Petition for Writ of Certiorari — John Maguire, et al., Petitioners v. Anika Edrei, et al.

No. 18In the

Supreme Court of the United States

LIEUTENANT JOHN MAGUIRE

AND OFFICER MIKE POLETTO,

Petitioners,

v.

ANIKA EDREI, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Zachary W. Carter

Corporation Counsel

City of New York

Richard Dearing*

Devin Slack

Ingrid R. Gustafson

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

* Counsel of Record

284770

Counsel for Petitioners

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

NYPD officers were escorting a large protest in the

middle of Manhattan when the situation grew chaotic: a

hostile crowd of protestors surrounded a much smaller

group of officers, yelling and blocking a major intersection,

with some throwing glass bottles and other objects toward

the outnumbered officers. To gain control of the scene and

direct protestors out of the roadway, Lieutenant John

Maguire and Officer Mike Poletto used the alert tone and

oral announcement functions of an LRAD 100X—a groundbreaking, portable acoustic device—at intervals over the

next three minutes. None of the plaintiffs in this lawsuit

were arrested or detained. The question presented is:

Did the Second Circuit err in finding a potential

constitutional violation for excessive force

and denying the officers qualified immunity,

particularly given that no case had addressed

whether and when sound constitutes force,

much less held that the use of an acoustic device

crosses the line into constitutionally excessive

force under circumstances resembling those

here or, indeed, under any circumstances at all?

ii

PARTIES TO THE PROCEEDING

Petitioners—Lieutenant John Maguire and Officer

Mike Poletto—were defendants-appellants in the court

of appeals. Respondents—Anika Edrei, Shay Horse,

James Craven, Keegan Stephan, Michael Nusbaum, and

Alexander Appel—were plaintiffs-appellees in the court

of appeals.

The City of New York and William J. Bratton were

defendants in the district court and were not appellants

or appellees in the court of appeals.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Acoustic devices and their value . . . . . . . . . . . . . . 3

B. The officers’ use of an acoustic device after

a large protest became unruly . . . . . . . . . . . . . . . 4

C. This § 1983 lawsuit . . . . . . . . . . . . . . . . . . . . . . . . . 7

D. The district court’s denial of qualified

immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv

Table of Contents

Page

E. The court of appeals’ affirmance . . . . . . . . . . . . . 9

REASONS TO GRANT THE PETITION . . . . . . . . . . 11

A. The decision below twists this Court’s

warning that novelty is not dispositive into

an invitation to disregard it . . . . . . . . . . . . . . . . 13

B. Ignoring this Court’s repeated directives,

the decision below denies quali f ied

immunity based on inapt cases . . . . . . . . . . . . . . 17

C. The decision below contravenes this Court’s

precedent by applying significant legal

developments retroactively . . . . . . . . . . . . . . . . . 19

D. The decision below guts the doctrine by

transforming this Court’s objective test

into a series of jury questions . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

v

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT, FILED JUNE 13, 2018 . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

UNITED STATES DISTRICT COURT

F OR T H E S OU T H ER N DI S T R IC T

OF NEW YORK, FILED MAY 31, 2017 . . . . . . . . 39a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 30, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . 72a

APPENDIX D — CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED . . . . . . 74a

SELECT EXHIBITS ON DVD LOCATED

IN BACK COVER SLEEVE:

(1)

Exhibit C to Declaration of Ashley R.

Garman in Support of Defendants’ Motion

to Dismiss, 2d Cir. ECF Dkt. 37-4

(2)

Exhibit D to Declaration of Ashley R.

Garman in Support of Defendants’ Motion

to Dismiss, 2d Cir. ECF Dkt. 37-5

(3)

Exhibit 17 to Declaration of Gideon Orion

Oliver in Opposition to Defendants’ Motion

to Dismiss, 2d Cir. ECF Dkt. 42-18

vi

TABLE OF CITED AUTHORITIES

Page

CASES

Amnesty America v. Town of West Hartford,

361 F.3d 113 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 18

Anderson v. Creighton,

483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . 13, 14, 23

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Behrens v. Pelletier,

516 U.S. 299 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Brosseau v. Hogan,

543 U.S. 194 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

City & County of San Francisco v. Sheehan,

135 S. Ct. 1765 (2015) . . . . . . . . . . . . . . . . . . . . . . 13, 18

Collins v. City of Harker Heights,

503 U.S. 115 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

County of Sacramento v. Lewis,

523 U.S. 833 (1998) . . . . . . . . . . . . . . . . . . . . . 21, 22, 27

Cummings v. McIntire,

271 F.3d 341 (1st Cir. 2001) . . . . . . . . . . . . . . . . . . . . 23

vii

Cited Authorities

Page

Darrah v. City of Oak Park,

255 F.3d 301 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 22

Dist. of Columbia v. Wesby,

138 S. Ct. 577 (2018) . . . . . . . . . . . . . . . . . . . . 14, 19, 26

Estate of Bing v. City of Whitehall,

456 F.3d 555 (6th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 16

Garcia v. Bloomberg,

No. 12-2634 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . 3

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Hope v. Pelzer,

536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . 11, 16, 19

Kingsley v. Hendrickson,

135 S. Ct. 2466 (2015) . . . . . . . . . . . . . . . . . . . . . passim

Kisela v. Hughes,

138 S. Ct. 1148 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Malley v. Briggs,

475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 13, 28

Mattos v. Agarano,

661 F.3d 433 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 16

viii

Cited Authorities

Page

Mitchell v. Forsyth,

472 U.S. 511 (1985) . . . . . . . . . . . . . . . . . . 12, 20, 25, 26

Mullenix v. Luna,

136 S. Ct. 305 (2015) . . . . . . . . . . . . . . . . . . . . 13, 26, 27

Norris v. Engles,

494 F.3d 634 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 18

Papineau v. Parmley,

465 F.3d 46 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 18

Reed v. Clough,

694 F. App’x 716 (11th Cir. 2017) . . . . . . . . . . . . . . . . 18

Saucier v. Katz,

533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Smith v. Hollow Hills Central School District,

298 F.3d 168 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 23

Terebesi v. Torreso,

764 F.3d 217 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 10

White v. Pauly,

137 S. Ct. 548 (2017) . . . . . . . . . . . . . . . . . . . . 11, 13, 28

ix

Cited Authorities

Page

STATUTES AND OTHER AUTHORITIES

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

EarQ, “How Loud Is Too Loud?” . . . . . . . . . . . . . . . . . . . 4

Goodman & Baker, “Wave of Protests After Grand

Jury Doesn’t Indict Officer in Eric Garner

Chokehold Case,” N.Y. Times (Dec. 3, 2014) . . . . . . . 4

John M. Glionna, et al., “Violence Erupts After

Grand Jury Declines to Indict Ferguson

Officer,” L.A. Times (Nov. 25, 2014) . . . . . . . . . . . . 4-5

Nat’l Inst. on Deafness and Other Communication

Disorders, “Listen Up! Protect Your Hearing” . . . . 4

1

INTRODUCTION

Betraying little regard for this Court’s qualified

immunity precedent, the decision below contravenes or

dilutes every core principle of the doctrine. The court

of appeals distorted this Court’s cautionary note that

not every novel case leads to qualified immunity into

a rule that renders novelty irrelevant, treated inapt

cases as providing clear legal guidance, exported the

asserted legal standards of today to judge conduct in the

past, and stripped from the picture any consideration

of a reasonable official’s perspective in the evolving and

tense circumstances confronted. The decision deviates

so sharply from this Court’s precedent that summary

reversal is warranted.

The excessive force claims raised by plaintiffs

present novel legal questions at every turn: Can use of

a device that operates purely by sound constitute force

under the Constitution? If so, when does it constitute

force, as contrasted with the use of sirens, bullhorns,

and similar tools? If its use does constitute force in some

circumstances, how should officers approach determining

where on the continuum of force it falls? How should they

approach determining when its use crosses the often hazy

border into excessive force?

When the events underlying this case unfolded, none

of these questions had been answered by this Court, the

court of appeals, or any other appellate court—not in

general, and certainly not with anything approaching the

particularity required to clearly establish the law. Even

a cursory glance at this case confirms that it reflects

precisely the kind of uncertain legal landscape that

2

compels qualified immunity. The court of appeals’ contrary

decision can only be explained as the result of a deeply

flawed understanding of, or studied disagreement with,

this Court’s qualified immunity precedent.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-38a)

is reported at 892 F.3d 525. The opinion of the district

court (Pet. App. 39a-71a) is reported at 254 F. Supp. 3d

565.

JURISDICTION

The court of appeals entered its opinion and order on

June 13, 2018, and denied rehearing or rehearing en banc

on August 30, 2018 (see Pet. App. 72a-73a). On November

21, 2018, Justice Ginsburg extended petitioners’ time to

file this petition to December 19, 2018.

Jurisdiction lies under 28 U.S.C. § 1254(1) and the

collateral order doctrine, which authorizes review before

final judgment when qualified immunity has been denied

on an issue of law. See Behrens v. Pelletier, 516 U.S. 299,

306-11 (1996).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following provisions are reproduced in the

appendix (see Pet. App. 74a-75a): U.S. Const. amend. XIV,

§ 1, and 42 U.S.C. § 1983.

3

STATEMENT1

This petition centers on whether two line-level NYPD

officers are entitled to qualified immunity on plaintiffs’

14th Amendment excessive force claims. From its

inception, this lawsuit was designed as a test case about

the constitutional boundaries governing the use of acoustic

devices. To describe the case is to confirm its novelty.

A. Acoustic devices and their value

Acoustic devices, a fairly new technology, assist law

enforcement in a variety of ways, enabling, for example,

the dissemination of information to large crowds in

connection with demonstrations, terrorist attacks, and

emergencies. Marketed as a safer alternative to the use

of force when crowd control becomes necessary, acoustic

devices are invaluable to police departments like the

NYPD, which has been sued for failing to communicate

directives loudly enough to demonstrators. Indeed, in one

lawsuit, the NYPD was seemingly criticized for not using

an acoustic device. See Joint App., Vol. I, at 166-67, Garcia

v. Bloomberg, No. 12-2634 (2d Cir. 2014), ECF No. 36.

1. The record consists of the amended complaint and two

videos depicting the events incorporated there. Plaintiffs have never

objected to the consideration of the videos or suggested that they

are inaccurate. See Scott v. Harris, 550 U.S. 372, 378 (2007). To the

contrary, two of the plaintiffs admit that they shot (and publicized)

the footage (Joint App., Vol. I, 2d Cir. ECF No. 31 (“JA”) at 211; see

also JA54, 62), and plaintiffs themselves submitted a third video

shot by a non-plaintiff (see JA211). A disc with all three videos is

included in the appendix here.

4

The device at issue here—the LRAD 100X—produces

the lowest sound level among the devices sold by the

LRAD Corporation, with a maximum continuous output of

137 decibels at a distance of around three feet (Joint App.,

Vol. I, 2d Cir. ECF No. 31 (“JA”) at 187). The plaintiffs

here allege that, at times, they were roughly three times

further away from the device (10 feet) (JA42). But even at

the closer three-foot radius, the device’s maximum sound

level is below that which can rupture eardrums (150 dB),

and is comparable to a rock concert (110-40 dB) and some

police and ambulance sirens (up to 129 dB). To be sure, a

sound level above 85 dB can cause hearing damage, but all

manner of common technologies, including bullhorns, lawn

mowers, and the subway, operate at or above that level. 2

B. The officers’ use of an acoustic device after a large

protest became unruly

The six plaintiffs attended a protest in Midtown

Manhattan in December 2014 after a grand jury declined

to indict Officer Daniel Pantaleo in connection with the

death of Eric Garner (JA40). The grand jury’s decision

sparked a wave of protests across New York City (id.), and

came just over a week after violent protests in Ferguson,

Missouri, where a grand jury declined to indict an officer

in the death of Michael Brown (JA30). 3

2. See Nat’l Inst. on Deafness and Other Communication

Disorders, “Listen Up! Protect Your Hearing,” https://perma.cc/

AE5G-ARC5; EarQ, “How Loud Is Too Loud?,” https://perma.

cc/9S6K-JTWN.

3. See also Goodman & Baker, “Wave of Protests After Grand

Jury Doesn’t Indict Officer in Eric Garner Chokehold Case,”

N.Y. Times (Dec. 3, 2014), https://perma.cc/XM2X-24AF; John

5

For hours, the unpermitted protest proceeded

peacefully through Midtown’s high-traffic streets,

escorted by NYPD officers (JA40). But shortly after 1

a.m., the peace unraveled and the scene turned chaotic.

On the heels of several arrests, many dozens of protestors

surrounded the officers in the intersection of Madison

Avenue and East 57th Street, shouting in protest and

recording the arrests (JA40, 44, 50, 54; JA182 (“Video

1”) at 0:00-2:00). Officers struggled to keep the crowd at

a safe distance. They directed the crowd to “get back”

(Video 1 at 1:41) and “get out of the street” (id. at 1:14;

see also JA50 (“Plaintiff … heard the police yell … for

everyone to get on the sidewalk.”)). Notwithstanding

these directives, multiple protestors—including one of

the plaintiffs—repeatedly came within mere feet of the

arrests (JA44, 50; Video 1 at 1:30-2:10).

Simultaneously, some protestors began throwing

objects—including glass bottles—toward the arresting

officers, and hurling bags of garbage into the air and

into the street (JA40, 50, 54, 61; Video 1 at 1:30-2:00).

Unidentified officers then deployed pepper spray, at which

point some protestors retreated from the intersection

(JA40-41, 50, 58). But many others remained in the

intersection or at its edges—despite police orders—

blocking the streets in each direction and yelling at the

officers (JA50; Video 1 at 1:40-2:30).

With an increasingly volatile crowd, the situation

risked spiraling out of control. We will never know how

M. Glionna, et al., “Violence Erupts After Grand Jury Declines

to Indict Ferguson Officer,” L.A. Times (Nov. 25, 2014), https://

perma.cc/8GEZ-X469.

6

far it would have deteriorated had officers stood by and

done nothing, because it was at this crucial moment that

Lieutenant Maguire and Officer Poletto began using

the LRAD 100X to gain control of the scene and aid in

ensuring that protestors moved out of the street and onto

the sidewalks.

Over the next three minutes, the officers walked

the length of one block in the roadway, using the LRAD

100X to verbally warn the protestors to get and stay on

the sidewalks or risk arrest, and engaging the device’s

alert tone at varying, multi-second intervals (JA41-42;

see generally JA184 (“Video 2”)). The tactic helped avoid

additional arrests and bring the fraught encounter to a

swift conclusion. None of the plaintiffs were arrested;

most just left the scene, although several chose to remain

in close proximity to the LRAD 100X (and even pursue it)

to film its use (JA45-46, 50-51, 54, 58-59, 61, 64).

Plaintiffs allege that they sustained injuries—

variously including migraines, sinus pain, dizziness,

confusion, sensitivity to sounds, ringing in the ears, and

hearing loss (JA46-47, 52, 55, 59, 62, 64-65)—because the

officers used the LRAD 100X within distances as close as

10 feet and “pointed” and “angled” it toward them (JA22,

42, 51). But the videos show there was no reason for the

officers to believe the device was causing pain, let alone

lasting injury. Almost no one depicted in the videos even

covers his or her ears (see generally Video 2), and a group

of protestors remained directly in front of the officers

and continued to shout and hurl garbage into the air (id.

at 0:00-0:20; see also Video 1 at 2:48, 3:00-3:28). Indeed,

Maguire and Poletto continued to use the LRAD 100X

while their fellow officers walked right in front of the

7

device, at times within a few feet (Video 1 at 2:50-3:05,

3:35, 3:44-3:48; Video 2 at 0:40, 2:28).

C. This § 1983 lawsuit

In the amended complaint, plaintiffs claimed

that Maguire and Poletto retaliated against them for

exercising their First Amendment rights (JA67-69).

They further alleged that the two officers “seized” them

by using the LRAD 100X, asserting that the use of the

device constituted “objectively unreasonable” force under

the Fourth Amendment (JA65-67).

Plaintiffs also vaguely claimed that the officers

violated their substantive due process rights under the

14th amendment (JA69-70). Though plaintiffs alleged that

the officers “knew or should have known that the use of the

[device] could cause permanent hearing damage and other

injury” (JA42), they did not make any specific allegations

that the officers used it maliciously or with an intent to

harm them, and nowhere did they allege that the use of

the device “shocked the conscience.”

