The NYPD Claimed Its LRAD Sound Cannon Isn't A Weapon. A Judge Disagreed - Gothamist

[Gunnar Larson]

https://gothamist.com/news/the-nypd-claimed-its-lrad-sound-cannon-isnt-a-weapon-a-judge-disagreed


The NYPD Claimed Its LRAD Sound Cannon Isn't A Weapon. A Judge Disagreed
A portable LRAD noise cannon was used to suppress protesters on the
one-year anniversary of Eric Garner's killing
Scott Heins / Gothamist
author.name
By
Nathan Tempey
Published Jun 1, 2017

Modified Jun 1, 2017

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."
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