On the night of December 4th, 2014, demonstrators filled the streets in protest of the grand jury's failure to indict Daniel Pantaleo for killing Eric Garner. Anika Edrei, Shay Horse, James Craven, Keegan Stephan, and Michael Nusbaum were among the crowd, and were in range when members of the NYPD began firing a Long Range Acoustic Device, also known as an LRAD, which aims a piercing noise at anyone within its focused cone of sound. The photojournalists, protesters, and filmmaker are now suing the City of New York, NYPD Commissioner Bill Bratton, and the two officers who fired the LRAD, claiming—among other things—that the police violated their civil rights by using excessive force and preventing them from exercising their rights to free speech, assembly, and expression.
The LRAD was developed in the early 2000s as a military sound weapon, though it can be used as a loudspeaker or megaphone, too. It can emit what its manufacturer describes as a "powerful warning tone"—the ear-splitting sound that caused the five plaintiffs what the suit describes as "traumatic ear pain," and has caused some of them to experience tinnitus (a ringing in the ears) to this day.
Later that December, attorneys Gideon Oliver and Elena Cohen wrote a letter to Bratton, arguing that his officers' improper use of the LRAD had injured their clients and asking that the NYPD conduct more testing and adopt appropriate policies, training, and supervision for the use of the devices. The lawyers also submitted a Freedom of Information Law request asking the department to provide documentation on current policies regarding training for and usage of LRADs. To date, they say the NYPD has not turned over a single written document that says anything about any such policies, which would seem to indicate that there are indeed no policies currently in existence. That, along with the residual trauma experienced by the five plaintiffs, was the impetus for the suit filed last night in Manhattan federal court.
"Last we heard, the NYPD said they needed more time, but I think personally we can infer that if in over a year they haven't been able to find one piece of paper, I think we can say that this seems they can't find anything because there isn't anything to disclose about policy or trainings," Cohen said.
The suit details the events of the night of December 4th, which took a turn in the early hours of December 5th when police, who had previously been escorting and facilitating the protest, began making arrests near 57th and Madison. The five were documenting and in some cases protesting the arrests, but not interfering. When police deployed pepper spray, they scattered, according to the suit.
As they ran, two officers began firing the LRAD's deterrent tone at them. To date, they still don't know the identity of those officers, though they have inferred from photographs that one's last name is Maguire.
"When the LRAD was fired I felt dizzy—I had my ears really hurt really sharply, and was definitely very disoriented." said Anika Edrei, a photojournalist and the lead plaintiff on the case.
Edrei, 21, was taking a course in documentary photography at the International Center of Photography at the time, and was covering the protest in the hopes of pitching photographs to news outlets. Edrei had been photographing the arrests, thinking that they looked violent and newsworthy, and was running away when they were caught in the LRAD's range. The LRAD prompted a near-immediate migraine, which lasted for a week. Since then, Edrei has experienced persistent hearing damage.
"I have ringing in my ears most of the time," Edrei said. "I also shoot live events and have had problems shooting live events because of the hearing damage—I have to wear earplugs when I go to shows, and even sometimes then my ears still ring. Even whispers in my ear can hurt."
Edrei has been too anxious about coming in range of an LRAD again to do much protest coverage since the December 2014 incident. Edrei attended a Freddie Gray protest in 2015, but was afraid of getting more hearing damage and had to leave early.
Other plaintiffs have had similar experiences: according to the suit, both Craven and Nusbaum have also been wary of attending protests since they were injured by the LRAD, and carry earplugs with them in case they are exposed again. Nusbaum, notably, had already had a history of tinnitus, which has become much more pronounced in his right ear since his exposure to the LRAD. All of the plaintiffs say that they experienced lasting effects from the LRAD.
"The nature of it being untargeted is one of the worst things about it, because no matter who you are it doesn't matter," Edrei said. "As long as you're just within range, which is a huge amount, then you're going to be affected."
Indeed, the indiscriminate nature of the LRAD is a key part of the lawsuit: the harmful sound unconstitutionally targets anyone in range, whether or not they are involved in the protest at hand—not that involvement in a protest should warrant being targeted by the LRAD at all, Cohen said.
In a statement, Lieutenant John Grimpel, an NYPD spokesperson, said that "the Long Range Acoustic Device is a safe and effective communication tool the department uses legally, during disorderly demonstrations. It is used consistent with manufacturer's recommendations."
The suit is seeking damages for the plaintiffs and against the defendants, but the attorneys are also hopeful that it will compel the NYPD to seriously reevaluate its use of LRADs. They say they are going to look at amending the lawsuit to ask that a judge order the NYPD to develop policies for training and documentation of LRAD use.
"I think that this is a ticking time bomb," Cohen said. "We're giving weapons to officers with no training and no supervision, and it's just inevitable that people are going to get hurt and that they did they hurt. It's just beyond negligent that they're doing this. We gave them over a year to try to address this."