Maguire and Poletto moved to dismiss, arguing that

plaintiffs failed to state a Fourth Amendment claim

because they had not been “seized,” and their allegations

failed to meet the 14th Amendment’s more stringent

“shocks the conscience” standard (SDNY ECF No. 36 at

6-8). The officers argued that, at the very least, they were

entitled to qualified immunity (id. at 8-14).

In opposition, plaintiffs conceded that, if they had not

been seized, the 14th Amendment’s “shocks the conscience”

standard applied (SDNY ECF No. 48 at 12-13). But instead

8

of explaining how their allegations met that standard,

they merely asserted, in a single sentence, that they

had done enough to entitle them “to develop evidence …

to flesh out” their claims (id.).

D. The district court’s denial of qualified immunity

The district court dismissed the bulk of the federal

claims against Maguire and Poletto. On the First

Amendment retaliation claims, the court found that, far

from adequately alleging that the officers were motivated

to deter their speech, plaintiffs’ allegations and the

videos revealed the officers’ “reasonable motivation” to

direct protestors to get or stay on the sidewalks “in the

midst of an increasingly confrontational, though not yet

uncontrollable, period” (Pet. App. 56a-57a). Indeed, the

court described the officers’ interest in ensuring public

safety and order, and promoting the free flow of traffic,

as “strong” (id.).

On the Fourth Amendment claims, the court rejected

plaintiffs’ assertion that they were “seized,” given their

admission that they “moved around the Protest area or

left the vicinity … as each desired” (id. 48a-49a). But on

the 14th Amendment excessive force claims, the court

found that plaintiffs adequately alleged that the use of the

LRAD 100X was “not appropriate” (id. 52a). Although the

court found it “understandable” that the officers increased

the volume to reach a large crowd, it characterized the

protest as “broadly in control” (id.). On that basis, the

court opined that there could have been a “disconnect”

between the need for the device and its use (id.).

9

The court also denied the officers qualified immunity

(Pet. App. 53a-54a). Though the court recognized that

“there is little case law discussing the precise issues,” it

nonetheless found that cases addressing the use of stun

grenades “could” have put Maguire and Poletto on notice

that their use of the LRAD 100X was “unreasonable” (id.

54a).

E. The court of appeals’ affirmance

The court of appeals affirmed the denial of qualified

immunity. Starting with the question of whether plaintiffs

had alleged a 14th Amendment violation, the court

acknowledged that the governing standard at the time

of the events was whether a defendant used “conscienceshocking” force (Pet. App. 13a). But the court held

that under Kingsley v. Hendrickson, 135 S. Ct. 2466

(2015)—decided after the events here—any “objectively

unreasonable” force suffices if it is intentionally rather

than accidentally applied (Pet. App. 14a-21a).

Purporting to apply the factors identified in Kingsley

to plaintiffs’ allegations and the videos, the court

concluded that plaintiffs plausibly pleaded that the officers

used unreasonable force (Pet. App. 22a-24a). The court

described the general threat as “minimal” and the specific

threat to the officers as “negligible” (id. 22a). Although

the court recognized that a glass bottle had been thrown

at officers and that the presence of protestors in the

intersection was a safety hazard, it characterized the

bottle-throwing as an isolated, “victimless” incident and

said it was “common” for cars and pedestrians to mix at

protests (id.). On that foundation, the court opined that a

fact-finder could conclude that using the device here was

“disproportionate” (id. 24a).

10

Next, the court of appeals held that officers were not

entitled to qualified immunity because the constitutional

right was “clearly established” (Pet. App. 24a-36a). The

court initially recognized that, at this stage of the inquiry,

it had to apply the law as it existed at the time of the

conduct—before Kingsley (id. 27a-28a). But the court did

not adjust its analysis, concluding that the result was “the

same” before and after Kingsley (id.) because the Court’s

decision had resulted in only a “modest refinement” of

the prior standard (id. 20a). To the extent a culpable

state of mind was required before Kingsley, in the court

of appeals’ estimation, the use of the LRAD 100X was so

disproportionate that it could be inferred that the officers

acted “maliciously and sadistically” in using it (id. 28a)—a

contention that even plaintiffs had not made before the

district court or on appeal.

In concluding that the unlawfulness of the conduct

was clear, the court of appeals pointed to a footnote,

in a decision about stun grenades, that parenthetically

referred to an article in a Dutch journal discussing

unspecified “acoustical weaponry” (Pet. App. 34a (citing

Terebesi v. Torreso, 764 F.3d 217, 237 n.20 (2d Cir. 2014)).

The court identified no case that had addressed whether

the use of acoustic devices was excessive under any

circumstances, or even whether sound can constitute force.

Viewing the novelty of acoustic devices as irrelevant (id.

33a-35a), the court painted the use of the LRAD 100X as

“significant” force, relying on a report produced about

the LRAD 3300—a device much louder and larger than

the 100X (id. 35a).

The court then rejected an argument that the officers

had never made—that it was not clearly established that

11

using force in a crowd control context can violate the 14th

Amendment (Pet. App. 28a-32a). The court also pointed to

two cases applying a different constitutional provision—

the Fourth Amendment—to wholly different conduct—

arresting peaceful protestors on private property with

brutality (id. 31a-32a). The court ultimately remanded

for discovery on the claims against Maguire and Poletto.

REASONS TO GRANT THE PETITION

This petition raises questions of importance to

government officials nationwide, and to “society as a

whole.” White v. Pauly, 137 S. Ct. 548, 551-52 (2017) (per

curiam). The qualified immunity doctrine balances two

crucial interests: (1) ensuring that government officials

can perform their duties without fear of personal monetary

liability, and (2) ensuring that they are held accountable

when all reasonable officials would have known that their

conduct violated the law. Anderson v. Creighton, 483 U.S.

635, 638-40 (1987). The touchstone of the doctrine, then,

is notice: whether the officials have “fair warning” about

when their conduct “crosse[s] the line” between what is

lawful and unlawful so that they can conform their conduct

accordingly. Hope v. Pelzer, 536 U.S. 730, 743 (2002).

The court of appeals could deny McGuire and Poletto

qualified immunity only by disregarding many of this

Court’s express directives on this front. The court gave

no weight to the novelty of the situation the officers faced.

It relied on cases addressing different conduct under

different circumstances. It conflated the legal standard

that existed at the time of the events with the standard

that purportedly existed at the time of its decision, though

significant legal developments had occurred in between.

12

And it stripped from its analysis any fair consideration

of the perspective of a reasonable officer, charged to

make split-second decisions in tense and rapidly evolving

circumstances.

Certiorari is warranted to restore the balance

between fairness, flexibility, and accountability that has

been struck by this Court. Indeed, the decision below is so

steeped in error that this Court should reverse summarily.

The result below—denying two line-level police officers

qualified immunity for navigating fraught circumstances

that no court had ever come close to confronting—is

particularly astonishing in light of the strict standard for

liability in existence at the time of the conduct: whether

the officers used conscience-shocking force.

This case presents an ideal vehicle to consider these

questions. Because it comes to the court on a motion to

dismiss, there are no disputed issues of fact. At the same

time, because the record includes extensive video footage

taken by the plaintiffs, it offers a detailed and objective

view of the events at issue. The lack of any case law

addressing the use of an acoustic device at all—let alone

under the circumstances presented here—throws into

sharp relief questions about the role novel circumstances

play in the qualified immunity analysis. And because

immunity is at stake, these questions should be resolved

now, before the burdens of discovery begin. See Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985).

13

A. The decision below twists this Court’s warning

that novelty is not dispositive into an invitation to

disregard it.

Time and again, this Court has stressed that

government officials should be spared the burdens of

litigation unless the law is so clearly established that

“every reasonable official would have understood that

what he or she is doing violated that right.” Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015) (cleaned up). This

standard affords “ample room for mistaken judgments,”

and protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,

341, 343 (1986).

These principles apply with special force when an

official faces novel facts and circumstances. This Court

has never expected non-lawyers to perfectly predict how

broad constitutional standards apply to all the situations

they may confront. See Anderson, 483 U.S. at 644-46. As

a result, the constitutional right cannot be defined “at a

high level of generality,” Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011), but rather must be viewed in light of the

“particular conduct” and “the specific context of the case.”

Mullenix, 136 S. Ct. at 308.

In fact, this Court has advised lower courts to treat

unique facts “alone” as “an important indication … that

[the] conduct did not violate a ‘clearly established’ right.”

White, 137 S. Ct. at 551-52. When lower courts fail to heed

that advice, and give short shrift to novel circumstances,

the Court has not hesitated to reverse. See City & Cnty. of

S.F. v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015). Indeed, in

the past decade, the Court has asked whether a particular

14

constitutional right was clearly established on at least 18

occasions, and has answered the question in the negative

every time.

Meanwhile, this Court has provided extensive

guidance on what is required to place a question “beyond

debate.” al-Kidd, 563 U.S. at 741. The answer must be

“settled”—dictated by “controlling authority or a robust

consensus of cases of persuasive authority.” Dist. of

Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018) (cleaned

up). As a practical matter, that usually means pointing to a

case holding that an official violated the law under similar

circumstances. Id. at 590. Otherwise, the unlawfulness of

the conduct must be obvious, but that will be the “rare”

case. Id.

The court of appeals did not cite many of these

principles, and it certainly did not honor them. As the

district court recognized (Pet. App. 54a)—and the

court of appeals’ silence confirms—there is no case law

addressing the use of acoustic devices at all, let alone a

body of case law addressing similar conduct under similar

circumstances. And this is far from the rare “obvious”

case where no precedent is required. On the contrary, this

should have been an obvious case for qualified immunity.

The LRAD 100X is not merely novel, but fundamentally

different from other devices used by police that are widely

recognized to effectuate force, like tasers or pepper spray,

which incapacitate specific targets. The LRAD 100X

functions solely by sound, which no court has ever held

to constitute force. And instead of incapacitating specific

targets, the device is intended to give instructions to—and

potentially disperse—large crowds, avoiding the need

15

for measures historically regarded as force. The device

shares characteristics with sirens and bullhorns, which

have never been regarded as instruments of force. And

indeed, plaintiffs alleged that the officers used the device

“as if it were a megaphone” (JA21).

Whether acoustic devices fall on the continuum of

force—and if so, precisely where—are questions that courts

have only just started to ask. For the purpose of qualified

immunity, what matters is that these questions were not

resolved with clarity at the time the officers acted.

The court of appeals nonetheless held that the novelty

of the device was not relevant because it is only the effect of

the device—its capability to cause pain or injury—that is

legally significant (Pet. App. 34a-35a). But the court cited

no precedent clearly articulating that principle, and it is

flawed when cast as an absolute blanket rule. Even if the

principle were correct, and were not newly announced in

this case, it still falls at far too high a level of abstraction to

resolve the question of qualified immunity. Its application

here is not self-evident, where the videos confirm that

reasonable officers would have had no reason to conclude

that they were causing either pain or injury and where,

even if the officers’ use of the device were considered

force, there would remain the question whether it was

constitutionally excessive under the circumstances.

The court of appeals’ refusal to consider the device’s

novelty cannot be reconciled with this Court’s direction

that novelty is highly relevant. The Court has made clear

that what matters is what a reasonable officer could view

as significant, and reasonable officers may struggle to

accurately predict how the law will apply to novel facts.

16

Here, the court ignored all of the practical reasons why

reasonable officers could have believed that using the

LRAD 100X did not constitute significant force, or force

at all, and relied instead on its own conclusions about how

the law should be applied.

In giving the novelty of the acoustic device no weight,

the court of appeals also departed from the practice of

other circuits, which typically take into account the specific

technology an officer is alleged to have used—like a taser,

pepper spray, or a flash-bang—when defining the right at

issue. The practice implements this Court’s direction that

the right must be defined with an eye to the “particular

conduct.” It is also common sense: different technologies

serve different purposes, are used under different facts

and circumstances, and have different potential for injury,

even if force or injury is not an intended or anticipated

consequence of utilizing that technology.

For example, in Mattos v. Agarano, the Ninth Circuit

sitting en banc defined the right at issue as whether using a

taser under the circumstances was excessive, and afforded

officers qualified immunity because no controlling case

had found that it was. 661 F.3d 433, 448, 452 (9th Cir. 2012)

(en banc). And in Estate of Bing v. City of Whitehall, the

Sixth Circuit similarly found that officers were immune

because no controlling case would have advised them that

using a flash-bang would be excessive. 456 F.3d 555, 57071 (6th Cir. 2006).

To be sure, novelty may not be dispositive. See Hope,

536 U.S. at 741 (“[O]fficials can still be on notice that their

conduct violates established law even in novel factual

circumstances.”). But where, as here, the novelty of a

17

technology could have led reasonable officers to disagree

about the legality of using it under the circumstances, an

award of qualified immunity is not only warranted, but

required. The court of appeals’ refusal to give the novelty

of the LRAD 100X any role in the analysis inverts this

Court’s holding that novelty is not dispositive—just highly

relevant—into a principle that novelty is beside the point.

And by eliminating the margin of error that qualified

immunity is meant to safeguard, the decision below

shifts the risks of using new and important technologies

designed to limit arrests and defuse tense situations to

individual officials, discouraging their use and pushing

officials toward more serious forms of force.

B. Ignoring this Court’s repeated directives, the

decision below denies qualified immunity based on

inapt cases.

Compounding the problem, the court of appeals

pretended as if the officers argued that substantive due

process principles simply do not apply to crowd control or

protestors (Pet. App. 28a-32a). Not so. Instead, the officers

offered precisely the kind of particularized analysis that

this Court’s precedent contemplates, arguing that it was

not clearly established that their particular conduct in this

specific context constituted conscience-shocking force, or

even objectively unreasonable force (Br. for Appellants,

2d Cir. ECF No. 33 at 25-45).

Sidestepping the officers’ actual argument, the court

of appeals tried to bridge the gap between this case and

existing precedent by ignoring all the facts that make this

case so different. But in doing so, the court of appeals ran

headlong into a violation of this Court’s repeated direction

18

not to deny qualified immunity based on cases addressing

fundamentally different facts and circumstances. See, e.g.,

Sheehan, 135 S. Ct. at 1776-77.

The court of appeals relied largely on two cases. Both

held that officers violated the Fourth Amendment by

using “brutality” to arrest peaceful protestors on private

property. In Amnesty America v. Town of West Hartford,

officers, while arresting peaceful demonstrators chained

to an abortion clinic, allegedly dragged, choked, kicked,

stood on, and rammed them into walls, causing them to

scream in pain. 361 F.3d 113, 118-19, 122-24 (2d Cir. 2004).

Likewise, in Papineau v. Parmley, officers allegedly

choked, dragged, and used batons to beat protestors

gathered peacefully on private property while making

arrests. 465 F.3d 46, 53, 61-63 (2d Cir. 2006).

Even setting aside whether Fourth Amendment

excessive force cases can clearly establish the law for 14th

Amendment purposes,4 Amnesty America and Papineau

are too far afield to have given the officers “fair warning”

about the lawfulness of their conduct. Both addressed

force calculated to effectuate arrests, not steps taken to

restore order to a mass gathering with relative expediency

and without resort to escalating force or arrests. Both

addressed brutal and gratuitous violence, not the use of

a novel acoustic device that officers would have had no

reason to conclude caused the crowd (or the other officers

in the vicinity) pain. And both addressed peaceful and

largely static gatherings on private property, not hostile,

4. See Reed v. Clough, 694 F. App’x 716, 725-26 (11th Cir.

2017) (summary order); Norris v. Engles, 494 F.3d 634, 639 n.5

(8th Cir. 2007).

19

obstructive conduct in Manhattan’s traffic-filled streets

under tense and evolving circumstances.

The court’s reliance on cases addressing radically

different conduct under radically different circumstances

exposes an unspoken assumption underlying its analysis:

that the proper resolution of this case is so obvious that

on-point precedent is not required. But this Court has

cautioned that the obvious cases are “rare.” Wesby, 138 S.

Ct. at 590. In fact, the Court appears to have decided only

one such case, holding that it should have been obvious

to correction officers that they could not lawfully tie a

shirtless inmate to a hitching post for seven hours in the

sun, deny him bathroom breaks, and taunt him with water

that they then spilled on the ground. See Hope, 536 U.S.

at 734-35, 738.

It defies reason that this case would present a similarly

obvious constitutional violation. Even the district court

found the use of the LRAD 100X “understandable” and

“reasonable” at its core, and recognized that the officers

were acting in furtherance of significant governmental

interests. In light of these interests, as well as the multiple

layers of novelty presented, the only thing that is obvious

here is that qualified immunity should have been granted.

C. The decision below contravenes this Court’s

precedent by applying significant legal developments

retroactively.

