Opinion

Costello v. City of Burlington

  • 632 F.3d 41
  • 2011 U.S. App. LEXIS 2831
  • 2011 WL 488880
Court
Court of Appeals for the Second Circuit
Filed
Feb 14, 2011
Status
Published
Author
Calabresi
On the bench
Jacobs, Calabresi, Pooler
Cited by
162 cases
Authority
More cited than 24.5%

holding municipal code provision prohibiting “loud or unreasonable” noise, defined in part as noise that “disturbs . . . the peace . . . of another,” was narrowly tailored to serve the city’s “substantial interest in protecting its citizens from unwelcome noise,” quoting Ward, 491 U.S. at 796

How later courts described this case

  • holding municipal code provision prohibiting “loud or unreasonable” noise, defined in part as noise that “disturbs . . . the peace . . . of another,” was narrowly tailored to serve the city’s “substantial interest in protecting its citizens from unwelcome noise,” quoting Ward, 491 U.S. at 796
  • finding qualified immunity appropriate where the arresting officer, a 22-year veteran, testified that the preacher’s volume was “not typical, usual, or customary” for that location, and that he believed the yelling was disruptive for other people in the area
  • holding that noise ordinance banning “loud or unreasonable noise” that “disturbs, injures or endangers the peace or health of another . . . or [the] welfare of the community” is narrowly tailored
  • upholding city noise ordinance that made it "unlawful for any person to make or cause to be made any loud or unreasonable noise," defined as noise that "disturbs, injures or endangers the 30 peace or health of another or when it endangers the health, safety or welfare of the community"

Written by the judges who cited it.

The opinion

CALABRESI, Circuit Judge,

concurring:

I concur in Parts I and III of the Chief Judge’s opinion and join those parts in their entirety. I also agree with the conclusion of Part II of the Chief Judge’s opinion that, given the facts in the record, this case is best decided on the merits rather than on qualified immunity grounds. See Ehrlich v. Town of Glastonbury, 348 F.3d 48, 55 (2d Cir.2003) (Calabresi, J.) (“[I]f courts consistently avoided the constitutional issue by simply dismissing suits on the basis of immunity, ‘standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.’ ” (quoting County of Sacramento v. Lewis, 523 U.S. 833 , 841 n. 5, 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998))). I do not join Part II of the Chief Judge’s opinion, because there are some aspects of that part of the opinion that I do not agree with fully and other aspects that I might agree with, but I do not think are necessary to the conclusion that Costello does not have a case on the merits.

Were I to reach the question of qualified immunity, I would be completely comfortable joining Judge Pooler’s discussion of qualified immunity. I hence would have no problem joining Part II.B of her opinion. But because I agree that, given the uncontroverted facts in the record, Costello loses on the merits and because I believe a decision on the merits is more appropriate than a decision based solely on qualified immunity, my vote to affirm is based on the merits.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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