Edrei v. Maguire
892 F.3d 525
2d Cir.2018Background
- December 2014 NYC protest (non-violent demonstrators/onlookers) near 57th & Madison; NYPD arrested some participants and cordoned crowd; no audible dispersal order recorded.
- NYPD officers Lieutenant Maguire and Officer Poletto activated an LRAD in its "area denial" mode (high-intensity, directed sound) and broadcast commands while walking close behind protesters; plaintiffs allege no prior warning and that some were already on sidewalks.
- LRADs can emit very high decibel levels (product literature and NYPD testing indicated potential for pain and hearing damage; manufacturer warned against use within 10–20 meters).
- Plaintiffs allege substantial auditory and related injuries (ear pain, tinnitus, hearing loss, migraines), sought medical care, and brought § 1983 claims alleging Fourteenth Amendment excessive force; defendants asserted qualified immunity.
- District court denied qualified immunity on the Fourteenth Amendment excessive force claim; interlocutory appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of LRAD in alleged manner violated the Fourteenth Amendment (excessive force) | Using LRAD area-denial to move non-violent protesters was disproportionate, caused substantial injury, and lacked reasonable governmental objective | Use was a crowd-control measure to clear traffic and prevent violence; Fourteenth Amendment requires conscience-shocking intent for non-detainees | Court: Under Kingsley/Glick factors, plaintiffs plausibly alleged an objectively unreasonable use of force causing substantial injury; claim states a Fourteenth Amendment violation |
| Whether the right was clearly established in 2014 (qualified immunity) | Preexisting excessive-force and protest jurisprudence gave fair warning that inflicting pain/serious injury to move peaceful protesters is unconstitutional; LRAD is like other force devices | No precedent specifically addressing LRADs; crowd-control context and novel acoustic technology meant officers lacked clear notice | Court: Right was clearly established — officers reasonably should have known that using LRAD area-denial to cause pain/hearing damage against non-violent, non-dispersed protesters violated the Fourteenth Amendment |
| Applicability of Kingsley objective standard | Plaintiffs: Kingsley’s objective-unreasonableness framework governs Fourteenth Amendment excessive-force claims and is apt here | Defendants: Kingsley limited to pretrial detainees and did not displace "shocks the conscience"/subjective intent for non-detainees | Court: Kingsley’s objective standard applies to Fourteenth Amendment excessive-force claims generally and aligns with Glick factors; subjective intent not required |
| Whether novel technology (LRAD) insulated officers from liability | Plaintiffs: Novel weapon does not shield officers; precedents applying force principles to non-kinetic tools (pepper spray, stun grenades) control | Defendants: LRAD is a sound/communication device (dual-use); absent direct precedent, officers lacked notice LRAD use violated due process | Court: Novelty of device does not immunize officers; effect (pain/possible injury) makes LRAD a force instrument and existing precedent gave fair warning |
Key Cases Cited
- Kingsley v. Hendrickson, 576 U.S. 389 (2015) (Fourteenth Amendment excessive-force standard is objective unreasonableness for pretrial detainees; enumerates contextual factors)
- County of Sacramento v. Lewis, 523 U.S. 833 (1998) (due process protects against executive action arbitrary or conscience-shocking; frames Fourteenth Amendment inquiry)
- Graham v. Connor, 490 U.S. 386 (1989) (use-of-force analysis across Fourth/Eighth/Fourteenth contexts; reasonableness framework)
- Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) (formative Fourteenth Amendment excessive-force factors: need, proportionality, injury, and malicious intent)
- Newburgh Enlarged Sch. Dist. v. Town of Newburgh, 239 F.3d 246 (2d Cir. 2001) (qualified immunity and Fourteenth Amendment excessive-force principles applied beyond traditional settings)
- Terebesi v. Torreso, 764 F.3d 217 (2d Cir. 2014) (novel force technology like stun grenades subject to established force principles; officers not automatically immune)
- Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010) (non-kinetic agents like pepper spray constitute significant force; gratuitous use unreasonable)
- Parmley (Jones v. Parmley), 465 F.3d 46 (2d Cir. 2006) (protesters retain robust constitutional protections; unreasonable force against demonstrators not permitted)