Oral Argument Preview: Turn That ##!! Music Down!! A Constitutional Challenge to the Making Unreasonable Noise Statute. State v. Carrick.

Update: the merit decision was handed down in this case on February 22, 2012.  Read the analysis here.

On November 1, 2011, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Jason T. Carrick, 2011-0230.  The Court accepted the case on conflict certification on the question of whether Ohio Revised Code 2917.11(A)(2), which states that no person shall recklessly cause inconvenience, annoyance, or alarm to another by…making unreasonable noise” is void for vagueness.

Appellant Jason Carrick was hosting a Halloween party on property he used primarily to store retail goods. Two neighbors living nearby complained to the sheriff’s office of loud musical noises which disturbed them. While the neighbors could not hear the music clearly enough inside their homes, the real problem was with the bass sounds. An off-duty police officer who lived in the area was also disturbed by the bass sounds and phoned another officer to ask him to check out the situation. Officers appeared on the scene and asked Carrick to turn down the music. While he initially consented, the music became louder after the police officers left. The officers noticed the volume of the music had increased, but they first obtained statements from the two neighbors before returning to Carrick’s property and issuing him a citation.  Carrick was charged with disorderly conduct in violation of R.C. 2917.11(A)(2).  Carrick filed a motion to strike the “making unreasonable noise” provision in the statute as being unconstitutionally vague, which was overruled at trial.

The Ninth District court of appeals upheld the conviction finding that R.C. 2917.11(A)(2) was not unconstitutionally vague because it implicitly incorporates a reasonable person standard, which eliminates vagueness problems. This decision created a conflict with the Fourth District’s ruling that R.C. 2917.11(A)(2) was unconstitutional in State v. Compher, 4th Dist. No. 1160, 1986 WL 3406.

Carrick argues that the provision is unconstitutionally vague because it can be interpreted many ways and could be enforced arbitrarily or discriminatorily. There are no explicit standards in the statute that allow people to know what constitutes a violation or to provide guidance to those who enforce the law. Without explicit standards, there is a possibility that noise that annoys or irritates a hypersensitive person will violate the statute even though the noise might not actually be “loud” or “unreasonable.” R.C. 2917.11(A)(2) has caused people of normal intelligence to guess at what is covered by the statute, leading to uncertainty and making the statute vague.

For further support, Carrick contrasts R.C. 2917.11(A)(2) to other noise statutes that are not unconstitutional. Carrick mentions that the Ninth District relied on City of Columbus v. Kim, 118 Ohio St.3d 93 (2008), for support that the “unreasonable noise” statute was constitutional. However, the statute in Kim dealt with animals, and it prohibited keeping/harboring an animal which “howls, barks, or emits audible sounds that are unreasonably loud or disturbing . . . .” Explicit language such as “howls”, “barks”, “loud” provides guidance as to the conduct and types of noises which violate the statute. A case from the Sixth District and cited by the Ninth District, Village of Kelleys Island v. Joyce, (2001), 146 Ohio App.3d 92 , concerned a statute that outlawed sounds from specific devices that were plainly audible at a distance of “150 feet or more from the source.”  Both of the acceptable statutes referred to sources of sound and either prohibited sounds that were “loud” or were audible from a certain distance. R.C. 2917.11(A)(2) does not include this specificity, forcing potential violators and enforcers of the law to guess at what type of noises would violate the statute.

In response, the state argues that the statute is not vague and that it can be reasonably interpreted and applied throughout Ohio. The state uses the Kim case for the proposition that Carrick must prove that the statute is so unclear that an individual of ordinary intelligence would not understand what is prohibited beyond a reasonable doubt.  By clearly prohibiting the making of “unreasonable noise”, the legislature adopted a reasonable person standard. Under a reasonable person standard, a hypersensitive person cannot impose criminal liability on others solely because that person dislikes sounds coming from another. Instead, noise considered unreasonable by a person of normal sensibilities may violate the statute, a standard that is not difficult to apply.

Next, the state argues that the Compher case, which held that the “unreasonable noise” provision was unconstitutional, was incorrectly decided.  In Compher, the Fourth District found that R.C. 2917.11(A)(2) was unconstitutional because it did not follow the Model Penal code in limiting violations to “public inconvenience, annoyance or alarm,” and because it did not contain language limiting its application to specific times, places, and durations. The state counters Compher by saying that the statute replaced the word “public” from the Model Penal code with “another”, a distinction without a difference. Also, the state argues there is no affirmative requirement that comprehensive time, place, and duration restrictions are imposed.

The state also asks the Supreme Court of Ohio to read the statute as a whole. The language at the beginning of the statute reads “[n]o person shall recklessly cause inconvenience, annoyance, or alarm to another . . ..”  Recklessness is a common standard, defined as acting with heedless indifference or perverse disregard of the consequences of one’s actions. When combined with the “unreasonable noise” provision, the statute will not lead to arbitrary or petty enforcement of the statute against any and all noise that annoys another.

The state finally articulates the policy concerns that are present in this case. People want limits on the noise others can make. There are so many variables when it comes to legislating noise that any statute can, and will, be challenged for vagueness. It is impossible to create a statute that would specifically cover every possibility in which noise would be unreasonable. The “unreasonable noise” provision adequately and reasonably covers noise violations.

Student Contributor: Jason Persinger

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