Tanner v. City of Virginia Beach, Part One: Impacts on Local Government Noise Ordinances

By: Andrew McRoberts, Editor. This was posted Monday, July 27th, 2009

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I have prosecuted noise ordinance violations, litigated the very issues decided by the Virginia Supreme Court in Tanner, and authored the LGA/VML amicus curiae brief filed in that case. Like many local government attorneys and their clients, I am struggling with the case’s impacts on local government noise ordinances.

In its opinion, the Virginia Supreme Court ruled that the City’s noise ordinance was facially unconstitutional because its use of the “reasonable person” standard did not provide “ascertainable standards” for potential defendants. The Virginia Beach ordinance at issue, in part, prohibited noise that was “unreasonably loud, disturbing and unnecessary.” This, the Court held, violated the “Due Process Clause” because it was too vague to give fair notice to prospective defendants of what conduct was prohibited. See the opinion at the Court’s website.

After some weeks, I am recovering from surprise and disappointment, but remain concerned with the aftermath of the opinion.

My concern does not arise solely from the Court’s choice to adopt a minority position, although I do note that a majority of state supreme courts have reached a contrary result. My concern relates to the impact of the ruling on the ability of local governments to regulate noise in the public interest. Do not underestimate the difficulty facing local government attorneys. As I write, many across the state are struggling to write an enforceable noise standard to replace the reasonable person test.

Two major types of standards appear to remain. First, ordinances may regulate noise by use of decibel levels. These ordinances are fairly common, but are notoriously difficult to write and even more difficult to prosecute. Second, ordinances may define examples of noise disturbances. These are also difficult to write, although the courts seem to accept them more readily than other types of noise ordinances. One thing local government attorneys may wish to consider in defining examples of noise disturbances is referencing another state statutory standard similar to disturbing the peace. However, none of these options are easy to draft or easy to prosecute.

In addition, beyond noise ordinances, I am concerned with the broader impact of the ruling on other ordinances and criminal statutes. Warrants have already been dismissed in at least one locality because the local ordinance, not having anything to do with noise, referenced the “reasonable person” standard. This bedrock of jurisprudence appears to be off limits for Virginia local governing bodies and even the Virginia General Assembly in defining criminal conduct. I predict this will be a significant issue in the aftermath of Tanner, and one not immediately obvious.

Next time: Tanner v. City of Virginia Beach, Part Two: Lingering Questions and the “Due Process Clause” Applied to Local Noise Ordinances

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Comments:

  • Cities should raise the penalties for noise violations to a felony and imprisonment level, this would deter people from exhibiting loud and boisterous behavior, all of these cases should be determined by a jury. This would take the element of what is reasonable and unreasonable out of the equation. Cases could go on one side or the other, but a track record would be established. There are reasonable concerns that a baby’s eardrums are affected by the loud noises, however the damage and hearing loss does not become apparent until the baby is older. Natural loud noises should be considered necessary. Loud music that creates nothing but vibrations is unnecessary. Necessity in the case of loud noises should be determined by the end result,the question that should be posed is this “Does the end result serve in the community interest?” Only the city elected officials and fathers are qualified to answer this question.

    Posted by: Kelly B. Richardson | June 18th, 2011 at 5:47 pm
     
  • […] Noise decibel limits are also not that easy for a typical law enforcement officer to apply and could have other disadvantages for enforcement.  See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities and the New Policing, 97 Colum. L. Rev. 551, 614 (1997).  At a minimum, the right (fairly expensive) equipment and an authorized person trained to use it must be available at the time of the complaint and the noise.  I previously raised concerns with the difficulty of using decibel limits and meters on this blog. […]

    Posted by: Noise Ordinances Being Struck Down Post-Tanner: The Problem of Decibels | Virginia Local Government Law | February 16th, 2011 at 12:44 pm
     
  • […] localities to grapple with various issues. Local government drafting issues were discussed in my first blog article from last year, while larger questions of law were discussed in my second blog article on the […]

    Posted by: Is the “Reasonable Person” Dead in Virginia? | Virginia Local Government Law | February 2nd, 2011 at 4:34 pm
     

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