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United States District Court, Southern District of New York

September 12, 1991


The opinion of the court was delivered by: Kimba M. Wood, District Judge.


Plaintiff filed a complaint pro se on March 8, 1990, alleging that defendant, by its police officers, violated plaintiff's constitutional rights, harassed him, and subjected him to numerous false arrests in connection with his attempts to preach through use of an amplifier on a public sidewalk.*fn1 Plaintiff's claims arise out of several incidents occurring between October 1988 and June 1990. At various times during that period, New York City police officers issued summonses to plaintiff, arrested him, and seized his amplification equipment, charging him with disorderly conduct by blocking pedestrian traffic and making unreasonable noise, in violation of N.Y.Penal Law § 240.20,*fn2 and operating a sound amplification device without a permit, in violation of New York City Noise Control Code ("Noise Code") § 24-220.*fn3

On June 11, 1990, after a three day bench trial, the court issued from the bench its preliminary opinion finding in favor of defendant on all but one of plaintiff's claims. In that opinion, the court found that New York Penal Law § 240.20 is constitutional. The court also found that Noise Code §§ 10-108 and 24-220 are constitutional because both are content neutral, narrowly tailored to serve a significant government interest, and leave ample alternative channels for communication. In addition, the court found that defendants did not violate plaintiff's First Amendment rights in applying these ordinances. As a result, the court held, plaintiff did not demonstrate that defendants had engaged in a pattern of violations of his rights, and thus did not satisfy his burden of proof under 42 U.S.C. § 1983. The court similarly found that defendants did not violate plaintiff's Fourth Amendment rights, because each time they arrested him they had probable cause to do so, given that plaintiff was violating city ordinances on each occasion.

In its June 11, 1990 opinion, the court reserved decision on the constitutionality of § 24-218, a statute that plaintiff was charged with violating on one occasion. By order dated July 2, 1990, the court directed the parties to submit additional briefs on the questions the constitutionality of § 24-218. For the reasons stated below, the court finds that § 24-218 is unconstitutionally vague and overbroad, and accordingly amends its preliminary opinion to find in favor of plaintiff on his claim pursuant to 42 U.S.C. § 1983 regarding the April 5, 1990 summons.


I.  Standing

It is well settled that a person challenging an overly broad statute on First Amendment grounds may do so without being required to demonstrate that his own conduct "`could not be regulated by a statute drawn with the requisite narrow specificity.'" Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965)); see, e.g., City of Houston v. Hill, 479 U.S. 1079, 107 S.Ct. 1277, 94 L.Ed.2d 137 (1987); Board of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). Accordingly, plaintiff has standing to challenge § 24-218 as overbroad, even though his conduct on April 5, 1990 also violated § 24-220, which suffers from no constitutional infirmity. See June 11, 1990 opinion, 1990 WL 83465; see generally, Fallon, Making Sense of Overbreadth, 100 Yale L.J. 853 (1991). Similarly, plaintiff has standing to challenge § 24-218 as impermissibly vague. See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

Defendant argues that the constitutionality of § 24-218 is not at issue because the notice of violation was issued after plaintiff filed his complaint, and plaintiff never moved to supplement his complaint to assert claims based on this violation. According to defendant, evidence regarding summonses that were issued after plaintiff's complaint was received at trial only for the limited purpose of determining whether the City had violated the court's March 9, 1990 temporary restraining order. The record reflects, however, that plaintiff orally requested permission to supplement his complaint with claims regarding summonses issued after he filed his complaint, and that the Court granted this request. At a hearing held May 17, 1990, plaintiff asked the court whether, in his pre-trial submissions, he could add subsequent incidents in which the Transit Police and the City Police improperly arrested him for preaching. Transcript of May 17 Hearing ("May 17 Tr.") at. 40-42, 45-46. The court informed plaintiff that he should submit a letter to the court regarding such incidents, and that he could "add that so long as it is something that happens before June 1st."*fn4 May 17 Tr. at 41.

Consistent with the court's direction, on May 25, 1990 plaintiff filed his "Supplement for Plaintiff's Draft Pretrial Order," alleging that the City Police had continued to violate his constitutional rights, referring to attached copies of several summonses he had recently received, including the April 5, 1990 notice of violation, which charged plaintiff with violating § 24-218. In light of plaintiff's pro se status, the court holds that plaintiff effectively supplemented his complaint to assert claims based on the April 5, 1990 notice of violation. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (filings of pro se litigants should be interpreted liberally).

