# Costello v. City of Burlington

> Court of Appeals for the Second Circuit · February 14, 2011 · 632 F.3d 41

URL: https://www.frixlaw.com/law-library/cases/9440529

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** February 14, 2011
- **Citations:** 632 F.3d 41; 2011 U.S. App. LEXIS 2831; 2011 WL 488880
- **Precedential status:** Published
- **Opinion:** Concurrence by Calabresi
- **Judges:** Jacobs, Calabresi, Pooler
- **Cited by:** 162 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9440529

## How later opinions describe it (automated extraction)

- 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,…
- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9440529. Public record. Not legal advice.