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Edrei v. City of New York
Citations: 254 F. Supp. 3d 565; 2017 U.S. Dist. LEXIS 83269Docket: 16 Civ. 1652 (RWS)
Court: District Court, S.D. New York; May 31, 2017; Federal District Court
Plaintiffs Anika Edrei, Shay Horse, James Craven, Keegan Stephan, Michael Nusbaum, and Alexander Appel have filed a lawsuit under 42 U.S.C. § 1983 against Defendants The City of New York and police officials William Bratton, John Maguire, and Mike Poletto, claiming violations of their rights under the First, Fourth, and Fourteenth Amendments, along with New York State claims of assault and battery, false imprisonment, constitutional tort, and negligence. The Defendants have moved to dismiss the First Amended Complaint (FAC) under Fed. R. Civ. P. 12(b)(6), with the motion granted in part and denied in part. The lawsuit commenced on March 3, 2016, with the FAC filed on August 1, 2016, which included expanded allegations, the addition of Plaintiff Appel, and claims against NYC for municipal liability. Notably, LRAD devices, initially developed for military use, are highlighted in the case. These devices, which amplify sound significantly beyond traditional loudspeakers, have been utilized by the NYPD since 2004 primarily for crowd communication during events. Although infrequently used until late 2014, the NYPD did not implement written policies or training for their use, raising concerns about their deployment during demonstrations. The NYPD’s lack of precautions regarding sound volume and potential risks associated with LRAD usage are also mentioned, particularly noting high sound levels measured during tests that could pose dangers to individuals in close proximity. On December 4-5, 2014, protests occurred in New York City following a grand jury's decision not to indict an NYPD officer involved in Eric Garner's death. Plaintiffs, acting as photojournalists, filmmakers, observers, or participants, were present at a protest at 57th Street and Madison Avenue. At approximately 1 a.m., police made arrests of some protesters, which Plaintiffs witnessed without interference. During the arrests, unidentified individuals threw objects, including glass bottles and garbage, at the police, who responded by using pepper spray on the crowd. Police instructed attendees to return to the sidewalk. NYPD Disorder Control Unit officers, Maguire and Poletto, utilized an X100 sound device to disperse the crowd, issuing commands to move. Plaintiffs experienced the X100's sound at close range, leading to sustained physical injuries, including migraines, tinnitus, hearing loss, and vertigo. The event instilled fear in Plaintiffs regarding future protests, adversely impacting their careers. The text sets forth the legal standard applicable to a Rule 12(b)(6) motion to dismiss, emphasizing that all factual allegations must be accepted as true and that a complaint must present sufficient factual matter to establish a plausible claim for relief. Factual allegations must demonstrate sufficient weight to establish entitlement to relief, as articulated in Twombly. Plaintiffs may plead based on information and belief if such beliefs are grounded in factual information that makes culpability plausible, but must accompany these allegations with supporting facts. Pleadings must go beyond mere suspicions of a legally cognizable action. Under 42 U.S.C. § 1983, a plaintiff must prove that the challenged conduct was attributable to a person acting under color of state law and that it deprived them of a constitutional right. Plaintiffs allege violations of their First, Fourth, and Fourteenth Amendment rights, as well as municipal liability under Monell, alongside state and common law claims. Specifically, in Count One, plaintiffs assert that Defendants Maguire and Poletto's use of the 100X constituted an unlawful seizure and excessive force, violating their Fourth and Fourteenth Amendment rights. A “seizure” occurs when an officer restrains a citizen's liberty through physical force or show of authority. If no unlawful seizure occurred, excessive force claims fall under the Fourteenth Amendment's Due Process Clause. The determination of excessive force involves a four-part test assessing the necessity of force, the relationship between the need and amount of force used, the extent of injury, and whether the force was applied in good faith or with malicious intent. Plaintiffs do not claim arrest or seizure, thus shifting the analysis of their Section 1983 claims to the Fourteenth Amendment. Excessive force claims require proof of "conscience-shocking" conduct by a government actor, as established in *Johnson v. Newburgh Enlarged School Dist.