II. Constitutionality of § 24-218 — Vagueness and Overbreadth

In determining whether a statute is vague or overbroad, "`a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.'" Dorman v. Satti, 862 F.2d 432, 436 (2d Cir. 1988.) (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)), cert. denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989); see Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917 (statute will not be struck down merely because it can conceivably apply to protected activities; "act's overbreadth must not only be real but substantial as well, judged in relation to the statute's plainly legitimate sweep.") Here there is no question that § 24-218, broadly barring any form of unnecessary noise, extends by its terms to all oral communication, and thus reaches a substantial amount of activity protected by the First Amendment.

A.  Vagueness

Defendant argues that § 24-218 is not unconstitutionally vague because, where, as here, plaintiff was charged with making unreasonable noise by a sound amplification device, § 24-218 must be read as limited by § 24-220.*fn5 That is, defendant argues that the Noise Code must be construed to mean that a person could not violate § 24-218 if he were using his sound device within the bounds of a § 10-108 Permit.

An analysis of the language of the relevant statutory provisions, however, belies defendant's reading. Section 24-219 of the Noise Code provides that any act in violation of the various specific prohibitions on unnecessary noise set forth in subchapter 4 of the Noise Code, including § 24-220, will be considered violations of § 24-218. The final phrase of § 24-219 adds a catchall provision that ensures that the provisions of § 24-219 act "without in any way limiting the generality" of § 24-218, the section containing the general unnecessary noise prohibition. Noise Code § 24-219. In other words, according to the plain words of the relevant provisions of the statute, a person may violate the general provision of § 24-218, even if he has a permit and is thus not in violation of the specific provisions of § 24-220. Whatever measure of protection the permit provision of the Noise Code affords, the broad wording of § 24-219 essentially overrides that protection. While defendant's reading of § 24-218 as limited by § 24-220 may be largely consistent with the way in which defendant enforces the relevant ordinances, the narrowing construction urged by defendant is directly at odds with the clear wording of the Noise Code.

Defendant's argument is further undermined by a decision of the New York Court of Appeals construing a nearly identical noise ordinance of the Town of Poughkeepsie, in which the court specifically declined to adopt a narrowing construction that would have saved the ordinance from being struck down. In People v. New York Trap Rock Corp., 57 N.Y.2d 371, 456 N.Y.S.2d 711, 442 N.E.2d 1222 (1982), defendant quarry operator was convicted of violating § 3.01 and § 3.02(e) of the town's Unnecessary Noise Control Ordinance ("the Poughkeepsie Noise Ordinance")*fn6 by loading a truck so as to create unnecessary noise. The structure of the Poughkeepsie Noise Ordinance was precisely the same as the Noise Code, with § 3.01 providing a general prohibition against unnecessary noise, and § 3.02 setting forth prohibitions against specific types of unnecessary noise, with the proviso that any act in violation of any of the specific noise prohibitions "is deemed to be in violation of Section 3.01 of this ordinance without in any way limiting the generality of the provisions of Section 3.01 of the Ordinance." Poughkeepsie Noise Ordinance § 3.00 (emphasis added). The New York Court of Appeals held that the ordinance was unconstitutionally vague and "not remediable by a narrowing construction." 57 N.Y.2d at 381, 456 N.Y.S.2d 711, 442 N.E.2d 1222. Only the New York Court of Appeals may authoritatively construe state and local laws; this court may not adopt a narrowing construction for § 24-218 where the New York Court of Appeals has declined to do so in virtually identical circumstances.*fn7 See Grayned v. City of Rockford, 408 U.S. at 111, 92 S.Ct. at 2300 (noting Court's lack of power to "construe and narrow state laws"); United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971); Tribe, American Constitutional Law (2d Ed. 1988) § 12-30 (reviewing court may not substitute its own saving interpretation of state statute for that authoritatively given by state's highest court).

A statute is unconstitutionally vague if it lacks clear definition or explicit standards such that it does not give a person of ordinary intelligence an opportunity to know what is prohibited. Dorman, 862 F.2d at 436; Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. Where, as here, the ordinance in question is applicable to protected expression, a greater degree of specificity is required than in other contexts. See, e.g., Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974).

