On 6/13/18, the US Court of Appeals for the 2nd Circuit issued a precedential ruling, authored by Chief Judge Robert A. Katzmann, addressing, for the first time, the legality of police use of a Long Range Acoustic Device (“LRAD”) sound cannon for crowd control purposes. The Court rejected the appeals of two NYPD officers who had sought qualified immunity in a federal civil rights suit accusing them of using unconstitutionally excessive force by using the “area denial” function of an LRAD against Black Lives Matter protesters, observers, and bystanders in December of 2014. The six Plaintiffs in Edrei, et al. v. City of NY, et al. were at a protest responding to a Staten Island Grand Jury’s decision not to indict NYPD officer Daniel Pantaleo in the death of Eric Garner when police repeatedly fired the LRAD’s “area denial” tone at them to force them away from an arrest scene. The ruling upholds a 5/31/17 decision by US District Judge Hon. Robert W. Sweet, denying the officers’ and the NYPD’s bids to dismiss the case.
Construing the facts about the underlying events, together with video evidence, in the light most favorable to the Plaintiffs, the Second Circuit held that “purposely using a LRAD in a manner capable of causing serious injury to move non-violent protesters to the sidewalks violates the Fourteenth Amendment under clearly established law.…[T]his Court’s longstanding test for excessive force claims teaches that force must be necessary and proportionate to the circumstances….[T]he problem posed by protesters in the street did not justify the use of force, much less force capable of causing serious injury, such as hearing loss.”
In addition to monetary damages related to their injuries, the Edrei Plaintiffs are seeking an injunction that would prevent Defendants from further “deploying and using LRADs without first conducting and/or designing and implementing research, testing, guidelines,training, documentation requirements, and/or supervision sufficient to ensure” that any future NYPD uses of LRAD’s will be constrained by meaningful, written, and publicly available guidelines. The lawsuit will now proceed to discovery before Hon. Sweet in the US District Court for the Southern District of New York about topics including the events at the December 2014 protest leading up to and including NYPD uses of the LRAD, the Plaintiffs’ injuries, and NYPD policies, practices, and training about uses of force and LRAD uses, and then, potentially, to trial.
In today’s decision, the Second Circuit rejected the appealing officers’ arguments that they should enjoy qualified immunity because no specific decision or legal precedent gave them fair notice that “using force in a crowd control context” or against “non-violent protesters” would, or even could, violate due process: “[T]hat is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a Fourteenth Amendment claim involving jaywalkers. This would convert the fair notice requirement into a presumption against the existence of basic constitutional rights. Qualified immunity doctrine is not so stingy.” To the contrary, the Court recognized that courts had “routinely applied excessive force principles to crowd control situations”, discussed some of those cases, and concluded that they “gave the defendants fair warning that the prohibition on excessive force applies to protesters.”
The Second Circuit also acknowledged a “wealth of cases inform[ing] government officials that protesters enjoy robust constitutional protections” and that, although “government officials may stop or disperse a protest when faced with an ‘immediate threat to public safety, peace, or order,’ including ‘interference with traffic upon the streets’” that “authority is not without limits. Among other things, officials have an obligation, ‘absent imminent harm,’ to inform demonstrators that they must disperse, … and may not use unreasonable force.”
The Court further rejected the officers’ arguments that the Fourteenth Amendment’s prohibition against excessive force “did not apply to LRADs” in 2014, including the officers’ argument “that, because LRADs ‘function solely by sound,’ which is not an ‘instrument of force,’ a reasonable officer would not think that the Fourteenth Amendment applied” to police uses of LRADs at all. The Court pointed out that “novel technology, without more, does not entitle an officer to qualified immunity” and discussed its first decision regarding stun grenades, in which it had concluded that constitutional “‘principles governing police use of force apply with obvious clarity to the unreasonable deployment of an explosive device in the home.’” The Court held that “defendants go astray by focusing on the mode of delivery rather than the physical effect. Under this Court’s precedent, a device that has ‘incapacitating and painful effects’ when used on a person is considered an instrument of force….Even though sound waves are a novel method for deploying force, the effect of an LRAD’s area denial function is familiar: pain and incapacitation….In fact, this is what the LRAD was designed for. As explained in the NYPD’s own report, the purpose of the area denial function is to “cause pain/hearing damage’ that repels those in its path. …Using common sense, any reasonable officer with knowledge of the LRAD’s operations would understand that the area denial function represents a ‘significant degree of force.’
The Court concluded: “To recap, assuming the truthfulness of the allegations in the complaint, and drawing all reasonable inferences in plaintiffs’ favor, the defendants knew or should have known that the area denial function could cause serious injury. When engaging with non-violent protesters who had not been ordered to disperse, no reasonable officer would have believed that the use of such dangerous force was a permissible means of moving protesters to the sidewalks. Whatever legitimate interest the officers had in clearing the street, the use of sound capable of causing pain and hearing loss in the manner alleged in the complaint was not rationally related to this end.”
The plaintiffs are represented by Gideon Orion Oliver, Elena L. Cohen, and Michael Decker. Oliver and Cohen are former Presidents of the National Lawyers Guild (“NLG”)-NYC Chapter. All are members of the NLG’s National Police Accountability Project. Oliver said: “The NYPD should overhaul its policies and practices regarding LRAD uses to reflect the reality that LRAD’s are potentially deadly tools, requiring meaningful training and supervision to use safely. Given that the NYPD’s inaction on those fronts since 2014, the City Council should also step in to exercise its oversight authority before more people are injured.”
The decision can be downloaded from the Second Circuit website here:http://www.ca2.uscourts.gov/de