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William Ray Costello v. City of Burlington

February 14, 2011

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.



The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

08-0551-cv

Costello v. City of Burlington

Argued on: July 6, 2009

Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.

Plaintiff appeals from a March 29, 2010 judgment of the 32 United States District Court for the District of Vermont 33 (Murtha, J.), granting summary judgment in favor of the 34 Defendant police officer, Sgt. John Lewis--who asked 35 plaintiff to lower his voice while he was preaching in a 36 pedestrian mall--and re-entering its grant of the remaining 37 Defendants' motion to dismiss Plaintiff's complaint. The 1 district court held that the municipal noise ordinance, 2 Burlington, VT, Code of Ordinances § 21-13 (2003), was 3 constitutional as-applied. AFFIRMED.

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.

Plaintiff William Ray Costello, pro se, alleged that 23 his First Amendment right to free speech was violated when 24 Defendant Sgt. John Lewis of the Burlington Police 25 Department issued Costello a written warning pursuant to a 26 city noise control ordinance that prohibits "any person to 27 make or cause to be made any loud or unreasonable noise."

1 Burlington, VT, Code of Ordinances § 21-13(b)(1) (2003).

2 Costello was preaching at the top of his stentorian voice in 3 a Burlington pedestrian mall. In its initial judgment 4 entered January 11, 2008, the United States District Court 5 for the District of Vermont (Murtha, J.) granted summary 6 judgment in favor of Sgt. Lewis, holding that the ordinance 7 was constitutional on its face and as applied to Costello.

8 The district court granted the remaining Defendants' motion 9 to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Costello 10 timely appealed. As to the facial challenge, we affirmed, 11 citing Howard Opera House Assocs. v. Urban Outfitters, Inc., 12 322 F.3d 125, 128 (2d Cir. 2003) (rejecting the argument 13 that the Burlington noise ordinance is unconstitutionally 14 vague). See Costello v. City of Burlington, 329 F. App'x 15 330, 331 (2d Cir. 2009) ("Costello I"). With respect to 16 Costello's as-applied challenge, we remanded for findings 17 required by Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir. 18 2006), as to the ambient noise level on Church Street, and 19 we reserved decision as to the remaining Defendants.

20 Costello I, 329 F. App'x at 331, n.2. After making further 21 findings, the district court granted summary judgment in 22 favor of Sgt. Lewis and re-entered its grant of the remaining Defendants' motion to dismiss. Costello appeals 2 from the district court's March 29, 2010 judgment. We 3 affirm.

BACKGROUND

6 The facts are undisputed. Late Saturday morning, June 7 30, 2007, Costello was street preaching on Church Street in 8 Burlington, Vermont. Church Street is a four-block, brick- 9 paved, pedestrian mall with shops, restaurants, apartments, 10 and public buildings along the sides, and with retail kiosks 11 and political tables in the street. Costello was in front 12 of a jewelry store and across the street from an outdoor 13 restaurant. In the warmer months, the restaurants seat 14 diners outdoor, and the street is full of pedestrian 15 shoppers. Vehicles are barred from the stretch of Church 16 Street where the incident occurred, so traffic noise is 17 negligible.

18 In response to a store owner's complaint that Costello 19 was causing a disturbance, Sgt. Lewis parked his car a block 20 away (the length of a football field*fn1 ), and noted when he 1 got out of the car that Costello's voice stood out as a 2 singular sound much louder than anything else. Sgt. Lewis 3 approached Costello and asked that he lower his voice: "I'm 4 not telling you that you can't preach, I'm telling you that 5 you can't be out here shouting and yelling anything, and 6 disrupting other folks that are trying to use the same space 7 that you are." Costello responded that he had a "right to 8 preach the gospel with a . . . loud voice . . . to lift up 9 [his] voice." Costello was videotaping the encounter; the 10 tape reveals no loud background noise. Sgt. Lewis issued 11 Costello a written warning for violating the following noise 12 control ordinance:

13 It shall be unlawful for any person to make or cause to 14 be made any loud or unreasonable noise. Noise shall be 15 deemed to be unreasonable when it disturbs, injures or 16 endangers the peace or health of another or when it 17 endangers the health, safety or welfare of the 18 community. Any such noise shall be considered to be a 19 noise disturbance and a public nuisance.

21 Burlington, VT, Code of Ordinances § 21-13(b)(1) (2003).

22 Exempted from the ordinance are "[e]vents and activities 23 conducted by or permitted by the city." Id. § 21-13(c)(5).

24 Costello filed suit. Sgt. Lewis moved for summary 25 judgment asserting that he was entitled to qualified 26 immunity. All other Defendants moved to dismiss the 1 complaint pursuant to Fed. R. Civ. P. 12(b)(6). On January 2 11, 2008, the district court granted summary judgment in 3 favor of Sgt. Lewis and granted the remaining Defendants' 4 motion to dismiss.*fn2 On appeal, we affirmed the district 5 court's grant of summary judgment with respect to Costello's 6 facial challenge to the constitutionality of Burlington's 7 noise control ordinance, but we remanded pursuant to United 8 States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994), so 9 that the district court could "supplement the record 10 regarding the activities and noise level that are 'usual and 11 customary' in the space where the alleged violation 12 occurred" and "determine, in light of that record, whether 13 Defendants were entitled to judgment as a matter of law."*fn3

14 Costello I, 329 F. App'x at 331. The district court 15 received additional affidavits and briefing from the parties 16 concerning the ambient noise level on Church Street on the 17 day of the incident. On March 26, 2010, the court issued findings (which are integrated in the fact statement above), 2 held that the Burlington noise control ordinance was 3 constitutional as applied to Costello, and granted Sgt. 4 Lewis's motion for summary judgment. Having rejected 5 Costello's as-applied challenge, the court re-entered its 6 grant of the remaining Defendants' motion to dismiss.

7 Costello timely appealed.

DISCUSSION

10 We review de novo a district court's grant of summary 11 judgment, Pilgrim v. Luther, 571 F.3d 201, 204 (2d Cir. 12 2009), and we affirm only where we are able to conclude, 13 after construing the evidence in the light most favorable to 14 the non-moving party and drawing all reasonable inferences 15 in its favor, that "there is no genuine dispute as to any 16 ...


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