The court of appeals’ error in denying qualified

immunity is thrown into yet sharper relief by the fact

that the relevant constitutional standard here is the 14th

Amendment’s bar on conscience-shocking force, not the

20

Fourth Amendment’s bar on objectively unreasonable

force. To be clear, there was no binding precedent that

would have put every reasonable officer on notice that

the conduct was so disproportionate such that it would be

objectively unreasonable. But there most certainly was no

binding precedent that would have put every reasonable

officer on notice that the conduct would be so “truly brutal

and offensive to human dignity” that it would shock the

conscience.

In reaching the opposite conclusion, the court of

appeals contravened this Court’s express injunction to

apply the law as it existed at the time of the conduct.

This Court has been clear that decisions post-dating the

conduct at issue cannot clearly establish the law in the

past. Brosseau v. Hogan, 543 U.S. 194, 200 n.4 (2004)

(per curiam); Mitchell, 472 U.S. at 534-35. And the Court

has rejected precisely what the court below did: skirting

this bar by treating later decisions as “illustrative” of the

rule the officers were alleged to have violated at the time.

Kisela v. Hughes, 138 S. Ct. 1148, 1154 (2018). The court

of appeals elided the difference between the law at the

time of the decision with the law at the time of the conduct

four years earlier, in effect “reading back” in time the

legal principles it had just announced at the first step of

its qualified immunity analysis.

After all, the decision below was the first time the

court of appeals applied in a published opinion this

Court’s decision in Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015), outside the pre-trial detention context in

which that case arose (Pet. App. 14a-21a). The court of

appeals held that Kingsley provides that any objectively

unreasonable force violates the 14th Amendment if it is

21

intentional, not accidental (id.). Though the court paid

lip service to the notion that it had to apply the law as

it stood pre-Kingsley to evaluate qualified immunity

because the conduct occurred a year before Kingsley

was decided, it did not do so. Instead, the court held the

result would have been “the same” (id. 27a-28a), insisting

that Kingsley announced only a “modest refinement” to

the 14th Amendment standard, because, in its estimation,

unreasonable force always satisfied that standard (id. 20a).

But that was not the law. Most circuits, including

the Second Circuit, had interpreted the last decision

from this Court to address the use of force in the nonseizure, non-detention context—County of Sacramento

v. Lewis, 523 U.S. 833 (1998)—as establishing a far

stricter standard than objective reasonableness. Indeed,

Kingsley itself resolved a circuit split on the requirements

of a 14th Amendment excessive force claim that had

arisen in Lewis’ wake. Several circuits—including the

Second Circuit—had held that plaintiffs must show that

a government official had acted with a culpable mental

state in order to succeed on such a claim. Kingsley, 135

S. Ct. at 2472.

In Lewis, this Court reaffirmed that official conduct

must “shock the conscience” in order to satisfy the 14th

Amendment, and that this test is distinct from, and more

stringent than, objective reasonableness. 523 U.S. at

846-50. To satisfy it, an official’s act must be more than

incorrect or ill-advised, but arbitrary in a constitutional

sense—a standard “only the most egregious official

conduct” will satisfy. Id. at 846. The Court noted that it

had previously found that conduct must be “brutal” and

“offensive to human dignity” to shock the conscience,

22

id. at 846-47, and held that the test includes a subjective

element asking whether the conduct was taken with a

culpable mental state, id. at 849-50. “[C]onduct intended

to injure in some way unjustifiable by any government

interest,” the Court advised, would be the conduct most

likely to satisfy this strict standard. Id. at 849.

For the conduct before it in Lewis—deadly police

action during a high-speed chase—this Court concluded

that the standard for fault should be particularly strict

because it was taken “on an occasion calling for fast

action.” Lewis, 523 U.S. at 853. Under such circumstances,

the Court reasoned, officers were subject to the “tug” of

competing obligations: they “are supposed to act decisively

and to show restraint at the same moment” and are

required to make decisions “in haste, under pressure,

and frequently without the luxury of a second chance.” Id.

Following Lewis, many courts of appeals held that the

use of force by police in the non-seizure, non-detention

context violated this strict standard only if it was brutal

or egregious, or was taken with the specific intent to

cause harm, unsupported by any legitimate governmental

objective.

For example, in Darrah v. City of Oak Park, the Sixth

Circuit held that an officer’s act of striking a protestor

in the face, after the protestor grabbed his ankle while

he was arresting another protestor, did not state a 14th

Amendment claim. 255 F.3d 301, 306-07 (6th Cir. 2001).

The court interpreted Lewis as requiring plaintiffs to

clear “a substantially higher hurdle” under the 14th

Amendment than under the Fourth, holding that malicious

and sadistic conduct was required. Id. at 306-07.

23

Similarly, in Cummings v. McIntire, the First Circuit

held that an officer’s shove of the plaintiff while directing

traffic did not shock the conscience, even though the shove

was unjustified and caused severe injuries, because it was

not truly brutal and there was no evidence that it was

malicious or sadistic. 271 F.3d 341, 346-47 (1st Cir. 2001).

And in Smith v. Hollow Hills Central School District, the

Second Circuit itself held that it was “undeniably wrong”

to slap a student across the face at full force without

justification, causing pain and psychological injury, but

it was not so brutal and offensive to human dignity as to

shock the conscience. 298 F.3d 168, 173 (2d Cir 2002).

Rea d i ng Kin gsl ey t o equat e a l l objec t ively

unreasonable force with conscience-shocking force is

more than a “modest refinement” of the law. To be sure,

the Second Circuit had twice held that a plaintiff could

proceed on 14th Amendment claims without specifically

addressing whether the plaintiffs had shown malicious

and sadistic conduct (Pet. App. 21a). But those cases were

decided before Lewis provided clear guidance on the

proper application of the “shocks the conscience” test to

police action in tense circumstances, and this Court has

cautioned against “cherry pick[ing]” aspects of decisions

supporting a denial of qualified immunity. al-Kidd, 563

U.S. at 743.

In any event, a holding that a plaintiff can sometimes

state a claim for conscience-shocking force without

showing that the conduct was taken with a culpable

mental state is a far cry from a holding that a plaintiff

always does state a claim for conscience-shocking force

without making such a showing. Make no mistake about

it, the court of appeals did not just move the line between

24

objectively unreasonable and conscience-shocking force;

it obliterated the distinction—a result that Kingsley does

not require. But even putting aside the questionable merits

of such a rule, it certainly was not “beyond debate” before

Kingsley had even been decided.

To the extent the court of appeals suggested that it

may be inferred that the officers acted “maliciously and

sadistically for the very purpose of causing harm” (Pet.

App. 27a-28a)—that conclusion has no basis in the record.

Plaintiffs evidently recognized as much, pressing no such

argument in their briefs at both levels below. The videos

rebut any such inference, demonstrating that the officers

would have had no reason to conclude that they were

causing pain, let alone lasting injury. This Court has made

clear that even when an unlawful motive is a conceivable

explanation for the facts alleged in a complaint, a motion

to dismiss should be granted if a more likely lawful

explanation exists. See Ashcroft v. Iqbal, 556 U.S. 662,

682 (2009). And here, both the district court and the court

of appeals recognized that the officers were acting in

aid of legitimate government interests—not for the very

purpose of causing harm (Pet. App. 26a, 56a-57a).

The conf lation of pre- and post-Kingsley law

matters here. Because “guideposts for responsible

decisionmaking” are “scarce and open-ended” in this

area, the 14th Amendment provides even less guidance

than the Fourth Amendment’s “objectively unreasonable”

test on the point at which the use of force crosses the hazy

line between lawfulness and unlawfulness. Collins v.

City of Harker Heights, 503 U.S. 115, 125 (1992). Indeed,

even the court of appeals recognized that the “shocks

the conscience” standard is “indefinite[]” and has “no

25

calibrated yard stick” (Pet. App. 19a-20a). But the lack

of standards clearly establishing how the law applies to

a particular situation is yet another ground supporting

a grant of qualified immunity—not a ground to deny it.

D. The decision below guts the doctrine by transforming

this Court’s objective test into a series of jury

questions.

What is more, the court of appeals stripped all

consideration of the perspective of a reasonable officer

at the scene from the qualified immunity analysis and

mistook elements of the “clearly established” prong as

questions of fact for the jury. That result contravened

this Court’s decades-old injunction that whether conduct

violates clearly established law is an objective legal inquiry

for the court. Mitchell, 472 U.S. at 526. And indeed, if it

were not, excessive force claims could rarely, if ever, be

resolved on qualified immunity before trial—at which

point the defense is essentially lost. Id.

Here, the court of appeals obscured all of the

uncertainty and complications that the officers were

required to navigate. The court held that the officers acted

in aid of only one clear and legitimate interest: moving the

protestors onto the sidewalk (Pet. App. 26a). Otherwise,

the court concluded, a jury could find the threat to the

officers’ safety to be “negligible,” and the bottles that were

thrown at them to be merely an “isolated and victimless”

incident (id. 22a). Although the court suggested that a jury

could also find that the circumstances were threatening

and potentially violent (id. 26a), it disregarded that this

Court has repeatedly framed the pertinent question as

what a reasonable officer “could have believed” based on

26

the facts and circumstances he or she confronted—a legal

issue for the court. Saucier v. Katz, 533 U.S. 194, 208-09

(2001); see also Wesby, 138 S. Ct. at 591-93.

Even outside the qualified immunity context, this

Court has repeatedly cautioned against the type of

hindsight analysis invited by the court of appeals,

emphasizing that an officer’s actions—even those that

clearly constitute force—“must be judged from the

perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham v.

Connor, 490 U.S. 386, 396 (1989). “The calculus … must

embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.”

Id. at 397. Qualified immunity amplifies that insight,

asking whether every reasonable officer would have known

that the use of force violated “clearly established law.”

Mitchell, 472 U.S. at 526.

For example, in Mullenix v. Luna, this Court rejected

the Fifth Circuit’s formulation of the rule the defendant

had allegedly violated—that officers may not “use deadly

force against a fleeing felon who does not pose a sufficient

threat of harm to the officers or others”—because it did not

capture what a reasonable officer at the scene could have

perceived. 136 S. Ct. at 308-09. The Court reformulated

the relevant question as whether officers may use deadly

force against “a reportedly intoxicated fugitive, set on

avoiding capture through high-speed vehicular flight,

who twice during his flight had threatened to shoot police

officers, and who was moments away from encountering

an officer.” Id. at 309.

27

Here, the court of appeals relied on a formulation of

the relevant rule precisely like that rejected by this Court

in Mullenix—that officers may not “subject[] non-violent

protestors to pain and serious injury simply to move them

onto the sidewalks” (Pet. App. 28a). But that formulation

omits any mention of the circumstances the officers faced,

and the other important objectives served by their quick

action. Most notably, the court wholly failed to explain why

every officer was required to conclude that the risk to his

or her safety—and to the safety of others at the scene or

using the area’s busy streets—was “negligible.” And in

fact, the opposite is true. The officers here faced a difficult

decision: although the protest had not yet developed into

a riot, it was becoming unruly, hostile, and obstructive.

Like the officers in Lewis, the officers here were

required to balance numerous interests, including their

own safety, the safety of other officers, the safety of the

protestors, and the need to keep the streets of Midtown

Manhattan clear of obstruction. And like the officers

in Lewis, the officers were required to act in tense and

volatile circumstances, without knowing whether the

circumstances would become increasingly confrontational

and dangerous for all involved. On these facts, the officers’

choice of the LRAD 100X as a method to help restore

order, with expediency, and without resorting to physical

force or further arrests is nowhere near a clear case of

conscience-shocking force—or conscience shocking at all.

Even the court of appeals recognized that a jury could

reach different conclusions about whether the protest

was potentially violent (Pet. App. 26a). But the very

fact that different judgments could be made about the

risks the officers faced refutes the conclusion that every

28

reasonable officer would have reached the conclusion that

safety threats were minimal. It simply does not shock

the conscience that, instead of waiting to see whether

the protest did become uncontrollable and thus require a

significant show of force or further arrests, the officers

attempted to use an acoustic device to help restore order.

Holding the officers liable for that decision cannot be

reconciled with the stringent standards of substantive

due process at the time, nor can it be reconciled with this

Court’s injunction that qualified immunity protects “all

but the plainly incompetent or those who knowingly violate

the law.” Malley, 475 U.S. at 343.

Taken together, the court of appeals’ errors in

this case are so egregious that summary reversal is

warranted. At a minimum, certiorari should be granted

and full briefing and argument ordered. Considering the

multiple levels of novelty and complexity in this case, it lies

within the heartland of qualified immunity. To reach the

opposite result and deny the officers qualified immunity,

the court turned the doctrine’s central principles on their

head. But “qualified immunity is important to society as a

whole,” and its protections are lost if a case is erroneously

permitted to proceed. White, 137 S. Ct. at 551. This Court

should grant review to restore the proper scope of the

doctrine.

29

CONCLUSION

The writ of certiorari should be granted.

December 19, 2018

Respectfully submitted,

Zachary W. Carter

Corporation Counsel

City of New York

Richard Dearing*

Devin Slack

Ingrid R. Gustafson

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Petitioners

* Counsel of Record

APPENDIX

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT, FILED JUNE 13, 2018

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 17-2065

ANIKA EDREI, SHAY HORSE, JAMES CRAVEN,

KEEGAN STEPHAN, MICHAEL NUSBAUM,

AND ALEXANDER APPEL,

Plaintiffs-Appellees,

versus

LIEUTENANT JOHN MAGUIRE, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY, OFFICER

MIKE POLETTO, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY, SHIELD NO. 3762,

Defendants-Appellants,

WILLIAM JOSEPH BRATTON, NEW YORK

POLICE DEPARTMENT (NYPD) COMMISSIONER,

CITY OF NEW YORK,

Defendants.*

March 27, 2018, Argued,

June 13, 2018, Decided

*

The Clerk of Court is directed to amend the official caption to

conform to the above.

2a

Appendix A

Before: KATZMANN, Chief Judge, WALKER, and

POOLER, Circuit Judges.

Plaintiffs, six individuals who participated in and

observed protests in Manhattan on the night of December

4-5, 2014, sued Lieutenant John Maguire and Officer Mike

Poletto (“defendants”) of the New York Police Department

under 42 U.S.C. § 1983. The complaint alleges, among other

things, that defendants violated plaintiffs› Fourteenth

Amendment right against excessive force when they used

a long-range acoustic device (“LRAD”), also known as a

“sound gun,” to disperse non-violent protesters, resulting

in significant injuries, including hearing loss. Defendants

moved to dismiss, arguing, in part, that they were entitled

to qualified immunity because the complaint neither stated

a Fourteenth Amendment claim nor alleged a violation of

clearly established law. The district court rejected both

arguments, reasoning that LRADs, which can cause

injuries comparable to those caused by other tools that are

capable of excessive force, fit within the scope of existing

precedents. We AFFIRM.

KATZMANN, Chief Judge:

This appeal arises out of the New York Police

Department’s (“NYPD” or “Department”) response to a

December 2014 protest in Manhattan. The six individual

plaintiffs allege that Lieutenant John Maguire and Officer

Mike Poletto (“defendants”) violated their Fourteenth

Amendment rights by using a long-range acoustic device

(“LRAD”), also known as a “sound gun,” to compel them

and other non-violent protesters to exit the street. The

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district court held that the plaintiffs adequately alleged

an excessive force violation and, accepting the allegations

as true, that the defendants were not entitled to qualified

immunity. This case comes to us on an interlocutory appeal

from that order.

We, like the district court, consider only the factual

allegations in the complaint and the videos it incorporates.

With this limitation, we are compelled to affirm the

denial of qualified immunity. In a narrow ruling, we hold

that purposefully using a LRAD in a manner capable of

causing serious injury to move non-violent protesters to

the sidewalks violates the Fourteenth Amendment under

clearly established law. At the same time, recognizing that

the complaint before us provides only the vantage point

of the plaintiffs, we caution that once both sides present

evidence—especially about what the officers observed

and knew—the defendants may yet be entitled to qualified

immunity.

BACKGROUND

I.

Factual History

On an interlocutory appeal from the denial of qualified

immunity, our jurisdiction is limited to deciding whether,

based on facts alleged by the plaintiffs or stipulated to

by the parties, “the immunity defense is established as

a matter of law.” Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.

1996). For purposes of this appeal, the defendants accept

as true the allegations set forth in this factual history.

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A.

