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City faces another lawsuit over police using ‘less lethal’ round during protests

Wednesday, November 11, 2020 by Andrew Weber, KUT

A federal lawsuit filed Tuesday argues an Austin police officer used excessive force when he shot a protester with a “less lethal” round in May, irreparably damaging the man’s eyesight.

The suit is the latest against the city over the police department’s use of these rounds during largely peaceful demonstrations against police violence earlier this year.

The suit alleges Sam Kirsch was on Interstate 35 with other demonstrators May 31 when police fired tear gas to clear the highway. As Kirsch was fleeing to a grassy embankment near the off-ramp, an officer shot him in the cheek, breaking several bones.

It’s unclear whether Kirsch was shot with a beanbag round, which contains bags filled with silica or lead birdshot, or a foam baton round, a larger 40-millimeter piece of foam used in crowd control.

According to the complaint, Kirsch has had three reconstructive surgeries and his eyesight is irreparably harmed. His attorney argues the Austin Police Department used excessive force and violated his right to peaceful protest.

The incident occurred a day after the shooting of 16-year-old Brad Ayala and hours before the shooting of 20-year-old Justin Howell, both of whom sustained brain damage as a result of police use of the rounds.

Anthony Evans, who alleges an officer shot him in the face while he was leaving protests with his hands up, and Maredith Drake, a street medic who was assisting Howell, are also suing APD in federal court.

A spokesperson for the city said the city’s Law Department is reviewing all cases related to police violence that weekend.

“The Police Department, along with the Office of Police Oversight and the Law Department, will review each claim, and the city will work directly with the individual protesters and their lawyers,” the spokesperson said.

Even though APD has since sworn off using the ammunition to control crowds, a KUT investigation this month found the department has maintained its cache of the rounds, which can be lethal.

So far, APD has suspended seven officers in relation to use-of-force incidents on May 30-31.

This story was produced as part of the Austin Monitor’s reporting partnership with KUT.

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