Costello v. City of Burlington

• Decision Date: 14 February 2011
• Docket Number: Docket No. 08–0551–cv.
• Citation: 632 F.3d 41
• Parties: William Ray COSTELLO, Plaintiff–Appellant,v.CITY OF BURLINGTON, Burlington Police Department, Gene Burgman, Tom Trembly, Bill Ward, John Lewis, and Ene Evaluator, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

632 F.3d 41

William Ray COSTELLO, Plaintiff–Appellant,

v.CITY OF BURLINGTON, Burlington Police Department, Gene Burgman, Tom Trembly, Bill Ward, John Lewis, and Ene Evaluator, Defendants–Appellees.

Docket No. 08–0551–cv.

United States Court of Appeals, Second Circuit.

Argued on: July 6, 2009.Decided: Feb. 14, 2011.

William Ray Costello, Milton, VT, pro se.Pietro J. Lynn, Lynn, Lynn & Blackman, P.C., Burlington, VT, for Appellees.Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.The Opinion of the Court is filed by Chief Judge JACOBS.Judge CALABRESI concurs in Parts I and III, and concurs in Part II to the extent indicated in his concurring opinion.Judge POOLER concurs in the judgment and in Part III in a concurring opinion.DENNIS JACOBS, Chief Judge:

Plaintiff William Ray Costello, pro se, alleged that his First Amendment right to free speech was violated when Defendant Sgt. John Lewis of the Burlington Police Department issued Costello a written warning pursuant to a city noise control ordinance that prohibits “any person to make or cause to be made any loud or unreasonable noise.” Burlington, VT, Code of Ordinances § 21–13(b)(1) (2003). Costello was preaching at the top of his stentorian voice in a Burlington pedestrian mall. In its initial judgment entered January 11, 2008, the United States District Court for the District of Vermont (Murtha, J.) granted summary judgment in favor of Sgt. Lewis, holding that the ordinance was constitutional on its face and as applied to Costello. The district court granted the remaining Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Costello timely appealed. As to the facial challenge, we affirmed, citing Howard Opera House Assocs. v. Urban Outfitters, Inc., 322 F.3d 125, 128 (2d Cir.2003) (rejecting the argument that the Burlington noise ordinance is unconstitutionally vague). See Costello v. City of Burlington, 329 Fed.Appx. 330, 331 (2d Cir.2009) (“ Costello I ”). With respect to Costello's as-applied challenge, we remanded for findings required by Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir.2006), as to the ambient noise level on Church Street, and we reserved decision as to the remaining Defendants. Costello I, 329 Fed.Appx. at 331, n. 2. After making further findings, the district court granted summary judgment in favor of Sgt. Lewis and re-entered its grant of the remaining Defendants' motion to dismiss. Costello appeals from the district court's March 29, 2010 judgment. We affirm.

BACKGROUND

The facts are undisputed. Late Saturday morning, June 30, 2007, Costello was street preaching on Church Street in Burlington, Vermont. Church Street is a four-block, brick-paved, pedestrian mall with shops, restaurants, apartments, and public buildings along the sides, and with retail kiosks and political tables in the street. Costello was in front of a jewelry store and across the street from an outdoor restaurant. In the warmer months, the restaurants seat diners outdoor, and the street is full of pedestrian shoppers. Vehicles are barred from the stretch of Church Street where the incident occurred, so traffic noise is negligible.

In response to a store owner's complaint that Costello was causing a disturbance, Sgt. Lewis parked his car a block away (the length of a football field ¹), and noted when he got out of the car that Costello's voice stood out as a singular sound much louder than anything else. Sgt. Lewis approached Costello and asked that he lower his voice: “I'm not telling you that you can't preach, I'm telling you that you can't be out here shouting and yelling anything, and disrupting other folks that are trying to use the same space that you are.” Costello responded that he had a “right to preach the gospel with a ... loud voice ... to lift up [his] voice.” Costello was videotaping the encounter; the tape reveals no loud background noise. Sgt. Lewis issued Costello a written warning for violating the following noise control ordinance:

It shall be unlawful for any person to make or cause to be made any loud or unreasonable noise. Noise shall be deemed to be unreasonable when it disturbs, injures or endangers the peace or health of another or when it endangers the health, safety or welfare of the community. Any such noise shall be considered to be a noise disturbance and a public nuisance.Burlington, VT, Code of Ordinances § 21–13(b)(1) (2003). Exempted from the ordinance are “[e]vents and activities conducted by or permitted by the city.” Id. § 21–13(c)(5).

