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Edrei v. Maguire

United States Court of Appeals, Second Circuit

June 13, 2018

Anika Edrei, Shay Horse, James Craven, Keegan Stephan, Michael Nusbaum, and Alexander Appel, Plaintiffs-Appellees,
Lieutenant John Maguire, individually and in his official capacity, Officer Mike Poletto, individually and in his official capacity, Shield No. 3762. Defendants-Appellants, William Joseph Bratton, New York Police Department (NYPD) Commissioner, City of New York. Defendants.

          Argued: March 27, 2018

         Plaintiffs, six individuals who participated in and observed protests in Manhattan on the night of December 4-5, 2014, sued Lieutenant John Maguire and Officer Mike Poletto ("defendants") of the New York Police Department under 42 U.S.C. § 1983. The complaint alleges, among other things, that defendants violated plaintiffs' Fourteenth Amendment right against excessive force when they used a long-range acoustic device ("LRAD"), also known as a "sound gun, " to disperse non-violent protesters, resulting in significant injuries, including hearing loss. Defendants moved to dismiss, arguing, in part, that they were entitled to qualified immunity because the complaint neither stated a Fourteenth Amendment claim nor alleged a violation of clearly established law. The district court rejected both arguments, reasoning that LRADs, which can cause injuries comparable to those caused by other tools that are capable of excessive force, fit within the scope of existing precedents. We AFFIRM.

          Gideon O. Oliver (Michael Decker and Elena L. Cohen, on the brief), Law Offices of Gideon Orion Oliver, New York, NY, for Plaintiffs-Appellees.

          Ingrid R. Gustafson (Richard Dearing and Devin Slack, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants.

          Before: Katzmann, Chief Judge, Walker, and Pooler, Circuit Judges.


         This appeal arises out of the New York Police Department's ("NYPD" or "Department") response to a December 2014 protest in Manhattan. The six individual plaintiffs allege that Lieutenant John Maguire and Officer Mike Poletto ("defendants") violated their Fourteenth Amendment rights by using a long-range acoustic device ("LRAD"), also known as a "sound gun, " to compel them and other non-violent protesters to exit the street. The district court held that the plaintiffs adequately alleged an excessive force violation and, accepting the allegations as true, that the defendants were not entitled to qualified immunity. This case comes to us on an interlocutory appeal from that order.

         We, like the district court, consider only the factual allegations in the complaint and the videos it incorporates. With this limitation, we are compelled to affirm the denial of qualified immunity. In a narrow ruling, we hold that purposefully 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. At the same time, recognizing that the complaint before us provides only the vantage point of the plaintiffs, we caution that once both sides present evidence-especially about what the officers observed and knew-the defendants may yet be entitled to qualified immunity.


         I. Factual History

         On an interlocutory appeal from the denial of qualified immunity, our jurisdiction is limited to deciding whether, based on facts alleged by the plaintiffs or stipulated to by the parties, "the immunity defense is established as a matter of law." Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). For purposes of this appeal, the defendants accept as true the allegations set forth in this factual history.

         A. LRAD Technology and the NYPD

         LRADs are acoustic weapons developed for the U.S. military in the wake of the deadly terrorist attack on the USS Cole in 2000. "If mounted aboard a Navy ship, the device's loudspeaker could be used to 'warn off' boats that came too close. If those warnings are ignored, the device could be used to send out sound at a dangerously high level . . . to cause pain/hearing damage to try to repel the attack." First Amended Complaint ("FAC") ¶ 11. This technique, known as "area denial, " has been used in both military and crowd control settings. Id.

         An LRAD can produce louder sound than a traditional amplification device, such as a megaphone, and can project over much greater distances. To achieve this effect, LRADs concentrate sound into a 30- to 45-degree cone-shaped beam. They also reshape acoustic energy to produce flatter sound waves that (1) reduce dampening as the wave travels and (2) interact with the air to create additional frequencies within the wave. Alex Pasternack, The New Sound of Crowd Control, Motherboard (Dec. 17, 2014), https://motherboard. (last accessed Mar. 11, 2018). This can produce volumes of up to 146 decibels. For context, the threshold for human discomfort begins between 120 and 140 decibels and the National Institute of Health cautions that hearing loss can result from short exposure to sounds at or above 110 to 120 decibels.

         The New York Police Department purchased two Model 3300 LRADs before the 2004 Republican National Convention in New York City. Like other LRADs, the Model 3300 has two functions. One, it can serve as a "loudspeaker" to broadcast police commands over vast distances. And, two, the "area denial" function can "propel piercing sound at higher levels . . . than are considered safe to human ears." App. at 85. According to a Department representative speaking at the time of the Convention, the LRADs were purchased to direct crowds to safety in the event of a calamity.

         Following the convention, the NYPD used its LRADs sporadically and, then, mainly as loudspeakers. In 2010, the NYPD's Disorder Control Unit tested the Model 3300 at an empty parking lot in the Bronx. Measured from 320 feet away, the spoken voice commands registered at 102 decibels and the area denial mode at 110 decibels. The Department did not take readings within the 320-foot range, which it described as a "potential danger area." A report analyzing the test results observed that, in the "dangerous range (above 120 decibels), this device can cause damage to someone's hearing and may be painful." FAC ¶ 11.

