We ended up on Delaware Street between Michigan and Vermont Streets, where we were
tear gassed a third time, without warning, by police. 26. I would like to be able to return to the protests and rallies without being afraid of being
attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.

Case 1:20-cv-01660-JMS-DLP Document 19-6 Filed 07/10/20 Page 4 of 4 PageID #: 110

Case 1:20-cv-01660-JMS-DLP Document 19-7 Filed 07/10/20 Page 1 of 3 PageID #: 111

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF SARA LANG

COMES NOW Sara Lang, being first duly sworn upon her oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 31, 2020, I was participating in peaceful protest activities by attending
presentations by speakers at Monument Circle in downtown Indianapolis. 3. The Circle was closed to vehicular traffic, and I standing on the sidewalk under some trees. 4. At approximately 4:00 p.m., I heard a garbled announcement from police over a
loudspeaker that I could not understand. 5. At that time, I noticed what appeared to be police presence on the tops of nearby buildings. 6. Further loudspeaker announcements stated that we were deemed to be participating in an
unlawful assembly, and ordered us to disperse, under the threat of arrest. 7. I attempted to comply by leaving Monument Circle and heading in the direction of the war
memorial. 8. But before I could fully comply, police began launching tear gas canisters indiscriminately
into the crowd that was assembled near the Circle.

Case 1:20-cv-01660-JMS-DLP Document 19-7 Filed 07/10/20 Page 2 of 3 PageID #: 112
9. I attempted to escape the vicinity of the tear gas, and continued to bike in the direction of the war memorial.
10. After circling nearby streets for approximately an hour, due to road closures by police, I ended up back at Monument Circle.
11. By that time, a different group of protesters had gathered at Monument Circle. 12. Just a few moments after I arrived there, police again lobbed canisters of tear gas into the
assembled crowd, including into a group of peaceful protesters representing a local church. I heard no warning or other order prior that event. 13. I helped to direct people who were hit by the tear gas toward volunteer medics. 14. I saw children and a woman in a wheelchair who were affected by the tear gas. 15. Not only were I and the people around me engaging only in peaceful protest activities, but at the time that tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity. 16. I was extremely fearful for my safety during these events, and I feared being subjected to violence by law enforcement. 17. In order to feel safe participating in future protests, I felt it necessary to purchase and wear protective gear such as a helmet, gloves, and eye protection. 18. I would like to be able to return to the protests and rallies without being afraid of being attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.

Case 1:20-cv-01660-JMS-DLP Document 19-7 Filed 07/10/20 Page 3 of 3 PageID #: 113

Case 1:20-cv-01660-JMS-DLP Document 19-8 Filed 07/10/20 Page 1 of 3 PageID #: 114

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF CAITLYN PARKER

COMES NOW Caitlyn Parker, being first duly sworn upon her oath, and states as follows:

1. I am an adult resident of Tippecanoe County, Indiana. 2. On May 29, 2020, I was participating in peaceful protest activities to support efforts to hold
police accountable for violence against citizens. 3. At approximately, 9:30 p.m. I was walking with a friend on the sidewalk a short distance
away from a larger group of protesters. 4. As we continued walking, we saw what appeared to be smoke a short distance in front of
us. 5. Then, suddenly, a canister landed approximately 30 feet in front of us, and just in front of
another person who was walking. 6. At that point, I realized that the smoke was actually tear gas, and I began to feel the negative
effects of the gas, including pain in my nose and chest and difficulty breathing. 7. At this point, because of the haze of the tear gas, it was hard to see what was happening in
front of us.

Case 1:20-cv-01660-JMS-DLP Document 19-8 Filed 07/10/20 Page 2 of 3 PageID #: 115
8. After a few minutes, my friend became overcome by the effects of the gas, and we left the area.
9. Two to three days later, I developed contact dermatitis over my neck, arms, and face, and I developed blisters in my mouth from exposure to the chemical weapon. This experience was painful and scary.
10. Not only were I and the people around me engaging only in peaceful protest activities, but at the time that the tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity.
11. I would like to be able to return to the protests and rallies without being afraid of being attacked by IMPD officers while I engage in peaceful protest. I am aware that the use of force I note above has been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.

Case 1:20-cv-01660-JMS-DLP Document 19-8 Filed 07/10/20 Page 3 of 3 PageID #: 116

Case 1:20-cv-01660-JMS-DLP Document 19-9 Filed 07/10/20 Page 1 of 4 PageID #: 117

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF WILLIAM SIPPLE

COMES NOW William Sipple, being first duly sworn upon his oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 30, 2020, I was participating in peaceful protest activities by marching in support
of Black Lives Matter against police brutality. 3. Around dusk in the evening, I was at the intersection of Alabama and Market Streets
standing on the sidewalk with a large group of fellow protesters. 4. I saw police with riot gear blocking the road in front of our group. 5. We stood there for several minutes, and I did not hear any orders, commands, or other
communication from the police. 6. Without warning, I heard a large bang, and then saw smoke rising up from the group of
protesters. 7. I realized immediately that this substance was tear gas. 8. The crowd began to scream, and many people attempted to run in the opposite direction. 9. I then heard what sounded like gunshots, and I turned to look for my wife.

Case 1:20-cv-01660-JMS-DLP Document 19-9 Filed 07/10/20 Page 2 of 4 PageID #: 118
10. I then realized that the shots I heard were police shooting pepper balls into the crowd. 11. Throughout this time, police also continued to shoot tear gas canisters into the crowd. 12. Some of those canisters landed next to me. 13. Not only were I and the people around me engaging only in peaceful protest activities, but
at the time that the tear gas and pepper balls were deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity. 14. I felt the effects of the tear gas including burning in my eyes, nose, and throat and shortness of breath. 15. Using her smart phone, my wife took several videos of the events described in paragraphs 5 through 13. True and correct copies of those videos have been submitted to the Court as Exhibits to this affidavit. 16. On May 31, 2020, I returned downtown to participate in further peaceful protest activities. 17. At approximately 6:00 p.m., I was marching with a group of peaceful protesters south on Pennsylvania Street. 18. As we approached New York Street, without warning, police officers fired tear gas canisters and pepper balls into the group of protesters. 19. The police corralled us down several streets, and we ultimately ended up at the intersection of Vermont Street and Capitol Avenue. 20. We reached a group of police officers and stopped our movement. 21. Several of the protesters at the front of the group knelt on the ground with their hands in the air, saying, “Hands up, don’t shoot.” 22. Again I heard no warning or order to disperse, and the police launched tear gas canisters and pepper balls indiscriminately into the crowd in the street and on the sidewalk.

Case 1:20-cv-01660-JMS-DLP Document 19-9 Filed 07/10/20 Page 3 of 4 PageID #: 119
23. They also shot people with pepper balls who were standing peacefully on the sidewalk. 24. I would like to be able to return to the protests and rallies without being afraid of being
attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.

Case 1:20-cv-01660-JMS-DLP Document 19-9 Filed 07/10/20 Page 4 of 4 PageID #: 120

Case 1:20-cv-01660-JMS-DLP Document 19-10 Filed 07/10/20 Page 1 of 6 PageID #: 121

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF BRANDON ARBUCKLE

COMES NOW Brandon Arbuckle, being first duly sworn upon his oath, and states as

follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 31, 2020, I was participating in peaceful protest activities by joining in marches
in the downtown Indianapolis area. 3. Throughout the day as we marched, police would routinely block off nearby streets and
intersections, in order to prevent our movement to certain areas. 4. At approximately 6:30 p.m., I was at the intersection of New York and Capitol Streets with
a group of protesters chanting “hands up, don’t shoot” while standing on the sidewalk. 5. Any time that the group became stationary, police, dressed in riot gear, would use their
vehicles, bikes, and bodies to block intersections and restrain our movement. 6. When we saw police begin to amass at this intersection, we began to retreat away from the
intersection toward a large parking lot.

Case 1:20-cv-01660-JMS-DLP Document 19-10 Filed 07/10/20 Page 2 of 6 PageID #: 122
7. At this point, without warning, communication, or any other order to disperse, police began launching tear gas canisters into the streets and onto the sidewalks into groups of protesters.
8. They also launched tear gas canisters over us, in the direction in which we were attempting to retreat.
9. Even after protesters had retreated from the area near the officers, they continued to launch tear gas far afield into groups that had retreated in order to avoid the effects of the tear gas.
10. Using the camera on my smart phone, I took a video of the events described in paragraphs 4 through 9. A true and correct copy of this video has been submitted to the Court as an exhibit to this affidavit.
11. I assisted someone who was experiencing the effects of the tear gas by helping him wash his eyes with water.
12. After reconvening, we headed downtown toward Monument Circle. 13. Monument Circle appeared to be blocked off to vehicular traffic by snow plows. I took a
photo of one those plows, and a true and correct copy of that photo has been submitted to the Court as an exhibit to this affidavit. 14. We marched on the sidewalks to the intersection of Washington and Meridian Streets, where we gathered on the northeast and northwest quadrants of that intersection on the sidewalk and the cultural trail. 15. Police cars blocked traffic moving north and south along Meridian Street. I took a picture of the closed traffic on Meridian Street, and a true and correct copy of that photo has been submitted to the Court as an exhibit to this affidavit.

Case 1:20-cv-01660-JMS-DLP Document 19-10 Filed 07/10/20 Page 3 of 6 PageID #: 123
16. We stood there for a few minutes, and as we stood there chanting, again without warning, any order to disperse, or other communication, police began firing tear gas directly into the crowds of people assembled on the sidewalks.
17. I took a video of the events described in paragraph 16, and a true and correct copy of that video has been submitted to the Court as an exhibit to this affidavit.
18. Several active canisters landed right next to me. 19. I could not see, as a result of the effects of the tear gas, and I became afraid for my safety,
as people were running, frantically, in order to get away from the tear gas. 20. I experienced other effects of the tear gas, including burning in my eyes, nose, and throat
and shortness of breath. 21. As I ran away, I saw some people fall to the ground, and some protesters help other people
attempt to escape from the cloud of tear gas. 22. When I arrived at the corner of Illinois and Washington Streets, I attempted to wash the
tear gas from my eyes, and I assisted others in doing so. 23. At the times that tear gas was deployed, I did not see anyone in the vicinity engaging in
looting, property destruction, violence, or any other similar activity. 24. I would like to be able to return to the protests and rallies without being afraid of being
attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.

Case 1:20-cv-01660-JMS-DLP Document 19-10 Filed 07/10/20 Page 4 of 6 PageID #: 124

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Case 1:20-cv-01660-JMS-DLP Document 19-10 Filed 07/10/20 Page 6 of 6 PageID #: 126

Case 1:20-cv-01660-JMS-DLP Document 19-11 Filed 07/10/20 Page 1 of 4 PageID #: 127

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF QUINN KEITEL

COMES NOW Quinn Keitel, being first duly sworn upon his oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 31, 2020, I was riding my bike downtown when I noticed that protest activity was
occurring, and I decided to document it using the camera on my smart phone. 3. At approximately 6:00 p.m., I was near the intersection of Pennsylvania and New York
Streets on the sidewalk. 4. There was a haze in the air that I understood to be tear gas, and there were tear gas canisters
littering the ground. 5. As I was standing on the northeast side of that intersection, I saw a group of protesters
walking north up Pennsylvania Street and on the sidewalk. 6. As the protesters arrived at the intersection, police dressed in riot gear launched tear gas
canisters into the group, who then dispersed to clear the intersection. I recorded video of a portion of this incident, and a true and correct copy of that video has been submitted to the Court as an exhibit to this affidavit.

Case 1:20-cv-01660-JMS-DLP Document 19-11 Filed 07/10/20 Page 2 of 4 PageID #: 128
7. Police then blocked off the intersection of Pennsylvania and the adjacent sidewalks. 8. I witnessed police arrest at least two people. 9. A white sport utility vehicle then drove up New York Street to the intersection that was
blocked by police. 10. The driver of the car honked his horn, appearing to be in approval of or solidarity with the
protesters who were gathered on the sidewalks. 11. Some sort of communication occurred between an occupant of the vehicle and police
officers who were blocking the intersection. 12. The vehicle then backed up and drove around a few police officers who were stationed in
the street. 13. As it drove around those officers, an officer launched a canister of tear gas into the vehicle
as it was driving. 14. The vehicle drove through the intersection and ultimately stopped on New York Street just
west Massachusetts Avenue. 15. I recorded a video of the events described in paragraphs 9 through 14, and a true and correct
copy of that video has been submitted to the Court as an exhibit to this affidavit. 16. A few moments later, I rode my bike to Massachusetts Avenue and saw that the driver of
the vehicle had exited the vehicle and was bent over, attempting to catch his breath. He was clearly experiencing extreme discomfort. 17. The vehicle’s doors were open, and the vehicle’s other occupants were being assisted by bystanders. 18. An adult passenger was lying on the ground.

