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

On November 1 the Supreme Court of Ohio heard oral argument in State v. Carrick. 2011-0230. At issue was whether the “making unreasonable noise” provision in the state disorderly conduct statute, Ohio Revised Code 2917.11(A)(2), is void for vagueness.

Neighbors called police over loud music coming from a Halloween party Carrick was hosting.  The police came over and warned him that if they had to return, he would be issued a citation.  While Carrick complied at first, the music became louder after the police left.  The police returned shortly after midnight, and issued him a minor misdemeanor citation for disorderly conduct. He was convicted by the trial court.  The Ninth District Court of Appeals upheld his conviction.  The Supreme Court accepted the case on conflict certification over the constitutionality of the statute.

Read the oral argument preview post of this case here.

 Defense counsel’s argument was based on his proposition of law that “the ‘making unreasonable noise’ provision of Ohio Revised Code 2917 (A)(2) is unconstitutionally void for vagueness.” He argued that the court of appeals wrongly incorporated a tort standard—that of the reasonable person—into a criminal statute, thus lessening the burden of proof, and taking away the legislature’s right to establish the elements of crimes.

 The prosecutor argued that the reasonable person standard is found in many aspects of the criminal law—in determining excessive speed, excessive force, and self-defense, by way of examples, and is not just a tort standard. The statute provides fair notice and is easily understandable by persons of ordinary sensibilities. The statutory language is clearly objective, not subjective

 What’s Wrong with the Reasonable Person Standard? (tort professor’s note—ttwo justices have got to stop saying ‘reasonable man’ and switch to reasonable person!)

 Justice Stratton noted the court has found the reasonable person standard perfectly constitutionally sound—so why not here as well?  If the language got too specific, wouldn’t we then have the problem of the hypersensitive complaining witness?

 Chief Justice O’Connor noted that the concept of the reasonable person has been used in the criminal law, and gave several examples. Why would that be impermissibly subjective and hard to apply?

 So what’s a better way?

Justice Lanzinger asked whether adding the word “public’ to the statute, as in the model penal code (a person is guilty of disorderly conduct if, with purpose to cause public inconvenience) could save the statute?

 Chief Justice O’Connor noted that other uses of property are regulated by zoning laws—wasn’t this statute a general regulation to the public on how to conduct oneself?

 Justice O’Donnell asked how this statute differed in specificity from the Cincinnati noise ordinance the court upheld in State v. Dorso, (1983), 4 Ohio St.3d 60.

 Notice

Chief Justice O’Connor asked whether there was any question at all that the defendant was on notice that his music was disturbing to others?

 Context matters!

Justice Lanzinger asked whether the circumstances were significant here—the noise was from a Halloween party, and it was the fall-back time change weekend.  Did that matter?  Should that matter?

 Justice Pfeifer asked whether an unreasonable noise must always be contextualized.  A passing train would be very noisy but that wouldn’t be unreasonable because of its commercial necessity? (a kind of reverse tree falls in the forest but no one hears it argument). Or in this case did it all just boil down to the fact that the bass was too loud? Does it all come down to a facts and circumstances determination, rolled into a reasonable person standard?

 Justice Lanzinger asked whether the vagueness issue was in any way mitigated by the fact that this was only a minor misdemeanor citation—there was some subjectivity in the enforcement process, but the concern is less because there was no possibility of jail time.  She also asked about what to make of the fact that no one at the party thought the noise was too loud?

 Chief Justice O’Connor asked whether the time of day was a factor?

 How It Looks from the Bleachers

The justices didn’t seem all that engaged with this one. I think a majority, or perhaps even a unanimous court, will vote to uphold this statute, and will find it has incorporated, and fairly so, a reasonable person standard objectively understandable to all.