LRAD Technology and the NYPD

LRADs are acoustic weapons developed for the U.S.

military in the wake of the deadly terrorist attack on the

USS Cole in 2000. “If mounted aboard a Navy ship, the

device’s loudspeaker could be used to ‘warn off’ boats

that came too close. If those warnings are ignored, the

device could be used to send out sound at a dangerously

high level . . . to cause pain/hearing damage to try to repel

the attack.” First Amended Complaint (“FAC”) ¶ 11. This

technique, known as “area denial,” has been used in both

military and crowd control settings. Id.

An LRAD can produce louder sound than a traditional

amplification device, such as a megaphone, and can

project over much greater distances. To achieve this

effect, LRADs concentrate sound into a 30- to 45-degree

cone-shaped beam. They also reshape acoustic energy to

produce flatter sound waves that (1) reduce dampening

as the wave travels and (2) interact with the air to create

additional frequencies within the wave. Alex Pasternack,

The New Sound of Crowd Control, “Motherboard” (Dec. 17,

2014), https://motherboard.vice.com/en_us/article/qkve7q/

the-new-sound-of-crowd-control (last accessed Mar. 11,

2018). This can produce volumes of up to 146 decibels.

For context, the threshold for human discomfort begins

between 120 and 140 decibels and the National Institute

of Health cautions that hearing loss can result from short

exposure to sounds at or above 110 to 120 decibels.

The New York Police Department purchased two

Model 3300 LRADs before the 2004 Republican National

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Convention in New York City. Like other LRADs, the

Model 3300 has two functions. One, it can serve as a

“loudspeaker” to broadcast police commands over vast

distances. And, two, the “area denial” function can “propel

piercing sound at higher levels . . . than are considered safe

to human ears.” App. at 85. According to a Department

representative speaking at the time of the Convention,

the LRADs were purchased to direct crowds to safety in

the event of a calamity.

Following the convention, the NYPD used its LRADs

sporadically and, then, mainly as loudspeakers. In 2010,

the NYPD’s Disorder Control Unit tested the Model 3300

at an empty parking lot in the Bronx. Measured from 320

feet away, the spoken voice commands registered at 102

decibels and the area denial mode at 110 decibels. The

Department did not take readings within the 320-foot

range, which it described as a “potential danger area.”

A report analyzing the test results observed that, in the

“dangerous range (above 120 decibels), this device can

cause damage to someone’s hearing and may be painful.”

FAC ¶ 11.

Shortly thereafter, the NYPD purchased the more

portable Model 100X, which also has loudspeaker and area

denial functions. The 100X’s product sheet boasts that it

has a maximum volume of 136 decibels at one meter and the

manufacturer guidelines caution not to use it within 10 to

20 meters of people. A diagram on the 100X’s control panel

shows a red beam emanating from the front of the device

and instructs: “DO NOT ENTER WITHIN 10 METERS

DURING CONTINUOUS OPERATION.” Id. ¶ 25.

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B. The Protest

On December 3, 2014, a Staten Island grand jury

declined to indict the NYPD officer who placed Eric

Garner, an unarmed black man, in a fatal chokehold. The

next day, protests arose across the nation. In Manhattan,

hundreds took to the streets to denounce police brutality.

The plaintiffs, many of whom are activists and journalists,

participated in and documented the protest. Over the

course of the evening and into the pre-dawn hours, the

demonstrators marched across the city, escorted by

NYPD officers.

Sometime after 1:00 a.m., as the protest crossed

through the intersection of 57th Street and Madison

Avenue, officers made several arrests. Videos of the

scene (which are incorporated into the complaint) show

a crowd—cordoned off from the arrests by a chain of

officers—gathered in a semicircle to observe. Unable to

proceed through the intersection, cars idled in the street

as protesters streamed past. Meanwhile, many onlookers

inched closer to take photographs only to be waved off by

officers or told to “get back.” Although some demonstrators

demanded that the officers “let [the arrestees] go,” none

interfered with the arrests. Several plaintiffs reported

hearing what sounded like a glass bottle breaking, but it

did not appear to strike or injure anyone.

Then, with no warning, NYPD officers discharged

pepper spray. Several plaintiffs who had been watching

the arrests began to flee. Seconds later the wail of a

high-pitched alarm began pulsing though the streets. The

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defendants had activated the LRAD’s area denial function.

According to plaintiffs, they had not been ordered to

disperse and no such order is audible on the video.

After several bursts from the alarm tone, Lieutenant

Maguire and Officer Poletto, both members of the Disorder

Control Unit, began broadcasting commands. One officer

held the briefcase-sized device in front of him while the

other trailed behind and spoke into a corded microphone.

“[T]his is the New York City Police Department. You must

not interfere with vehicular traffic. You must remain on

the sidewalk. If you do interfere with vehicular traffic, you

will be placed into custody.” Video 1 at 3:23-3:41. Variants

of this refrain, punctuated by alarm tones, were repeated

for about three minutes as the officers walked the length of

57th Street between Madison and Park Avenues. Although

many people in the LRAD’s path “were already fleeing on

the sidewalks,” the officers followed close on their heels,

sometimes from fewer than ten feet. FAC ¶ 124. Plaintiffs

maintain that the defendants “knew or should have known

that the use of the LRAD could cause permanent hearing

damage and other injury.” Id. ¶ 130.

In the days and weeks following the protest, each

plaintiff reported physical injuries. Many claimed

that they experienced significant ear pain, prolonged

migraines, vertigo, and ringing in the ears. Most sought

medical treatment. One plaintiff “had extreme difficulty

with his hearing.” Id. ¶ 370. His doctor explained that

“the pressure of the extreme level of the noise from the

LRAD had pushed a bone in his ear inwards, impacting

and damaging a nerve in his ear.” Id. ¶ 372. His hearing

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improved after a course of steroidal medication. Several

plaintiffs allege that they are now afraid to attend

protests, which, for some, has harmed their professional

opportunities as journalists.

II. Procedural History

In March 2016, the six plaintiffs sued Lieutenant

Maguire and Officer Poletto, as well as then-NYPD

Commissioner William Bratton and the City of New York.

They asserted claims under 42 U.S.C. § 1983 premised

on violations of the First, Fourth, and Fourteenth

Amendments, as well as related municipal liability and

New York state law claims. Defendants moved to dismiss

the amended complaint, arguing that plaintiffs had failed

to state a claim and that the officers were entitled to

qualified immunity.

The motion was granted in part and denied in part.

The district court found that plaintiffs had adequately

pleaded excessive force in violation of the Fourteenth

Amendment (as well as the related municipal liability

claim) and denied defendants qualified immunity. It also

permitted the state-law assault and battery claims to

proceed, including the claims against the City under

a theory of respondeat superior. The district court

dismissed the other claims, including all claims against

Commissioner Bratton.

On the Fourteenth Amendment claim, the district

court reasoned that “[t]he use of the [Model 100X] as a

projector of powerfully amplified sound is no different

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than other tools in law enforcement’s arsenal that have the

potential to be used either safely or harmfully,” such as stun

grenades. Special App. at 16. As to qualified immunity, the

district court rejected defendants’ argument that amplified

noise did not constitute unconstitutional force under

existing precedent. “[T]here is much case law discussing

the need for careful, vicinity-specific considerations when

using tools like distraction devices,” the court explained,

and, if the circumstances were as plaintiffs allege, these

analogous cases would have informed the officers of the

illegality of their actions. Id. at 21.

Lieutenant Maguire and Officer Poletto timely filed

this interlocutory appeal.

DISCUSSION

I.

Appellate Jurisdiction and Standard of Review

The sole issue on appeal is whether defendants

are entitled to qualified immunity on the Fourteenth

Amendment claim. Ordinarily a district court order

denying a motion to dismiss is not appealable. See 28

U.S.C. § 1291. Yet the Supreme Court has “repeatedly . . .

stressed the importance of resolving immunity questions

at the earliest possible stage in litigation.” Hunter v.

Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116 L. Ed.

2d 589 (1991) (per curiam). This is because qualified

immunity represents not simply a bar on liability but also

an “entitlement not to stand trial or face the burdens of

litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.

Ct. 2806, 86 L. Ed. 2d 411 (1985). Accordingly, denying

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qualified immunity “conclusively determines that the

defendant[s] must bear the burdens of discovery; is

conceptually distinct from the merits of the plaintiff[s’]

claim; and would prove effectively unreviewable on an

appeal from a final judgment.” Ashcroft v. Iqbal, 556 U.S.

662, 672, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal

quotation marks and brackets omitted). It follows that,

“[p]rovided it turns on an issue of law,” the district court’s

denial of qualified immunity is a final reviewable order.

Id. (internal quotation marks omitted).

“Of course, [by] presenting [their] immunity defense

on a Rule 12(b)(6) motion instead of a motion for summary

judgment[, the defendants] must accept the more

stringent standard applicable to this procedural route.”

McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).

Briefly summarized, we accept the complaint’s factual

allegations as true and draw all reasonable inferences

in the plaintiffs’ favor, including both those that support

the claim and “those that defeat the immunity defense.”

Id. This standard represents a “formidable hurdle.” Id.

at 434. Because the facts are undisputed, our review is

de novo. Johnson v. Newburgh Enlarged Sch. Dist., 239

F.3d 246, 250 (2d Cir. 2001).

II. Qualified Immunity

Assured of our jurisdiction, we turn to the merits.

Section 1983 establishes a private right of action for money

damages against state officials, acting “under color” of law,

who violate a constitutional or statutory right. 42 U.S.C.

§ 1983. This “deter[s] governmental abuse and remed[ies]

unlawful governmental transgressions.” Newburgh, 239

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F.3d at 250. At the same time, “permitting damages suits

against government officials can entail substantial social

costs, including the risk that fear of personal monetary

liability and harassing litigation will unduly inhibit

officials in the discharge of their duties.” Anderson v.

Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 97 L. Ed.

2d 523 (1987). To balance the need for accountability

and the potential chilling effect, “the Supreme Court

established qualified immunity as an affirmative defense

to § 1983 claims.” Newburgh, 239 F.3d at 250. This defense

is designed to “reduce[] the general costs of subjecting

officials to the risks of trial” by immunizing them from

monetary liability “based on unsettled rights.” Connell

v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (internal

quotation marks omitted).

Officers are entitled to qualified immunity “unless a

plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179

L. Ed. 2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).

Failure to establish either prong would resolve this case

and we may “exercise [our] sound discretion in deciding

which . . . should be addressed first.” Pearson v. Callahan,

555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).

Like the district court, we begin with the first prong.

A.

Fourteenth Amendment Violation

The right not to be subject to excessive force, perhaps

most commonly associated with the Fourth and Eighth

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Amendments, can also arise under the Fourteenth. See

Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104

L. Ed. 2d 443 (1989); Hemphill v. Schott, 141 F.3d 412, 418

(2d Cir. 1998). This is because “[t]he touchstone of due

process,” which “is protection of the individual against

arbitrary action of government,” Wolff v. McDonnell, 418

U.S. 539, 558, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), bars

“the exercise of power without any reasonable justification

in the service of a legitimate governmental objective,”

Cty. of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.

Ct. 1708, 140 L. Ed. 2d 1043 (1998). When the government

action is executive, rather than legislative, the Supreme

Court has cautioned that “only the most egregious official

conduct can be said to be arbitrary in the constitutional

sense.” Lewis, 523 U.S. at 846 (internal quotation marks

omitted). This standard is most readily satisfied when

conduct is “intended to injure in some way unjustifiable

by any government interest.” Id. at 849.

W hile the parties ag ree that the Fourteenth

Amendment establishes a right against excessive force,

they disagree about the relevant test. Defendants

maintain that the proper inquiry is whether the conduct

shocks the conscience. Appellants’ Reply Br. at 11. They

argue that this standard includes a subjective element—

whether the officers behaved “maliciously and sadistically

for the very purpose of causing harm.” Appellants’ Br. at

33 (quoting Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir.

1998)). According to defendants, this standard is “distinct

from, and more stringent than, objective reasonableness.”

Appellants’ Reply Br. at 11. Plaintiffs counter that conduct

shocks the conscience when the use of force was both

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“objectively unreasonable” and “intentional, as opposed

to negligent.” Appellees’ Br. at 33. In addressing this

disagreement, we apply the law as it exists at the time of

decision. See Whitney v. Empire Blue Cross & Blue Shield,

106 F.3d 475, 477 (2d Cir. 1997) (per curiam).

Defendants are correct that many cases describe the

test for excessive force under the Fourteenth Amendment

with the shorthand “shocks the conscience.” See, e.g.,

Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 96

L. Ed. 183 (1952). For many years, courts have understood

this standard to be distinct from the Fourth Amendment’s

prohibition against “unreasonable” government action.

See Lewis, 523 U.S. at 842-43. As recognized in Graham,

this distinction reflects the varied sources of excessive

force claims. 490 U.S. at 393-94. Arrestees may invoke the

Fourth Amendment’s prohibition against “unreasonable”

seizures. U.S. Const. amend. IV. Those incarcerated for a

criminal conviction draw on the Eighth Amendment’s ban

on “cruel and unusual punishments.” U.S. Const. amend.

VIII. Meanwhile, pretrial detainees and non-incarcerated

persons rely on the constitutional guarantee of “due

process.” U.S. Const. amends. V, XIV.

In Johnson v. Glick, this Court identified four

illustrative factors for assessing whether conduct, in the

words of Rochin, “shocks the conscience.” 481 F.2d 1028,

1033 (2d Cir. 1973) (Friendly, J.) (quoting Rochin, 342 U.S.

at 172). The factors are: “the need for the application of

force, the relationship between the need and the amount

of force that was used, the extent of the injury inflicted,

and whether the force was . . . [inflicted] maliciously or

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sadistically.” Id. In the decades since Glick was decided,

these factors have continued to guide our Fourteenth

Amendment excessive force analysis. See, e.g., Tierney,

133 F.3d at 199. But they have never been exhaustive, nor is

each factor necessary. See Glick, 481 F.2d at 1033 (stating

only that “a court must look to such factors as . . .”). In

particular, we have never treated malice or sadism as a

requirement for stating (or proving) an excessive force

claim under a due process theory. Where officials lacked

“any legitimate government objective and [caused]

substantial injury,” we have treated malicious or sadistic

conduct as presumptively unconstitutional. Newburgh, 239

F.3d at 252. But we have also found excessive force under

the Fourteenth Amendment without ever examining an

officer’s subjective intent. See, e.g., Robison v. Via, 821

F.2d 913, 924 (2d Cir. 1987); Bellows v. Dainack, 555 F.2d

1105, 1106 & n.1 (2d Cir. 1977).

In 2015 (after the events at issue in this case) the

Supreme Court revisited the Fourteenth Amendment

standard in Kingsley v. Hendrickson, 135 S. Ct. 2466,

192 L. Ed. 2d 416 (2015). The question there was whether

a pretrial detainee alleging a Fourteenth Amendment

violation must prove that the officers were subjectively

aware that the force was excessive, as in the Eighth

Amendment context, or merely that the force was

objectively excessive. 135 S. Ct. at 2470. In resolving this

question, the Court began by clarifying that excessive force

claims involve “two separate state-of-mind questions.” Id.

at 2472. The first concerns the official’s “state of mind

with respect to his physical acts.” Id. Drawing on its

decision in Lewis, the Court explained that accidental or

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negligent acts are not subject to Fourteenth Amendment

liability while those committed purposefully, knowingly,

or (perhaps) recklessly are. Id.

The second mental state, and the one at issue in

Kingsley, “concerns the defendant’s state of mind with

respect to whether his use of force was ‘excessive.’” Id.

On this score, the Supreme Court held that, unlike in the

Eighth Amendment context, the standard for a pretrial

detainee suing under the Fourteenth Amendment is

“objective” and merely requires showing that “the force

purposely or knowingly used against him was objectively

unreasonable.” Id. at 2472-73. This objective showing

can be established through contextual factors and the

Court identified six non-exhaustive “considerations.” Id.

at 2473. These factors included proportionality or, as the

Court described it, “the relationship between the need

for the use of force and the amount of force used.” Id.

They also included related indicia such as “the extent

of the plaintiff’s injury; any effort made by the officer

to temper or to limit the amount of force; the severity

of the security problem at issue; the threat reasonably

perceived by the officer; and whether the plaintiff was

actively resisting.” Id.

Viewed against the backdrop of this circuit’s

Fourteenth Amendment jurisprudence, Kingsley offers

two important insights. First, the objective standard

it announced confirms that the subjective mental state

referenced in Glick and some of this Court’s other

precedents is not a necessary showing. Second, and more

significantly, Kingsley used modified terminology to

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describe the Fourteenth Amendment standard. Although

prior excessive force cases spoke of whether the official’s

conduct “shocks the conscience,” Lewis, 523 U.S. at 84647 (collecting cases), Kingsley asked whether the force

was “objectively unreasonable,” 135 S. Ct. at 2473. More

on this later.