Case 1:20-cv-01660-JMS-DLP Document 19-11 Filed 07/10/20 Page 3 of 4 PageID #: 129
19. The two child passengers appeared to be under five years of age. The older of the children was bent over, trying to catch his breath. The younger child was being held by an adult person, who may have also been a passenger. Both children were crying. I recorded a video of this, and a true and correct copy of that video has been submitted to the Court as an exhibit to this affidavit.
20. At the time that the tear gas deployments described herein occurred, the protesters were engaging in peaceful protest, and I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity.

Case 1:20-cv-01660-JMS-DLP Document 19-11 Filed 07/10/20 Page 4 of 4 PageID #: 130
VERIFICATION I hereby verify, under penalties for perjury, that the foregoing statements are true and correct to the best of my information and belief.

/7/2o Z
Date
Prepared by:
Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

Qiiihn Keitel, Affiant

Case 1:20-cv-01660-JMS-DLP Document 19-12 Filed 07/10/20 Page 1 of 2 PageID #: 131

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF ROBERT HART

COMES NOW Robert Hart, being first duly sworn upon his oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 31, 2020, at around 6:00 p.m., I saw a protest occurring in downtown Indianapolis
and decided to video record the protest activities using a DJI Mavic Mini, which is a mobile recording device. 3. I flew this device in the area above Pennsylvania Street between Ohio and Michigan Streets. 4. The device captured video, but no sound, of the events unfolding below. 5. I was standing in the vicinity of the device and operating it using a remote control during the time that it was recording. 6. A true and correct copy of the video taken by the device has been submitted to the Court as an exhibit to this affidavit.

:20-cv-01660-JMS-DLP Document 19-12 Filed 07/10/20 Page 2 of 2 PageID

VERIFICATION

I hereby verify, under penalties for perjury, that the foregoing statements are true and

correct to the best of my information and belief.

0710812020 _______________________

​

​

Reeg _​ ____________________________________

_____

Date

​

​

​

​

​

R​ obert Hart, Affiant

Prepared by:
Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

Case 1:20-cv-01660-JMS-DLP Document 19-13 Filed 07/10/20 Page 1 of 3 PageID #: 133

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF PETER OREN

COMES NOW Peter Oren, being first duly sworn upon his oath, and states as follows:

1. I am an adult resident of Monroe County, Indiana. 2. On May 31, 2020, I was participating in peaceful protest activities by providing water and
snacks to protesters who marching around downtown Indianapolis. 3. In the late afternoon, protesters were marching south on Pennsylvania near University Park. 4. While near the intersections of Pennsylvania with New York and Ohio Streets, police
began firing canisters of tear gas indiscriminately into the protesters. 5. I did not hear any order to disperse or warning prior to this use of force. 6. The protesters retreated north and into University Park, and attempted to treat their
exposure to tear gas. 7. After marching several blocks to the intersection of Vermont Street and Capitol Avenue,
the police again deployed tear gas into the group of protesters without any warning or order to disperse.

Case 1:20-cv-01660-JMS-DLP Document 19-13 Filed 07/10/20 Page 2 of 3 PageID #: 134
8. I bent down to remove a tear gas canister that had been shot at us, and it was extremely hot and burnt my fingers.
9. Not only were I and the people around me engaging only in peaceful protest activities, but at the times that tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity.

Case 1:20-cv-01660-JMS-DLP Document 19-13 Filed 07/10/20 Page 3 of 3 PageID #: 135

Case 1:20-cv-01660-JMS-DLP Document 19-14 Filed 07/10/20 Page 1 of 4 PageID #: 136

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF SARA COOKE

COMES NOW Sara Cooke, being first duly sworn upon her oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 30, 2020, I was participating in peaceful protest activities to support Black Lives
Matter and to provide medical supplies, if necessary. 3. I arrived downtown at approximately 11:00 a.m. and marched with a group of protesters
around the downtown area. 4. At approximately 8:00 p.m., our group was marching in the direction of the City County
Building. 5. As we marched up Market Street and reached the intersection of Alabama Street, we were
stopped by a police presence that was blocking the intersection using police cars, their bodies, and small “Bobcat”-like utility vehicles. 6. The police were dressed in riot gear and were holding large weapons that I knew to be weapons for launching tear gas canisters.

Case 1:20-cv-01660-JMS-DLP Document 19-14 Filed 07/10/20 Page 2 of 4 PageID #: 137
7. I saw that a water bottle was lobbed from the crowd, upward and in the direction of the police officers. They had no visible reaction that that event.
8. I heard the police announce several times over a loudspeaker that the assembly was unlawful.
9. After approximately five to ten minutes of standing in that location, without warning, the police began to fire tear gas canisters into the crowd, both on the street and in the sidewalks.
10. The tear gas canisters were launched in front of, into, and behind us, so there was no means of escape.
11. I have asthma, and in order to avoid the effects of the tear gas, I attempted to run away. 12. As I ran, I saw a police officer spraying pepper spray into the backs of people who were
attempting to leave the area. 13. I ran with a friend to the corner of Pennsylvania and Market Streets, where we stood on the
sidewalk and helped to render aid to people who also fled. 14. I assisted a man who had been shot three times in the back with either rubber bullets or
pepper balls. He had welts that were larger than a quarter on his back. 15. Police then arrived within a block of where we were standing, and started tear gassing again
into Market Street. 16. We were becoming overcome by the tear gas, and we escaped into a nearby parking garage. 17. We went to the fifth floor of the parking garage, where we had a vantage point of the tear
gassing that was occurring below. 18. My friend, along with two other individuals in the parking garage, began to record the
incidents unfolding on the street outside the parking garage. 19. We were the only individuals on the fifth floor.

Case 1:20-cv-01660-JMS-DLP Document 19-14 Filed 07/10/20 Page 3 of 4 PageID #: 138
20. Police were again tear gassing a group of protesters on all sides, making it impossible for them to escape without travelling through the toxic chemicals.
21. At one point, two police officers on the ground below us looked up and saw these individuals recording the police’s activities.
22. One officer then aimed his tear gas launcher at us, and shot a canister of tear gas into the parking garage.
23. It landed at my feet. 24. We were tear gassed particularly badly on that occasion, because most of the exits to the
parking garage were closed, and we had difficulty escaping. 25. During this time period, I was suffering from an asthma attack and had to use my rescue
inhaler. 26. I would like to be able to return to the protests and rallies without being afraid of being
attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located

Case 1:20-cv-01660-JMS-DLP Document 19-14 Filed 07/10/20 Page 4 of 4 PageID #: 139

VERIFICATION I hereby verify, under penalties for perjury, that the foregoing statements are true and correct to the best of my information and belief.

bi-I6a/z)0
Date
Prepared by:
Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

loEloocvt-&-
Sara Cooke, Affiant

Case 1:20-cv-01660-JMS-DLP Document 19-15 Filed 07/10/20 Page 1 of 5 PageID #: 140

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF RYAN BOWLING

COMES NOW Ryan Bowling, being first duly sworn upon his oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 29, 2020, I was participating in peaceful protest activities to support the Black
Lives Matter Movement. 3. At approximately 8:00 p.m., I arrived at Monument Circle to participate in peaceful protest
activities. 4. At that time, the Circle was closed to vehicular traffic, but open to the protesters, who were
on foot. 5. As I arrived, I saw that a group of protesters was lined up opposite a row of police officers
on the east side of the Circle. I positioned myself on the stairs of the Soldiers and Sailors Monument, so my vantage point was above the groups of protesters and police officers below. 6. After approximately 20 minutes, I heard several loud popping and cracking noises. 7. I heard protesters yell “Gas!” and “They’re gassing!”

Case 1:20-cv-01660-JMS-DLP Document 19-15 Filed 07/10/20 Page 2 of 5 PageID #: 141
8. I heard no orders, warnings, or other communications from police before this occurred. 9. The protesters then dispersed. 10. Not only were I and the people around me engaging only in peaceful protest activities, but
at the time that the tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity. 11. I also participated in protest activities on May 30, 2020. 12. From south of downtown, I walked north up Virginia Street, and when I reached the intersection with Maryland/Delaware Streets, I saw that the road had been closed off to vehicular traffic but open to pedestrians. 13. I attempted to enter the Circle from Market Street, but I immediately saw tear gas being deployed against protesters on the Circle. 14. At that time, police were not preventing anyone from entering the Circle—they were continuously lobbing tear gas canisters into the crowd. 15. I eventually was walking with a group of people south on Illinois Street on the sidewalk when a golf cart with four law enforcement officers drove past us, and I witnessed them firing tear gas canisters at pedestrians walking peacefully along the sidewalk. 16. Another member of the group I was walking with took a video of this incident. That video has been submitted to the Court as an exhibit to this affidavit. It accurately depicts what I witnessed. 17. I returned downtown to peacefully protest on May 31, 2020, and I arrived at approximately 4:00 p.m.

Case 1:20-cv-01660-JMS-DLP Document 19-15 Filed 07/10/20 Page 3 of 5 PageID #: 142
18. I was positioned on the sidewalk on the south side of Monument Circle when I saw tear gas canisters being deployed into a small gathering of people who were standing on the south side of the Soldiers and Sailors Monument.
19. I heard no warning or other communication from the police prior to the tear gas being deployed.
20. I was overtaken by the cloud of tear gas, and was treated by a volunteer medic at the Soldiers and Sailors monument.
21. After I was treated, I walked west on Market Street, and witnessed approximately ten police officers on bicycles chasing down and arresting two medics, including the one who had just treated me.
22. I asked the officers why they were arresting the medics, and the officers threatened me that I could be arrested for being within 100 feet of an emergency. I asked them if there was an emergency nearby, and if my First Amendment rights were still in effect. They answered by asking me if I wanted to be arrested, and instructing me to cross the street or leave.
23. I then walked on the sidewalk up Meridian Street, heading north, and was close to University Park and the Indiana War Memorial.
24. As I reached Vermont and Meridian Streets, I saw police officers carrying pepper ball guns and tear gas launchers, marching toward a group of protesters assembled peacefully on the sidewalk.
25. The police then started firing tear gas and pepper balls on that group of protesters, who then attempted to retreat north, to get away from the assault.
26. The police continued firing those weapons at the group as it moved.

Case 1:20-cv-01660-JMS-DLP Document 19-15 Filed 07/10/20 Page 4 of 5 PageID #: 143
27. As protesters broke away from the group to try to escape, police followed them and kept firing.
28. Police fired a tear gas canister at me as I walked north on the sidewalk. 29. Throughout these three days, I suffered the physical effects of tear gas, including burning
in my eyes, nose, and throat, and difficulty breathing. It took more than 24 hours for my lungs to stop hurting. 30. I would like to be able to return to the protests and rallies without being afraid of being attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.

Case 1:20-cv-01660-JMS-DLP Document 19-15 Filed 07/10/20 Page 5 of 5 PageID #: 144
VERIFICATION I hereby verify, under penalties for perjury, that the foregoing statements are true and correct to the best of my information and belief.

7/57 Date
Prepared by:
Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

Ryan Bowling, Affiant

Case 1:20-cv-01660-JMS-DLP Document 19-16 Filed 07/10/20 Page 1 of 4 PageID #: 145

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF NICHOLAS HOAGLAND

COMES NOW Nicholas Hoagland, being first duly sworn upon his oath, and states as

follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 31, 2020, I travelled to downtown Indianapolis to participate in peaceful protest
activities. 3. In the late afternoon, I was heading up Washington Street toward the City-County building
when I saw a group of peaceful protesters preparing to start a march. I joined up with them. 4. We peacefully marched in the street approximately three blocks north and west to the
Indiana War Memorial, just north of University Park. 5. After we reached the park, I saw Indianapolis Metropolitan Police Department officers on
foot, in cars, and in other golf cart-style vehicle amassing around us. 6. We began to again march south, but near the intersection of Pennsylvania and New York
Streets, police began to fire tear gas canisters into and around our group including into protesters positioned on the sidewalks around the park.

Case 1:20-cv-01660-JMS-DLP Document 19-16 Filed 07/10/20 Page 2 of 4 PageID #: 146
7. I did not hear any order to disperse or any warning that tear gas would be deployed against us.
8. Our group then headed back toward the park, where many of us got down on our knees at the corner of the park, in order to engage in a peaceful, sit-in demonstration.
9. After a short time in the park, we began to march again. 10. After travelling approximately four blocks, we again got down on our knees near the
intersection of Capitol Avenue and Vermont Street, where police had blocked our movement. 11. We then began marching south, and after approximately 30 seconds of marching, the police tear gassed us again. 12. After being tear gassed on this occasion, I ran to a safe location to catch my breath and attempt to recover from the effects of the tear gas. 13. Eventually I made my way, with a group, back toward Monument Circle, I believe to the intersection of Washington and Meridian Streets, south of the Circle, where a group of us stood on the sidewalk of Washington Street. 14. I saw a bottle of water being thrown in the direction of the police. 15. We were then again tear gassed by police. At that point, our group ran toward the Circle. 16. We were chased by police to the Circle, continuously being shot with tear gas. 17. Police continued deploying tear gas, even after the Circle was almost empty of people. 18. At that point, I could not stand to see more people running and screaming from fear, and I went home. 19. I recorded video footage of some of the incidents described herein, and true and correct copies of portions of that footage have been included as exhibits to this affidavit.

