Deegan v. City of Ithaca
| Citation | 444 F.3d 135 |
| Decision Date | 06 April 2006 |
| Docket Number | Docket No. 04-4708 CV. |
| Parties | Kevin DEEGAN, Plaintiff-Appellant, v. CITY OF ITHACA, Mariette Geldenhuys, in Her Official Capacity as City Attorney of the City of Ithaca, and Richard Basile, in His Official Capacity as Chief of Police of the City of Ithaca, Defendants-Appellees, |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Nathan W. Kellum, Alliance Defense Fund, Memphis, Tennessee, for Plaintiff-Appellant.
Timothy J. Perry, Sugarman Law Firm, Syracuse, New York, for Defendants-Appellees.
Before: WESLEY and HALL, Circuit Judges, SCULLIN, District Judge.*
Plaintiff-Appellant Kevin Deegan commenced this action, pursuant to 42 U.S.C. §§ 1983 & 1988, seeking damages as well as declaratory and injunctive relief against the City of Ithaca, New York, the City Attorney Marriette Geldenhuys, and the Chief of Police Richard Basile (collectively, "Defendants"). Deegan alleged that his First and Fourteenth Amendment rights were violated when he was prevented, under the purported authority of municipal noise ordinances, from preaching in Ithaca Commons. Following discovery, the District Court entertained cross motions for summary judgment and resolved the case on a record consisting of facts stipulated by the parties and the testimony of Deegan's noise expert. The District Court granted Defendants' motion and dismissed the complaint.
We find that the challenged noise ordinances, as interpreted, construed, and enforced by Defendants against Deegan cannot withstand constitutional scrutiny. Therefore, we remand the case to the District Court with instructions to enter judgment in favor of Deegan and award him appropriate relief.
Plaintiff Kevin Deegan, a resident of West Seneca, New York, believes that he has a duty as a Christian to preach, and he has carried out that tenet of his faith for more than twenty years by speaking in raised voice to passers-by in public areas such as parks, malls, streets and sidewalks. In Deegan's view, that method of communication enables him to reach as many people as possible and stimulate dialogue about his religious beliefs. With that purpose, Deegan and three of his colleagues visited Ithaca Commons on October 9, 1999.
Ithaca Commons is a two block, "T" shaped public pedestrian mall located in downtown Ithaca with walkways, benches, a playground, storefront businesses, restaurants, several pavilions, and a water fountain with nearby seating. In addition to attracting patrons to the many businesses located on the Commons, the area serves as a general gathering place and a popular "hang out" for students from nearby colleges. Musicians and other entertainers perform regularly in the Commons, which is also the site of numerous community events, such as the Downtown Ithaca Chili Cookoff and Winterfest, Ithaca Festival Craft Show, M & T Bank Summer Concert Series, and the Apple Harvest Festival, which draw thousands of visitors and feature exhibitions, concerts, poetry readings, and dance, among other things. It has also been a forum for demonstrations and protests highlighted by speeches, music performances, marches, and open discussion concerning a variety of issues including nuclear weapons, environmental protection, animal rights, gay and lesbian rights, and campaign finance reform.
Shortly after Deegan and his colleagues positioned themselves in the middle of the "T" and began preaching, Deegan was approached by an Ithaca police officer who was responding to a noise complaint lodged by an employee of a nearby business; no one else complained about Deegan's preaching. The officer did not interview the complainant or other witnesses; rather, upon hearing Deegan and his companions, the officer advised him that their speech violated the Ithaca noise ordinance because it could be heard from 25 feet away in the Ithaca Commons area and further advised him to keep the volume of his speech lower. When Deegan asked whether he could relocate to a street corner outside of the Commons, the officer informed him that the ordinance applies anywhere in the city. At Deegan's request, the officer left to get a copy of the ordinance.