*. If an officer's use of force is deemed "de minimis, necessary, appropriate, and benign," it cannot support a claim of excessive force under the Fourteenth Amendment. The application of due process varies based on the context of the alleged excessive force, as noted in *Ali v. Szabo*. Plaintiffs' Fourth Amendment claims concerning the blocking of 57th Street and the use of an X100 sound device by Defendants Maguire and Poletto are dismissed because the actions did not amount to a seizure. A seizure occurs only if an officer employs sufficient force to restrain a person's movements. Plaintiffs have not demonstrated that their movements were restrained; instead, they assert they were able to move freely, intending to escape the noise. The request to leave, even if force is implied, does not constitute a seizure if individuals are free to go as they choose, as seen in *Sheppard*. The Court finds no plausible argument that Defendants controlled Plaintiffs’ movements, leading to the dismissal of the unreasonable seizure claim. Regarding the excessive force claim under the Fourteenth Amendment, while the Defendants challenge whether amplified sound constitutes force, the Court recognizes a potential claim due to the lack of precedent on the use of LRAD-type devices by police. Defendants reference New York Supreme Court cases indicating that sound is a physical phenomenon rather than a substance. Cases addressing New York Civil Law Section 214-c do not bind this Court and are not persuasive, as they primarily involve substance ingestion, which is distinct from the application of sound. The court in Martzloff asserted that sound cannot be ingested, unlike harmful substances. The case evaluates the use of the X100 device as a tool in law enforcement, comparable to distraction devices such as stun grenades, which can cause injury if misused. Although these devices can be safe when properly used, excessive use has been deemed excessive force in certain cases. Plaintiffs allege injuries from the X100's sound, including acute head pain and hearing loss, while one plaintiff reported damage to an ear nerve. Defendants argue that video evidence shows no visible pain among protestors during the device's use, but the video's chaotic nature limits its conclusiveness. The allegations suggest that the use of the X100 in close proximity to the plaintiffs was inappropriate, especially given the protest's context where police sought to amplify their message. Despite some disorder, the protest appeared manageable, raising concerns about the necessity of the X100's loud and continuous use near the plaintiffs and the resultant harm they claimed. Defendants argue that even if the use of the X100 was unnecessary and harmful, the Plaintiffs have not sufficiently demonstrated that Defendants Maguire and Poletto acted with malice or sadism, which is required for an excessive force claim. The officers' actions were framed as part of crowd control during a protest. However, Plaintiffs allege that the X100 was deliberately aimed at them, suggesting potential excessive force. The court finds that, when viewed favorably to Plaintiffs, these allegations could imply excessive force, referencing precedent where a police officer's unjustified actions led to injury. Regarding qualified immunity, the defense does not succeed at the motion to dismiss stage. A defendant may claim qualified immunity if their actions did not violate clearly established law or if it was reasonable for them to believe their conduct was lawful. The criteria for a right being clearly established include clarity of the law, recognition by higher courts, and reasonable understanding by the defendant. However, the qualified immunity defense typically cannot justify dismissal under Rule 12(b)(6); facts supporting the defense must be evident in the complaint, and all reasonable inferences must favor the plaintiff. Defendants contend that the unconstitutionality of their actions, specifically the use of amplified noise as force, was not established at the time of the protest, which would entitle them to qualified immunity. Despite limited case law on this specific issue, officials may still be aware that their conduct violates established law in new factual circumstances. Past cases indicate the necessity for careful considerations when using devices like distraction tools, which could have guided the officers regarding the reasonableness of their actions. As Plaintiffs' ability to prove their claim is not "beyond doubt," dismissing their excessive force claim based on qualified immunity would be inappropriate. Consequently, the motion to dismiss Count One of the FAC related to the Fourteenth Amendment excessive force claim is denied. Plaintiffs allege that the Defendants' use of the X100 during a protest violated their First Amendment rights to assemble and express protected speech, claiming retaliation for exercising free speech which chilled their expression. The legal standard for a First Amendment retaliation claim requires showing (1) the existence of a protected right, (2) that the defendant's actions were motivated by the exercise of that right, and (3) that the actions caused injury. Police dispersal orders that completely silence political speech must meet the "clear and present danger standard." However, if such orders merely relocate demonstrators, they are assessed as "time, place, and manner" restrictions, which are permissible if they are content-neutral, narrowly tailored to serve a significant governmental interest, and allow alternative communication channels. Defendants contend that some Plaintiffs do not qualify for First Amendment protection as they were mere observers rather than active protesters. However, the Court found it unnecessary to determine the protection status of individual Plaintiffs, asserting that even