Case 1:20-cv-01660-JMS-DLP Document 19-16 Filed 07/10/20 Page 3 of 4 PageID #: 147
20. Not only were I and the people around me engaging only in peaceful protest activities, but at all of the times when tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity.
21. I experienced burning in my eyes, throat, and lungs as a result of the tear gas, which caused physical pain.
22. I felt sadness and distress at watching the police exercise that type of force against me and the people around me. I also felt fearful for my own safety and the safety of people around me.
23. I would have stayed longer at that protest, but felt it was no longer safe to do so, because of the police activity.

Case 1:20-cv-01660-JMS-DLP Document 19-16 Filed 07/10/20 Page 4 of 4 PageID #: 148

Case 1:20-cv-01660-JMS-DLP Document 19-17 Filed 07/10/20 Page 1 of 5 PageID #: 149

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF MATTY SLAYDON

COMES NOW Matty Slaydon, being first duly sworn upon his oath, and states as follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 29, 2020, I was participating in peaceful protest activities to support the mission
of the Black Lives Matter movement. 3. At approximately 5:00 or 6:00 p.m., I was on Monument Circle helping to organize a group
of peaceful protesters who were located adjacent to the Soldiers and Sailors Monument on the inner portion of Monument Circle. 4. At some point that afternoon or evening, police closed off Monument Circle to vehicular traffic, but pedestrians were permitted to stay. 5. I was standing with a group of protesters on the interior sidewalk of the Circle, adjacent to the Soldiers and Sailors Monument. 6. The police formed a line across from the group of protesters, and the two groups kept moving closer to each other.

Case 1:20-cv-01660-JMS-DLP Document 19-17 Filed 07/10/20 Page 2 of 5 PageID #: 150
7. We were peacefully assembled on the sidewalk, where we were permitted to be, and I did not understand why the police were advancing toward us in a menacing manner.
8. I had my arms outstretched to my sides, trying to protect the group of people behind me from the approaching police.
9. Without giving any order, warning, or other communication, a police officer raised a container of pepper spray and sprayed me and other peaceful protesters in the face, from approximately one foot away. An onlooker took a video of that event, which accurately depicts what occurred. A true and correct copy of that video has been submitted to the Court as an exhibit to this affidavit.
10. I moved to the back of the crowd, where I was treated by volunteer medics. 11. After traveling around downtown, a group of protesters eventually ended up near
Monument Circle, on a sidewalk on Market Street between Capitol Avenue and the Circle. 12. Without any warning, order to disperse, or other communication, police began firing
canisters of tear gas into the group of protesters where I stood. 13. We ran into an alley to attempt to avoid exposure to the tear gas, and a group of police
officers saw us and raised their weapons at us. They then lowered them and walked away. 14. On May 30, 2020 I again participated in peaceful protest activities downtown. 15. In the late afternoon, I was standing at the corner of Market and New Jersey Streets. 16. Police had blocked vehicular traffic using their vehicles and officers standing in the
roadway. 17. Hundreds of people were present at this time. 18. I was serving as a volunteer medic, and I was wearing a giant red cross on my shirt to
identify myself as such.

Case 1:20-cv-01660-JMS-DLP Document 19-17 Filed 07/10/20 Page 3 of 5 PageID #: 151
19. I heard no warning, order to disperse, or any other communication from police, when police began firing tear gas canisters and pepper balls indiscriminately into the crowd.
20. I saw a woman who had been waiting for the bus—not engaged in protest activities— holding a baby who was frothing at the mouth due to inhalation of tear gas.
21. I fell to the ground and felt that I was going to pass out, due to being overwhelmed by the tear gas and unable to breathe.
22. A fellow medic found my inhaler and administered it to me. She then supported me while I walked approximately a half a block away.
23. We encountered two children under the age of ten who had become separated from their parents as a result of the frantic scene caused by the deployment of tear gas and pepper balls.
24. They were suffering from the effects of the tear gas, and we treated both girls. 25. On May 31, 2020, I returned downtown to participate in peaceful protest activities. 26. In the afternoon, I was on the sidewalk near the intersection of Pennsylvania and Vermont
Streets handing out medic kits to peaceful protesters. 27. I did not hear any warning or order to disperse, when police began firing tear gas canisters
into the crowds of peaceful protesters located both on the sidewalk and in the street. 28. In order to avoid further harm from the tear gas, I left the area. 29. Not only were I and the people around me engaging only in peaceful protest activities, but
at all of the times described herein that force was deployed, I did not see anyone engaging in looting, property destruction, violence, or any other similar activity that might have provoked the police’s response.

Case 1:20-cv-01660-JMS-DLP Document 19-17 Filed 07/10/20 Page 4 of 5 PageID #: 152
30. I would like to be able to return to the protests and rallies without being afraid of being attacked by IMPD officers while I engage in peaceful protest. I am aware that the types of force I note above have been deployed against peaceful protesters in streets, on sidewalks, and in parks, and I am concerned that I will be exposed to this force when I return to peaceful protests no matter where I am physically located.

Case 1:20-cv-01660-JMS-DLP Document 19-17 Filed 07/10/20 Page 5 of 5 PageID #: 153
VERIFICATION I hereby verify, under penalties for perjury, that the foregoing statements are true and correct to the best of my information and belief.

_0_7/_09_/2_02_0_________________ Date
Prepared by:
Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

__________________________________________ Matty Slayton, Affiant

Case 1:20-cv-01660-JMS-DLP Document 19-18 Filed 07/10/20 Page 1 of 4 PageID #: 154

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF BRANDON BAKER

COMES NOW Brandon Baker, being first duly sworn upon his oath, and states as follows:

1. I am an adult resident of Monroe County, Indiana. 2. On May 31, 2020, I was participating in peaceful protest activities to support the Black
Lives Matter movement. 3. In the early evening, maybe at around 6:00, I was marching with a group of near the Indiana
War Memorial on Pennsylvania Street. 4. We marched south on Pennsylvania Street, and I heard no warning from police or order to
disperse, when all of the sudden, police began to launch tear gas canisters into the group. 5. Many of us moved into University Park, and I was standing on the sidewalk near the
intersection of Pennsylvania and New York Streets. 6. After a few minutes, police, again without warning, launched tear gas canisters into the
crowd assembled on the sidewalk in front of the park. 7. One of those canisters hit a fellow protester next to me in the foot. 8. Police threw additional tear gas canisters into our group until we dispersed.

Case 1:20-cv-01660-JMS-DLP Document 19-18 Filed 07/10/20 Page 2 of 4 PageID #: 155
9. We ultimately marched in the direction of the Statehouse, and ended up at the intersection of Vermont Street and Capitol Ave.
10. After standing at that intersection for approximately five minutes, we began to retreat from that area, when police again launched canisters of tear gas.
11. Police gave no warning before they fired tear gas into the group. 12. I ran, in order to avoid the tear gas. 13. After the group reconvened, we headed downtown toward Monument Circle. 14. We marched on the sidewalks to the intersection of Washington and Meridian Streets,
where we gathered on the northeast and northwest quadrants of that intersection on the sidewalk and the cultural trail. 15. Police cars blocked traffic moving north and south along Meridian Street. 16. After standing there chanting for a few minutes, I moved with a smaller group in the direction of Monument Circle on Meridian Street. 17. When we arrived at the Circle, we found ourselves in the midst of a church group that was singing and praying, and we positioned ourselves among them on the steps of the Soldiers and Sailors Monument. 18. After a few minutes, I noticed that police were moving closer to us and the church group. 19. Thirty to forty-five seconds later, those officers launched at least three to five canisters of tear gas toward us, and they landed immediately at our feet. 20. One of those canisters landed at the base of a wheelchair that was occupied by a woman who appeared to be one of the church group members. 21. She was surrounded by four young children.

Case 1:20-cv-01660-JMS-DLP Document 19-18 Filed 07/10/20 Page 3 of 4 PageID #: 156
22. I was overtaken by the tear gas and fell to my knees, and another protester had to drag me up the steps of the Monument to get away from the gas.
23. A woman within ten feet of me was using her smart phone to stream online the events described in paragraphs 19 through 21. She and I shared a similar vantage point, and her livestream of those events accurately depicts what I witnessed. A portion of that livestream video has been attached to this affidavit as an exhibit.
24. Not only were I and the people around me engaging only in peaceful protest activities, but at the times that tear gas was deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity.

Case 1:20-cv-01660-JMS-DLP Document 19-18 Filed 07/10/20 Page 4 of 4 PageID #: 157

Case 1:20-cv-01660-JMS-DLP Document 19-19 Filed 07/10/20 Page 1 of 4 PageID #: 158

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

AFFIDAVIT OF CHRISTOPHER DANCE

COMES NOW Christopher Dance, being first duly sworn upon his oath, and states as

follows:

1. I am an adult resident of Marion County, Indiana. 2. On May 30, 2020, I arrived at Monument Circle at approximately 4:30 p.m. to participate
in peaceful protest activities. 3. Those activities continued for several hours peacefully, marching around the downtown
area. 4. At approximately 8:00 p.m., we approached the intersection of Alabama and Market
Streets. 5. We encountered police cars and police officers that were blocking traffic across Market
Street. 6. I noticed that they were pointing at us weapons that looked like some type of launcher, and
I know them now to be weapons used for launching tear gas canisters or pepper balls.

Case 1:20-cv-01660-JMS-DLP Document 19-19 Filed 07/10/20 Page 2 of 4 PageID #: 159
7. When we encountered those police cars, I started moving forward toward the front of the group. I ultimately ended up slightly off to one side of the group of people, a distance of approximately three rows back, but with no one directly in front of me.
8. The first row or two of people knelt on the ground and raised their hands in the air. 9. I stayed standing, and had a vantage point of the police activity and the rows of individuals
in front of them. 10. The crowd was chanting “Hands up, don’t shoot.” 11. We stayed in this position for approximately fifteen minutes, and there were no
communications or orders to disperse issued by the police. 12. I then saw a group of police officers dressed in riot gear, some accompanied by police dogs,
run up Alabama Street towards us. 13. When those officers reached approximately one quarter of a block from us, the officers that
had been pointing the launcher-style weapons at us began firing tear gas canisters and pepper balls. 14. They fired directly into the people kneeling at the front of the group of protesters. 15. A friend of mine was also attending this protest, and he was positioned slightly to the east of where I was standing. He was approximately ten feet from me, in a diagonal line. 16. Our vantage points were very similar. 17. He captured a digital video of the moment when police first shot into the front rows of protesters. 18. This video accurately depicts what I saw, and what I describe in paragraphs 7, 8, 13, and 14. A true and correct copy of this video has been submitted to the Court as an exhibit to this affidavit.

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19. They then fired those weapons all around us, creating clouds of tear gas and pepper spray that completely hemmed us in.
20. There was no way to move without going through those toxic substances. 21. At no point did I hear any communications whatsoever from the police. 22. Tear gas canisters littered the ground by this point. 23. As I tried to leave the area, I was grazed by a pepper ball on my shoulder. 24. Not only were I and the people around me engaging only in peaceful protest activities, but
at the time that the tear gas and pepper balls were deployed, I did not see anyone in the vicinity engaging in looting, property destruction, violence, or any other similar activity. 25. I experienced the physical effects of the tear gas, including burning eyes, throat, and mouth. 26. I suffered emotional impact from what I experienced, including fear and anxiety from what I saw the police do. 27. I would like to continue participating in protests, but I feel that I cannot do so out of fear of future violence from law enforcement.

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 Case 1:20-cv-01660-JMS-DLP Document 21 Filed 07/10/20 Page 1 of 33 PageID #: 164

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDY 10 BLACK LIVES MATTER,

)

BRE ROBINSON, ASIAH BASSETT, )

SHANIECE LEWIS,

)

)

Plaintiffs,

)

)

v.

)

)

THE CITY OF INDIANAPOLIS,

)

)

Defendant.