Returning to the case at hand, defendants protest

that, contrary to plaintiffs’ assertion, Kingsley is not

the appropriate touchstone for assessing the alleged

Fourteenth A mendment violation. On defendants’

reading, Kingsley’s holding is doubly inapposite because

it is limited to pretrial detainees and did not abdicate

the traditional “shocks the conscience” standard. Both

arguments are unpersuasive.

Defendants’ first—and principal—argument is based

on a misinterpretation of this Court’s earlier statement

that Kingsley “addressed only the legally requisite state

of mind required for a pretrial detainee’s excessive force

claims.” Dancy v. McGinley, 843 F.3d 93, 117 (2d Cir.

2016). Defendants understand this language as limiting

Kingsley to pretrial detainees only. But this ignores the

context. Dancy involved a Fourth Amendment excessive

force claim and this Court was distinguishing between

principles that applied under the Fourteenth Amendment

and those that governed under the Fourth. See id. It

follows that Dancy had no reason to address Kingsley’s

applicability to nondetainees bringing claims under the

Fourteenth Amendment.

Moreover, we have not treated the precise factual

context at issue in Kingsley—a pretrial detainee claiming

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excessive force—as a limitation on the Fourteenth

Amendment standard announced therein. In our one case

to engage closely with Kingsley, we held that its standard

applied not just to excessive force claims, but also to those

alleging deliberate indifference toward pretrial detainees.

Darnell v. Pineiro, 849 F.3d 17, 33-34 (2d Cir. 2017). In

reaching this conclusion, the Darnell Court did not apply

Kingsley’s language mechanically. Instead it looked to the

sweep and substance of the Supreme Court’s reasoning.

We do the same.

To begin where Kingsley did, “a pretrial detainee can

prevail” by alleging “that the challenged governmental

action is not rationally related to a legitimate governmental

objective or that it is excessive in relation to that purpose.”

135 S. Ct. at 2473-74. As discussed above, this standard

is the essence of all Fourteenth Amendment claims,

not merely those brought by pretrial detainees. In

Lewis, a case that involved a non-detainee, the Supreme

Court grounded its analysis in the same principle: “the

touchstone of due process” is protection from “the exercise

of power without any reasonable justification in the service

of a legitimate governmental objective.” 523 U.S. at 84546 (brackets omitted). What’s more, Kingsley’s reliance

on Lewis as the source of the Fourteenth Amendment

standard belies defendants’ suggestion that claims by

non-detainees are subject to a distinct test. See Kingsley,

135 S. Ct. at 2472-73.1

1. Additionally, when the Kingsley defendants argued that

Lewis supported a subjective intent standard, the Court had an

opportunity to distinguish its earlier decision as a case limited to

non-detainees. But the Court did no such thing. Instead, it explained

why that argument misread Lewis’s holding. 135 S. Ct. at 2475.

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The distinction Kingsley drew was not between

pretrial detainees and non-detainees. Instead, it was

between claims brought under the Eighth Amendment’s

Cruel and Unusual Punishment Clause and those brought

under the Fourteenth Amendment’s Due Process Clause.

135 S. Ct. at 2475. As the Court observed, not only do the

two clauses use distinct language, but, “most importantly,

pretrial detainees (unlike convicted prisoners) cannot be

punished at all.” Id. (emphasis added). The same is true

of non-detainees, except more so. After all, with a nondetainee the government has not even shown probable

cause of criminal activity, much less a public safety (or

flight) risk warranting detention. For this reason, it would

be extraordinary to conclude that “pretrial detainees . . .

cannot be punished at all, much less ‘maliciously and

sadistically,’” id., while requiring non-detainees to prove

malice and sadism.

Defendants offer no principled justifications to

buttress such an implausible standard, nor could they.

Their argument is contrary to this Court’s entire body of

non-detainee cases, which have long applied the standard

announced in Glick, a pretrial detainee case. See, e.g.,

Newburgh, 239 F.3d at 251-52; Tierney, 133 F.3d at 199.

And yet, although defendants acknowledge that Kingsley

represents a new gloss on the pretrial detainee standard,

they would hold the non-detained plaintiffs to this Court’s

prior articulation of the pretrial detainee standard. To

state the argument is to reveal its untenability. 2

2. Defendants, moreover, point to no case in our Circuit dealing

with nondetainees—before or after Kingsley—that treated proof

of subjective intent as a necessary precondition for a successful

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Shifting gears, defendants contend that Kingsley

did not formally overrule the “shocks the conscience”

standard. That may be true, but we think it is beside

the point. This is because defendants’ focus on phrasing

ref lects an overly formalistic view of Fourteenth

Amendment law. To repeat, the central inquiry has

always been whether the government action was rationally

related to a legitimate government objective. Lewis, 523

U.S. at 846. Although the Supreme Court has “spoken of

the cognizable level of executive abuse of power as that

which shocks the conscience,” this merely showed that

the “due process guarantee does not . . . impos[e] liability

whenever someone cloaked with state authority causes

harm.” Id. at 846, 848. Instead, “the Due Process Clause

is violated by executive action only when it can properly

be characterized as arbitrary, or conscience shocking,

in a constitutional sense.” Id. at 847 (internal quotation

marks omitted).

As the Supreme Court has observed, “the measure of

what is conscience shocking is no calibrated yard stick”;

it merely “point[s] the way.” Id. (internal quotation marks

omitted). Mindful of this indefiniteness, Kingsley is best

read as elaborating on this standard, not abandoning it.

Kingsley held that excessiveness is measured objectively

Fourteenth Amendment excessive force claim. Thus, even if they

could convince us that Kingsley should be cabined to pretrial

detainees (which they cannot), this would not require us to dismiss

an excessive force claim absent an allegation of malice or sadism.

Kingsley made explicit what we have long taken for granted: a

government actor’s use of force violates due process when it is

objectively excessive.

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and then identified various considerations that inform the

ultimate Fourteenth Amendment inquiry: whether the

governmental action was rationally related to a legitimate

governmental objective. 135 S. Ct. at 2473 (considering

such things as the “relationship between the need for the

use of force and the amount of force used”). 3 To put a finer

point on it, Kingsley teaches that purposeful, knowing

or (perhaps) reckless action that uses an objectively

unreasonable degree of force is conscience shocking.4

Although we now hold that Kingsley provides the

appropriate standard for all excessive force claims brought

under the Fourteenth Amendment, it bears emphasizing

that this new formulation is but a modest refinement of

Glick’s four-factor test, on which this Court has long

relied. The first three factors identified in Glick—the

need for force, the relationship between the need and the

degree of force used, and the extent of the injury, 481

F.2d at 1033—parallel the six non-exhaustive factors

identified in Kingsley. Consider Glick’s first factor, the

3. Framed in these terms, defendants cannot seriously dispute

Kingsley’s logic. After all, their own brief acknowledges that, “[i]t is

where officials take injurious action with no apparent government

interest that this Court has found their conduct conscience-shocking.”

Appellant’s Br. at 39 (emphasis added).

4. One might argue that this conclusion is in tension with

Dancy’s observation that “Fourth Amendment claims are tied to

reasonableness, which is considerably less demanding” than the Due

Process Clause. 843 F.3d at 117. But, once again, because Dancy

focused on the intent standard under the Fourth Amendment, it did

not purport to address how Kingsley affected cases brought under

the Due Process Clause.

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need to use force. Kingsley effectively disaggregates

this into three considerations that all bear on whether

force was necessary. 135 S. Ct. at 2473 (encouraging

courts to consider “the severity of the security problem,”

the threat perceived, and “whether the plaintiff was

actively resisting”). As for Glick’s next two factors—”the

relationship between the need and the amount of force that

was used” and “the extent of injury inflicted,” 481 F.2d at

1033—these are explicitly incorporated into Kingsley. See

135 S. Ct. at 2473 (highlighting “the relationship between

the need for the use of force and the amount of force used”

and “the extent of the plaintiff’s injury”).

Turning to the fourth Glick factor, whether the force

was applied “maliciously and sadistically for the very

purpose of causing harm,” 481 F.2d at 1033, Kingsley

explained that this is not a “necessary condition for

liability,” 135 S. Ct. at 2476 (emphasis omitted). Instead

it is simply one consideration “that might help show that

the use of force was excessive.” Id. (emphasis added). This

interpretation is consistent with our own precedents,

which have repeatedly assessed excessive force claims

without looking to subjective intent. See, e.g., Robison,

821 F.2d at 924 (holding that the assertion that officers

“yanked [a woman] out [of her car], threw her up against

the fender, and twisted her arm behind her back” was

enough to prevent summary dismissal of an excessive

force claim (internal quotation marks omitted)); Bellows,

555 F.2d at 1106 & n.1 (concluding that plaintiff stated

an excessive force claim based solely on the injuries and

absence of a legitimate government interest).

22a

Appendix A

Applying Kingsley’s analysis to the allegations at

hand, we conclude that the plaintiffs’ complaint states

a Fourteenth Amendment violation. First, consider

the need for force. Under plaintiffs’ account, which we

must accept as true, the security threat posed by the

protest was low. The video footage confirms that the

demonstrators were non-violent and there was a robust

police presence monitoring the crowd. Although someone

may have thrown a glass bottle, this appears to have been

an isolated and victimless incident. None of the onlookers

filming and photographing the arrests interfered and

additional officers were on scene to keep protesters

at bay. The most significant problem confronting law

enforcement appears to have been traffic disruption

caused by protesters walking in the street. However,

while mixing cars and pedestrians might have presented

a hazard, this is the sort of public safety risk common to

large public demonstrations, not necessarily an imminent

threat warranting a significant use of force. In short, on

the facts alleged, the “severity of the security problem”

was minimal and the “threat reasonably perceived by the

officers” was negligible. Kingsley, 135 S. Ct. at 2473.

In addition, there is no indication that plaintiffs were

“actively resisting.” Id. Quite the opposite: the complaint

alleges that once the police began ordering people to move

to the sidewalks the plaintiffs promptly complied. (One

plaintiff admits that he briefly stepped off the curb while

yelling a critical comment at the police. But this was, as

most, de minimis resistance.)

Turning to proportionality, the disparity between the

threat posed by the protest and the degree of force is stark.

23a

Appendix A

The Department’s 2010 report describes the purpose of an

earlier LRAD model’s area denial function as “send[ing]

out sound at a dangerously high level [to cause] attackers

to turn away, or at least, to cause pain/hearing damage

to try to repel [an] attack.” App. at 85 (emphases added).

The control panel on the Model 100X that was used here

warned operators in capital letters that entering within 10

meters of the device during operation was dangerous. See

FAC ¶ 25. The device’s product sheet likewise listed the

LRAD’s maximum volume as 136 decibels at one meter,

well above the 120 decibels threshold where pain begins

and just short of the 140 decibels at which the report

advised that “[s]hort term exposure can cause permanent

damage.” App. at 86. Exposure to this dangerous volume

(which we must assume from the pleadings) is a severe

consequence for blocking traffic.

The injuries alleged by the plaintiffs (another Kingsley

consideration, see 135 S. Ct. at 2473) are consistent with

the report’s projections. They endured auditory pain,

migraines, tinnitus, and hearing loss, of varying degrees

and duration. Several plaintiffs claimed that they still had

periodic tinnitus as of the complaint’s filing (a year and a

half after the protest) and at least one plaintiff said that

he experienced constant ringing. Another suffered nerve

damage and hearing loss that required medical treatment.

These impairments fit comfortably on the spectrum of

injuries that this Court has found sufficient to state a

Fourteenth Amendment violation. See, e.g., Newburgh,

239 F.3d at 252 (holding that “head trauma, lacerations,

and bruising” constitute a “substantial physical injury”);

Robison, 821 F.2d at 924 (denying qualified immunity for

24a

Appendix A

a Fourteenth Amendment violation when officers caused

bruises that lasted “a couple weeks”).

Kingsley also asks whether the officers tried to

“temper or to limit the amount of force.” 135 S. Ct. at 2473.

Nothing in the complaint suggests that they did. There

was no audible dispersal warning before the defendants

activated the area denial function, nor any other visible

attempt to move protesters out of the street. Looking

at the force itself, the plaintiffs allege that the officers

used the LRAD at close range while “pointing it” at

the demonstrators. FAC ¶ 229. In addition, the alleged

injuries support an inference that the LRAD was set to

an extremely high decibel-level.

Pulling these threads together, plaintiffs’ allegations

indicate that the officers’ use of the LRAD’s area denial

function was disproportionate to the limited security risk

posed by the non-violent protest and caused substantial

physical injuries. Or, stated somewhat differently, the

defendants’ use of a device capable of causing pain and

hearing loss was an “exercise of power without any

reasonable justification in the service of a legitimate

government objective.” Lewis, 523 U.S. at 846. Because

defendants have chosen to appeal the denial of a motion to

dismiss, we are compelled to accept the allegations as true

and must therefore conclude that the complaint adequately

states a Fourteenth Amendment claim.

B. Clearly Established Law

The remaining question is whether the constitutional

right at issue was “clearly established at the time of the

25a

Appendix A

challenged conduct.” al-Kidd, 563 U.S. at 735 (internal

quotation marks omitted). This inquiry “ensure[s] that

the official being sued had fair warning that his or her

actions were unlawful.” Terebesi v. Torreso, 764 F.3d 217,

230 (2d Cir. 2014) (internal quotation marks omitted). And,

because officers cannot have fair warning of rights that

are not yet established, we look to precedent in existence

at the time of the events. See Anderson, 483 U.S. at 639.

Here, this means that, for purposes of “clearly established

law,” we apply the Fourteenth Amendment analysis from

Glick, not the Supreme Court’s 2015 decision in Kingsley.

We begin with the delicate task of defining the right

at issue. In doing so, we must be mindful that, on the one

hand, “[c]haracterizing the right too narrowly to the facts

of the case might permit government actors to escape

personal liability.” Newburgh, 239 F.3d at 251. On the

other hand, defining clearly established law at too high a

level of generality “avoids the crucial question whether the

official acted reasonably in the particular circumstances

that he or she faced.” Plumhoff v. Rickard, 572 U.S. 765,

134 S. Ct. 2012, 2023, 188 L. Ed. 2d 1056 (2014).

Here, defendants’ frame the question as “whether the

officers violated the Fourteenth Amendment by using the

LRAD 100X to aid in moving protesters to the sidewalks

after the protest became obstructive and potentially

violent.” Appellants’ Br. at 28. This framing puts not one

but two thumbs on the scale in favor of defendants. First,

it focuses on the officers’ professed objective—moving

protesters onto the sidewalk—while ignoring the degree

of force that the officers allegedly used. Second, it recasts

26a

Appendix A

the protest as “violent,” a characterization that, based

on plaintiffs’ allegations and the scene captured in the

videos, is at best arguable. See, e.g., id. at 34 (describing

a “large crowd of hostile demonstrators—who greatly

outnumbered and had surrounded the officers, were

becoming violent, and were obstructing traffic”). Perhaps

this is an inference that a factfinder might ultimately

make, but at this stage we must draw all inferences in

favor of the plaintiffs, not the defendants.

Defining the Fourteenth Amendment right according

to the “particular circumstances” requires attention to

the precipitating events, the government interest at issue,

the degree of force used, and the reasonably anticipated

consequences of the government action. To illustrate,

consider the Supreme Court’s analysis in Plumhoff. The

Court began with the context, a “lengthy, highspeed

pursuit” that “posed a danger both to the officers involved

and to any civilians who happened to be nearby.” 134 S.

Ct. at 2023. The officers’ objective was to “protect those

whom [the suspect’s] flight might endanger.” Id. After the

suspect crashed and then tried to speed away, several

officers fired a collective 15 shots. Id. at 2024. It was

undisputed that this was “deadly force.” Id. at 2021, 2022,

2024. Weaving all these circumstances together, the Court

addressed whether it was clearly established in 2004 that

a suspect who leads a long and dangerous car chase has a

right not to be subjected to deadly force used to protect

public safety. Id. at 2023-24. The Court held that he did

not. Id. Following this template, and accepting the facts

alleged by the plaintiffs, the question here is whether, in

2014, non-violent protesters and onlookers, who officers

27a

Appendix A

had not ordered to disperse, had a right not to be subjected

to pain and serious injury that was inflicted to move them

onto the sidewalks.

