“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The right of the people “peaceably to assemble” was the foundation for organized protests in downtown Fort Wayne and other U.S. cities in response to George Floyd's death in Minneapolis on May 25. Violence and arrests resulting from the protests now remind us that right and other First Amendment freedoms continue to be tested.
ACLU of Indiana's suit challenging police response to the demonstrations will ultimately be settled by the federal courts. But every resident should know details of the events from both the perspective of the protesters and from the Fort Wayne Police Department and Allen County Sheriff's Department. For now, we have only the troubling accounts of the former, although we eventually will hear the response from the defendants, the city of Fort Wayne and the Allen County sheriff.
An evidentiary hearing is set for Oct. 15 for the U.S. District Court lawsuit. ACLU of Indiana asks the court to issue an order barring police from “taking any actions designed to interfere with or stop lawful protest activities” and “utilizing objectively unreasonable force against protest activities including ... tear gas, rubber bullets, pepper ball projectiles, and stun grenades.”
Jane Henegar, executive director of ACLU of Indiana, said video reviewed by the organization captures Fort Wayne police “kettling” protesters.
“Kettling is when the police force marchers to go in one place and then they meet them on the opposite side for the purpose of arresting them,” she said in a conference call this week. “What's the purpose of that, other than to intimidate and to quell free speech that day and in future days?”
The lawsuit includes stories from 13 individual plaintiffs of their experience at events in May and June. On May 29, Amanda Joseph, according to the complaint, was at the corner of Main and Calhoun streets, on the west end of the Allen County Courthouse, when police in riot gear began walking down Main, “throwing canisters of tear gas into the crowd assembled on the sidewalks.” Joseph, who is pregnant, “did not hear police issue a warning and was overtaken by tear gas.”
ACLU of Indiana has filed a separate suit against the city of Indianapolis, challenging actions of the police department in protests there.
“There were different approaches; both of them bad,” Henegar said. “But, I'm sorry to say, Fort Wayne was particularly egregious.”
The decision to file suit was not made lightly, she said. ACLU of Indiana has plenty of other issues to keep it busy.
“Police use of force during protests escalates and seeds violence; it doesn't solve it,” Henegar said. “We believe the standard under which police may intercede in a protest is very, very limited and we believe we have strong evidence, not only from personal testimony of individuals protesting in both Fort Wayne and Indianapolis, but also a whole array of video coverage that shows police response was totally unreasonable.”
The effect is to discourage individuals from peaceably assembling.
“It's really important to understand that the inappropriate use of force one day against one protest has an impact on the exercise of free speech in the future,” she said. “So every time protesters who are on the street or those who support them are thinking, 'I was planning to be out there tomorrow, but if I could lose an eye or be hit in the back by a tear-gas canister as I'm leaving as I was told to, then I am going to stay off the street.' And that chilling effect on free speech is incredibly harmful.”
The Courthouse protests have mostly ended for now. The suit will determine whether police response amounted to a violation of the constitutional rights of those involved in earlier protests – a question all citizens should consider.