)

No. 1:20-cv-01660-JMS-DLP

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Introduction
Persons in Indianapolis reacted to the murder of George Floyd in Minneapolis by quickly organizing demonstrations against systemic racism and its influence on police practices. The demonstrations were in downtown Indianapolis and drew numerous persons who wished to be heard on this fundamentally important issue concerning racial justice. During a number of the protests, peaceful protesters were met by Indianapolis Metropolitan Police Department (“IMPD”) officers who indiscriminately employed tear gas, pepper balls, flash grenades, and shows of force to discourage and prevent the protests and those participating in them. The weapons and force were deployed not only against persons in the streets—some of which had been closed off by the police—but also against persons on sidewalks, in a park, and at the Soldiers and Sailors Monument. Indeed, IMPD officers actively pursued protesters who were not on the streets to tear gas them and shoot pepper balls at them. Demonstrations continue, and the City and IMPD have not indicated that this police behavior will not recur. The actions of the City and IMPD violated both the First

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and Fourth Amendments to the United States Constitution. The plaintiffs, an organization active in the protests and individuals who have protested in
the past and want to do so in the future without fear of again being subject to dangerous and painful attacks by the police, seek a preliminary injunction to prevent the City and IMPD from taking any actions that interfere with their lawful protest and from utilizing objectively unreasonable force against them and other protesters. A preliminary injunction should issue without bond. Facts1
On May 25, 2020, George Floyd was murdered by a police officer who, while detaining Mr. Floyd, suffocated him by kneeling on his neck for eight minutes and forty-six seconds. See, e.g., https://www.cnn.com/2020/06/24/us/minneapolis-police-chief-comment-george-floyd-trnd /index.html (last visited July 4, 2020). In the wake of that killing, protests against police brutality— and in particular violence against the Black community—sprung up around the country. See, e.g., https://www.nytimes.com/interactive/2020/06/13/us/george-floyd-protests-cities-photos.html (last visited July 4, 2020). Indianapolis was no exception, and beginning on May 29, 2020, protesters convened in the sidewalks, parks, and streets of the downtown area to engage in peaceful demonstrations against police violence. In a series of use-of-force incidents, as described below, those demonstrations were met with the very violence at which their speech was aimed. A. The plaintiffs
Indy 10 Black Lives Matter (“Indy 10 BLM”) is a membership organization that was founded in 2014 and is dedicated to serving, supporting, and loving Black people. Dkt. 19-1 at 1. The organization exists, among other reasons, to lift unheard voices of people of color and to build and grow local community. Id. From its very creation, Indy 10 BLM has been particularly

1

Plaintiffs reserve the right to present further evidence in response to the defendant’s submissions, and reserve

the right to supplement this factual statement with information adduced during the discovery process.

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concerned about systemic racism in policing and the criminal justice system and the violence that is frequently directed by police against persons of color. Id. at 2. To advance its organizational goals, Indy 10 BLM has organized community events and demonstrations, participated in task forces, held press conferences, and met with and discussed issues with political leaders. Id. Although Indy 10 BLM is not formally incorporated, it operates Facebook, Twitter, and Instagram accounts and has funds that are maintained as Indy BLM funds. Id. Through its various media platforms, it also serves as a clearinghouse to let interested persons in the community know of upcoming events and matters of interest. Id.
Plaintiffs Asiah Bassett, Shaniece Lewis, and Bre Robinson are residents of Marion County who have engaged in the protests described herein, and who wish to continue their protest activities in the future. See Dkt. 19-2; Dkt. 19-3; Dkt. 19-4. B. The events of May 29, 2020
In the late afternoon and early evening of May 29, 2020, protesters assembled at Monument Circle (“the Circle”) in downtown Indianapolis to engage in peaceful demonstrations. Dkt. 19-1 at 2-3; Dkt. 19-17 at 1. Among those protesting were members of Indy 10 BLM. Dkt. 19-1 at 3. Indy BLM had helped to publicize the protest and also, although it was not expecting the violent reaction that protesters received, brought medical supplies and other materials on which it had expended its limited organizational resources. Dkt. 19-1 at 2-3. The protesters positioned themselves on the sidewalk along the interior of the Circle, adjacent to the Soldiers and Sailors Monument, where they were able to remain until the group grew more numerous. Dkt. 19-1 at 3. As the group’s number increased, eventually the Indianapolis Metropolitan Police Department (“IMPD”) closed the Circle to vehicular traffic, while protesters on foot were permitted to continue their activities. Dkt. 19-1 at 3; Dkt. 19-17 at 1. The group peacefully conducted their protest
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activities around the Circle. Dkt. 19-1 at 3; Dkt. 19-17 at 1. At some point in the early evening, as a group of protesters stood along the interior of the
Circle, out of the street, the police arranged themselves opposite the group. Dkt. 19-17 at 1. Without giving any order, warning, or other communication, a police officer raised a container of pepper spray and sprayed into the assembled group, hitting several protesters in the face, from approximately one foot away. Dkt. 19-17 at 2, manually filed “Video”. The pepper spray caused extreme physical discomfort, and those affected were treated by volunteer medics on the scene. Dkt. 19-17 at 2.
Eventually, some individuals in that group of protesters, including members of Indy 10 BLM, departed from the Circle and marched around downtown, at one point returning to the Circle, and then departing again. Dkt. 19-1 at 3; Dkt. 19-2 at 1; Dkt. 19-17 at 2. The group eventually made its way to Market Street, which appeared to have been closed to vehicular traffic by the IMPD, using both the street and the sidewalks. Dkt. 19-1 at 3; Dkt. 19-2 at 2. As they traveled the block of Market Street between Capitol Avenue and Illinois Street, the protesters encountered IMPD officers in front of them, assembled along Market Street blocking the intersection, dressed in riot gear. Dkt. 19-1 at 3; Dkt. 19-2 at 2. Additional officers then aligned themselves behind the group of protesters, such that the group was hemmed in by law enforcement. Dkt. 19-2 at 2. At that point, an IMPD officer, using a bullhorn, announced that the protest was no longer “lawful,” but did not order the assembled crowd to disperse.2 Dkt. 19-2 at 2.
Within 60 seconds of that announcement, without any warning or other communication indicating that force would be used, police began to indiscriminately launch tear gas canisters into the assembled crowd, hitting both those positioned in the street and those standing on sidewalks.

2

Many protesters did not hear any such announcement. See Dkt. 19-1 at 4; Dkt. 19-17 at 2. No curfew had

been declared for May 30th. Dkt. 19-2 at 2.

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Dkt. 19-1 at 4; Dkt. 19-2 at 2; Dkt. 19-17 at 2.3 Police also shot pepper balls into the group of protesters. Dkt. 19-1 at 4; Dkt. 19-2 at 2. The protesters, including Indy 10 BLM members and Ms. Robinson, immediately felt the effects of the tear gas, including burning in their eyes, nose, and throat, and respiratory distress. Dkt. 19-1 at 4; Dkt. 19-2 at 3; Dkt. 19-8 at 1-2.
There was no apparent means for the group to disperse, either prior to the use of the chemical weapons or to escape their effects, because police had created blockades on both sides of the protesters. Dkt. 19-2 at 2. There was pandemonium as the protesters attempted to flee,

3

“Tear gas” is a riot control agent consisting of “chemical compounds that temporarily make people unable to

function by causing irritation to the eyes, mouth, throat, lungs, and skin.” Centers for Disease Control and Prevention,

Emergency Preparedness and Response, Facts About Riot Control Agents – Interim Document, “What riot control

agents are,” https://emergency.cdc.gov/agent/riotcontrol/factsheet.asp (last visited July 5, 2020).

People exposed to riot control agents may experience some or all of the following symptoms immediately after exposure:

 Eyes: excessive tearing, burning, blurred vision, redness  Nose: runny nose, burning, swelling  Mouth: burning, irritation, difficulty swallowing, drooling  Lungs: chest tightness, coughing, choking sensation, noisy breathing (wheezing), shortness of breath  Skin: burns, rash  Other: nausea and vomiting

Long-lasting exposure or exposure to a large dose of riot control agent, especially in a closed may cause severe effects such as the following:

setting,

 Blindness  Glaucoma (a serious eye condition that can lead to blindness)  Immediate death due to severe chemical burns to the throat and lungs  Respiratory failure possibly resulting in death

Id. at “Immediate signs and symptoms of exposure to a riot control agent.” “The effects of exposure to a riot control agent are usually short-lived (15–30 minutes) after the person has been removed from the source and decontaminated (cleaned off).” Id. at “How riot control agents work.”
Pepper spray is also a riot control agent that works similarly to tear gas. Id. at “How you could be exposed to riot control agents.” Unlike tear gas, which can consist of various chemicals, id. at What riot control agents are, pepper spray consists of oleoresin capsicum. See, e.g., Wilson v. Johnson, No. 4:18-cv-310-RH-MJF, 2020 WL 3052530, *16 n.10 (N.D. Fla. March 31, 2020).
“Pepper balls are rifle-fired projectiles that break into pieces upon impact and release oleoresin capsicum power (commonly known as mace), thereby causing both pain at the point of impact and irritation of the targeted individual’s eyes and breathing passages.” Buck v. City of Albuquerque, 549 F.3d 1269, 1289 (10th Cir. 2008) (internal quotation marks and citation omitted).
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suffering the effects of the tear gas that impaired their vision and caused disorientation. Dkt. 191 at 4. One group of protesters ran down a nearby alley, but a group of police officers, seeing the protesters running away, raised and pointed their guns at the group, before lowering them and walking away. Dkt. 19-17 at 2. Many individuals suffered the effects of the chemical weapons, and Indy 10 BLM members attempted to render them assistance in the aftermath of the attack. Dkt. 19-1 at 4.
Meanwhile, another group of protesters remained gathered at the Circle. The Circle was still closed to vehicular traffic, and protesters remained there on foot, engaging in peaceful protest activities. Dkt. 19-15 at 1. At approximately 8:30 p.m., as protesters were gathered on the east side of the Circle, without warning or order to disperse, police deployed tear gas and pepper balls into the gathered crowd. Dkt. 19-15 at 1. The protesters dispersed as a result of this use of force. Id. C. The events of May 30, 2020
On May 30, 2020, beginning in the early afternoon, peaceful rallies and protest activities resumed in downtown Indianapolis, beginning again at Monument Circle. Dkt. 19-1 at 4; Dkt. 194 at 1; Dkt. 19-19 at 1. Again, Indy 10 BLM assisted in spreading the word that about the activities and again they expended limited resources on medical supplies. Dkt. 19-1 at 4. In the late afternoon, many protesters left the Circle to participate in a march around downtown, which other supporters joined as it progressed. Dkt. 19-1 at 5; Dkt. 19-2 at 3; Dkt. 19-4 at 1; Dkt. 19-5 at 1; Dkt. 19-6 at 1; Dkt. 19-9 at 1; Dkt. 19-14 at 1; Dkt. 19-19 at 1. Members of Indy 10 BLM, as well as the individual plaintiffs, participated in this march. Dkt. 19-1 at 4-5; Dkt. 19-2 at 3; Dkt. 19-3 at 1; Dkt. 19-4 at 1.
Eventually the protesters marched in the direction of the City-County Building. Dkt. 19-1
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at 5; Dkt. 19-2 at 3; Dkt. 19-9 at 1; Dkt. 19-4 at 1; Dkt. 19-5 at 1; Dkt. 19-6 at 1; Dkt. 19-14 at 1; Dkt. 19-19 at 1. Members of Indy 10 BLM, as well as the individual plaintiffs, continued to participate. Dkt. 19-1 at 6; Dkt. 19-2 at 3; Dkt. 19-3 at 1; Dkt. 19-4 at 2. At some point, IMPD closed off vehicular traffic in the vicinity of Alabama and Market Streets, and as such, protesters were walking in the road and along the sidewalks. Dkt. 19-2 at 3; Dkt. 19-3 at 2; Dkt. 19-4 at 2. As the protesters approached the intersection of Market and Alabama Streets, they were stopped by police, who were dressed in riot gear and arrayed across the intersection on foot and in vehicles, blocking passage. Dkt. 19-1 at 5; Dkt. 19-4 at 2; Dkt. 19-5 at 1; Dkt. 19-6 at 1; Dkt. 19-9 at 1; Dkt. 19-14 at 1; Dkt. 19-17 at 2; Dkt. 19-19 at 1. Some officers were accompanied by police dogs, (Dkt. 19-1 at 6, Dkt. 19-4 at 2), and there were many officers in riot gear amassed both outside and inside the City-County Building, (Dkt. 19-3 at 1, Dkt. 19-6 at 1).
By now, the protest group numbered in the hundreds as it came to a stop at the intersection. Dkt. 19-1 at 5-6; Dkt. 19-4 at 1; Dkt. 19-17 at 2. Throughout the march, and as it arrived at the intersection, all of the march activities had been peaceful and passed without incident with the police. Dkt. 19-1 at 5; Dkt. 19-3 at 1; Dkt. 19-4 at 1-2; Dkt. 19-19 at 1. However, the police were already pointing tear gas launchers and pepper ball guns at the assembled protesters as they arrived. Dkt. 19-19 at 1. When the front of the group reached the blockade created by police officers, the first several rows of protesters knelt on the ground and placed their hands in the air, chanting “hands up, don’t shoot.” Dkt. 19-19 at 2. The group remained here, in a peaceful stasis, for several minutes. Dkt. 19-6 at 1; Dkt. 19-9 at 1; Dkt. 19-14 at 2; Dkt. 19-19 at 2. From within the assembled crowd, a handful of firecrackers was ignited, and a plastic water bottle was lobbed in the direction of police. Dkt. 19-5 at 1-2; Dkt. 19-14 at 2. Police, however, did not react to either of these events. Dkt. 19-5 at 1-2; Dkt. 19-14 at 2.
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Some protesters eventually heard police make an announcement that the assembly was unlawful, (Dkt. 19-1 at 6, Dkt. 19-14 at 2), but many protesters heard no announcement at all, (Dkt. 19-2 at 3; Dkt. 19-3 at 2; Dkt. 19-5 at 2; Dkt. 19-6 at 1; Dkt. 19-9 at 1; Dkt. 19-17 at 3; Dkt. 19-19 at 2). Regardless, police issued no orders to disperse, warnings, or other communications that force, including chemical agents, would be used against the protesters. Dkt. 19-1 at 6; Dkt. 19-2 at 3; Dkt. 19-3 at 2; Dkt. 19-4 at 2; Dkt. 19-5 at 2; Dkt. 19-6 at 1; Dkt. 19-9 at 1; Dkt. 19-14 at 2; Dkt. 19-17 at 3; Dkt. 19-19 at 2. Suddenly, police began to fire tear gas canisters and pepper balls indiscriminately into the crowd assembled both in the street and on the sidewalks. Dkt. 191 at 6; Dkt. 19-2 at 4; Dkt. 19-3 at 2; Dkt. 19-4 at 2; Dkt. 19-5 at 2, 4-5; Dkt. 19-6 at 1; Dkt. 19-9 at 1, manually filed “Video 1” and “Video 2”; Dkt. 19-14 at 2; Dkt. 19-17 at 3; Dkt. 19-19 at 2. Police also deployed “flash-bang” or “stun” grenades.4 Dkt. 19-1 at 6; Dkt. 19-2 at 4; Dkt. 19-4 at 2. Police fired tear gas and pepper balls directly into the front several rows of kneeling protesters, hitting some of them. Dkt. 19-19 at 2, manually filed “Video”.
The deployment of these chemical weapons created a chaotic scene, with protesters attempting to quickly escape the toxic effects of the tear gas and pepper balls. ;Dkt. 19-1 at 6; Dkt. 19-5 at 2; Dkt. 19-9 at 1. Protesters again suffered from the painful physical effects of the chemical agents, including burning of the eyes, nose, and throat and respiratory distress. Dkt. 19-1 at 6; Dkt. 19-2 at 4; Dkt. 19-4 at 2; Dkt. 19-5 at 2; Dkt. 19-6 at 1; Dkt. 19-9 at 2; Dkt. 19-14 at 2; Dkt. 19-17 at 3; Dkt. 19-19 at 3. Despite the protesters’ attempts to disperse, police nonetheless continued firing tear gas and pepper balls into and around the crowd, hemming them in with clouds of toxic chemicals and projectiles. Dkt. 19-5 at 2; Dkt 19-14 at 2; Dkt. 19-19 at 3. There was