Preliminarily, we address whether this conduct

alleges a Fourteenth Amendment violation under the

legal standard applicable in 2014. Although our earlier

discussion drew on Kingsley, the result is the same

under Glick’s parallel factors. To repeat, this Court’s

longstanding test for excessive force claims teaches

that force must be necessary and proportionate to the

circumstances. See Glick, 481 F.2d at 1033; see also

Newburgh, 239 F.3d at 253 (“[W]hether force is excessive

depends as much upon the need for force as the amount of

force used.”). Here, on the allegations that we must accept

as true, the problem posed by protesters in the street

did not justify the use of force, much less force capable of

causing serious injury, such as hearing loss.

The most significant difference between the Kingsley

factors applied above and Glick is, of course, the latter’s

inquiry into “whether force was applied in a good faith

effort to maintain or restore discipline or maliciously

and sadistically for the very purpose of causing harm.”

Glick, 481 F.2d at 1033. But, as our prior cases show,

this evidence has never been necessary for a Fourteenth

Amendment excessive force claim. See, e.g., Robison, 821

F.2d at 924; Bellows, 555 F.2d at 1106 & n.1. And, when

parties choose to present evidence on this point, they

can establish subjective intent through circumstantial

evidence. See Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.

1995). Although the plaintiffs need not allege facts showing

28a

Appendix A

that defendants subjectively intended to use excessive

force, we conclude that, given the gross disparity between

the need for force and the level of pain and injury inflicted,

the plaintiffs have sufficiently alleged that the officers

behaved “maliciously and sadistically.” See Newburgh, 239

F.3d at 252 (concluding that the fourth Glick factor was

satisfied where the force used “far surpassed anything

that could reasonably be characterized as serving

legitimate government ends”).

The remaining question is whether the right was

clearly established. Would reasonable officers have known

that subjecting non-violent protesters to pain and serious

injury simply to move them onto the sidewalks violated

the Fourteenth Amendment? Defendants insist that the

circumstances before them were too dissimilar from thenexisting precedents to provide this notice. They raise two

principal arguments. Neither withstands scrutiny.

First, the defendants deny that it was clearly

established in December 2014 that using force in a

crowd control context violates due process. In their view,

because this Court has not applied “substantive due

process principles to crowd control,” the officers lacked

notice that the right against excessive force applies to

non-violent protesters. Appellants’ Br. at 37. But 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. This would convert the fair notice

requirement into a presumption against the existence of

basic constitutional rights. Qualified immunity doctrine

29a

Appendix A

is not so stingy. In fact, we rebuffed a nearly identical

argument in Newburgh. There, a teacher who brutally

assaulted a student insisted that he was entitled to

qualified immunity because the right to be free from

excessive force had not been “applied to the educational

setting.” 239 F.3d at 253. Unpersuaded, we declined to

adopt such a piecemeal view of Fourteenth Amendment

protections. Id. We see no reason to take a different tack

here.

Were this not enough, a wealth of cases inform

government officials that protesters enjoy robust

constitutional protections. “[O]ur constitutional command

of free speech and assembly is basic and fundamental

and encompasses peaceful social protest, so important

to the preservation of the freedoms treasured in a

democratic society.” Cox v. Louisiana, 379 U.S. 559, 574,

85 S. Ct. 476, 13 L. Ed. 2d 487 (1965); see also Papineau

v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (“[T]he First

Amendment protects political demonstrations and

protests . . . .”); Belknap v. Leary, 427 F.2d 496, 499 (2d

Cir. 1970) (Friendly, J.) (recognizing a “First Amendment

right[] to protest peaceably against the war—or anything

else”). Against this backdrop, it would be passing strange

to presume that protesters exercising a foundational

constitutional right have weaker substantive due process

rights than citizens in other contexts.

To be sure, government officials may stop or disperse

a protest when faced with an “immediate threat to public

safety, peace, or order,” including “interference with traffic

upon the public streets.” Parmley, 465 F.3d at 57 (quoting

30a

Appendix A

Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S. Ct. 900, 84

L. Ed. 1213 (1940)). But this authority is not without limits.

Among other things, officials have an obligation, “absent

imminent harm,” to inform demonstrators that they must

disperse, id. at 60, and may not use unreasonable force, id.

at 63. In short, our cases amply establish that protesters

enjoy robust constitutional protection, protection of which

reasonable law enforcement officers are well aware.

In spite of this precedent, defendants, drawing on

distinguishable out-of-circuit authority, would have us

believe that courts generally conclude that “use of force

in a crowd control context [does] not violate substantive

due process.” Appellants’ Br. at 37 n.12. Hardly. Our sister

circuits and district courts in this Circuit have routinely

applied excessive force principles to crowd control

situations. See, e.g., Nelson v. City of Davis, 685 F.3d

867, 882-83 (9th Cir. 2012); Buck v. City of Albuquerque,

549 F.3d 1269, 1289-90 (10th Cir. 2008); Asociacion de

Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 5962 (1st Cir. 2008); Darrah v. City of Oak Park, 255 F.3d

301, 306-08 (6th Cir. 2001); Duran v. Sirgedas, 240 F.

App’x 104, 112-13 (7th Cir. 2007) (summary order); Piper

v. City of Elmira, 12 F. Supp. 3d 577, 589-96 (W.D.N.Y.

2014). Training our focus on controlling authority, we see

that this Court has repeatedly emphasized that officers

engaging with protesters must comply with the same

principles of proportionality attendant to any other use

of force. See Parmley, 465 F.3d at 53, 63; Amnesty Am.

v. Town of W. Hartford, 361 F.3d 113, 119, 123-24 (2d Cir.

2004). A brief summary of these cases is instructive.

31a

Appendix A

In Parmley we refused to condone officers’ assault

on protesters who distributed flyers on a public highway.

See 465 F.3d at 52. The record showed that several dozen

protesters had gathered on private property for a lawful

demonstration. Id. At some point, a contingent walked

to a nearby highway to distribute fliers to passing cars.

Id. After the protesters left the highway, a large group

of officers stormed onto the private property without

“order[ing] the protesters to disperse or provid[ing]

them with any warning or justification for their actions.”

Id. at 53. They went on to assault non-violent, compliant

protesters, “beating them with . . . riot batons, dragging

them by their hair and kicking them.” Id. Failing to

discern a legitimate justification for this violent response,

we readily concluded that that the officers’ motion for

summary judgment based on qualified immunity was

properly denied. Id. at 63.

We have also warned officers against gratuitously

employing “pain compliance techniques,” such as bending

protesters’ wrists, thumbs, and fingers backwards.

Amnesty Am., 361 F.3d at 119, 123-24. Reasoning that the

pain associated with these techniques was “comparable

[to] amounts of force” that we considered unreasonable

when “used during the arrest of a nonviolent suspect,” we

concluded that a reasonable factfinder could decide that the

force was excessive. Id. at 124. We elaborated that liability

would turn on whether a jury found either that such

techniques were a proportionate response to protesters

purposefully making themselves difficult to arrest or that

“the officers gratuitously inflicted pain in a manner that

was not a reasonable response to the circumstances.” Id.

32a

Appendix A

Gratuitous infliction of a pain compliance technique—the

strategy behind the LRAD’s area denial function—is

exactly what the current plaintiffs allege.

Both Parmley and Amnesty America gave the

defendants fair warning that the prohibition on excessive

force applies to protesters. This is true even though

both those cases arose under the Fourth Amendment.

See Poe v. Leonard, 282 F.3d 123, 137 (2d Cir. 2002)

(“Although the Fourth Amendment cases are not on

all fours with [plaintiff’s] claim under the Fourteenth

Amendment, they are instructive . . . .”). 5 After all, there

is no intuitive reason to think a recalcitrant protester who

is being arrested has more robust rights than a compliant

protester who is not. Thus, we see no merit in defendants’

argument that they lacked notice of the substantive due

process rights of protesters.

Shifting attention from the protesters to the

technology at issue, defendants’ second argument is that,

at the time of the events, the Fourteenth Amendment

5. Defendants’ reply brief argues that Fourth Amendment cases

“cannot establish the law for Fourteenth Amendment purposes.”

Appellants’ Reply Br. at 22. This argument is inconsistent with the

practice of the Supreme Court and this Circuit, both of which crosspollinate between Fourth, Eighth, and Fourteenth Amendment

contexts. See, e.g., Graham, 490 U.S. at 396 (relying on language

from Glick, a Fourteenth Amendment case, to explain Fourth

Amendment constraints); Hudson v. McMillian, 503 U.S. 1, 9, 112

S. Ct. 995, 117 L. Ed. 2d 156 (1992) (drawing on Glick in the Eighth

Amendment context); Medeiros v. O’Connell, 150 F.3d 164, 170

(2d Cir. 1998) (analyzing Eighth Amendment case law to define a

Fourteenth Amendment right).

33a

Appendix A

did not apply to LRADs. This argument has two parts:

First, defendants contend that the officers cannot be

liable because no decision from this Court or the Supreme

Court “held or clearly foreshadowed that it would be

unconstitutional to use an acoustic device under any

circumstances,” much less “under circumstances like

those faced by the officers.” Appellants’ Br. at 19, 3637 (emphasis omitted). Second, defendants insist that,

because LRADs “function[] solely by sound,” which is not

an “instrument[] of force,” a reasonable officer would not

think that the Fourteenth Amendment applied. Id. at 23;

see also id. at 35. We disagree on both fronts.

Defendants’ first argument echoes a common refrain

in qualified immunity cases—”pointing to the absence of

prior case law concerning the precise weapon, method,

or technology employed by the police.” Terebesi, 764 F.3d

at 237 n.20. But novel technology, without more, does

not entitle an officer to qualified immunity. See Hope v.

Pelzer, 536 U.S. 730, 731, 122 S. Ct. 2508, 153 L. Ed. 2d

666 (2002) (“[O]fficials can be on notice that their conduct

violates established law even in novel factual situations.”).

In our first encounter with stun grenades, we concluded

that, although neither this Court nor the Supreme Court

had addressed that particular technology, “the Fourth

Amendment principles governing police use of force apply

with obvious clarity[] to the unreasonable deployment of

an explosive device in the home.” Terebesi, 764 F.3d. at 237

(internal quotation marks and citation omitted). Drawing

on a decision from the Ninth Circuit, we declared, “[a]n

officer is not entitled to qualified immunity” for lack of

notice “every time a novel method is used to inflict injury.”

34a

Appendix A

Id. (quoting Mendoza v. Block, 27 F.3d 1357, 1362 (9th

Cir. 1994)). Instead, we instructed that “[s]ome measure

of abstraction and common sense is required with respect

to police methods and weapons.” Id. at 237 n.20. To drive

the point home, we listed a series of innovative non-lethal

weapons to which officers should apply common sense,

including “sound guns” or “acoustical weaponry.” Id. Given

our call for common sense in the face of new technology,

defendants cannot credibly complain they lacked notice

that the proscription on excessive force applied to acoustic

devices.

As to whether LRADs are instruments of force,

defendants go astray by focusing on the mode of delivery

rather than the physical effect. Under this Court’s

precedent, a device that has “incapacitating and painful

effects” when used on a person is considered an instrument

of force. Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010).

Applying this standard, we have held that pepper spray,

which employs chemical reactions rather than kinetic

energy, “constitutes a significant degree of force.” Id.6

Drawing on well-established principles, we added that

because “gratuitous force is unreasonable and therefore

6. Defendants claim that an LRAD differs from pepper spray

because “it includes a highly effective loudspeaker mode that can

help avoid the need for measures historically regarded as force.”

Appellants’ Br. at 23. This is effectively an argument that LRAD’s

are dual-use devices capable of both exerting dangerous force and

serving valuable, non-forceful functions. But the same is true of a

riot stick, which can both bludgeon and direct traffic. Rather than

absolving the riot stick from scrutiny, this dual functionality is all

the more reason to focus on the particular action and ensuing effect,

not the device itself.

35a

Appendix A

excessive[,] . . . we presume that no reasonable officer

could have believed that he was entitled to use pepper

spray gratuitously against a restrained and unresisting

arrestee.” Id. at 99 n.5. In support, we relied on a First

Circuit case concluding that unprovoked use of pepper

spray against members of a nonthreatening crowd was

excessive, an indication that this sort of gratuitous force

against crowds is verboten. Id. (citing Asociacion de

Periodistas, 529 F.3d at 60-62).

In Terebesi, to add just one more example, we followed

the same approach. There, the officers urged that they

were immune because no precedent established that the

right against excessive force applied to stun grenades. 764

F.3d at 236. But we rejected that argument. Emphasizing

the dangerous effects of these devices, which “cause[]

fires, burns, and other injuries,” we held that “a reasonable

officer would [not] think it was constitutional to use these

devices in routine searches.” Id. at 236, 238.

We reach the same conclusion here. Even though

sound waves are a novel method for deploying force, the

effect of an LRAD’s area denial function is familiar: pain

and incapacitation. See Tracy, 623 F.3d at 98. In fact,

this is what the LRAD was designed for. As explained

in the NYPD’s own report, the purpose of the area

denial function is to “cause pain/hearing damage” that

repels those in its path. App. at 85. Using common sense,

any reasonable officer with knowledge of the LRAD’s

operations would understand that the area denial function

represents a “significant degree of force.” See Tracy, 623

F.3d at 98.

36a

Appendix A

To recap, assuming the truthfulness of the allegations

in the complaint, and drawing all reasonable inferences in

plaintiffs’ favor, the defendants knew or should have known

that the area denial function could cause serious injury.

When engaging with non-violent protesters who had not

been ordered to disperse, no reasonable officer would

have believed that the use of such dangerous force was a

permissible means of moving protesters to the sidewalks.

Whatever legitimate interest the officers had in clearing

the street, the use of sound capable of causing pain and

hearing loss in the manner alleged in the complaint was

not rationally related to this end. We therefore conclude

that the district court properly denied the defendants’

motion to dismiss based on qualified immunity.

***

Our decision regarding the defendants’ use of

the LRAD is a narrow one. We do not hold that the

Fourteenth Amendment bars law enforcement from

using LRADs. To the contrary, we are confident that,

in appropriate circumstances, following careful study

and proper training, LRADs can be a valuable tool

for law enforcement. Their usefulness as a long-range

communications device is plain. We also think that, under

certain conditions, an LRAD that is properly calibrated

might be a lawful means of ordering (or perhaps even

compelling) protesters to disperse. We merely hold (1)

that, on the allegations before us, which we must accept as

true, the plaintiffs have stated a Fourteenth Amendment

excessive force claim and (2) that purposefully using the

LRAD in a manner capable of causing serious injury to

37a

Appendix A

move non-violent protesters to the sidewalks violated law

that was clearly established as of 2014.

We are also mindful that the complaint before us is

just one side of the story, told from the perspective of the

plaintiffs. But courts and juries must assess excessive

force claims from “the perspective of a reasonable officer

on the scene, including what the officer knew at the time,

not with the 20/20 vision of hindsight.” Kingsley, 135 S. Ct.

at 2473. It follows that, once the allegations are tested by

evidence, particularly evidence about what the officers saw

and knew, the defendants may yet be entitled to qualified

immunity.

We can envision various factual showings that would

change the calculus. One key variable is the state of unrest

at the protest. The evidence may show that the defendants

observed a more violent scene than is portrayed in

the complaint and incorporated videos. Another key

consideration is how the LRAD was used, most notably

the volume of the device and its proximity to protesters

and passersby. And, third, as Kingsley acknowledges,

much hinges on what the defendants knew. Perhaps the

defendants had not seen the report on the Model 3300

and lacked knowledge of the LRAD’s harmful effects.

The complaint alleges that the NYPD “has not properly

trained its officers” on LRAD use and acknowledges that

Department’s use of force protocols “do not account for

LRAD use.” FAC ¶¶ 98, 412. So perhaps the defendants

had received training but reasonably believed that they

were not using the device in an unsafe or gratuitous

manner. Any one of these non-exhaustive factors could

warrant a reappraisal of qualified immunity.

38a

Appendix A

Finally, we emphasize that when viewing the evidence

from the perspective of a reasonable officer a factfinder

must afford “ample room for mistaken judgments.” Malley

v. Briggs, 475 U.S. 335, 343, 106 S. Ct. 1092, 89 L. Ed. 2d

271 (1986). This is particularly true where officers “have

obligations that tend to tug against each other.” Lewis,

523 U.S. at 853.

Their duty is to restore and maintain lawful

order, while not exacerbating disorder more

than necessary to do their jobs. They are

supposed to act decisively and to show restraint

at the same moment, and their decisions have

to be made in haste, under pressure, and

frequently without the luxury of a second

chance.

