Edrei v. City of N.Y.

• Citation: 254 F.Supp.3d 565
• Decision Date: 31 May 2017
• Docket Number: 16 Civ. 1652 (RWS).
• Parties: Anika EDREI, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

254 F.Supp.3d 565

Anika EDREI, et al., Plaintiffs,
v.
CITY OF NEW YORK, et al., Defendants.

16 Civ. 1652 (RWS).

United States District Court, S.D. New York.

Signed May 31, 2017

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Attorneys for Plaintiffs, 277 Broadway, Suite 1501, New York, NY 10007, By: Gideon Orion Oliver, Esq., Elena L. Cohen, Esq., Michael Decker, Esq.

Attorney for Defendants, ZACHARY CARTER, Corporation Counsel of the City of New York, 100 Church Street, New York, NY 10007, By: Ashley Garman, Esq.

OPINION

Sweet, D.J.

Plaintiffs Anika Edrei ("Edrei"), Shay Horse ("Horse"), James Craven ("Craven"), Keegan Stephan ("Stephan"), Michael Nusbaum ("Nusbaum"), and Alexander Appel ("Appel") (collectively, the "Plaintiffs") have brought the following lawsuit under 42 U.S.C. § 1983 against Defendants The City of New York ("NYC"), William Bratton ("Bratton"), John Maguire ("Maguire"), and Mike Poletto ("Poletto") (collectively, the "Defendants"). Plaintiffs allege Defendants have violated their rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, and New York State claims of assault and battery, arrest and false imprisonment, constitutional tort, negligence, and negligent hiring, screening, retention, supervision and training. Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Plaintiffs' First Amended Complaint ("FAC"). As set forth below, the motion is granted in part and denied in part.

Prior Proceedings

Plaintiffs commenced this action on March 3, 2016. (Dkt. 1.) Plaintiffs filed their FAC on August 1, 2016, which expanded certain allegations from the initial complaint, added Plaintiff Appel, inserted Defendants Maguire and Poletto for previous "John Doe" defendants, and added a claim for municipal liability against NYC. (Dkt. 21.)

The instant motion to dismiss was heard and marked fully submitted on January 26, 2017. (Dkt. 35.)

Facts

The following facts are taken from the Plaintiffs' FAC. (Dkt. 21.) They are taken as true for purposes of the motion to dismiss.

i. Long Range Acoustic Devices ("LRADs") And The X100

LRAD devices were first developed around 2000, initially for the military as a tool for ships to amplify and project noise to ward off other ships. (FAC ¶¶ 3, 11.) The device has also been marketed for non-military, loudspeaker-like purposes: to produce "highly intelligible voice messages ... and powerful alarm tones over large distances." (FAC ¶ 5.) LRADs are marketed as louder than traditional megaphones by around 20–35 decibels ("dBs"), and have the capacity to disseminate messages to large crowds over ten blocks away. (FAC ¶¶ 9, 13.) In addition to amplifying sound, LRAD devices can possess a high-pitched, volume adjustable "deterrent

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tone" that is marketed to law enforcement as useful for crowd control by creating audible discomfort when used at close range. (FAC ¶¶ 11–12.)

The 100X Model LRAD ("100X") is a type of LRAD device manufactured by the LRAD Corporation. (FAC ¶¶ 1, 80.) The 100X can project messages up to 600 meters away, produce a maximum continuous output of 136 dB at one meter away, and has the capacity to overcome 88 dBs of background noise at 250 meters. (FAC ¶ 80.)

ii. The New York Police Department's ("NYPD") Use Of LRADs

The New York Police Department ("NYPD") has owned and employed LRAD devices since 2004, when it purchased two LRAD Model 3300s ("Model 3300). (FAC ¶ 57.) At the time of purchases, the NYPD stated it intended to use the LRAD devices to disseminate information to large crowds, such as during demonstrations or following terrorist attacks. (FAC ¶ 59.) Between 2004 and 2011, the NYPD used LRADs infrequently, principally as loudspeakers. (FAC ¶¶ 64–65, 67.)