Costello filed suit. Sgt. Lewis moved for summary judgment asserting that he was entitled to qualified immunity. All other Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). On January 11, 2008, the district court granted summary judgment in favor of Sgt. Lewis and granted the remaining Defendants' motion to dismiss.² On appeal, we affirmed the district court's grant of summary judgment with respect to Costello's facial challenge to the constitutionality of Burlington's noise control ordinance, but we remanded pursuant to United States v. Jacobson, 15 F.3d 19, 21–22 (2d Cir.1994), so that the district court could “supplement the record regarding the activities and noise level that are ‘usual and customary’ in the space where the alleged violation occurred” and “determine, in light of that record, whether Defendants were entitled to judgment as a matter of law.” ³ Costello I, 329 Fed.Appx. at 331. The district court received additional affidavits and briefing from the parties concerning the ambient noise level on Church Street on the day of the incident. On March 26, 2010, the court issued findings (which are integrated in the fact statement above), held that the Burlington noise control ordinance was constitutional as applied to Costello, and granted Sgt. Lewis's motion for summary judgment. Having rejected Costello's as-applied challenge, the court re-entered its grant of the remaining Defendants' motion to dismiss. Costello timely appealed.

DISCUSSION

We review de novo a district court's grant of summary judgment, Pilgrim v. Luther, 571 F.3d 201, 204 (2d Cir.2009), and we affirm only where we are able to conclude, after construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

I

In a public forum such as Church Street, “the government may impose reasonable restrictions on the time, place, or manner of protected speech”; the United States Supreme Court has articulated a three-part test to determine whether such restrictions interfere with rights guaranteed by the First Amendment. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). “To withstand constitutional scrutiny, government restrictions must be (1) content neutral, in that they target some quality other than substantive expression; (2) narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression.” Deegan v. City of Ithaca, 444 F.3d 135, 142 (2d Cir.2006) (citing Ward, 491 U.S. at 791, 109 S.Ct. 2746). It is undisputed that Burlington's noise control ordinance is content neutral; the inquiry is therefore whether the ordinance was narrowly tailored to serve Burlington's interest to preserve the public health, safety, and welfare of its residents, and (if so) whether the ordinance provided an adequate alternative channel for Costello to preach.

A

Narrow tailoring “is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests.” Ward, 491 U.S. at 799, 109 S.Ct. 2746 (internal citations and quotations omitted). “[G]overnment ‘ha[s] a substantial interest in protecting its citizens from unwelcome noise.’ ” Id. at 796, 109 S.Ct. 2746 (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)); see also Hous. Works, Inc. v. Kerik, 283 F.3d 471, 481 (2d Cir.2002). Burlington's stated interest in prohibiting any loud or unreasonable noise is to

preserve the public health, safety, and welfare by prohibiting excessive and disturbing noise and to prevent noise which is prolonged or unsuitable for the time and place and which is detrimental to the peace and good order of the community. It is the goal of this section to allow all residents of our city to peacefully coexist in a manner which is mutually respectful of the interests and rights of others.

Burlington, VT, Code of Ordinances § 21–13(a). “By targeting noise that is ‘unreasonable,’ [an ordinance] evince[s] an intent to reach noise that exceeds what is usual and customary in a particular setting.” Deegan, 444 F.3d at 143. Does Burlington's ordinance unreasonably restrict Costello's right to use his unamplified voice, however loud it is, in that public place?

Costello relies on Deegan, which upheld an as-applied challenge to a noise ordinance prohibiting any noise that could be heard from twenty-five feet. Id. at 139, 145. Deegan was street preaching in the Commons of Ithaca, New York, a venue similar to Church Street, and he was advised by an Ithaca policeman to lower his voice because he could be heard more than twenty-five feet away. Id. at 138. In holding that the Ithaca ordinance was unconstitutional as applied to Deegan, we determined that Ithaca Commons was a public forum “used regularly for festivals, performing events, exhibitions, political demonstrations, and recreational activities,” id. at 143, and we credited the district court's factual findings that

the decibel level of speech that would comply with...