Dupres v. City of Newport, R.I., CA 96-715ML.

• Decision Date: 02 October 1997
• Docket Number: No. CA 96-715ML.,CA 96-715ML.
• Citation: 978 F.Supp. 429
• Parties: Jeffrey DUPRES; John Nagle; and Ryan Marsh v. CITY OF NEWPORT, RHODE ISLAND, a Municipal Corporation; Michael D. Malinoff, in his capacity as City manager of the City of Newport, Rhode Island; and David R. Kelly, in his capacity as Police Chief of the City of Newport.
• Court: Rhode Island Supreme Court

978 F.Supp. 429

Jeffrey DUPRES; John Nagle; and Ryan Marsh v. CITY OF NEWPORT, RHODE ISLAND, a Municipal Corporation; Michael D. Malinoff, in his capacity as City manager of the City of Newport, Rhode Island; and David R. Kelly, in his capacity as Police Chief of the City of Newport.

No. CA 96-715ML.

United States District Court, D. Rhode Island.

October 2, 1997.

COPYRIGHT MATERIAL OMITTED

Thomas W. Kelly, Newport, RI, for Plaintiffs.

Christopher J. Behan, Asst. City Sol., Newport, RI, for Defendant.

DECISION AND ORDER

LISI, District Judge.

Plaintiffs Jeffrey Dupres, John Nagle, and Ryan Marsh commenced this action on December 17, 1996, seeking injunctive relief precluding the enforcement of an ordinance enacted by defendant City of Newport, a declaratory judgment that the ordinance violates the First, Fifth, and Fourteenth Amendments to the United States Constitution, and monetary damages. The parties submitted a stipulated statement of facts and agreed that the Court would decide this case based on that submission.

I. FACTS

This action arises out of two mutually exclusive incidents that occurred in Newport, Rhode Island in 1996. Both incidents involved occasions on which the various plaintiffs were cited by officers of the Newport Police Department for violating chapter 8.12 of the Codified Ordinances of the City of Newport ("Newport"). Section 8.12.070 of this chapter, which is entitled "Noise Abatement," provides that "[n]o person shall make, continue or cause to be made or continued, except as permitted, any noise or sound which constitutes a noise disturbance...." NEWPORT, R.I., NOISE ABATEMENT ORDINANCES, § 8.12.070. A "noise disturbance" is defined as

any sound which exceeds the dBA level for such sound set out in this chapter; the making, creation or permitting of any unreasonably loud, disturbing or unnecessary noise; or the making, creating or permitting of any noise of such character, intensity or duration as to be detrimental to the life, health or welfare of any individual, or which either steadily or intermittently annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual.

Id. at § 8.12.040.

The first incident involving the ordinance in question occurred at approximately 2:07 a.m. on May 26, 1996. It was at that time that Manuel Medeiros, a Newport police officer acting in his official capacity, issued citations to plaintiffs Dupres and Nagle for violating chapter 8.12 at their residence located at 113 Memorial Boulevard West in Newport. Medeiros stated in his police report that the two plaintiffs were with a group of people who appeared intoxicated and were yelling and laughing out loud. While Dupres and Nagle concede that they were talking and laughing on their porch, they assert that their voices were not amplified and that they were not using any sound amplification device such as a radio, television, or stereo.

The citations issued to Dupres and Nagle required their appearance in the City of Newport Municipal Court ("Municipal Court") on June 4, 1996. The Municipal Court complaints alleged that Dupres and Nagle had violated the provisions of chapter 8.12 on May 26 in that they did "permit noise to emanate from their residence so as to cause a nuisance to persons living in close proximity to the residence...." The plaintiffs, whose motions to dismiss were denied, were ultimately adjudged not to have violated the noise ordinance by Judge James F. Hyman of the Newport Municipal Court.

The second incident involving the ordinance in question occurred at approximately 1:00 a.m. on September 13, 1996. It was at that time that William Warner, a Newport police officer acting in his official capacity, appeared at the apartment of plaintiff Marsh, located at 37 Mount Vernon Street in Newport, and issued a citation to him for violating chapter 8.12. Warner stated in his police report that he had been dispatched to the apartment in response to a complaint about loud noise at that location and that he heard a stereo being played at high volume and people laughing and talking as he approached the apartment. Marsh admits to being in the presence of five other individuals that evening, but contends that Warner made no effort to determine either the location from which the offensive noises emanated or the identity of the complaining party.

