Costello v. City of Burlington
2011 U.S. App. LEXIS 2831
| 2d Cir. | 2011Background
- Costello, a pro se preacher, was street preaching loudly on Church Street, Burlington, in a pedestrian mall with adjacent apartments and shops.
- Sgt. Lewis issued Costello a written warning under Burlington's noise ordinance prohibiting loud or unreasonable noise; Costello argued his First Amendment rights were implicated.
- The district court granted summary judgment for Sgt. Lewis and dismissed other defendants; on appeal, we affirmed the facial challenge and remanded for ambient-noise findings.
- Additional district-court findings showed Costello’s voice was audible over 350 feet away and disrupted others’ use of the street, leading to a favorable ruling for the city as applied to Costello.
- On remand, the court held the ordinance constitutional as applied to Costello, and the remaining defendants were dismissed; Costello appealed this judgment.
- This court affirmatively held the enforcement reasonable as applied, and denied § 1983 claims against non-Lewis defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the noise ordinance is narrowly tailored as applied to Costello | Costello argues the rule burdened speech more than necessary. | Lewis and Burlington contend it furthers public-health interests with ample channels. | Yes; regulation is narrowly tailored. |
| Whether Costello had adequate alternative channels for preaching | No adequate alternative channels; top-of-voice preaching should be allowed. | Sufficient alternative channels exist; lower voice still allows preaching. | Alternative channels exist; sufficient. |
| Whether Sgt. Lewis violated clearly established First Amendment rights | Costello contends rights were violated by loud-voice enforcement. | Right was not clearly established at the time; qualified immunity applies. | Qualified immunity; no clearly established right here. |
| Whether non-Lewis defendants can be held liable under 42 U.S.C. § 1983 or Monell | Allege personal involvement or municipal policy violations. | No personal involvement or policy proof; claims fail. | Claims against others are deficient; affirmed. |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (three-part test for time/place/manner restrictions)
- Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir. 2006) (narrow tailoring and ambient-noise considerations)
- Kovacs v. Cooper, 336 U.S. 77 (U.S. 1949) (distinguishes sound trucks from natural speech)
- Hill v. Colorado, 530 U.S. 703 (U.S. 2000) (tailoring inquiry; time/place restrictions may be valid)
- Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (two-step qualified-immunity framework; not mandatory)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (courts may decide qualified immunity before constitutional questions)
- DeCarlo v. Fry, No official reporter citation listed in text (2d Cir. 1998) (monell/policy-liability considerations)