NYC challenges lawsuit targeting NYPD use of 'sound weapon'

The case is one of the first legal challenges over police use of a so-called “sound weapon” against protesters

By John Riley

NEW YORK — In one of the first legal challenges over police use of a so-called “sound weapon” against protesters, a New York City lawyer argued on Thursday that deploying the “Long Range Acoustical Device” at a 2014 march over the Eric Garner case did not violate demonstrators’ constitutional rights.

“In order to make the street safe for protesters and provide for the flow of traffic, the use of the LRAD was justified and not arbitrary,” city lawyer Ashley Garman told Manhattan U.S. District Judge Robert Sweet, arguing for dismissal of the case.

But lawyers for six plaintiffs — including protesters, bystanders and members of the news media — said the device’s high-pitched tone amounted to using “pain compliance” that indiscriminately affected law-abiding citizens and forced them to leave places where they were entitled to be.

“Sound waves by operation of physics can constitute uses of force and can cause injury,” said lawyer Gideon Oliver. “ . . . The NYPD is treating an LRAD as if it’s just a bullhorn, when it clearly is not.”

The portable LRAD, court papers say, serves two functions — amplifying sound like a super-megaphone to make police orders intelligible up to 600 meters, and emitting a targeted beam of high-decibel noise to cause ear discomfort and modify behavior for crowd control or “area denial.”

The NYPD has had the devices since the 2004 Republican Convention in New York City, when they were used to make announcements. The lawsuit targets the use of the crowd control function at a Manhattan intersection on Dec. 5, 2014, to break up a protest over a Staten Island grand jury’s failure to indict a cop for Garner’s death during his arrest for selling loose cigarettes.

Although the plaintiffs in the case contend they suffered “incredible pain” and injuries ranging from migraines and dizziness to vertigo, Garman said the police were justifiably responding to a chaotic scene of bottles and garbage being tossed into the street at 57th and Madison.

The 2016 lawsuit only alleges that the “deterrent tone” was activated for three minutes, she argued, and videos suggested the noise wasn’t that bad. “People were walking away casually,” Garman said. “They’re not running, not screaming, not covering their ears.”

Oliver said the LRAD’s manufacturer uses the term “pain compliance” in its literature, but since the 2014 incident, the NYPD has steadfastly refused to adopt use-of-force policies on LRADs, and there are no court precedents setting standards for when their use constitutes excessive force.

He also complained that — like tear-gas — the device doesn’t affect only protesters or wrongdoers, but also deprives others of their rights by forcing them to move.

“If you’re a photojournalist and the police force you to move to location B, you’re prevented from reporting what’s occurring at location A,” he said.

The lawsuit is seeking both damages and an injunction limiting the use of LRADs. Sweet has to first decide whether the allegations if proved, would make out a valid legal claim. He did not indicate when he may rule.

©2017 Newsday

McClatchy-Tribune News Service

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