4

A “flash-bang grenade is a light/sound diversionary device designed to emit a brilliant light and loud noise

upon detonation. Its purpose is to stun, disorient, and temporarily blind its targets, creating a window of time in which

police officers can safely enter and secure a potentially dangerous area.” Boyd v. Benton, 374 F.3d 773, 776 (9th Cir.

2004).

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simply no way to escape without passing through the chemical agents. Dkt. 19-19 at 3. Police continued to fire additional canisters of tear gas well after the mass of protesters had scattered, and after the protesters were clearly attempting to disperse. Dkt. 19-5 at 2.
Some individuals suffered particularly acutely from the chemical weapons, including two young girls who had become separated from their parents during the chaos, and had to be treated by volunteer medics, (Dkt. 19-17 at 3), protesters who suffered asthma attacks and risked losing consciousness, (Dkt. 19-17 at 3, Dkt. 19-14 at 2), and protesters who could not safely leave the area, and risked additional injury from other protesters during the chaos of their retreat, due to mobility impairments, (Dkt. 19-2 at 4). And due to the indiscriminate nature of the IMPD’s use of force, individuals in the area who were not participating in protest activities were nonetheless subjected to the use of chemical weapons. A woman was waiting with a baby at a bus stop as the above events unfolded, and she and the child were overwhelmed by tear gas, causing the baby to froth at the mouth. Dkt. 19-17 at 3.
Police also targeted protesters with further attacks as they attempted to flee. A group of protesters, including Ms. Robinson, Ms. Bassett, and Ms. Lewis, ran down a pedestrian walkway near the City Market in order to evacuate the area. Dkt. 19-2 at 4; Dkt. 19-3 at 2; Dkt. 19-4 at 2. They were chased by police into the walkway, which is bordered by two buildings, where police lobbed tear gas canisters in front of them, preventing their forward movement. Dkt. 19-3 at 2; Dkt. 19-4 at 2. Police did so despite the fact that these individuals were physically removed from the scene of the protest and were clearly trying to leave. Dkt. 19-2 at 4; Dkt. 19-3 at 2; Dkt. 19-4 at 2.
One group of protesters was targeted by police and had tear gas canisters launched at them on the fifth floor of a parking garage by police on the ground who saw them recording the unfolding
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scene. Dkt. 19-14 at 2-3. Police continued to target peaceful protesters throughout that night, shooting tear gas into groups of people peacefully gathered or walking along sidewalks. Dkt. 1915 at 2, manually filed “Video”. D. The events of May 31, 2020
On May 31, 2020, protesters again gathered in downtown Indianapolis to engage in numerous, peaceful protests. As described below, as the day unfolded, many of these separate protest events ended with police teargassing the peaceful protesters.
In the early afternoon, protesters assembled on Monument Circle, which remained closed to traffic, and where speakers had gathered to present to the crowd. Dkt. 19-7 at 1. Police appeared to be stationed on the tops of some of the buildings that surround Monument Circle. Dkt. 19-7 at 1. At approximately 4:00 p.m., over a loudspeaker, police informed the assembled group that they were participating in an unlawful assembly and ordered them to disperse, under the threat of arrest. Dkt. 19-7 at 1. Before the protesters had the opportunity to comply, police began launching tear gas canisters indiscriminately into the crowd. Dkt. 19-7 at 1; see also Dkt. 19-15 at 2-3.
As these events unfolded, other protests were occurring elsewhere in the downtown area. One large group of protesters was peacefully marching around downtown. Dkt. 19-5 at 3; Dkt. 19-6 at 2; Dkt. 19-13 at 1; Dkt. 19-16 at 1. In the early evening, around 6:00 p.m., that group was marching south on Pennsylvania Street, both on the sidewalks and in the street, and due to the number of participants, it spanned the large part of a city block. Dkt. 19-12, manually filed “Video” at 0:00 - 0:35; Dkt. 19-13 at 1; Dkt. 19-16 at 1. As the group slowly advanced along Pennsylvania Street protesters began to notice police officers amassing. Dkt. 19-5 at 3; Dkt. 19-6 at 2; Dkt. 19-16 at 1; see also Dkt. 19-12, manually filed “Video” at 0:38. At some point, police made an announcement that the group was unlawfully present in the street, (Dkt. 19-6 at 2),
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although many protesters heard no such announcement, (Dkt. 19-5 at 3, Dkt. 19-13 at 1, Dkt. 1916 at 1). While the group was still quite a distance from the police, and without issuing an order to stop or disperse, or any communication or warning that force would be used against the protesters, police began to launch tear gas canisters into the crowd—both those in the street and those on the sidewalk. Dkt. 19-5 at 3; Dkt. 19-6 at 2; Dkt. 19-11 at 2, manually filed “Video 1”; Dkt. 19-12, manually filed “Video” at 0:38 – 1:00; Dkt. 19-13 at 1; Dkt. 19-16 at 1-2; Dkt. 19-17 at 3; Dkt. 19-18 at 1.
The protesters attempted to flee, with some running into nearby University Park, and some running down nearby streets. Dkt. 19-6 at 2; Dkt. 19-12, manually filed “Video” at 1:19 - 1:40; Dkt. 19-13 at 1; Dkt. 19-16 at 2; Dkt. 19-17 at 3; Dkt. 19-18 at 1. The police continued to fire tear gas, and one protester was hit in the back of her head with a tear gas canister, knocking her down, as she moved away from the police. Dkt. 19-12, manually filed “Video” at 2:03. Approximately 18 officers eventually moved just south of the intersection of Pennsylvania and New York Streets, where they were joined by other officers. Dkt. 19-12, manually filed “Video” at 2:56. A number of officers congregated around a vehicle with an open back, where it appears that they obtained more tear gas canisters. Id. at 3:13. Officers can be seen exchanging fist bumps. Id. at 3:45 - 3:50.
Some of the protesters regrouped in University Park, near the corner of Pennsylvania and New York Streets, and continued to engage in peaceful demonstration. Dkt. 19-16 at 2. Others retreated further north into the park, attempting to treat their exposure to tear gas. Dkt. 19-6 at 23. After a few minutes, the police began to walk across the intersection of New York and Pennsylvania Streets, heading north. Dkt. 19-12, manually filed “Video” at 5:13 - 5:25. There was a small group of protesters in the street, but there were also protesters on the sidewalks, in the parking lane on the street, and in the park. Dkt. 19-6 at 2-3; Dkt. 19-12, manually filed “Video”
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at 5:13; Dkt. 19-18 at 1. Again without warning or any other communication, police began shooting tear gas into the peaceful protesters on the street, on the sidewalks, in the parking lane, and those assembled in the park. Dkt. 19-6 at 3; Dkt. 19-12, manually filed “Video” at 5:13 - 6:33; Dkt. 1918 at 1. Many of those protesters left the park in separate groups to escape the tear gas, and were tear gassed yet again, including at the corners of Delaware and Michigan Streets, (Dkt. 19-6 at 3), and Vermont Street and Capitol Avenue, (Dkt. 19-13 at 2; Dkt. 19-16 at 2; Dkt. 19-18 at 2).
At some point, while several officers stood in the intersection of New York and Pennsylvania Streets, a white sport utility vehicle drove up New York Street to the intersection. Dkt. 19-11 at 2, manually filed “Video 2”. The driver of the car then honked the horn, in apparent solidarity with the protesters. Id. Some sort of communication occurred between an occupant of the video and police officers who were standing in the intersection. Id. After backing up, the vehicle drove through the intersection, at which point police launched a canister of tear gas directly into the vehicle. Id. The vehicle included at least four occupants—two adults and two children under the age of five—who were overtaken by the tear gas and suffered medical distress as a result of tear gas being fired at point-blank range into the vehicle. Dkt. 19-11 at 2-3, manually filed “Video 3”.
During this time, another group of protesters was marching around downtown, chanting and engaging in peaceful demonstration. Dkt. 19-10 at 1. Any time that the group became stationary, police, dressed in riot gear, would use their vehicles, bikes, and bodies to move in toward the group, block intersections, and channel the group’s movement. Id. When the group saw police begin to amass at the intersection of New York Street and Capitol Avenue, it began to retreat away from the intersection toward a large parking lot. Id. At this point, without warning, communication, or any other order to disperse, police began launching tear gas canisters into
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groups of protesters both in the street and on the sidewalk. Id. at 2, manually filed “Video 1”. They also launched tear gas canisters over the group, in the direction in which it was attempting to retreat, in order to block the group’s exit. Id. at 2. Even after protesters had retreated from the area near the officers, police continued to launch tear gas far afield into them. Id.
After attempting to treat the effects of the tear gas and reconvening, the group headed toward Monument Circle. Id. The Circle appeared to be blocked off to vehicular traffic by snow plows stationed across streets. Id. at 2, 5. The group marched on the sidewalks to the intersection of Washington and Meridian Streets, where it gathered on the northeast and northwest quadrants of the intersection on the sidewalk and the cultural trail. Id. at 2; Dkt. 19-16 at 2. Police cars blocked traffic moving north and south along Meridian Street. Dkt. 19-10 at 2, 6. The group stood on the sidewalks, chanting, and again without warning, any order to disperse, or other communication, police began firing tear gas directly into the crowds of people assembled on the sidewalks. Dkt. 19-10 at 3, manually filed “Video 2”; Dkt. 19-16 at 2. Protesters were again overtaken by the effects of the tear gas. Dkt. 19-10 at 3; Dkt. 19-16 at 2.
Around this time, protesters again assembled at Monument Circle, which remained closed to vehicular traffic. Dkt. 19-7 at 2; Dkt. 19-18 at 2. Police did not prevent them from gathering or order them to disperse, despite the prior use of force against the protesters who had assembled earlier in the day. Dkt. 19-7 at 2; Dkt. 19-18 at 2. This assembly included many members of local church groups, who were worshipping and singing inside the bollards at the Soldiers and Sailors Monument. Dkt. 19-7 at 2; Dkt. 19-18 at 2, manually filed “Video”. Without warning or order to disperse, police began to fire tear gas into the peacefully assembled group, which included children and at least one individual in a wheelchair. Dkt. 19-7 at 2; Dkt. 19-18 at 2, manually filed “Video”. E. Effects of the uses of force on protest activities
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As described in detail above, these uses of force employed by the IMPD had the immediate effect of halting the activities of those who were engaged in peaceful protest, in addition to causing pain and suffering. But on top of that, those uses of force have led some individuals to cease engaging in protest activities at all, due to their fears of violence by police. Dkt. 19-1 at 7; Dkt. 19-19 at 3. Many people, including the plaintiffs, have continued to engage in protest activities, but they do so with a sense of fear that they may be attacked by the IMPD and subjected to violence at the hands of police. Dkt. 19-1 at 8; Dkt. 19-2 at 5; Dkt. 19-3 at 3; Dkt. 19-4 at 2; Dkt. 19-7 at 2. Indy 10 BLM has also found it necessary to expend some of its limited resources to buy medical supplies in preparation for its protest activities, and to use those supplies to treat individuals who have been injured by tear gas and pepper balls at protests. Dkt. 19-1 at 7.
The City of Indianapolis has provided no indication that it will cease engaging in the use of tear gas and pepper balls against protesters if it deems such actions necessary, and appears to have taken the position that chemical weapons were used appropriately in the incidents described above. In remarks to the Public Safety and Criminal Justice Committee of the City-County Council on June 10, 2020, IMPD Police Chief Randal Taylor stated that “chemical weapons are probably the least lethal force that we can use,” and that “we would hate to go back to things like water guns, or dogs, or anything like that. Those chemical agents really are our best line of defense without really doing harm.” Public Safety Committee, beginning at approximately 2:30:00, http://indianapolis.granicus.com/player/clip/19976?view_id=3 (last visited July 10, 2020). He also stated that IMPD has recently made an order for additional chemical weapons. Id. at approximately 2:56:00. According to Chief Taylor:
we only use those riot control agents during riots where violent crowds are causing life threatening conditions. . . . Their primary goal is to disperse the crowd to stop the violent actions of those who are causing these life-threatening actions. Riot control agents are always a last resort and have never been used on peaceful
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protestors or protests that violated the law but did not cause life-threatening actions. Id. at approximately 2:10:00. As the foregoing facts illustrate, Chief Taylor’s description of the
activities of protesters, and subsequent uses of force, are not supported by the evidence regarding
when force was actually deployed.
The preliminary injunction standard
The Seventh Circuit has noted that
[t]o obtain a preliminary injunction, a plaintiff must first show that: (1) without such relief, it will suffer irreparable harm before final resolution of its claims; (2) traditional legal remedies would be inadequate; and (3) it has some likelihood of success on the merits. If a plaintiff makes such a showing, the court next must weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one. This assessment is made on a sliding scale: The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor. Finally, the court must ask whether the preliminary injunction is in the public interest, which entails taking into account any effects on non-parties. Ultimately, the moving party bears the burden of showing that a preliminary injunction is warranted.
Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 (7th Cir. 2018) (citations and quotation
marks omitted), cert. denied, --U.S.--, 140 S. Ct. 384 (2019).
Argument
I. Plaintiffs will prevail on the merits of their claims
A. The plaintiffs are likely to prevail on their First Amendment claim
1. The plaintiffs and the other protesters were engaged in political protest, activity entitled to the highest protection under the First Amendment
It is axiomatic that “[t]he First Amendment provides that all citizens have a right to hold
and express their personal political beliefs.” Abay v. City of Denver, __ F. Supp. 3d __, No. 20-cv-
01616-RBJ, 2020 WL 3034161, *3 (D. Colo. June 5, 2020) (citing Cohen v. Calif., 403 U.S. 15,
24 (1971)) (granting temporary restraining order against police authorities employing chemical
weapons or projectiles against protesters). “The First Amendment reflects a profound national
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commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (internal quotation marks and citation omitted).
The greatest protection is accorded to speech in public fora. “The Supreme Court has emphasized in a long line of cases that robust political discourse within a traditional public forum is the lifeblood of a democracy.” Seattle Affiliate of Oct. 22nd Coalition to Stop Police Brutality, Repression and Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 797 (9th Cir. 2008) (citing Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)). Thus, “streets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Comm. for Indust. Org., 307 U.S. 496, 515 (1939). “[S]idewalks and other public ways occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate.” Price v. City of Chicago, 915 F.3d 1107, 1111 (7th Cir. 2019), cert. denied, 2020 WL 3578739 (July 2, 2020).
Of course, there are limits on the robust protection provided to expressive activities in public fora. “The First Amendment does not protect violence.” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). But “police may not interfere with demonstrations unless there is a ‘clear and present danger’ of riot, imminent violence, interference with traffic or other immediate threat to public safety.” Jones v. Parmley, 465 F.3d 46, 57 (2d Cir. 2006) (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)). “Neither energetic, even raucous, protesters who annoy or anger audiences, nor demonstrations that slow traffic or inconvenience pedestrians, justify police stopping or interrupting a public protest.” Id. at 58 (internal citations omitted).
As noted above, the facts demonstrate that on May 29, May 30, and May 31, plaintiffs and the other protesters engaged in political protest on sidewalks, in a park, at the Soldiers and Sailors
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Monument, and on streets that had been closed to vehicles.5 They “engaged in the constitutional right to protest policy brutality. They exercised their right on public fora. . . . [T]heir protests have been passionate but peaceful, and they must be protected even if they stand in opposition to the police.” Black Lives Matter Seattle-King Co. v. City of Seattle, __ F. Supp. 3d __, No. 2:20-cv00887-RAJ, 2020 WL 3128299, *3 (June 12, 2020) (granting a temporary restraining order against the use of chemical irritants or projectiles against peaceful protesters). These are “activities at the heart of what the Bill of Rights was designed to safeguard.” Jones, 465 F.3d at 56.
2. The City violated the First Amendment rights of the plaintiffs and other protesters a. The actions of the City and IMPD amounted to unconstitutional retaliation in violation of the First Amendment
The cases that have recently entered temporary restraining orders against police use of chemical and other weapons against protesters following the murder of George Floyd have all done so by asking whether the police action, and threatened future action, amounted to retaliation against the protesters in violation of the First Amendment. Black Lives Matter Seattle-King Co., 2020 WL 3128299, *2; Don’t Shoot Portland v. City of Portland, No. 20-cv-00917-HZ, 2020 WL 3078329, *3 (D. Or. June 9, 2020); Abay, 2020 WL 3034161, *3. The Seventh Circuit has held that to prevail on such a claim, plaintiffs must show that “(1) [they] engaged in activity protected by the First Amendment; (2) [they] suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (internal quotation marks and citation omitted). As noted, it is clear that the plaintiffs and