         Shortly thereafter, the NYPD purchased the more portable Model 100X, which also has loudspeaker and area denial functions. The 100X's product sheet boasts that it has a maximum volume of 136 decibels at one meter and the manufacturer guidelines caution not to use it within 10 to 20 meters of people. A diagram on the 100X's control panel shows a red beam emanating from the front of the device and instructs: "DO NOT ENTER WITHIN 10 METERS DURING CONTINUOUS OPERATION." Id. ¶ 25.

         B. The Protest

         On December 3, 2014, a Staten Island grand jury declined to indict the NYPD officer who placed Eric Garner, an unarmed black man, in a fatal chokehold. The next day, protests arose across the nation. In Manhattan, hundreds took to the streets to denounce police brutality. The plaintiffs, many of whom are activists and journalists, participated in and documented the protest. Over the course of the evening and into the pre-dawn hours, the demonstrators marched across the city, escorted by NYPD officers.

         Sometime after 1:00 a.m., as the protest crossed through the intersection of 57th Street and Madison Avenue, officers made several arrests. Videos of the scene (which are incorporated into the complaint) show a crowd-cordoned off from the arrests by a chain of officers-gathered in a semicircle to observe. Unable to proceed through the intersection, cars idled in the street as protesters streamed past. Meanwhile, many onlookers inched closer to take photographs only to be waved off by officers or told to "get back." Although some demonstrators demanded that the officers "let [the arrestees] go, " none interfered with the arrests. Several plaintiffs reported hearing what sounded like a glass bottle breaking, but it did not appear to strike or injure anyone.

         Then, with no warning, NYPD officers discharged pepper spray. Several plaintiffs who had been watching the arrests began to flee. Seconds later the wail of a high-pitched alarm began pulsing though the streets. The defendants had activated the LRAD's area denial function. According to plaintiffs, they had not been ordered to disperse and no such order is audible on the video.

         After several bursts from the alarm tone, Lieutenant Maguire and Officer Poletto, both members of the Disorder Control Unit, began broadcasting commands. One officer held the briefcase-sized device in front of him while the other trailed behind and spoke into a corded microphone. "[T]his is the New York City Police Department. You must not interfere with vehicular traffic. You must remain on the sidewalk. If you do interfere with vehicular traffic, you will be placed into custody." Video 1 at 3:23-3:41. Variants of this refrain, punctuated by alarm tones, were repeated for about three minutes as the officers walked the length of 57th Street between Madison and Park Avenues. Although many people in the LRAD's path "were already fleeing on the sidewalks, " the officers followed close on their heels, sometimes from fewer than ten feet. FAC ¶ 124.Plaintiffs maintain that the defendants "knew or should have known that the use of the LRAD could cause permanent hearing damage and other injury." Id. ¶ 130.

         In the days and weeks following the protest, each plaintiff reported physical injuries. Many claimed that they experienced significant ear pain, prolonged migraines, vertigo, and ringing in the ears. Most sought medical treatment. One plaintiff "had extreme difficulty with his hearing." Id. ¶ 370. His doctor explained that "the pressure of the extreme level of the noise from the LRAD had pushed a bone in his ear inwards, impacting and damaging a nerve in his ear." Id. ¶ 372. His hearing improved after a course of steroidal medication. Several plaintiffs allege that they are now afraid to attend protests, which, for some, has harmed their professional opportunities as journalists.

         II. Procedural History

         In March 2016, the six plaintiffs sued Lieutenant Maguire and Officer Poletto, as well as then-NYPD Commissioner William Bratton and the City of New York. They asserted claims under 42 U.S.C. § 1983 premised on violations of the First, Fourth, and Fourteenth Amendments, as well as related municipal liability and New York state law claims. Defendants moved to dismiss the amended complaint, arguing that plaintiffs had failed to state a claim and that the officers were entitled to qualified immunity.

         The motion was granted in part and denied in part. The district court found that plaintiffs had adequately pleaded excessive force in violation of the Fourteenth Amendment (as well as the related municipal liability claim) and denied defendants qualified immunity. It also permitted the state-law assault and battery claims to proceed, including the claims against the City under a theory of respondeat superior. The district court dismissed the other claims, including all claims against Commissioner Bratton.

         On the Fourteenth Amendment claim, the district court reasoned that "[t]he use of the [Model 100X] as a projector of powerfully amplified sound is no different than other tools in law enforcement's arsenal that have the potential to be used either safely or harmfully, " such as stun grenades. Special App. at 16. As to qualified immunity, the district court rejected defendants' argument that amplified noise did not constitute unconstitutional force under existing precedent. "[T]here is much case law discussing the need for careful, vicinity- specific considerations when using tools like distraction devices, " the court explained, and, if the circumstances were as plaintiffs allege, these analogous cases would have informed the officers of the illegality of their actions. Id. at 21.

         Lieutenant Maguire and Officer Poletto timely filed this ...

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