The citation issued to Marsh required his appearance in Municipal Court on September 30, 1996. The Municipal Court complaint mirrored the one that issued against Dupres and Nagle. Marsh, whose own motion to dismiss was denied, was ultimately found not to have violated the ordinance by Judge Hyman on October 21, 1996. Marsh was never alleged to have violated any other local or state law.¹

The only evidence offered against any of the three plaintiffs in Municipal Court was the testimony of the police officers who issued the citations. No complainants were identified or called as witnesses. The officers testified as to their own direct observations and sensory perceptions of the noise emanating from the two residences. The officers did not offer any evidence derived from the use of decibel meters. To the contrary, they testified that decibel meters were never used to measure noise emanating from the residences.

II. DISCUSSION

A. Standing

This Court begins its analysis by addressing the issue of the plaintiffs' standing to challenge the constitutionality of Newport's noise abatement ordinances. It is incumbent upon this Court to do so because standing "is a `threshold question in every federal case'" and determines "`the power of the court to entertain the suit.'" New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). The defendants assert that because the plaintiffs were adjudged by the Municipal Court not to have violated the ordinances in question, they have not suffered injuries sufficient to confer standing upon them. Moreover, they contend that the threat of future prosecution is based on conjecture and therefore cannot support standing for any of these plaintiffs.

Notwithstanding the defendants' asseverations to the contrary, this Court is convinced that the plaintiffs have the requisite standing to maintain this cause of action. It is well settled that the traditional principles of standing are relaxed in the context of a pre-enforcement challenge to a statute that facially abridges either the First Amendment or Fourteenth Amendment and provides for criminal penalties. See id. at 13-15; Fratiello v. Mancuso, 653 F.Supp. 775, 787-88 (D.R.I.1987). In both instances, a plaintiff is deemed to be injured by the fact that he or she might be chilled from exercising his or her right to free expression or forego expression in order to avoid enforcement consequences. See New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d at 13.

So it is here. The plaintiffs challenge the validity of the ordinance as an impermissible infringement of their First Amendment rights. Further, the plaintiffs assert that the ordinance fails to describe the proscribed conduct with the requisite specificity necessary to pass constitutional muster. They assert that the shortcomings are of such a magnitude that "a person of average intelligence and experience cannot understand it and conform his or her behavior to the requirements of the Ordinance." Complaint at 6. As a result, they argue that the ordinance has a "`chilling effect' on the exercise of free speech." Id.

B. The Ordinance

In proceeding to address the plaintiffs' substantive constitutional claims, this Court is mindful of the fact that the noise ordinance can be viewed as proscribing four discrete categories of noise. These categories are: (1) any sound which exceeds the dBA level for such sound set out in the noise abatement chapter (hereafter referred to as the "decibel provision"); (2) any unreasonably loud, disturbing, or unnecessary noise (hereafter referred to as the "unreasonable and unnecessary provision"); (3) any noise of such character, intensity, or duration as to be detrimental to the life, health, or welfare of any individual (hereafter referred to as the "health and welfare provision"); and, (4) any noise which either steadily or intermittently annoys, disturbs, injures, or endangers the comfort, repose, peace, or safety of any individual (hereafter referred to as the "annoyance provision"). See NEWPORT, R.I., NOISE ABATEMENT ORDINANCES, § 8.12.040. It is important to cull out these various categories in light of the principle that in the absence of evidence of legislative intent to the contrary, "`[t]he unconstitutionality of a part of an Act does not necessarily defeat ... the validity of its remaining provisions.'" United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968) (quoting Champlin Refining Co. v. Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932)); see also Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976).

C. The Due Process Claim

The plaintiffs contend that the ordinance is so vague and overbroad that it violates the due process clause of the Fourteenth Amendment. The concepts of vagueness and overbreadth will be addressed seriatim.

1. Vagueness

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972); see also Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 3255-56, 82 L.Ed.2d 462 (1984). Generally, laws must give a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2298-99; see also Whiting v. Town of Westerly, 942 F.2d 18, 22 (1st...