if all were protesting, they did not adequately plead a First Amendment violation. The Court noted that the Defendants’ directive to keep individuals on the sidewalk during a tense situation was reasonable and aimed at ensuring public safety and traffic flow. Additionally, the Plaintiffs failed to provide sufficient facts indicating that the actions of Defendants Maguire and Poletto were retaliatory based on the content of their speech. The use of the X100 by Defendants was deemed a proper time, place, and manner restriction rather than a full dispersal order, as the intention was to move individuals rather than to terminate the protest. The claim fails because officers provided an adequate alternative location for protestors on the sidewalk, which is deemed in "close proximity" to the original location, aligning with precedents that support maintaining free traffic on public streets. There are no credible allegations that Defendants Maguire and Poletto utilized the X100 due to the content of Plaintiffs' speech. Consequently, Defendants' motion to dismiss Count Two of the FAC is granted. Regarding Count Three, Plaintiffs allege violations of their Fourteenth Amendment rights to equal protection and substantive due process. However, the substantive due process claim does not hold as officers directing protestors to the sidewalk serves a legitimate State interest and constitutes a minor restriction on travel rather than a fundamental right denial. The excessive force claim has been addressed in Count One. The equal protection claim is inadequately pled, as Plaintiffs fail to demonstrate they were treated differently from similarly situated individuals, contradicting their own allegations that Defendants acted indiscriminately. Thus, Defendants' motion to dismiss Count Three is also granted. In Count Four, Plaintiffs assert municipal liability claims against Defendants, claiming that Maguire and Poletto had the authority to implement policies leading to constitutional violations, which were ratified by Defendant Bratton, and that NYC failed in its duties regarding policy, supervision, and training. To establish liability for a municipal entity under Section 1983, a plaintiff must demonstrate that their constitutional rights were violated, that the violation resulted from an official policy, custom, or practice of the municipality, and that this policy, custom, or practice directly caused the alleged injuries. Liability may be shown through one of four means: (1) an officially endorsed formal policy, (2) actions by officials with authority to set municipal policies that led to the violation, (3) a persistent practice so widespread it amounts to a custom or usage with constructive knowledge by policymakers, or (4) inadequate training or supervision of employees that demonstrates deliberate indifference to constitutional rights. A single instance of misconduct typically does not suffice to prove a policy exists, unless it is evident that a failure to train would predictably result in constitutional violations. Claims under the second theory require the plaintiff to allege that the defendant-official had final policymaking authority. It is the plaintiff's responsibility to prove this authority, as mere discretion in duties is insufficient. The fourth theory of liability requires proof of deliberate indifference, which involves showing that a policymaker is aware of a situation that their employees will face, that the situation is complex enough to require training, and that mistakes can lead to constitutional rights violations. Deliberate indifference is demonstrated by a conscious choice rather than mere negligence. Additionally, for failure to train to be actionable, the plaintiff must identify a specific training deficiency that is closely linked to the constitutional injury. Plaintiffs have failed to establish liability against Defendants Maguire and Poletto under Monell’s second theory, as they assert these Defendants were authorized to make final policy on the use of LRAD devices without consulting supervisors. However, the Second Circuit emphasizes that having discretion in operational decisions does not equate to being a final decision-maker, as demonstrated in Anthony v. City of N.Y. Additionally, routine use of equipment by police does not imply responsibility for municipal policy-making. The allegation that Defendant Bratton ratified a single instance of LRAD use does not substantiate a broader unlawful municipal policy. Regarding Monell’s fourth theory, Plaintiffs claim that Defendant NYC was aware of issues in its training program related to LRAD devices. They assert that by the time of the protest, NYC recognized that officers were using LRADs, had studied their effects, and failed to amend training protocols for their appropriate usage. The court's reasoning in Chamberlain suggests that if officials are aware of specific risks, they may face liability for inadequate training, especially when officers encounter volatile situations. Plaintiffs argue that NYC effectively equipped officers with LRAD devices for use in unpredictable protest environments, which could lead to constitutional violations if misused. The NYC was aware that officers using Long Range Acoustic Devices (LRADs) would encounter