5

Having closed streets in response to the protests, the City cannot claim that there was a “clear and present

danger of . . . interference with traffic upon the public streets” justifying impingement on the First Amendment rights

of the protesters on those streets. Cantwell, 310 U.S. at 308.

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the other protesters “were engaged in constitutionally protected activity through organized political protest.” Abay, 2020 WL 3034161, at *3. The other factors are also easily met.
In analyzing whether the actions of the City and IMPD are likely to deter future exercise of expressive conduct “[w]e apply an objective test: whether the alleged conduct by the defendants would likely deter a future person of ordinary firmness from continuing to engage in protected activity.” Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011). This objective standard means that a defendant may not “escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in [her] protected activity.” Mendocino Environmental Ctr. v. Mendocino Cty, 192 F.3d 1283, 1300 (9th Cir. 2009). It also means that the threat of action against protected activity “is sufficient to state a First Amendment chilling claim.” Vanidestine v. Marinette Co. Jail, No. 18-C-1776, 2019 WL 1586864, at *6 (E.D. Wis. Apr. 12, 2019). For, “[t]he First Amendment prohibits threats of punishment designed to discourage future protected speech.” Surita, 665 F.3d at 878.
Plaintiffs and the other protesters were subject to chemical attack by weapons banned by international treaty for use in war6 that caused the plaintiffs and other protesters pain and suffering. The flash grenades that IMPD employed were loud and terrifying. The recent cases that have granted temporary restraining orders preventing the use of similar weapons have all recognized the obvious: deploying these weapons against peaceful protesters has a chilling effect on First Amendment expression. See Black Lives Matter Seattle-King Co., 2020 WL 3128299, at *4; Don’t Shoot Portland, 2020 WL 3078329, *3 (indicating that the issue was not contested); Albay, 2020

6

The 1993 Chemical Weapons Convention, signed by the United States, explicitly forbids the use of “riot

control agents” like tear gas and pepper balls, “as a method of warfare.” Convention on the Prohibition of the

Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Art. I(5), opened for

signature Jan. 13, 1993, 1874 U.N.T.S, available at https://treaties.un.org/doc/Treaties/1997/04/19970429%2007-

52%20PM/CTC-XXVI_03_ocred.pdf (last visited June 15, 2020).

