NYPD using LRAD during protest in 2014. Photo: Michael Nusbaum/YouTube

A federal appeals court found that the New York City Police Department use of a “sound gun” to keep crowds at bay counts as a use of force, allowing plaintiffs who say they were injured by the device at a 2014 rally in Manhattan to proceed with excessive-force claims against the department.

A panel of the U.S. Court of Appeals of the Second Circuit denied the NYPD’s motion to dismiss a suit filed by six protesters who took to the streets the day after a grand jury on Staten Island declined to indict police officer Daniel Pantaleo for the death of Eric Garner, who died while Pantaleo had him in a choke hold.

The appeals court’s ruling affirms a finding last year by U.S. District Judge Robert Sweet of the Southern District of New York that long-range acoustic devices (LRADs) such as the one used on the night of the protests are on par with potentially harmful weapons such as flash-bang and concussion grenades.

Writing for the court, Chief Judge Robert Katzmann said that using the LRAD on nonviolent protesters to compel them to move out of roadways and onto sidewalks runs afoul of their Fourteenth Amendment rights.

“When engaging with non-violent protesters who had not been ordered to disperse, no reasonable officer would have believed that the use of such dangerous force was a permissible means of moving protesters to the sidewalks,” Katzmann said. “Whatever legitimate interest the officers had in clearing the street, the use of sound capable of causing pain and hearing loss in the manner alleged in the complaint was not rationally related to this end.”

Katzmann was joined on the decision by Judges John Walker Jr. and Rosemary Pooler. The panel also denied qualified immunity for the two police officers named in the suit, John McGuire and Mike Poletto, but conceded that because it has only heard from the plaintiffs in the case and not the officers, qualified immunity may well be restored.

But addressing the officers’ argument that they should receive qualified immunity because no legal precedent exists to give them notice that using force for crowd control could violate due process rights, Katzmann compared the argument to police officers claiming immunity for running over people who cross the street illegally because the court has never addressed a Fourteenth Amendment claim involving jaywalkers.

“This would convert the fair notice requirement into a presumption against the existence of basic constitutional rights,” Katzmann said. “Qualified immunity doctrine is not so stingy.”

Gideon Oliver, who represents the plaintiffs, said his clients seek damages and an injunction preventing the use of LRADs until it has developed use-of-force policies for the devices.

“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.

In addition to Oliver, the plaintiffs are represented by Elena Cohen and Michael Decker; all three attorneys are members of the National Lawyers Guild’s National Police Accountability Project.

Assistant Corporation Counsels Ingrid Gustafson, Richard Dearing and Devin Slack appeared for the officers in the case. A spokesman for the city’s Law Department said it is reviewing the decision.   

According to the appeals court’s decision, the NYPD purchased two LRADs in 2004 ahead of the Republican National Convention held in New York City so that, as department officials put it at the time, police could direct crowds to safety if there is a calamity.

In the years after the convention, the NYPD used the devices sporadically, and mostly as loudspeakers, but the devices also have an “area denial” tone that is intended to propel piercing noise that can reach 136 decibels on some later models.

The police used the LRAD area denial tone to quell protests that broke out on Dec. 4, 2014, following the grand jury finding on Pantaleo.

In the days following the protest, some of the protesters said their ears were still ringing or in pain; others complained of prolonged migraines and vertigo.

One protester said he had extreme difficulty hearing and sought medical attention. The protester’s doctor said the extreme force of the sound gun had pushed a bone in his ear inward, which caused nerve damage.

A year and a half after the protest, when protesters filed suit against the officers, some of the protesters said they still experience tinnitus from time to time, and at least one said he suffered from a persistent ringing in his ears.

As for the plaintiffs’ suit, the appeals court remanded the case to Sweet for further proceedings and the case will move to the discovery phase.