Id. (internal quotation marks omitted). It follows that

a jury or a court viewing events from the defendants’

perspective must consider not just what the officers saw

and knew, but also the rapidly evolving, uncertain, and

tense circumstances in which they acted. We trust that

discovery will provide fuller insight into this perspective.

CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s order insofar as it denied defendants qualified

immunity for the Fourteenth Amendment claim. This case

is REMANDED for further proceedings.

39a

APPENDIX B — Appendix

OPINIONBOF THE UNITED

STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF NEW YORK, FILED MAY 31, 2017

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

16 Civ. 1652 (RWS)

ANIKA EDREI, et al.,

Plaintiffs,

- against –

CITY OF NEW YORK, et al.,

Defendants.

May 31, 2017, Decided

May 31, 2017, Filed

Sweet, D.J.

Plaintiffs A nika 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

40a

Appendix B

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

41a

Appendix B

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 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.)

42a

Appendix B

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 N Y PD

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 1 am on December

5, 2014, each of the Plaintiffs were part of a protest taking

place at the intersection of 57th Street and Madison

1. For point of reference, sound levels starting around 85

to 90 dBs and louder can cause human discomfort and damage a

person’s hearing. (FAC ¶ 80-83.)

43a

Appendix B

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 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.)

2. Defendants contend that videos taken by Plaintiffs Craven

and Nusbaum were incorporated by reference into the FAC at

¶ 315 and are properly considered by the Court in their Motion to

Dismiss. (Supp. Mem. at 2 n.2.) Although Plaintiffs disagree as

to whether they incorporated the videos into their FAC, they do

not object to the videos’ consideration, and in fact cite to it in their

reply motion papers. (Opp. Mem. at 5.) The Court will consider

them. See Blue Tree Hotels Inv. v. Starwood Hotels & Resorts,

369 F.3d 212, 217 (2d Cir. 2004) (permitting consideration of “any

documents that are either incorporated into the complaint by

reference or attached to the complaint as exhibits”); Hershey v.

Goldstein, 938 F. Supp. 2d 491, 498 n.1 (S.D.N.Y. 2013) (considering

video footage on motion to dismiss that is referenced in complaint

and referenced by defendant in reply brief).

44a

Appendix B

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,

45a

Appendix B

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 (quoting

Twombly, 550 U.S. at 556). 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

(internal quotation marks omitted).

Additionally, while “a plaintiff may plead facts alleged

upon information and belief ‘where the belief is based on

factual information that makes the inference of culpability

plausible,’ such allegations must be ‘accompanied by a

statement of the facts upon which the belief is founded.’”

Munoz-Nagel v. Guess, Inc., No. 12 Civ. 1312 (ER), 2013

U.S. Dist. LEXIS 61710, 2013 WL 1809772, at *3 (S.D.N.Y.

Apr. 30, 2013) (quoting Arista Records, LLC v. Doe 3, 604

F.3d 110, 120 (2d Cir. 2010)); Prince v. Madison Square

46a

Appendix B

Garden, 427 F. Supp. 2d 372, 384 (S.D.N.Y. 2006); Williams

v. Calderoni, 11 Civ. 3020 (CM), 2012 U.S. Dist. LEXIS

28723, 2012 WL 691832, at *7 (S.D.N.Y. Mar. 1, 2012)). The

pleadings, however, “must contain something more than

. . . a statement of facts that merely creates a suspicion [of]

a legally cognizable right of action.” Twombly, 550 U.S. at

555 (citation and internal quotation omitted).

Defendants’ Motion To Dismiss Plaintiffs’ FAC Is

Granted In Part And Denied In Part

To state a claim under 42 U.S.C. § 1983, a plaintiff must

show that “(1) the challenged conduct was attributable at

least in part to a person who was acting under color of

state law and (2) the conduct deprived the plaintiff of a

right guaranteed under the Constitution of the United

States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

For each respective alleged offense, Defendants were

plausibly acting under color of state law. Plaintiffs claim

that Defendants are liable under Section 1983 for First,

Fourth, and Fourteenth Amendment violations, and

municipal liability under Monell v. Dep’t of Soc. Servs. of

the City of N.Y., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed.

2d 611 (1978). Plaintiffs also allege violations of state and

common law. Claims are addressed by FAC count below.

i.

Unreasonable Seizure and Excessive Force

Claims Under The Fourth and Fourteenth

Amendment (Count One)

Plaintiffs allege that Defendants Maguire and

Poletto’s use of the 100X violated Plaintiffs’ Fourth and

47a

Appendix B

Fourteenth Amendment rights, specifically by causing an

unlawful seizure of Plaintiffs’ persons and by Defendants’

use of excessive force against Plaintiffs. (FAC ¶¶ 383-90) .

A person has been “seized” within the meaning of the

Fourth Amendment when an “officer, by means of physical

force or show of authority, . . . in some way restrain[s] the

liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16,

88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Put another way,

an encounter between a police officer and an individual

“constitutes a ‘seizure’ for the purposes of the Fourth

Amendment . . . ‘if, in view of all the circumstances

surrounding the incident, a reasonable person would

have believed that he was not free to leave.’” Sheppard v.

Beerman, 18 F.3d 147, 153 (2d Cir. 1994) (quoting United

States v. Mendenhall, 446 U.S. 544, 544, 100 S. Ct. 1870,

64 L. Ed. 2d 497 (1980)); see also Salmon v. Blesser, 802

F.3d 249, 253 & n.3 (2d Cir. 2015) (observing that the

inquiry could also be framed as whether “a reasonable

person would feel free to . . . otherwise terminate the

encounter,” but noting that ‘departure is the most obvious

way’ to terminate encounters” (citations omitted)).

Outside of an unlawful seizure, a plaintiff can still

try to state a Section 1983 claim of excessive force under

the Fourteenth Amendment’s Due Process Clause.

Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998); see

also Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir.

1998) (“Plaintiffs do not assert that they were arrested

or seized, and therefore these [Section 1983] claims

fall outside the Fourth Amendment protections . . . and

are governed instead by the Due Process Clause of the

48a

Appendix B

Fourteenth Amendment.”) To determine whether an

action is unconstitutionally excessive force, a four-part

test is used: “[1] the need for the application of force,

[2] the relationship between the need and the amount of

force that was used, [3] the extent of injury inflicted, and

[4] whether force was applied in a good faith effort

to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.” Tierney,

133 F.3d at 199 (quoting Johnson v. Glick, 481 F.2d 1028,

1033 (2d Cir. 1973)) (alteration in original). Excessive

force claims must show “conscience-shocking” action by a

government actor. Johnson v. Newburgh Enlarged School

Dist., 239 F.3d 246, 252 (2d Cir. 2001). Where an officer’s

use of force was “de minimis, necessary, appropriate, and

benign,” a claim of excessive force under the Fourteenth

Amendment should not stand. Id. However, the “‘[r]ules of

due process are not . . . subject to mechanical application,’”

and “var[y] according to the different environments in

which the alleged excessive force occurs.” Ali v. Szabo,

81 F. Supp. 2d 447, 455 (S.D.N.Y. 2000) (quoting Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 848, 118 S. Ct. 1708,

140 L. Ed. 2d 1043 (1998)).

Under the allegations put forward by Plaintiffs, their

Fourth Amendment claims cannot survive. Plaintiffs

allege that the blocking the 57th Street roadway by

Defendants Maguire and Poletto while firing the X100’s

amplified sound at Plaintiffs resulted in Plaintiffs’

“seizure” because the officers’ actions forced Plaintiffs to

move from where they were. (Opp. Mem. at 7; FAC ¶ 121.)

This claim fails for several reasons.

49a

Appendix B

An officer’s request to leave an area, even with use

of force, is not a seizure unless “accompanied by the use

of sufficient force intentionally to restrain a person and

gain control of his movements.” Salmon, 802 F.3d at 255

(reversing dismissal of seizure claim when officer ejected

plaintiff from courthouse by grabbing plaintiff’s collar and

“violently” twisting plaintiff’s arm). While exposed to the

X100, none of the Plaintiffs have plausibly alleged that

their movements were restrained. Rather, Plaintiffs state

that while the X100 was used by Defendants Maguire and

Poletto, each Plaintiff moved around the Protest area or

left the vicinity of the X100 as each desired, generally to

escape the noise. (See FAC ¶ 164, 220, 223, 268, 272, 308,

337-38, 364, 366.) Other than being requested to leave the

street and inclined to leave the Protest intersection by the

noise, the Plaintiffs have not alleged they were not “free to

go anywhere else that [they] desired.” Sheppard, 18 F.3d

at 153 (rejecting Fourth Amendment seizure claim when

plaintiff was required to leave a courthouse at officer’s

command). Under the FAC, it cannot be plausibly argued

that Defendants Maguire and Poletto “gain[ed] control” of

Plaintiffs’ moments. Salmon, 802 F.3d at 255. Therefore,

Plaintiffs’ unreasonable seizure claim is dismissed.

With regard to their excessive force claim under the

Fourteenth Amendment, however, Plaintiffs have put

forward a cognizable claim. As a preliminary matter,

Defendants contest whether the use of the X100 and

amplified sound can constitute force. (Supp. Mem. at 12

& n.7.) The parties have not provided, and the Court has

been unable to locate, case law addressing LRAD-type

devices and the use of high-volume sound alone by the

50a

Appendix B

police. In support of their position, however, Defendants

point to two New York Supreme Court cases which stand

for the proposition that “sound is not a substance but a

physical phenomenon.” Martzloff v. City of New York, 238

A.D.2d 115, 117, 655 N.Y.S.2d 43 (N.Y. App. Div. 1st Dep’t

1997); see also Casson v. City of New York, 269 A.D.2d

285, 286, 703 N.Y.S.2d 134 (N.Y. App. Div. 1st Dep’t 2000)

(applying Martzloff ). These cases neither bind this Court

nor are persuasive. They discuss sound in application

to New York Civil Law Section 214-c, New York State’s

statute of limitations rules for personal injury claims

arising from exposure to harmful substances. See N.Y.

C.P.L.R. § 214-c. In rejecting sound in this context, the

Martzloff court reasoned that, “All cases within the ambit

of CPLR 214-c involve the ingestion of a substance,” and

therefore sound would not apply. Martzloff, 238 A.D.2d

at 117. Whether sound can be ingested is a narrower,

substantively different question than whether sound can

be used as a force.

The use of the X100 as a projector of powerfully

amplified sound is no different than other tools in law

enforcement’s arsenal that have the potential to be used

either safely or harmfully, one example being distraction

devices—items like stun grenade, flash bang, or concussion

grenades—which “detonate with a blinding flash of light

and a deafening explosion” and whose purpose is to be

“extremely loud” and distracting. Terebesi v. Torreso, 764

F.3d 217, 236 (2d Cir. 2014). “When used properly [these

tools] cause minimal damage,” but some courts have held

their usage “to be excessive force where the police used

clear disregard for the safety of [those in the vicinity].”

51a

Appendix B

Ramage v. Louisvile/Jefferson Cnty. Metro Gov’t, 520 Fed.

App’x 341, 346-47 (6th Cir. 2013) (citing cases). Although

distraction devices have the potential to be more harmful

than LRAD devices because of injury from explosion,

both tools can result in comparable bodily injury if used

improperly. Compare Bantum v. City of N.Y., No. 97 Civ.

4221, 2001 U.S. Dist. LEXIS 8381, 2001 WL 705889, at

*1 (S.D.N.Y. June 21, 2001) (plaintiff alleged that police’s

use of a distraction device “caused him to suffer a broken

eardrum and emotional trauma”), with (FAC ¶ 30 (noting

that loud sounds “have the potential to cause significant

harm to the eardrums and delicate organs of the ears”)).

This is force, and the kind which could be used excessively.

Construed most favorably to the Plaintiffs, their

alleged injuries go beyond the de minimis threshold. As

a result of exposure to the X100’s sound, Plaintiffs allege

acute head pain and hearing loss for differing periods

of time following the Protest. (FAC ¶¶ 168, 175, 194,

232, 273-75, 313-15, 345, 367-70.) Plaintiff Appel states

that doctors found that the noise from the X100 caused

bones to move in his ear, damaging a nerve. (FAC ¶ 372.)

Defendants point to Plaintiffs’ video evidence to show

that while the X100 was in use, protestors are visible not

exhibiting signs of pain from the noise. (Supp. Mem. at

9.) While suggestive evidence to the contrary, the angles

and nature of the video make details difficult to discern

absolutely. It is reasonably plausible that the video, which

is frenetic in style and does not stay on any one protester

for an extended period of time, does not rebut the claim

that Plaintiffs, if situated where and when they claimed to

have been in relation to the X100, sustained their alleged

injuries. (See Garman Decl. Ex. C.)

52a

Appendix B

Furthermore, based on the written allegations and

video evidence, it can be plausibly inferred that the use

of a high-powered sound magnifier in “close proximity” to

Plaintiffs was not appropriate. United States v. Morris,

349 F.3d 1009, 1012 (7th Cir. 2003) (discussing the dangers

and limited reasonable contexts for using flash-bang

devices). The Protest involved large numbers of people,

and so it is understandable that the officers would want to

increase the volume of their message to reach the largest

number of people. (See Garman Decl. Ex. C at 00:14-01:24;

FAC ¶ 261, 300.) However, the allegations and video make

the Protest appear broadly in control, even when glass

bottles were thrown from the crowd toward the police.

(See German Decl. Ex. C at 1:24-1:35; FAC ¶¶ 115, 149,

212, 262, 358.) Under these circumstances, it is reasonably

plausible that there was disconnect between Defendants

Maguire and Poletto’s need to use a powerfully loud

device like the X100 “indiscriminately,” (FAC ¶ 225),

“almost continuously,” (FAC ¶ 338), and within ten feet

of Plaintiffs, (FAC ¶ 131), and the harm alleged to be

resultant from its use to those in close proximity.

Defendants respond that even if the X100 was

unnecessary and injurious, Plaintiffs’ allegations do not

demonstrate that Defendants Maguire and Poletto’s

actions rose to the level of malice or sadism to amount to

excessive force claim because the officers are alleged to

be requesting that those attending the Protest leave the

street. (Supp. Mem. at 10-11.) Based on the allegations,

crowd control was part of officers’ objectives. However,

Plaintiffs have also alleged that the X100 was used by

Defendants Maguire and Poletto by deliberately pointing

53a

Appendix B

and angling it at Plaintiffs and others during the protest

(FAC ¶¶ 131, 229.) Viewed in the light most favorable to

Plaintiffs, Plaintiffs’ allegations about the manner in

which the X100 was used, that Defendants Maguire and

Poletto knew, or should have known, that Plaintiffs would

be harmed, “plausibly suggesting a claim for excessive

force.” Coleman v. City of Syracuse, No. 09 Civ. 1391

(GTS) (GHL), 2011 U.S. Dist. LEXIS 456, 2011 WL 13808,

at *4 (N.D.N.Y. Jan. 4, 2011) (denying motion to dismiss

for Fourteenth Amendment excessive force claim when

plaintiff alleged defendant police officer’s “unjustified”

strike on plaintiff’s person resulted in bone fractures).

Defendants’ qualified immunity defense at the motion

to dismiss stage is unavailing. A defendant is entitled to

qualified immunity “if either (1) his actions did not violate

clearly established law or (2) it was objectively reasonable

for him to believe that his actions did not violate clearly

established law.” Iqbal v. Hasty, 490 F.3d 143, 152 (2d

Cir. 2007). “A right is clearly established if (1) the law is

defined with reasonable clarity, (2) the Supreme Court

or the Second Circuit has recognized the right, and (3) a

reasonable defendant [would] have understood from the

existing law that [his] conduct was unlawful.” Anderson

v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (alterations in

original) (internal quotation marks and citation omitted).

However, “[u]sually, the defense of qualified immunity

cannot support the grant of a [Rule] 12(b) (6) motion.”

McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004)

(quoting Green v. Maraio, 722 F.3d 1013, 1018 (2d Cir.

1983)). At this stage, “[n]ot only must the facts supporting

the defense appear on the face of the complaint, but, as

54a

Appendix B

with all Rule 12(b)(6) motions, . . . the plaintiff is entitled

to all reasonable inferences from the facts alleged, not only

those that support his claim, but also those that defeat the

immunity defense.” Id. at 436.

Defendants argue that the unconstitutionality of

the officers’ actions, specifically that amplified noise can

constitute unconstitutional force, was not established at

the Protest, entitling them to qualified immunity. (Supp.

