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Second Circuit Denies NYPD Qualified Immunity for Use of Military-Grade Acoustic Weapon on Peaceful Protesters

by Christopher Zoukis

The U.S. Court of Appeals for the Second Circuit dealt the New York Police Department a blow in its attempt to avoid liability for using an acoustic weapon developed by the military to disperse a peaceful gathering of protesters. The Court’s June 13, 2018, ruling upheld a district court’s denial of qualified immunity from suit and ordered that the case proceed.

On December 3, 2014, a Staten Island grand jury declined to indict the NYPD officer who choked Eric Garner, an unarmed black man, to death. Nationwide protests erupted the next day. One such protest took place in Manhattan.

Hours into the protest, with no warning, NYPD officers began discharging pepper spray into a nonviolent crowd that was blocking a city street. As protesters fled the area, NYPD Lieutenant John Maguire and Officer Mike Poletto deployed one of the department’s newest toys, the long-range acoustic device (“LRAD”), also known as the “sound gun.” The LRAD was developed by the U.S. military for “area denial” use on the battlefield. The weapon works by blasting high volumes of sound into concentrated areas, causing significant pain and injury to human ears.

The weapon worked as designed. Everyone ran, and the NYPD officers followed, continuing to fire ear-piercing tones at the backs of fleeing protesters. Multiple people were injured and sought medical attention. Injuries ranged from prolonged migraines and vertigo to nerve and bone damage in the ear.

Six injured protesters filed suit under 42 U.S.C. § 1983. They alleged that NYPD officers used excessive force, in violation of the First, Fourth and Fourteenth Amendments to the U.S. Constitution. The defendant officers moved to dismiss, arguing that they were entitled to qualified immunity. The district court denied the motion. The defendants appealed, and the Second Circuit affirmed the denial of qualified immunity.

Qualified immunity shields government actors from liability unless the plaintiff shows “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The plaintiffs were able to establish both prongs in this case, though the defendants surely assisted by opting for an unusual strategy choice—the officers argued qualified immunity at the motion to dismiss stage, at which point the court is required to accept the complaint’s allegations as true, without the benefit of discovery.

The first prong was established because, according to the precedent established in Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) and revisited by the U.S. Supreme Court in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the officers here behaved “maliciously and sadistically.”

The Court found a “gross disparity” between the need for force, which was negligible, and the level of pain and injury inflicted, which was severe and unwarranted. The Fourteenth Amendment was violated because the challenged government action—blasting unsuspecting and peaceful protesters with injurious sound waves—was not rationally related to the governmental objective (clearing the street), and was excessive in relation to that purpose.

The plaintiffs also satisfied the second prong, showing that the constitutional right at issue was clearly established at the time of the challenged conduct. The Court narrowed the right at issue to “whether, in 2014, non-violent protesters and onlookers, who officers had not ordered to disperse, had a right not to be subjected to pain and serious injury that was inflicted to move them onto the sidewalks.”

The Court determined that the right was, in fact, established. On appeal, the officers took the difficult position that because no precedent yet existed that would give them notice that the right against excessive force applies to non-violent protesters, they were immune. Not so, said the Court.

“[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,” wrote the Court. “Qualified immunity doctrine is not so stingy.”

The officers also, perhaps unsurprisingly, argued that because the Circuit had yet to establish specific precedent as to the use of LRADs to inflict pain and injury on a peaceful crowd, they were immune from suit. The Court was not impressed with this argument, which it called “a common refrain in qualified immunity cases—‘pointing to the absence of prior case law concerning the precise weapon, method, or technology employed by the police.’” In rejecting the argument, the Court admonished “‘[a]n officer is not entitled to qualified immunity’ for lack of notice ‘every time a novel method is used to inflict injury.’”

“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,” wrote the Court. “In fact, this is what the LRAD was designed for.”

In affirming the district court’s denial of qualified immunity, the Court was careful to note that the decision was a narrow one. The Court did not hold that law enforcement officers are barred from using LRAD sound guns, only that in these circumstances, assuming the untested truth of the plaintiffs’ allegations, a proper Fourteenth Amendment claim was made. See: Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018). 

 

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