While the officer was away, Deegan heard a singing group 200 feet from his location and heard people talking who were more than 25 feet from him; they were left undisturbed and there is nothing in the record regarding complaints about other people. Although Deegan attempted to speak more softly, when the officer returned ten minutes after departing, he told Deegan that even the lower volume violated the ordinance. The officer provided Deegan with a copy of the Ithaca noise ordinance. After reviewing the statute, Deegan voiced disagreement that its provisions required him to speak so low as not to be heard 25 feet away, but the officer informed him that he had to keep his voice at that level or face arrest. The officer described Deegan as delivering his speech "persistently and continuously" and speaking at the "top of his lungs." Deegan chose not to communicate his message by speaking in a volume that carried no more than 25 feet or by circulating brochures, and he did not seek a permit to use amplified sound. Concluding that he could not communicate effectively and also comply with the ordinance, Deegan left Ithaca on October 9, 1999, never to return to preach because his subsequent request for permission to speak in a voice that is audible at a distance of more than 25 feet was denied by Defendants.
Section 240-4 of the City of Ithaca Municipal Code provides in relevant part:
§ 240-4. Unreasonable noise prohibited.
A. No person shall intentionally cause public inconvenience, annoyance or alarm or recklessly create a risk thereof by making unreasonable noise or by causing unreasonable noise to be made.
B. For the purpose of implementing and enforcing the standard set forth in Subsection A of this section, "unreasonable noise" shall mean any sound created or caused to be created by any person which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of the public or which causes injury to animal life or damages to property or business. Factors to be considered in determining whether unreasonable noise exists in a given situation include but are not limited to any or all of the following:
(1) The intensity of the noise.
(2) Whether the nature of the noise is usual or unusual.
(3) Whether the origin of the noise is associated with nature or humanmade activity.
(4) The intensity of the background noise, if any.
(5) The proximity of the noise to sleeping facilities.
(6) The nature and the zoning district of the area within which the noise emanates and of the area within 500 feet of the source of the sound.
(7) The time of the day or night the noise occurs.
(8) The time duration of the noise.
(9) Whether the sound source is temporary.
(10) Whether the noise is continuous or impulsive.
(11) The volume of the noise.
(12) The existence of complaints concerning the noise from persons living or working in different places or premises who are affected by the noise.
Municipal Code of the City of Ithaca, New York § 2404 (the "Noise Ordinance"). Joint Stipulation ¶ 34. Ithaca Commons also has an ordinance regulating amplified sound, which provides in relevant part as follows:
§ 157-18. Amplified sound.
A. Except by special permit ... no person shall operate or cause to be operated on Ithaca Commons any boom box, tape recorder, radio or other device for electronic sound amplification in a loud, annoying or offensive manner such that noise from the device interferes with conversation or with the comfort, repose, health or safety of others within any building or at a distance of 25 feet or greater.
Municipal Code of the City of Ithaca, New York § 157-18 (the "Sound Amplification Rule"). Joint Stipulation ¶ 35. There is nothing in the Joint Stipulation to suggest that Deegan was provided with a copy of Section 157-18 on October 9, 1999. With respect to the enforcement of the two noise ordinances, the parties stipulated that Defendants prohibit any noise that can be heard 25 feet away. Id. at ¶ 36.
Deegan commenced this civil rights action on October 6, 2000. He asserted a single cause of action under the First and Fourteenth Amendments alleging violations of his rights to freedoms of association and assembly, free exercise of religion and equal protection. Following discovery, the District Court denied the parties' cross motions for summary judgment.
Thereafter, the parties stipulated that the foregoing facts and the testimony of Deegan's noise expert would constitute the entire trial record upon which the District Court would dispose of the case. Deegan v. City of Ithaca, No. 5:00-CV-1531, 2004 WL 1784347, *3 (N.D.N.Y. Aug.10, 2004). The District Judge qualified Thomas S. Katra as an expert in noise and noise measurement and adopted Katra's factual findings as follows:
[T]he Court finds that Katra made his measurements in February at the same place and time of day as the October 9, 1999 incident in issue; that 56 decibels was the maximum noise level at which a person could speak and still be in compliance with the ordinance 50 percent of the time; that this decibel level is lower than that generated by the clicking of high-heeled boots, conversations between two or three people, a shop door opening and closing, a small child playing on a playground and a cellular telephone; that most normal human activity would be clearly audible at a distance of 25 feet; and that a spirited conversation between two people would be clearly audible at a distance of 25 feet. The Court further finds that there is no evidence regarding how many people were in "close proximity" (six to eight feet) of plaintiff while he was preaching; that Katra did not measure the decibel level of plaintiff's preaching; that the duration of a...
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