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WL 3034161, at *3. The same is true here. Plaintiff Robinson has noted that she has restricted the number of protests she is attending
and how long she remains because of her continuing fear of being exposed to tear gas, pepper spray, and stun grenades. Dkt. 19-2 at 6. She would like to return to future protests and rallies without the fear of being again attacked. Id. Similarly, plaintiff Lewis, after being subjected to chemical weapons and flash grenades while protesting, and being pursued by IMPD officers who fired more tear gas canisters at her as she tried to escape on a sidewalk, is extremely reluctant to engage in protest during the early evening hours when she believes she is most likely to be attacked again. Dkt. 19-4 at 3. Plaintiff Bassett has continued to go to protests but remains extremely concerned that she will again be subject to unwarranted and excessive use of force while engaged in peaceful protests. Dkt. 19-3 at 3. Not surprisingly, Indy 10 BLM notes that the violent responses of IMPD officers towards the protesters has led to fewer persons attending the protests because of fears for their safety. Dkt. 19-1 at 7. “Peaceful demonstrators’ legitimate and credible fear of police retaliation is silencing their political speech—the very speech most highly valued under the First Amendment.” Abay, 2020 WL 3034161, *3.
It is also clear that the protesters’ First Amendment activities were at least a “motivating factor” in the use of chemical and other weapons against the plaintiffs and the other protesters. Bridges, 557 F.3d at 546. As an initial matter, the City cannot claim that the unlawful actions of a few justified the violent suppression and discouragement of the First Amendment rights of protesters who were not breaking the law. “The generally accepted way of dealing with unlawful conduct that may be intertwined with First Amendment activity is to punish it after it occurs, rather than to prevent the First Amendment activity from occurring in order to obviate the possible unlawful conduct.” Collins v Jordan, 110 F.3d 1363, 1371-72 (9th Cir. 1996) (further citations
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omitted). “The use of indiscriminate weapons against all protesters—not just the violent ones— supports the inference that [IM]PD’s actions were substantially motivated by Plaintiffs’ exercise of their First Amendment rights.” Black Lives Matter Seattle-King Co., 2020 WL 3128299, *3.
Nor can the City claim that IMPD was merely lawfully attempting to clear the streets as a justification for its actions. It bears repeating that many streets were closed to vehicular traffic, and traffic control interests simply cannot be asserted to suppress the First Amendment rights here. In any event, the evidence is clear that the plaintiffs and other protesters were pursued by IMPD officers and attacked, not just when they were on streets that had been closed to traffic, but while they were on sidewalks, walkways, and in a park. See supra, p. 4 (protesters pepper sprayed at Monument Circle); 4-5, 8-10, 11-13 (protesters tear gassed on sidewalks); 6, 10, 14 (protesters tear gassed at Monument Circle); 9-11 (protesters tear gassed on sidewalks, while fleeing through pedestrian walkway, and in parking garages); 7-10 (protesters tear gassed at Monument Circle); 11-12 (protesters tear gassed in University Park). Tear gas was shot at persons who were driving in their cars. See supra, pp. 12-13. Young children were teargassed. See supra, pp. 9. Clearly “preventing criminal activity . . . was not the sole purpose of [IM]PD’s use of force.” Don’t Shoot Portland, 2020 WL 3078329, at *3. It was designed to punish and deter the First Amendment activities of the plaintiffs and the other protesters and that is precisely what it did and continues to do. It was, and continues to be, unconstitutional.
b. The actions of the City and IMPD cannot be deemed to be a reasonable time, place and manner regulation of speech
Even if unconstitutional retaliation was not involved here, the City’s punitive attempt to regulate the protesters’ First Amendment activities would be unconstitutional. To be constitutional, regulation of political speech in public fora must be content neutral, narrowly tailored, and leave open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781,
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791 (1989). Even assuming that the City behaved in a content neutral fashion towards the peaceful protesters, a point that plaintiffs do not concede, it did not leave the protesters any alternative venues within which to protest as it expelled them from downtown sidewalks, closed streets, a park, and the Soldier’s and Sailor’s Monument. It, in effect, made downtown Indianapolis a “noprotest zone.” “A city couldn’t without violating freedom of speech and assembly flatly ban groups of people from spontaneously gathering on sidewalks or in the public parks in response to a dramatic news event.” Vodak v. City of Chicago, 639 F.3d 738, 749 (7th Cir. 2011). This is precisely what the City attempted to do.
Additionally, the narrow tailoring requirement is not met here. It is the City’s obligation to “show[] that the remedy it has adopted does not ‘burden substantially more speech than is necessary to further the government’s legitimate interests,’” Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 665 (1994) (quoting Ward, 491 U.S. at 799). Presumably the City will attempt to argue that it was not targeting the demonstrators, but merely attempting to assure public safety. But the City did not direct its force only against persons in streets that it had not closed, but against demonstrators in closed streets, on sidewalks, at the Soldiers and Sailors Monument, and in a park, all places where there was no public safety need to dispel the protesters. This was a total ban on expression. The Supreme Court has noted that a complete ban on a First Amendment activity can be narrowly tailored if “each activity within the proscription’s scope is an appropriately targeted evil.” Frisby v. Schultz, 487 U.S. 474, 485 (1988). The City’s ban was not the least bit targeted and it cannot demonstrate narrow tailoring.
3. Conclusion The irony cannot be avoided. While engaging in peaceful protests to demonstrate against police violence, the plaintiffs and others were subject to violence that was designed to suppress
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the protests and that succeeded, in part, in doing so. The actions of the City and IMPD violated the First Amendment, and the violation continues to this day as the City has not backed down from its position that such force may be deployed against non-violent protesters in public fora.
B. The plaintiffs are likely to prevail on their Fourth Amendment claim The Fourth Amendment to the U.S. Constitution, of course, guarantees to individuals the right “to be secure in their persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). Because this “reasonableness” inquiry is “not capable of precise definition or mechanical application,” this inquiry “requires careful attention to the facts and circumstances of each particular case.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation omitted). And “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (citation omitted). The plaintiffs’ Fourth Amendment claim therefore presents two questions. First, does the City effect a seizure when it deploys tear gas, pepper balls, and similar uses of force against protesters not engaged in violent activity? And second, if so, is that seizure, or the force used to effect that seizure, unreasonable? The answer to both questions is an unequivocal “yes.”
1. The City’s use of force effects a Fourth Amendment seizure of the plaintiffs and other protesters
1. “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer by means of physical force or show of authority terminates or restrains his freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007) (internal quotation and citation omitted). However, in order to effect a seizure, it is not necessary that a police officer actually succeed in subduing an individual. Rather, “the mere grasping or application of physical force with lawful
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authority, whether or not it succeeded in subduing the arrestee, [i]s sufficient.” California v. Hodari D., 499 U.S. 621, 624 (1991). In other words, “an officer’s application of physical force always constitutes a seizure.” United States v. Griffin, 652 F.3d 793, 798 (7th Cir. 2011); see also, e.g., Nelson v. City of Davis, 685 F.3d 867, 876 n.4 (9th Cir. 2012) (“[W]hen [officers’] show of authority includes the application of physical force, a seizure has occurred even if the object of that force does not submit.”) (citing Hodari D., 499 U.S. at 624) (emphasis in original).
As the Seventh Circuit has explained: This is not to say, of course, that every state law battery by a police officer constitutes a Fourth Amendment seizure. . . . Certain types of non-restraining physical contact, without a concomitant showing of authority, are just too minor to constitute a ‘seizure’ for Fourth Amendment purposes without doing violence to that word. See Leaf v. Shelnutt, 400 F.3d 1070, 1091 (7th Cir. 2005) (nudging sleeping suspect to wake him not a seizure); Martinez v. Nygaard, 831 F.2d 822, 826-27 (9th Cir. 1987) (grabbing individual’s shoulder from behind to get his attention not a seizure). Acevedo v. Canterbury, 457 F.3d 721, 724-25 (7th Cir. 2006). The court in Acevedo thus distinguished the circumstance “in which a state animal welfare investigator confronted the plaintiff in her yard, knocked her to the ground, and then dug his fingernails into her arm before walking away”—where no seizure occurred, see McCoy v. Harrison, 341 F.3d 600, 605-06 (7th Cir. 2003)—from the circumstance in which an individual was “knock[ed] to the ground in a location far away from his home under the general control of the police” and “black[ed] out momentarily,” see 457 F.3d at 725. It the latter circumstance, the force is sufficient enough to constitute a Fourth Amendment seizure. See id. Addressing the distinction between McCoy and Acevedo, another court in this district has held that “directly spray[ing]” an individual with pepper spray constitutes a seizure, for the use of force results in “severe injuries, including eye irritation, trouble breathing, rashes, nose irritation, and excessive mucus.” Bernal v. Johnson, No. 13-CV-06726, 2014 WL 4976212, at *4 (N.D. Ill.
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Sept. 25, 2014) (citing multiple cases reaching the same conclusion); see also, e.g., Quraishi v. St. Charles Cnty., No. 4:16-CV-1320, 2019 WL 2423321, at *3 (E.D. Mo. June 10, 2019) (“Firing tear gas, pepper spray, or other chemical agents at someone can constitute a seizure under the Fourth Amendment.”) (collecting cases), appeal pending, No. 19-2462 (8th Cir.). Other courts have reached similar conclusions with respect to the deployment of force specifically in the context of an attempt to disperse a crowd. See, e.g., Otero v. Wood, 316 F. Supp. 2d 612, 621 n.5 (S.D. Ohio 2004) (applying Fourth Amendment to plaintiff’s excessive force claim where plaintiff alleged that police fired wooden batons at her as part of a crowd-dispersal technique); Secot v. City of Sterling Heights, 985 F. Supp. 715, 720-21 (E.D. Mich. 1997) (applying Fourth Amendment to excessive force claim in case involving use of baton to move protesters); Lamb v. City of Decatur, 947 F. Supp. 1261, 1265-66 (C.D. Ill. 1996) (applying Fourth Amendment to excessive force claim in case involving use of pepper spray on protesters).
2. But the application of force to a particular individual is not necessary to demonstrate a Fourth Amendment seizure. This is because a seizure occurs not merely when officers seek to detain an individual; it occurs when officers seek to limit the freedom of movement of an individual. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (reiterating that a Fourth Amendment seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied.” (emphasis removed).
Applying Brower and jurisprudence announcing similar principles, multiple courts have concluded that police officers effect a seizure when force is deployed in an attempt to disperse a crowd. For instance, in Marbet v. City of Portland, No. CV 02-1448-HA, 2003 WL 23540258 (D. Ore. Sept. 8, 2003), the plaintiffs alleged that officers deployed pepper spray and rubber bullets against a crowd of protesters in an attempt to move the protesters “back approximately 120 feet”
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and further away from a political fundraising event. Id., 2003 WL 23540258, at *1. The court rejected the defendants’ argument that “the Fourth Amendment is not offended by the intentional use of force that physically injures a citizen and only reduces his or her freedom of movement.” Id., 2003 WL 23540258, at *10 (emphasis in original). Concluded the court:
[O]n August 22, 2002, the police physically moved the protesters approximately 120 feet in order to create a larger entryway to the street. Defendants used pepper spray and physical force to achieve this movement. Clearly the effect of defendants’ actions was to control plaintiffs’ movement. Id. Insofar as officers “physically mov[ed] certain plaintiffs and circumscribe[ed] the area of movement of other plaintiffs,” the plaintiffs were seized under the Fourth Amendment. Id. A similar result was reached in Coles v. City of Oakland, Nos. C03-2961 & C03-2962, 2005 WL 8177790 (N.D. Cal. Apr. 27, 2005). In Coles, several protester-plaintiffs alleged that they were “herded” by police officers (through the use of “wooden bullets, bean bags, grenades, batons, and motorcycle hits”) from the Port of Oakland, where they were protesting the economic involvement of local companies in the war in Iraq, to a subway station more than a mile away. Id., 2005 WL 8177790, at *1, 4. “The Supreme Court in Brower,” explained the court, “required only that a person’s freedom of movement be terminated, not that the person’s movement be terminated.” Id., 2005 WL 8177790, at *5. Thus, “[t]he dispositive question is one of control: Did the police control the plaintiff’s movement through the use of force intentionally applied for that purpose?” Id. Where police exhibit an “intent to terminate an individual’s freedom of movement by . . . means through which freedom of movement is actually terminated,” a seizure occurs. Id., 2005 WL 8177790, at *6. Other district courts have adopted the reasoning of Marbet and Coles under indistinguishable circumstances. See, e.g., Jennings v. City of Miami, No. 07-23008-CIV, 2009 WL 413110, at *7-9 (S.D. Fla. Jan. 27, 2009) (use of tear gas, pepper spray, beanbags, and other weapons against protestors); Rauen v. City of Miami, No. 06-21182-CIV, 2007 WL 686609, at *5-
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8 (S.D. Fla. Mar. 2, 2007) (use of pepper spray, beanbags, and teargas to “herd” protestors). 3. Viewed either through the lens of the City’s use of physical force or through the
lens of its restrictions on the movement of protesters—or, more likely, through both lenses at once—it is clear that the City has exhibited a practice or policy of seizing peaceful protesters in its downtown area. Through its police force, it intentionally and indiscriminately deploys tear gas, pepper-ball weapons, stun grenades, and other dangerous weapons against individuals engaged in peaceful protest. It does so for the purpose of controlling the movements of the protesters. And it does so without regard to where those individuals are located, even deploying various uses of force against protesters in public parks7, on sidewalks8, on streets that have been closed to vehicular traffic9, or fleeing down a pedestrian walkway.10 The City effects Fourth Amendment seizures.11
2. The City’s use of force is objectively unreasonable and therefore violates the Fourth Amendment
The question, then, is whether the seizures effected by the City, and the degree of force utilized to effect these seizures, are reasonable. They are not.

7

Several affiants have testified to the use of force on persons in parks. See Dkt. 19-6 at 3; Dkt.19-16 at 1-

2; Dkt. 19-18 at 1. It is also evident from video evidence. See Dkt. 19-12, manually filed “Video” at 5:13 - 6:33.

8

Several affiants have testified to the use of force on persons on sidewalks. See Dkt. 19-10 at 2-3; Dkt.19-15

at 2; Dkt. 19-16 at 1-2; Dkt. 19-17 at 2-3; Dkt. 19-18 at 1-2. It is also evident from video evidence. Dkt. 19-10,

manually filed “Video 1” and “Video 2”; Dkt. 19-12, manually filed “Video”; Dkt. 19-15, manually filed “Video”.

9

Several affiants have testified to the use of force on persons on streets that had been closed to vehicular

traffic. See Dkt. 19-1 at 3-4; Dkt. 19-2 at 2-4; Dkt. 19-3 at 2; Dkt. 19-4 at 2; Dkt. 19-6 at 2; Dkt. 19-7 at 1-2; Dkt. 19-

9 at 1-2; Dkt. 19-10; Dkt. 19-15 at 2; Dkt. 19-17 at 1-2; Dkt. 19-19 at 2. It is also evident from video evidence. Dkt.

19-9, manually filed “Video 1”; Dkt. 19-10, manually filed “Video 1” and “Video 2”; Dkt. 19-12, manually filed

“Video”.

10

Several affiants have testified to the use of force on persons fleeing down a pedestrian walkway. See Dkt.19-

2 at 4; Dkt. 19-3 at 2-3; Dkt.19-4 at 2.

11

The fact that the City has targeted not only protestors actively obstructing traffic or engaged in similar

behavior but also protestors on sidewalks and in parks renders this case distinguishable from cases such as Logan v.

City of Pullman, 392 F. Supp. 2d 1246, 1259-60 (E.D. Wash. 2005), on reconsideration, 2005 WL 8158928 (E.D.

Wash. Dec. 9, 2005), in which the court refused to conclude that persons who were not intentionally targeted but had

suffered “secondary exposure” from chemical spray had been seized within the meaning of the Fourth Amendment.

