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City Settles Lawsuit From Protesters Who Accused NYPD Of Firing Sound Cannon At Them
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Nick Pinto
Published Apr 19, 2021
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By
Nick Pinto
Published Apr 19, 2021
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The City has agreed to pay $748,000 to settle a lawsuit brought by Black Lives Matter protesters who said the NYPD illegally targeted demonstrators with Long Range Acoustic Devices [LRAD] in 2014. Under the settlement, the NYPD will also ban the use of the LRAD’s powerful “deterrent tone” and, for the first time, generate a written policy governing the use of the devices.
The suit stems from a demonstration in December of that year, when a group was marching in midtown Manhattan to protest a grand jury’s refusal to indict the officer who killed Staten Island resident Eric Garner using a banned chokehold. As part of an effort to disperse the crowd, two police officers repeatedly used the powerful tone generated by their LRAD. Some of the journalists and protesters who were in close range at the time complained afterwards of pain, ringing in their ears, and migraines that lasted for days afterwards.
The LRAD was initially developed for the U.S. Navy after terrorists attacked the U.S.S. Cole in 2000, using a small boat laden with explosives. Like its successors, the original LRAD served a dual function, on the one hand serving as a public-address system capable of communicating ship-to-ship over very long distances, and on the other hand capable of creating a cone of noise so loud and painful that it could deter anyone from approaching.
Police forces soon realized these dual functions could be used in policing protests, and began adding them to their arsenals. The NYPD used its first LRAD to address protesters during the 2004 Republican National Convention, though it wouldn’t begin regularly deploying LRADs to protests until 2014. Less frequently, police have also used the device’s piercing sound-weapon function against protesters. The NYPD devices are capable of producing sound as loud as 137 decibels, well over the threshold that can cause pain and lasting damage to human ears.
In 2012, Captain Anthony Raganella, the commander of the NYPD’s Disorder Control Unit, requested the department replace his unit’s LRADs with new models: a truck-mounted 500X LRAD at $23,000, and two handheld 100X LRADs at $7,680 each. (The request was included in a larger proposal that included $30,000 for pepper spray and pepper-ball weapons, thousands more for rubber pellet grenades and chemical irritant grenades, and $16,000 for orange crowd-control netting.) In an internal email explaining to the NYPD grants unit the necessity of his request, Raganella cited the threat posed by the Animal Liberation Front, the Earth Liberation Front, and People for the Ethical Treatment of Animals. “The requested equipment would be used to train and ensure the readiness of the Department to respond to any civil unrest caused by these terrorist groups,” Raganella wrote.
Today’s settlement brings final resolution to a landmark case first filed five years ago, but the City’s legal defeat dates back to a judge’s 2017 ruling. The de Blasio administration had argued that police couldn’t be held liable for excessive force in using an LRAD because they never actually touched anybody. “The officers' creation of a sound that plaintiffs happened to hear cannot be considered 'physical contact,’” City lawyers claimed. “the LRAD is not an instrumentality of force, but a communication device.”
Judge Robert Sweet rejected the argument, ruling, “This is force, and the kind that could be used excessively.”
The de Blasio administration appealed the decision, but in 2018 the 2nd Circuit affirmed it, forcefully rejecting the City’s argument that subjecting people to dangerously loud sound isn’t a use of force. “Even though sound waves are a novel method for deploying force,” the court wrote in its opinion, “the effect of an LRAD’s area denial function is familiar: pain and incapacitation.”
The 2nd Circuit also reaffirmed that just because there isn’t case law governing a new technology for hurting people, that doesn’t give police a blank check to use that technology however they want. “Novel technology,” the court wrote, “does not entitle an officer to qualified immunity.”
Still unwilling to concede the point, the de Blasio administration petitioned the U.S. Supreme Court in 2018 to overturn the lower courts’ rulings, but the court declined to hear the request.
Notwithstanding courts’ repeated findings that the deployment of LRADs could constitute use of force, current NYPD training takes pains to assert that the LRAD is not a weapon. “The LRAD is not any of these,” reads one slide from an LRAD training program for the Disorder Control Unit: “Sound Cannon; Sound Gun; Wave Gun; Sonic Weapons; Active Denial System.”
“The tone does not create a sonic wave, blast or have the ability to cause physical injury like a weapon,” one training presentation reads, explaining that NYPD officers may use the tone “to help gain attention of individuals” in bursts of up to three seconds separated by at least a second.
In settling the suit, the City does not concede that police officers using the LRAD broke any laws or violated anyone’s rights.
But under the terms of the settlement, the NYPD commits to update its administrative guide and its officer training to ban the use of the deterrent tone altogether, and require police using LRADs to “make reasonable efforts to maintain minimum safe distances between the LRAD and all persons within its cone of sound.” Officers who fail to do so “may be subject to such further discipline as deemed appropriate.”
The City will also pay the five plaintiffs in the case a total of $98,000, as well as $650,000 in fees for their lawyers, Gideon Oliver, Elena Cohen, and Michael Decker, all affiliated with the National Lawyers Guild.
Annika Edrei, the lead plaintiff in the case, was a journalism student in 2014 when she found herself caught in the LRAD’s cone of sound, and suffered migraines for a week afterwards. The experience, she said, discouraged her from attending protests for years. “I actually gave up on a major part of my photography career,” she said. Speaking of the settlement, she said, “I hope that protesters in the future are more protected because of our actions.”
“The City could have and should have decided to make policy change and pay our clients for their injuries much earlier,” said Oliver. “But instead of doing that, they fought tooth and nail for years in this case, and so in addition to damages and policy change, the city has to pay attorneys’ fees that are much higher than they would have been.”
(Disclosure: Oliver currently advises Gothamist/WNYC on Freedom of Information Law requests and related matters.)
At a press conference on Monday, the attorneys noted that the settlement does not create any court oversight or binding legal obligation to keep the NYPD from using the deterrent tone. And it does nothing to prevent police from using – or misusing – the LRAD’s powerful public address function. “This is still a weapon that’s in the police department’s hands, and we still don’t trust them to use it responsibly,” Oliver said.
The NYPD declined to comment.
In a statement, the New York City Law Department, which represented the City in the lawsuit, said the settlement "is in the best interest of all involved. The NYPD has voluntarily agreed to ban the use of the LRAD’s alert tone going forward. The NYPD has found a path forward that satisfies both law enforcement needs and the plaintiffs’ concerns about the use of the LRAD."
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policing
LRAD
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Nick Pinto
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