A judge has ruled that a lawsuit against the NYPD for officers' use of a Long Range Acoustic Device sound cannon at a Black Lives Matter protest can proceed, because "sound can be used as a force."
The city had sought to get the federal lawsuit thrown out in part on the basis that "the LRAD is not an instrumentality of force, but a communication device," and that "the officers' creation of a sound that plaintiffs happened to hear cannot be considered 'physical contact.'"
The lawsuit stems from a demonstration in Midtown in December 2014 in response to a grand jury's decision not to indict Officer Daniel Pantaleo, one of several cops who killed Eric Garner in Staten Island. The evening protest bled into early the next morning, and around 1 a.m. at East 57th Street and Madison Avenue, marchers were gathered in the street, and some in the crowd were throwing bottles and garbage at police when two officers with the NYPD Disorder Control Unit activated the LRAD.
Video from the protest captures part of the chaotic scene.
"You must remain on the sidewalk. You must not interfere with vehicular traffic," one officer repeats into the microphone as the other holds the portable sound device, occasionally activating its "deterrent tone" and pointing it at people on the sidewalk. "If you do, you will be placed into custody."
One clip shows the officers use the sound blast more than a dozen times in 2 1/2 minutes.
The plaintiffs, two photojournalists, three protesters, and a videographer, say they experienced migraines and severe ringing in their ears in the immediate aftermath of the protest. Three reported experiencing continued ringing in their ears as of last August, and a fourth suffered nerve damage in his ear as a result of the blasts, according to the suit.
The LRAD was developed as a military sound weapon following the 2000 attack on the USS Cole in Yemen. Police departments have since acquired the devices to use for crowd control. The NYPD first used one to make announcements during the 2004 protests against the Republican National Convention. In 2009, Pittsburgh police used the LRAD's high-deciblel weapon function against protesters at the G-20 financial summit.
In a 2010 briefing, the NYPD Disorder Control Unit described the Pittsburgh deployment by saying the LRAD was "used successfully." However, as lawyers for the Black Lives Matter protesters note, Pittsburgh paid $200,000 to settle litigation stemming from its handling of the protest, including $72,000 to a bystander who suffered permanent hearing loss from the LRAD.
The backpack-sized LRAD 100x used by the NYPD in 2014 can emit sounds up to 137 decibels, according to marketing materials. Exposure to sound levels over 85 decibels can cause hearing loss, according to the National Institute for Occupational Safety and Health.
"This is force, and the kind which could be used excessively," Judge Robert Sweet wrote in a decision. Sweet threw out some of the claims, but allowed the lawsuit to proceed, and strongly suggested that those blasted with the LRAD seem to have a case.
"Literally the city argued that loud sounds can't constitute a use of force," lawyer Gideon Oliver told Gothamist. "At the bare minimum, the judge has clarified that this isn't factually or legally correct and that should guide the police department going forward."
The written decision appears to be the first regarding the use of LRADs in the U.S.
In addition to arguing that the sound machine is not a weapon, city lawyers wrote that its use at the Garner protest did not constitute an unreasonable seizure of the plaintiffs, did not "shock the conscience," a legal standard, and did not curtail their constitutional rights. Sweet allowed claims of assault and the NYPD's failure to train its officers to proceed, as well as the claim of excessive force.
On top of financial damages, Oliver and other lawyers from the National Lawyers Guild are arguing that the NYPD seems not to have had any policies or training in place for the use of LRADs at the time of the protest, and should come up with some that keep the department from using the machines indiscriminately on crowds at close range.
Now that Sweet has denied the city's motion to toss the case, the NYPD must turn over more information about its policies or lack thereof, and the events of the night of the demonstration, and make officers available to be interviewed. The city could also settle, and Oliver said that the decision "strongly suggests that the city should go that route rather than continuing through the discovery process to trial."
In a statement, Law Department spokesman Nicholas Paolucci wrote, "The Long Range Acoustic Device is an effective and safe communication tool. We are reviewing the decision and evaluating our next steps."
Disclosure: The author previously worked as communications coordinator for the National Lawyers Guild.