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1. The evidence demonstrates that a substantial number of persons against whom force has been deployed—who were “seized” under the Fourth Amendment—were not even committing a minor infraction, such as obstructing vehicular traffic or engaging in protest activities after a declared curfew. Rather, the City has deployed significant force against persons engaged in lawful protest in parks, on sidewalks, and on streets closed to vehicular traffic. It should require no citation to demonstrate that, regardless of the amount of force deployed, the City’s seizure of these persons is unreasonable—the probable cause necessary to detain them was entirely lacking. See, e.g., Carlson v. Bokovic, 621 F.3d 610, 622 n.19 (7th Cir. 2010) (“A seizure without probable cause is conceptually different from a seizure that employs excessive force; both are unreasonable, but for different reasons.”) (citing numerous cases); Bentz v. City of Kendallville, 577 F.3d 776, 779 (7th Cir. 2009) (“Where an arrest occurs without probable cause, the plaintiff may bring a claim for unreasonable seizure.”).
It is of no consequence that others in the vicinity might have committed minor infractions, for “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Rather, “where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another.” Id. The City’s actions are violative of the Fourth Amendment insofar as it has deployed force against persons engaged in clearly lawful behavior. No greater showing is necessary. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1158 (10th Cir. 2008) (“The defendants’ arguments that the police had probable cause to arrest Fogarty rest on characterizations of the protest in general, and not on Fogarty’s individual actions. The Fourth Amendment plainly
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requires probable cause to arrest Fogarty as an individual, not as a member of a large basket containing a few bad eggs.”).
2. The degree of force deployed by the City to effect the seizures of persons who may have been committing minor infractions—such as obstructing traffic or protesting after a declared curfew—was excessive, even if probable cause may have existed to issue a citation or even to arrest some persons. Of course, “[c]laims of excessive force in the case of a seizure are analyzed under the objectively reasonable standard of the Fourth Amendment.” Soller v. Moore, 84 F.3d 964, 968 (7th Cir. 1996) (citation omitted). This requires a balancing of “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests.” Graham v. Connor, 490 U.S. 386, 396 (1989). In conducting this inquiry, courts are to pay “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest.” Id. Each of these factors demonstrates the excessiveness of the City’s force.
First, “[t]he severity of the crime at issue is extremely minimal,” and “did not involve physical violence or damage to property.” Madison v. City of Evansville, No. 3:14-cv-00072TWP-WGH, 2015 WL 9455670, at *8 (S.D. Ind. Dec. 23, 2015). Any minor crime that might have been committed by some protesters “is a far cry from crimes that contain the use of force as an element, crimes involving possession of illegal weapons, or drug crimes, all of which are associated with violence.” Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir. 2009) (addressing the first prong of the Graham analysis); see also, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (holding that, insofar as the plaintiff’s “infraction was among the least severe crimes contemplated by New Mexico law,” the force deployed “should have been reduced accordingly”);
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Casey v. City of Federal Heights, 509 F.3d 1278, 1281 (10th Cir. 2007) (holding that when a
plaintiff is suspected of committing a nonviolent misdemeanor, this fact “reduces the level of force
that [i]s reasonable for [an officer] to use”); Vinyard v. Wilson, 311 F.3d 1340, 1348 & n.11 (11th
Cir. 2002) (“Courts have consistently concluded that using pepper spray is excessive force in cases
where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently,
and there is no threat to the officers or anyone else.”) (citing cases).
Second, the protesters have not posed an immediate (or a non-immediate) threat to
anyone’s safety. The plaintiffs do not dispute that some incidents of looting occurred in
Indianapolis and nationwide, but the protests themselves have been almost entirely peaceful. The
Tenth Circuit addressed similar circumstances in an action brought by an antiwar protester who
was arrested while drumming on the steps of a bookstore:
[W]e find no suggestion that [the plaintiff] posed an immediate threat to the safety of the officers or others. At the point when the officers used force against him, Fogarty was kneeling on the steps of the bookstore. He was unarmed and had been drumming intermittently and peacefully. Even if his behavior played a role in inciting the crowd to remain in the middle of Central Avenue, which is contrary to Fogarty's version of events, it remains far from clear that the protesters presented any immediate threat to the officers or public safety.
Fogarty, 523 F.3d at 1160. But even this misses the point: the City has evidenced a policy of
deploying weapons of substantial force against persons without regard to whether those persons
posed a threat to anyone’s safety. It has done so against peaceful protesters, against persons
actively trying to flee the area in order to avoid the City’s tactics, against individuals doing nothing
but recording the activities of police, and, in one widely reported incident, even against a church group engaged in a prayer vigil.12

12

Dkt.19-18 at 2-3, manually filed “Video”; see also Karen Campbell, Church members caught in tear gas

during peaceful vigil amid protests, WTHR.com, June 2, 2020, at https://www.wthr.com/article/news/local/church-

members-caught-tear-gas-during-peaceful-vigil-amid-protests/531-b5b61d69-62ab-4caf-aa25-775359847658 (last

visited July 3, 2020).

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And third, the protesters were not actively resisting arrest, for no attempt was made to arrest them. A police officer with reason to believe that an individual has committed a criminal offense may, of course, issue a citation to that individual or even arrest him or her. If the suspect proceeds to resist arrest, increasing degrees of force may prove necessary. But here, a display of overwhelming force has been the City’s first step, not its last. See, e.g., Madison, 2005 WL 9455670, at *8 (“[W]hile Madison did not immediately follow the officers’ command to put down his cell phone, he did not physically resist the officers or attempt to flee.”).
Ultimately, while Connor supplies the jurisprudential lens through which the plaintiffs’ excessive-force argument must be analyzed, whether or not the City’s use of force was “reasonable” need not be lost in legal niceties: the substantial evidence of police officers’ extreme and unnecessary conduct, much of which has been captured on indisputable video recordings, is addressed at length above. Another court in this circuit addressed the use of pepper spray against a crowd of protesters as follows:
In the instant case the Connor factors help the plaintiffs. The severity of the crime at issue is negligible, being at most trespass. The plaintiffs did not pose an immediate threat to the safety of the officers or others. They were unarmed protestors exercising their First Amendment rights. Under any version of the facts the demonstrators were not actively resisting arrest; they were marching, chanting and protesting. The police arrested only one demonstrator, and that was after he had been sprayed with pepper spray. The Connor factors highlight the uniqueness of the factual context of the instant case. This is not a typical excessive force case where the police were struggling with a fleeing felon or a rebellious prisoner. Instead, the police were monitoring a peaceful, lawful and constitutionally protected demonstration. Lamb v. City of Decatur, 947 F. Supp. 1261, 1265 (C.D. Ill. 1996). In a variety of circumstances, courts have concluded that the use of chemical irritants, rubber bullets, flash-bang devices, and other non-lethal weapons represent excessive force when deployed against peaceful protesters. See, e.g., Nelson v. City of Davis, 685 F.3d 867, 878-83 (9th Cir. 2012) (use of pepperball weapon
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in crowd of students); Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 112930 (9th Cir. 2002) (use of pepper spray against nonviolent protesters who had fastened themselves together in a series of demonstrations against the logging industry); Black Lives Matter SeattleKing County, 2020 WL 3128299, at *4 (use of chemical weapons and other projectiles against demonstrators) (decision on TRO); cf. United States v. Morris, 349 F.3d 1009, 1012 (7th Cir. 2003) (“This Court has often emphasized the dangerous nature of flash-bang devices and has cautioned that the use of such devices in close proximity to suspects may not be reasonable.”) (citing cases).
The plaintiffs are likely to prevail on their claim that the City’s actions are violative of the Fourth Amendment. II. The other factors for the grant of a preliminary injunction are met here
1. Irreparable harm for which there is no adequate remedy at law The Supreme Court has stressed that the violation of the First Amendment, for even “minimal periods of time,” is “unquestionably . . . irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). Given this, “money damages are therefore inadequate.” Joelner v. Village of Washington Park. Ill., 378 F.3d 613, 620 (7th Cir. 2004) (citation omitted). “[I]njunctions are especially appropriate in the context of first amendment violations because of the inadequacy of money damages.” National People’s Action v. Village of Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990) (citing Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982)). Although the violence that marred the peaceful protests of May 29-May 31 has not been repeated, the City has not disclaimed its right to use such violence in the future and the threat of it continues to depress the willingness of persons to exercise First Amendment right to this date. The plaintiffs continue to be “chilled” regarding their First Amendment rights and the harm to these rights therefore continues unabated.
Of course, plaintiffs are also faced with continuing violations of their Fourth Amendment
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rights. However, “[c]ourts have . . . held that a plaintiff can demonstrate that a denial of an

injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s

constitutional rights.” Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 578

(6th Cir. 2002); see also, e.g., Cohen v. Coahoma County, Miss., 805 F. Supp. 398, 406 (N.D.

Miss. 1992) (“It has repeatedly been recognized by the federal courts at all levels that a violation

of constitutional rights constitutes irreparable harm as a matter of law.”).

2. The balance of harms

Without an injunction, the plaintiffs are faced with a

continuing violation of their constitutional rights and continued exposure to harm. As the Seventh

Circuit has noted, if the government “is applying [a] policy in a manner that violates [] First

Amendment rights. . . then [the government’s] claimed harm is no harm at all.” Christian Legal

Society v. Walker, 453 F.3d 853, 867 (7th Cir. 2006). And, the City cannot claim that it is harmed

by denying it the ability to violate the constitutional rights of the plaintiffs and protesters. The

bottom line is that “any harm in limiting Defendant’s use of tear gas [and the other weapons

previously employed] is outweighed by the irreparable harm that Plaintiffs—engaged in peaceful

protest—are likely to endure.” Don’t Shoot Portland, 2020 WL 3078329, at *4.

3. The public interest “The vindication of constitutional rights serves the public

interest.” Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner, 194 F. Supp. 3d 818,

836 (S.D. Ind. 2016) (citing Joelner, 378 F.3d at 620; Preston v. Thompson, 589 F.2d 300, 303 n.3

(7th Cir. 1978)). Thus, the public interest is served by the enforcement of the Constitution and by

the grant of a preliminary injunction.

4. The bond requirement

The issuance of a preliminary injunction will not

impose any monetary injuries on the City. In the absence of such injuries, no bond should be

required. See, e.g., Doctor’s Assocs., Inc. v. Stuart, 85 F.3d 975, 985 (2d Cir. 1996). See also, e.g.,

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Black Lives Matter Seattle-King County, 2020 WL 3128299, *6 (“Because this is a noncommercial case, the balance of hardships favors Plaintiffs, and there is no realistic likelihood of harm to the City of Seattle from enjoining its conduct, the Court waives the security bond requirement.”). Conclusion
A preliminary injunction must therefore issue, without bond, to prevent the continuing harm caused by the City’s improper and unreasonable use of force against protesters. The City must be enjoined from taking any actions designed to interfere with or stop lawful protest activities and must be prohibited from utilizing objectively unreasonable force against any protest activity, which would include. but not be limited to, preventing the City from utilizing tear gas, pepper-ball projectiles, stun grenades, and rubber bullets.
Kenneth J. Falk Gavin M. Rose Stevie J. Pactor ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org spactor@aclu-in.org Attorneys for Plaintiffs
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 Definitions:
For purposes of the agreement set out below, the following definitions apply to the terms noted:
a. “Chemical agents” refer to either chlorobenzalmalononitrile (“CS”) or Oleoresin Capsicum (“OC”) in powder, liquid or gas form, regardless of the manner of delivery.
b. “City” is the City of Indianapolis.
c. “ERG” refers to members of the Event Response Group within the Indianapolis Metropolitan Police Department.
d. “Impact weapons” include any form of less than deadly force that is designed to strike a subject and deter conduct by inflicting pain through blunt force.
e. “IMPD” is the Indianapolis Metropolitan Police Department.
f. “Less lethal devices” are chemical agents and other items that may be deployed by IMPD officers without command approval. They include, but are not limited to, cans of OC/CS spray that are currently issued to all IMPD officers and OC/CS fogger and pepperball/mission launchers that are currently available to ERG personnel.
g. “Passive resistance” is nonviolent opposition to authority and includes a refusal to cooperate with legal requirements.
h. “Peaceful” is behavior that does not violate criminal statutes.
i. “Protest” is a gathering of one or more protesters.
i. “Protester” is a person who is in a public place to express an opinion about an issue.
j. “RCAs” are “riot control agents” and include all devices that under current or future orders, rules, and policies of the City and IMPD require command
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approval before they are used and that, under current policies of IMPD may be deployed only by members of the ERG.
1. Persons have a right to engage in peaceful protests in City-County parks, sidewalks, and on streets that have been closed to vehicular traffic. Persons have a right to engage in peaceful protests within constitutional and legal bounds.
2. Only force that is objectively reasonable and proportionate to the circumstances will be employed. In any event, subject to the qualifications noted below, no RCAs or less lethal devices will be deployed:
a. to deter protesters from going to another location.
b. against protesters because elsewhere in the City there are unlawful activities taking place.
c. against protesters engaged in passive resistance,.
This section does not prohibit the objectively reasonable use of RCAs or less lethal devices against persons who are not protesters or against persons engaged in rioting or other unlawful behavior within an otherwise peaceful crowd or protest. However, absent an imminent threat of serious bodily injury or death or other exigent circumstance, RCAs or less lethal devices will not be used on a crowd of protesters. And, consistent with IMPD standard operating procedures, IMPD personnel shall, prior to deploying RCAs or less lethal devices that will affect a crowd of protesters, consider the number of person(s) around the person(s) engaging in rioting or other unlawful behavior who are not engaged in activity that, in and of itself, would justify the deployment of RCAs or less lethal devices, and shall if possible, not deploy the RCAs or less lethal devices if those latter persons will be adversely affected.
3. IMPD must take reasonable measures to ensure that announcements to disperse are heard by everyone in the area containing protesters that is determined to need dispersal. Absent the risk of serious bodily injury or death, the riot control agents and less lethal devices in these situations must be announced in a manner reasonably calculated to permit all persons sufficient time to disperse before deployment of riot control agents and less lethal devices. The announcement[s] must continue while persons disperse.
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4. Once people obey an order to leave the specific area, force is not to be used against them unless they are committing criminal acts and the use of force is objectively reasonable and proportionate to the circumstances. 5. Use of impact weapons shall only be appropriate under General Orders 1.30 and 1.32. Impact weapons shall never be used solely to disperse persons engaged in peaceful protest or passive resistance and shall not be used randomly but shall be targeted on persons upon whom the use of force is reasonable and proportionate. Nothing in this agreement prohibits the officers from having the necessary equipment on their persons. 6. This agreement does not alter, amend or supersede the authority that the City possesses pursuant to Indiana law, municipal ordinance, or the United States or Indiana Constitutions. 7. The parties agree that IMPD officers are also governed by General Orders, but the City agrees that nothing herein contradicts those General Orders.
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