In 2010, the NYPD conducted tests using the Model 3300. (FAC ¶ 73.) These tests concluded that when LRAD device volume was at around maximum, it resulted in a sound volume of around 100 to 110 dB at a distance of 320 feet away. (FAC ¶¶ 73–75.) The NYPD did not take readings of the Model 3300 within 320 feet of the device, a zone labeled a "potential danger area." (FAC ¶ 77.)¹

Sometime between 2010 and 2011, the NYPD purchased an X100. (FAC ¶ 78.) However, the NYPD did not start using LRAD devices regularly at demonstrations until around December 2014. (FAC ¶¶ 71–72, 105.) From the initial purchase of LRADs through to the instant action, the NYPD did not have written policies and training materials in place for police officers using LRAD devices in the field. (See FAC ¶¶ 94–104.)

iii. The December 4 And 5, 2014 Protest

On the evening of December 4, 2014 through the morning of December 5, 2014, protests and demonstrations took place around New York City in response to a Staten Island grand jury's decision not to indict an NYPD officer for the death of Eric Gardner. (FAC ¶¶ 107–08.) Plaintiffs were present at one of these protests in the capacity of photojournalists, filmmakers, observers, or active protestors. (FAC ¶¶ 1, 109.) At around lam on December 5, 2014, each of the Plaintiffs were part of a protest taking place at the intersection of 57th Street and Madison Avenue in Manhattan (the "Protest"). (FAC ¶¶ 109–11, 142, 207–08, 260–61, 298, 328, 352–56.) Around this time, police officers arrested some of the protesters, which Plaintiffs and others witnessed from the intersection but without interfering. (FAC ¶¶ 111–14, 144–45, 148, 213–14, 260–61, 298–99, 328, 356; Declaration of Ashley R. Garman dated October 25, 2016 ("Garman Decl.") Ex. C at 00:14–01:24.² ) During the arrests, other

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unidentified protesters threw objects, likely glass bottles, towards where the police were making the arrests. (FAC ¶¶ 115, 149, 212, 262, 329.) Other unidentified protesters threw garbage into the air and the street. (Garman Decl. Ex. C at 01:49–01:59.) Some police officers used pepper spray on the crowd. (FAC ¶¶ 117, 211, 301.) Many who had been watching the Protest events began to run in different directions. (FAC ¶¶ 118, 151–52, 305, 358–59.) The police ordered those present at the Protest to return to the sidewalk. (FAC ¶ 215.)

Defendants Maguire and Poletto, members of the NYPD Disorder Control Unit, were at this time standing in the street at 57th Street and Madison Avenue. (FAC ¶¶ 1, 119–21.) In response to these events, the officers began using the X100's deterrent tone and broadcasting a message that identified themselves as NYPD and directed people to get on the sidewalk and out of the street. (FAC ¶¶ 122, 125, 160, 221, 333, 363.) In response to the amplified sound from the X100, Plaintiff Nusbaum used earplugs he brought with him and proceeded to film the officers (FAC ¶¶ 337–38); the other Plaintiffs moved away from the area of the X100 to escape the noise (FAC ¶¶ 163–64, 230–31, 272, 308, 361–6.) During this time, Defendants Maguire and Poletto employed the deterrent tone between fifteen to twenty times over a span of three minutes and at a rate that was "almost continuously." (FAC ¶¶ 125, 219, 271.) At various points during this three minute span, Defendants Maguire and Poletto fired the X100 fewer than ten feet away from Plaintiffs and others, angling the X100 at them. (FAC ¶ 131.)

As a result of their exposure to the X100's sound, Plaintiffs have suffered sustained physical injuries, such as migraines, sinus pain, dizziness, facial pressure, ringing in ears, and sensitivity to noise. (FAC ¶¶ 158, 165–72, 175–79, 182–83, 235–44, 273–79, 311–14, 341, 345, 367–70, 380.) Plaintiff Horse was diagnosed with tinnitus in both ears and vertigo. (FAC ¶¶ 239–42.) Plaintiff Appel was diagnosed with hearing loss caused by nerve damage, although his prognosis is positive. (FAC ¶¶ 371–76.) As a result of their experience during the Protest, Plaintiffs are fearful of and deterred from attending future protests, which has adversely affected their respective careers. (See FAC ¶ 187–96, 245–49, 281–84, 316–19, 343, 377–79.)

Applicable Standard

On a Rule 12(b)(6) motion to dismiss, all factual allegations in the complaint are accepted as true and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). A complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). In other words, the factual allegations must "possess enough heft to show that the pleader is entitled to relief." Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (internal quotation marks omitted).

Additionally, while "a plaintiff may plead facts alleged upon information and belief ‘where the belief is based on factual information

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