Officers cannot use ear-blasting sound device against peaceful protesters

Is this the police misconduct case of the year in the Second Circuit? The court allows protesters to sue the police for using am ear-splitting sound device to break up a protest in New York City. The Court says this is a legitimate excessive force case and that the police cannot at this point in the proceeding assert qualified immunity.

The case is Edrei v. Maguire, decided on June 13. Plaintiffs are six protesters who were peacefully standing up the Man in December 2014 when the police activated a long-range acoustic device (LRAD) which is loud enough to blow your ears out and can -- and in this case did -- cause damage to your hearing. The Navy uses these devices to warn off enemy boats. Ironically, plaintiffs were protesting police misconduct at this rally. They say the police ran the LRAD without warning even though plaintiffs were doing nothing wrong. At least that's what the plaintiffs say now, the Court of Appeals notes on this Rule 12 posture, suggesting that anything can surface in discovery.

This is an excessive force case brought under Fourteenth Amendment. Since plaintiffs were not convicted of anything, they are not suing under the Eighth Amendment, which protects the limited rights of convicts. The Fourteenth covers pre-trial detainees and people who interact with the police on the streets. For the first time, the Second Circuit (Katzmann, Walker and Pooler) holds that excessive force claims under the Fourteenth Amendment are resolved under an objective standard, a holding arising from the Supreme Court's ruling in Kingsley v. Henderickson, 135 S. Ct. 2466 (2015), and not the pro-law enforcement subjective test that applies when the plaintiff has already been convicted. The Circuit has already applied Kingsely to pre-trial detainees who suffer abuse in lockup prior to any conviction, in Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017), a case I am proud to say I briefed at the appellate level. Kingsley now applies to street people.

The Court therefore holds that plaintiffs state a cause of action, as the complaint does not show the police had any reason to blow their ears off with that Navy sound blaster. The question then becomes whether the officers can assert qualified immunity, which lets the police off the hook when they do not violate clearly-established law as defined by Second Circuit and Supreme Court precedent. The Court says a reasonable police officer would have known at the time of this incident that subjecting non-violent protesters to pain and serious injury simply to move them onto the sidewalks violated the Fourteenth Amendment. While the Court has not had a case quite like this one, prior cases put the police on notice that excessive force is excessive force no matter how you slice it.

In seeking qualified immunity, the city argues that the Court has never applied Fourteenth Amendment principles to crowd control and that the officers therefore did not know the right against excessive force applies to non-violent protesters. The Court is not buying it:"That 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." Other factors driving the qualified immunity holding are that (1) protesters enjoy constitutional protections; (2) other Circuit Courts have routinely applied excessive force principles to crowd control cases; and (3) officers have long been prohibited from employing pain compliance techniques against protesters.