Mem. at 12-14.) While there is little case law discussing the

precise issues present in the instant complaint, “officials

can still be on notice that their conduct violates established

law even in novel factual circumstances.” Hope v. Pelzer,

536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002).

As discussed above, while LRADs might be new police

device developments, there is much case law discussing

the need for careful, vicinity-specific considerations when

using tools like distraction devices. These “analogous

cases” could have informed the officers that their actions,

if as Plaintiffs allege, were unreasonable. Negron v. City of

N.Y., 976 F. Supp. 2d 360, 370-71 (E.D.N.Y. 2013) (quoting

Landis v. Baker, 297 Fed. App’x 453, 463 (6th Cir. 2008)).

As it is not “beyond doubt” that Plaintiffs “can prove

no set of facts in support of [their] claim,” dismissing

Plaintiffs’ claim on the grounds of qualified immunity at

this time would be inappropriate. McKenna, 386 F.3d at

436 (quoting Citibank, N.A. v. K-H Corp., 968 F.2d 1489,

1494 (2d Cir. 1992)).

Accordingly, to the extent that Plaintiffs’ claim is

premised on a Fourteenth Amendment excessive force

violation, Defendants’ motion to dismiss Count One of the

FAC is denied.

55a

Appendix B

ii.

First Amendment Violation Claims (Count

Two)

Plaintiffs have alleged that Defendants’ use of the X100

violated their First Amendment right to assemble and

express protected speech. Specifically, Plaintiffs’ allege

that Defendants’ actions were a retaliation in response to

Plaintiffs’ exercise of free speech, which has consequently

chilled Plaintiffs’ speech, and that Defendants Maguire

and Poletto’s use of the X100 was a dispersal order that

impermissibly regulated Plaintiff’s speech because it

was either not content-neutral or insufficiently narrowlytailored. (See FAC ¶¶ 399-408.)

“To plead a First Amendment retaliation claim a

plaintiff must show: (1) he has a right protected by the First

Amendment; (2) the defendant’s actions were motivated

or substantially caused by his exercise of that right; and

(3) the defendant’s actions caused him some injury.”

Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013)

(citing Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.

2001)); see also Higginbotham v. City of N.Y., 105 F. Supp.

3d 369, 378 (S.D.N.Y. 2015). Police dispersal orders where

“political speech [becomes] unconditionally silenced”

requires analysis under the “clear and present danger

standard.” Wiles v. City of N.Y., No. 13 Civ. 2898 (TPG),

2016 U.S. Dist. LEXIS 148024, 2016 WL 6238609, at *5

(S.D.N.Y. Oct. 25, 2016) (citing Cantwell v. Connecticut,

310 U.S. 296, 308, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)). If,

however, a dispersal order made during a demonstration

only relocates demonstrators, the Second Circuit instructs

courts to review those actions like a “time, place, and

56a

Appendix B

manner [regulation] restriction on speech.” Id., 2016 U.S.

Dist. LEXIS 148024, [WL], at *5 & n.1 (citing Zalaski

v. City of Hartford, 723 F.3d 382, 388 (2d Cir. 2013)).

Time, place, and manner restrictions are permissible if

they “(1) are justified without reference to the content of

the regulated speech, (2) are narrowly tailored to serve

a significant governmental interest, and (3) leave open

ample, alternative channels for communication of the

information.” Marcavage v. City of N.Y., 689 F.3d 98, 104

(2d Cir. 2012).

Defendants argue that several Plaintiffs are not

entitled to First Amendment protection because they

were only present at the protest to document it rather

than protest, which Defendants argue falls outside the

realm of protected political speech. (Supp. Mem. at 6 n.7;

see FAC ¶¶ 139, 202, 288.) The Court need not parse which

Plaintiffs may or may not have been be entitled to speech

protection while at the Protest because even if they were

all present to protest, Plaintiffs have still failed to state

First Amendment violations claims.

With regard to the retaliation claim, Plaintiffs have

not plausibly pled that Defendants’ actions were motivated

by the content of Plaintiffs’ speech. Rather, Plaintiffs

state that Defendants used the X100 to instruct Plaintiffs

and others at the Protest to “get or stay on the sidewalk

and out of the street” in the midst of an increasingly

confrontational, though not yet uncontrollable, period.

(FAC ¶ 122; see supra at 16-17.) This is a reasonable

motivation: States have “a strong interest in ensuring

the public safety and order” and “in promoting the free

57a

Appendix B

flow of traffic on public streets and sidewalks.” Madsen

v. Women’s Health Ctr., Inc., 512 U.S. 753, 768, 114 S. Ct.

2516, 129 L. Ed. 2d 593 (1994). In addition, Plaintiffs have

failed to alleged plausible facts to show that Defendants

Maguire and Poletto’s use of the X100 was based on

Plaintiffs’ exercise of free speech. 3

Plaintiffs’ claim as to the dispel order similarly

fails. First, “the clear and present danger standard” is

inappropriate here, as Plaintiffs’ FAC pleads only that the

officers were trying to move the people onto the sidewalk,

not end the demonstration in full. Thus, to the extent

that Defendants’ use of the X100 constitutes a dispel

order, the actions are properly analyzed as a time, place,

manner restriction. Under that metric, the claim first

fails because the officers left open an adequate alternative

location within “close proximity” to the original location

in the street: the sidewalk. Wiles, 2016 U.S. Dist. LEXIS

148024, 2016 WL 6238609, at *5 (accepting a park a few

blocks away from the current protest area as sufficiently

proximate). The State has a strong interest in permitting

free flowing traffic on public streets and sidewalks, “which

is sufficient to justify a narrowly tailored injunction.”

Id. And as already discussed, there are no plausible

3. The one exception is Plaintiff Horse’s claim that

Defendants Maguire and Poletto targeted him due to a “critical

comment” Horse made towards them. (FAC ¶ 228.) Given the

context of the officer’s actions and their use of the X100 directed

at all surrounding protestors and demonstration attendees,

even Plaintiff Horse’s claim does not “plausibly establish” that

Defendants’ actions were inspired by his shout. Iqbal, 556 U.S.

at 681.

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allegations that Defendants Maguire and Poletto used the

X100 because of the content of any speech by Plaintiffs.

Accordingly, Defendants’ motion to dismiss Count

Two of the FAC is granted.

iii. Equal Protection And Substantive Due Process

Violation Claims Under The Fourteenth

Amendment (Count Three)

Plaintiffs allege that Defendants violated their rights

to equal protection and substantive due process under

the Fourteenth Amendment. (FAC ¶¶ 409-411.) With

regard to their substantive due process claim, Plaintiffs

specifically contend that Defendants’ actions violated

their constitutionally protected “right to remain” and

“right to travel” and that Defendants’ actions “shocked

the conscious.” (Opp. Mem. at 12-13.) None of these claims

can survive.

The Plaintiffs’ additional substantive due process

claim fails. A police officer requesting that protestors

move from the street to the sidewalk is in furtherance

of a reasonable State interest and is the kind of “minor

restriction[] on travel [that] simply do[es] not amount to the

denial of a fundamental right.” Selevan v. N.Y. Thruway

Auth., 711 F.3d 253, 257 (2d Cir. 2013). The Court has

already addressed Plaintiffs’ excessive force claim as part

of the FAC’s Count One. See Section (i) supra.

Plaintiffs’ equal protection claim is insufficiently pled.

A plaintiff can maintain an equal protection claim “so

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long as he establishes that he was treated differently than

similarly situated persons and that the unequal treatment

he received was motivated by personal animus.” Jackson

v. Roslyn Bd. of Educ., 438 F. Supp. 2d 49, 55 (E.D.N.Y.

2006) (citing Harlen Assocs. v. Inc. Village of Mineola,

273 F.3d 494, 500 (2d Cir. 2001)); see also Brown v. City

of Oneonta, N.Y., 221 F.3d 329, 337 (2d Cir. 2000) (“The

Equal Protection Clause ‘is essentially a direction that

all persons similarly situated should be treated alike.’”

(citation omitted)). Plaintiffs’ FAC fails to plausibly

allege that Plaintiffs were treated any differently than

any other persons present at the protest. Instead, as

Defendants note, the FAC repeatedly alleges the opposite:

that the Defendants Maguire and Poletto used the 100X

“indiscriminately,” (FAC ¶ 225), and against “all people

in the area,” (FAC ¶ 396; see also FAC ¶¶ 120, 406).

Accordingly, Defendants’ motion to dismiss Count

Three of the FAC is granted.

iv.

Municipal Liability Claims (Count Four)

Plaintiffs also bring claims against Defendants

alleging that (1) Defendants Maguire and Poletto

possessed final authority to enact policies that caused their

alleged constitutional violations, which were later ratified

by Defendant Bratton and (2) that Defendant NYC failed

to enact proper policies, supervision, and training, which

resulted in the violation of Plaintiffs’ constitutional rights.4

4. Although Plaintiffs state in their reply papers that they

have “sufficient allege[d] municipal liability based on each of four

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Appendix B

(FAC ¶¶ 412-22; see Opp. Mem. at 23-25 & n.61.) See also

Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S.

658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

To hold a municipal entity liable under Section 1983, a

plaintiff must plead and prove that his constitutional rights

were violated, that the alleged actions by the employees

were the result of an official policy, custom, or practice

of the municipal defendant, and that the policy, custom,

or practice caused the plaintiff’s alleged injuries. City

of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197,

103 L. Ed. 2d 412 (1989); Monell, 436 U.S. at 690-95. A

plaintiff may satisfy Monell’s “policy, custom or practice”

requirement in one of four ways. See Moray v. City of

Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996). The plaintiff

may allege the existence of: “(1) a formal policy which is

officially endorsed by the municipality; (2) actions taken

or decisions made by government officials responsible for

familiar theories of Monell liability,” (Opp. Mem. at 23), their

reply papers only discuss the second and fourth Monell theories,

(see Opp. Mem. at 23-26). To the extent that Plaintiffs alleges

the remaining Monell theories, they are not plausibly plead. For

the first theory, Plaintiffs only provide a conclusory allegation

that Defendants Bratton and NYC “developed, adopted, and/

or endorsed formal policies” with regard to LRAD use, (FAC

¶ 419), which cannot be reasonably pled while alleging that the

NYPD did not appear to have any policies regarding LRAD use

through Fall 2012 and without any additional facts alleged, (see

FAC ¶ 106). For the third theory, Plaintiffs have alleged that the

NYPD only started using LRADs at protests with any regularity

shortly before the Protest, making it implausible to sustain a claim

based on a “persistent and widespread” practice of LRAD abuse.

(See FAC ¶ 71.)

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establishing municipal policies which caused the alleged

violation of the plaintiff’s civil rights; (3) a practice so

persistent and widespread that it constitutes a ‘custom or

usage’ and implies the constructive knowledge of policymaking officials; or (4) a failure by official policy-makers

to properly train or supervise subordinates to such an

extent that it amounts to deliberate indifference to the

rights of those with whom municipal employees will

come into contact.” Moray, 924 F. Supp. at 12 (internal

citations and quotation marks omitted). Proof of a single

incident of unconstitutional activity is usually insufficient

to demonstrate the existence of a policy, unless “the

unconstitutional consequences of failing to train could

be so patently obvious that a city should be liable under

[Section] 1983” and that violation of constitutional rights

must be a “highly predictable consequence” of the failure

to train. Connick, 563 U.S. at 63-64.

Under the second theory of Monell liability, the

complaint must contain allegations that the defendantofficial had final policy making authority in order to

subject the municipality to liability. See Schwab v. Smalls,

435 F. App’x 37, 40 (2d Cir. 2011) (affirming the district

court’s dismissal of a Section 1983 claim where the

complaint contained little more than a “vague assertion”

that defendants had final policymaking authority). It is

ultimately the plaintiff’s burden to establish, as a matter

of law, “that [an] official had final policymaking authority

in the particular area involved . . . . It does not suffice

for these purposes that the official has been granted

discretion in the performance of his duties. Only those

municipal officials who have final policymaking authority

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may by their actions subject the government to [Section]

1983 liability.” Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.

2000) (internal quotations and citations omitted).

Under the fourth theory of Monell liability, a plaintiff

can establish deliberate indifference by demonstrating

that: “(1) a policymaker knows to a moral certainty that

her employees will confront a given situation; (2) the

situation either presents the employee with a difficult

choice of the sort that training . . . will make less difficult

or that there is a history of employees mishandling the

situation; and (3) the wrong choice by the city employee

will frequently cause the deprivation of a citizen’s

constitutional rights.” Chamberlain v. City of White

Plains, 986 F. Supp. 2d 363, 391 (S.D.N.Y. 2013) (quoting

Walker v. City of N.Y., 974 F.2d 293, 297-98 (2d Cir. 1992))

(internal quotation marks omitted). “[D]emonstration of

deliberate indifference requires a showing that the official

made a conscious choice, and was not merely negligent.”

Id. (quoting Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d

Cir. 2012)). The failure to train municipal employees may

constitute an actionable policy, but only when a plaintiff

can “identify a specific deficiency in the city’s training

program and establish that that deficiency is ‘closely

related to the ultimate injury,’ such that it ‘actually caused’

the constitutional deprivation.” Amnesty Am. v. Town

of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (citation

omitted).

Plaintiffs have not plausibly pled liability under

Monell’s second theory. Plaintiffs allege that Defendants

Maguire and Poletto were authorized to make final policy

with respect to LRAD use because they did not consult

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supervisors or obtain permission before using the LRAD,

(see FAC ¶¶ 426-28), and that their policy was later ratified

by Defendant Bratton, (FAC I 424). As the Second Circuit

has stated, just because an officer has “discretion to

determine how to handle the particular situation” does not

make that person a final decision-maker. Anthony v. City

of N.Y., 339 F.3d 129, 139 (2d Cir. 2003) (finding a police

sergeant not a final decision-maker). Police officers using

equipment as part of their day-to-day operations cannot

reasonably be argued to be “responsible under state

law for making policy in that area of the [municipality’s]

business.” Jeffes, 208 F.3d at 57 (quoting City of St. Louis

v. Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915, 99 L. Ed.

2d 107 (1988)). Furthermore, with regard to allegations

of Defendant Bratton’s ratification, “[t]he one-off instance

of ‘ratification and approval’ asserted in the complaint

. . . does not support ‘an inference of an unlawful municipal

policy of ratification of unconstitutional conduct within the

meaning of Monell.’” Waller v. City of Middletown, 89 F.

Supp. 3d 279, 287 n.3 (D. Conn. 2015) (quoting Batista v.

Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).

As for Monell’s fourth theory of liability, Defendants

argue Plaintiffs have not plausibly alleged that Defendant

NYC was on notice as to an omission in their training

program with regard to LRAD devices. (See Supp.

Mem. at 23-24.) Assuming the allegations to be true and

in the light most favorable to the Plaintiffs, the FAC

puts forward plausible claims that, by the night of the

Protest, Defendant NYC knew that police officers were

using LRAD devices as part of protest, (FAC ¶¶ 70-71),

had considered the LRAD devices’ noise-magnifying

capacities important enough to study, (FAC ¶ 73-77), was

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aware of the devices’ noise-magnifying hazards5, (see FAC

¶ 75), and did not change NYPD policies or practices to

discuss the proper usage of LRAD devices in the field, (see

FAC ¶¶ 97, 99-103).6 The Chamberlain court’s reasoning in

allowing a Monell liability claim against the City of White

Plain for failing to train police officers on how to deal

with emotionally disturbed persons (“EDPs”) to survive

a motion to dismiss is instructive here:

The Amended Complaint essentially asserts

that WPPD officials knew to a “moral certainty,”

Walker, 974 F.2d at 297, that [White Plains

police] officers would encounter EDPs in the

course of their duties . . . . Furthermore, given

the extreme volatility of such individuals and

the need for caution when dealing with them to

prevent unnecessary escalation, it is plausible

that interactions with EDPs present officers

with “difficult choice[s] of the sort that training

. . . will make less difficult,” Walker, 974 F.2d at

5. Defendants argue that the tests performed by the

NYPD were for the Model 3300, not the X100, and are therefore

“completely irrelevant.” (Supp. Mem. at 25.) While the precise

readings from the tests to not speak to the exact impact of the

X100 on a listener, the tests demonstrate the range of power of

the new LRAD tools and the plausibly pled need for training on

LRAD equipment generally.

6. Defendants point to the NYPD’s Patrol Guide at proof of

training, which Plaintiffs allege included instructions to police

officers to use “the minimal necessary force” while on patrol.

(Reply Mem. at 11; FAC ¶ 393.) That is not substantively sufficient

guidance to ensure that officers know how to safely and effectively

use potentially hazard equipment like LRAD devices.

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