Analyzing the statute as written, without the narrowing construction proposed by the defendant,*fn8 Section 24-218 does not provide any standard to aid in determining when particular noise is "unnecessary." Indeed, it provides citizens with even less of a guide to what conduct it prohibits than the Poughkeepsie Noise Ordinance held unconstitutionally vague in New York Trap Rock.*fn9 Further, by its disjunctive wording, § 24-218 prohibits "any sound which annoys . . . the . . . repose . . . of a person." Noise Code § 24-203(aaa). Because it provides only this subjective standard, the conduct barred by § 24-218 will vary with the listener. Section 24-218's broad terms and lack of objective standards invite the arbitrary and discriminatory enforcement that the vagueness doctrine is designed to avoid. Id. 57 N.Y.2d at 381, 456 N.Y.S.2d 711, 442 N.E.2d 1222; see Grayned, 408 U.S. at 108, 92 S.Ct. at 2298. It was precisely this type of subjectivity that the Court of Appeals found so disquieting in New York Trap Rock. 57 N.Y.2d at 380, 456 N.Y.S.2d 711, 442 N.E.2d 1222. As the Court of Appeals warned, the statute as written "impermissibly would support a conviction on any sound which annoys another person, for it could rest solely upon the `malice or animosity of a cantankerous neighbor,' or `boiling point of a particular person,' situations which are the product, not only of imprecise standards, but of no standard at all." New York Trap Rock, 57 N.Y.2d at 380, 456 N.Y.S.2d 711, 442 N.E.2d 1222 (citations omitted). Accordingly, consistent with the New York Court of Appeals holding regarding the nearly identical § 3.01 of the Poughkeepsie Noise Ordinance, the court holds that Noise Code § 24-218 is unconstitutionally vague, and "not remediable by a narrowing construction." Id. ("[t]his section is permeated with vagueness"); see also Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 489 (4th Cir. 1983) (portion of noise ordinance barring "unnecessary" noise is unconstitutionally vague); Fratiello v. Mancuso, 653 F. Supp. 775, 790 (D.R.I. 1987) (ordinance barring "unnecessary noises . . . which are physically annoying to persons, . . . or which are injurious to the lives, health, peace and comfort of the inhabitants of the city" is unconstitutionally vague).

B.  Overbreadth

A statute is unconstitutionally overbroad if it includes within its prohibitions constitutionally protected conduct. Grayned, 408 U.S. at 114, 92 S.Ct. at 2302. Here, because § 24-218 restricts constitutionally protected oral communication, it must be content neutral, narrowly tailored to serve a significant state interest, and allow for ample alternative channels of communication. See, e.g., Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988).

A statute is narrowly tailored if it "targets and eliminates no more than the exact source of the `evil' it seeks to remedy." Frisby, 108 S.Ct. at 2502; see also Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989). The stated intent of the Noise Code is to "reduce the ambient noise level in the city. . . ." Noise Code § 24-202. By barring noise that is "unnecessary" because it "annoys" or "disturbs" others, however, § 24-218 bars sounds regardless of their volume level; by its terms, the ordinance would apply to speech delivered in a moderate tone, or even a whisper, so long as it annoys another person. Section 24-218's subjective definition of unnecessary noise offends basic free speech principles because it would support a conviction where the content of the speech annoys a particular listener. See N Y Trap Rock, 57 N.Y.2d at 380, 456 N.Y.S.2d 711, 442 N.E.2d 1222; Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971); see also Fratiello, 653 F. Supp. at 791 (holding "unnecessary noise" ordinance overbroad). Accordingly, the court holds that § 24-218 is not narrowly tailored to meet a significant government interest, (the test for valid time, place, or manner restriction on speech), and is thus unconstitutionally overbroad.


Because the court finds that Noise Code § 24-218 is unconstitutional, the court modifies its June 11, 1990 opinion and finds in favor of plaintiff on his claim pursuant to 42 U.S.C. § 1983 regarding the April 5, 1990 notice of violation.

Having prevailed on a portion of his § 1983 claim, plaintiff is entitled to recover damages. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). At trial, however, plaintiff did not adduce any evidence of actual damages. The Supreme Court has held that a plaintiff who suffers a deprivation of a constitutional right but who is unable to prove actual damages is entitled to recover nominal damages as a means of vindicating that right. Id.; Memphis Community School Dist. v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); see also Fassett v. Haeckel, 936 F.2d 118 (2d Cir. 1991) (law in this circuit is that Supreme Court decisions require courts to award nominal damages to § 1983 plaintiffs where plaintiff proves deprivation of an absolute right but has not proven compensatory damages). Here, evidence at trial concerning plaintiff's repeated failure to comply with the valid permit requirements of the Noise Code and the hardship plaintiff's actions imposed on others bolster the court's belief that only nominal damages are appropriate on this claim. Accordingly, the court awards plaintiff one dollar ($1) on this claim. In all other respects, the court adheres to its June 11, 1990 opinion, and thus dismisses with prejudice all of plaintiff's other claims. The Clerk of the Court is directed to enter judgment accordingly.


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