Second Circuit Gets Loud With NYPD on Sound Cannons

MANHATTAN (CN) – The New York City Police Department could pay a heavy price for its careless detonation of military-grade sound cannons, the Second Circuit ruled Wednesday, setting the stage for trial.

In this 2004 photo, an officer with the New York City Police Department stands atop the hood of a vehicle equipped with a Long Range Acoustic Device used for crowd control at the Republican National Convention that year. (Photo by Peter Bergin via Wikipedia)

Six journalists, photographers and activists brought the lawsuit at issue after suffering injuries from an acoustic weapon known as an LRAD that NYPD officers deployed in December 2014 at a Black Lives Matter protest.

Writing for a three-judge panel of the Second Circuit, Chief U.S. Circuit Judge Robert Katzmann noted Wednesday that “the disparity between the threat posed by the protest and the degree of force is stark.”

For all the plaintiffs, the 48-page ruling states, their proximity to the LRAD led to “auditory pain, migraines, tinnitus, and hearing loss, of varying degrees and duration.”

“Several plaintiffs claimed that they still had periodic tinnitus as of the complaint’s filing (a year and a half after the protest) and at least one plaintiff said that he experienced constant ringing,” Katzmann added. “Another suffered nerve damage and hearing loss that required medical treatment. These impairments fit comfortably on the spectrum of injuries that this court has found sufficient to state a Fourteenth Amendment violation.”

Gideon Oliver, a former president of the National Lawyers Guild who brought the suit, urged city officials to take action in the wake of today’s ruling.

“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,” Oliver said in a statement. “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 New York City Law Department is reviewing the decision, spokesman Nick Paolucci said in an email.

Short for long-range acoustic devices, LRADs started as a military technology before migrating to civilian law-enforcement agencies.

The city had appealed to the Second Circuit after U.S. District Judge Robert Sweet denied its motion to dismiss last year.

“Although distraction devices have the potential to be more harmful than LRAD devices because of injury from explosion, both tools can result in comparable bodily injury if used improperly,” Sweet wrote. “This is force, and the kind which could be used excessively.”

Standing with their attorney on June 1, 2017, a group of journalists gathered outside the courthouse where they are suing police over their use of sound cannons as a method of crowd control. A federal judge in Manhattan refused to dismiss their case a day earlier.

Katzmann emphasized that LRADS could still be found to have legitimate uses.

“Our decision regarding the defendants’ use of the LRAD is a narrow one,” Katzmann wrote. “We do not hold that the Fourteenth Amendment bars law enforcement from using LRADs. To the contrary, we are confident that, in appropriate circumstances, following careful study and proper training, LRADs can be a valuable tool for law enforcement.”

The plaintiffs, led by photographer Anika Edrei, claim that this use of the sound weapon was anything but careful, fired at close range while pointed at people peacefully assembled on a sidewalk.

“In addition, the alleged injuries support an inference that the LRAD was set to an extremely high decibel‐level,” the circuit’s ruling states. “Pulling these threads together, plaintiffs’ allegations indicate that the officers’ use of the LRAD’s area denial function was disproportionate to the limited security risk posed by the non‐violent protest and caused substantial physical injuries.”

On top of money damages, the plaintiffs want an injunction preventing the use of these devices without further research, testing, guidelines and training. They want those guidelines to be made publicly available.

%d bloggers like this: