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August 10, 2004.

KEVIN DEEGAN, Plaintiff,
CITY OF ITHACA, MARIETTE GELDENHUYS, in her official capacity as City Attorney for the City of Ithaca, and RICHARD BASILE, in his official Capacity as Chief of Police of the City of Ithaca, Defendants.

The opinion of the court was delivered by: NORMAN MORDUE, District Judge



In this action, plaintiff challenges the noise ordinance applicable to the Ithaca Commons area in the City of Ithaca ("City"). Plaintiff claims that he has been prevented from preaching his religious beliefs in Ithaca Commons because the City's noise ordinance, as interpreted by defendants, prohibits all speech which can be heard 25 feet away. The single cause of action asserts that defendants' conduct violated plaintiff's federal constitutional rights to equal protection and freedom of speech, religion, association and assembly. Plaintiff seeks declaratory relief, injunctive relief and compensatory damages.

  The Court assumes that the reader is familiar with the history of the action and the contents of the February 28, 2001 Memorandum-Decision and Order denying plaintiff's motion for a preliminary injunction, and the June 18, 2003 Memorandum-Decision and Order denying the parties' motion and cross motion for summary judgment.

  Presently before the Court is the "Parties' Joint Stipulation of Facts" ("Stipulation") and the transcript of the sworn testimony of Thomas S. Katra, taken outside the presence of the Court on January 13, 2003. The parties stipulate that the Stipulation and the transcript shall serve as the entire trial record, and they submit the case to the Court for final determination. For the reasons set forth below, the Court dismisses the action.


  The Court incorporates by reference the Stipulation and the transcript of Katra's testimony. The facts in the stipulation constitute findings by the Court as do the facts (but not the opinions) in Katra's testimony. Based on these two documents, the Court sets forth the following summary of the facts upon which it bases its legal determinations.

  Facts drawn from Stipulation

  As a tenet of his Christian faith, plaintiff believes it to be his religious duty to preach publicly about Christianity. "Preaching" involves speaking in public locations in a raised voice that can be heard beyond 25 feet. Plaintiff believes that preaching enables him to express his religious views, to attract the attention of his intended audience and to communicate his message to as many people as possible. He further believes that preaching enables him to associate with others who share similar religious views, to counsel others concerning his faith and otherwise to engage in religious activities.

  On October 9, 1999, plaintiff and three companions went to Ithaca Commons and began preaching. Ithaca Commons is a two-block T-shaped area in the City in which the streets have been closed to vehicular traffic and converted into a pedestrian mall. Both streets in Ithaca Commons are approximately 66 feet wide. Ithaca Commons is a public forum.

  City Police Officer Gregory Firman, in response to a telephone complaint from an employee of a store in Ithaca Commons, approached plaintiff and his companions and told them that the City noise ordinance prohibited speech that could be heard 25 feet away. He told them that their speech violated the ordinance and directed them to comply with the 25foot limitation.

  Plaintiff asked to see the noise ordinance, and Officer Firman left to obtain a copy. After Officer Firman left, plaintiff began to speak at a lower volume in an attempt to comply with the ordinance. During this time, plaintiff noticed others in the area who could be heard 25 feet away, including people conversing more than 25 feet away and a singing group of about ten women about 200 feet away. No police officer approached anyone other than plaintiff and his companions. There were no complaints about anyone but plaintiff.

  When Officer Firman returned after about ten minutes, he noticed that the volume of plaintiff's speech was lower but still in violation of the ordinance. Officer Firman characterized plaintiff as speaking at the "top of his lungs" persistently and continuously. Officer Firman told plaintiff that if he did not reduce his volume to a level that could not be heard at 25 feet, he would face arrest. Plaintiff and this companions left the City. Plaintiff feels that he cannot communicate effectively if he cannot be heard from a distance of 25 feet and that therefore compliance with the ordinance "would effectively eliminate his speech efforts." As a result of the City's refusal to allow him to speak at a volume that could be heard from 25 feet away, plaintiff did not again attempt to preach in Ithaca Commons for fear of arrest. Plaintiff has never used the alternatives of applying for a permit to use amplified sound, speaking in a lower tone of voice so as not to be heard from the distance of 25 feet, or passing out brochures.

  The City is concerned with the comfort, repose, health and safety of everyone in the City. The City, the City Attorney and the City police department interpret, construe, and enforce the City noise ordinances, specifically sections 240-4 and 157-18, to prohibit any noise that can be heard 25 feet away. The prohibition applies to any type of noise, including speech, whether the noise is amplified or unamplified and whether it occurs in ...

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