challenging situations, like intense protests, where improper use could result in significant harm. This knowledge indicated a need for adequate training to prevent such issues. The court found that the plaintiffs' claims of municipal liability against NYC for failure to train were valid under the single-incident theory of liability, as recognized in City of Canton, leading to the denial of the defendants' motion to dismiss Count Four of the First Amended Complaint (FAC). Counts Five through Nine of the plaintiffs’ claims involve state and common law actions, with the court deciding to exercise supplemental jurisdiction over these claims due to their connection to the surviving Fourteenth Amendment excessive force and Monell claims. This connection is based on a shared nucleus of operative facts, as established in United Mine Workers v. Gibbs. Count Five addresses a state-law claim for assault and battery, which closely mirrors the excessive force claim under Section 1983. The court rejected the defendants' dismissal arguments, including state law qualified immunity, stating that both claims involve similar questions about the use of force. Thus, the motion to dismiss Count Five was denied. Count Six involves common law claims of false arrest and false imprisonment, where New York law treats these torts as equivalent. To succeed in a false arrest claim, a plaintiff must demonstrate the defendant's intent to confine them and their awareness of that confinement. The plaintiff's claims of false imprisonment lack merit as they did not consent to confinement, and there was no privilege for the confinement by the defendants, leading to the dismissal of Count Six. In Count Seven, the plaintiffs allege negligence related to the use of the X100; however, under New York law, a negligence claim cannot coexist with claims of intentional conduct, such as excessive force. Since the plaintiffs have sufficiently pled excessive force, their negligence claim is dismissed. For Count Eight, the plaintiffs assert violations of their constitutional rights under the New York Constitution. Although constitutional tort claims can exist independently, they are a narrow remedy only available when no alternative remedies exist. As the plaintiffs have alternative remedies for the alleged violations, this claim is deemed redundant and dismissed. Count Nine involves allegations of negligent hiring, screening, retention, supervision, and training against the NYC. However, New York law does not allow such claims if the defendants acted within the scope of their employment, which is acknowledged in the case. Therefore, this claim is also dismissed. Defendant employers cannot be held liable for negligent hiring, training, and retention if they admit their employees acted within the scope of their employment. An essential element for such claims is proving that the employer knew or should have known about the employee's propensity for misconduct. In this case, the plaintiffs did not sufficiently allege that Defendant NYC was aware of the officers’ propensity to misuse a sound magnifier forcefully, leading to the dismissal of Count Nine. Regarding former NYPD Police Commissioner Bratton, plaintiffs failed to show he was present during the incident or personally involved in relevant decisions, resulting in the dismissal of all claims against him in his individual capacity. The court granted the motion to dismiss for Counts Two, Three, Six, Seven, Eight, and Nine, while denying it for Counts One, Four, and Five. The court noted that sound levels of 85 to 90 dBs can cause discomfort and hearing damage. The court accepted videos referenced in the plaintiffs' filings for consideration despite some disagreement over their incorporation, affirming the permissibility of considering documents tied to the complaint. Lastly, the claim by Plaintiff Horse that he was targeted for a critical comment was deemed implausible in the context of the officers’ actions during the protest, and the plaintiffs only partially addressed their theories of Monell liability in their reply papers, leading to the conclusion that the remaining theories were not sufficiently pled. Plaintiffs' first theory asserts that Defendants Bratton and NYC established formal policies regarding the use of LRAD (Long Range Acoustic Device), but this claim is unsupported by sufficient facts, especially as they contend the NYPD lacked such policies until Fall 2012. In the third theory, Plaintiffs state that the NYPD began using LRADs at protests only shortly before the incident in question, undermining any assertion of a "persistent and widespread" practice of LRAD abuse. Defendants counter that the NYPD's tests were conducted on the Model 3300, not the XI00, rendering them irrelevant. Although the test results do not specifically address the XI00's impact, they indicate the power range of new LRAD tools and suggest a need for general training on their use. Defendants reference the NYPD Patrol Guide, which instructs officers to use "the minimal necessary force," but Plaintiffs argue this guidance is insufficient for safe operation of LRAD devices. Additionally, the same findings would apply if Bratton were replaced by Commissioner James O'Neill under Federal Rule of Civil Procedure 25(d).