Cursing a cop from 50 feet: Lawsuit tests constitutionality of Cape noise law

More than a year after the American Civil Liberties Union filed a lawsuit challenging the constitutionality of a Cape Girardeau city noise ordinance, the case remains pending in federal court.

Attorneys for both sides say the issue could be decided within the next few weeks. Both sides have asked U.S. District Judge Carol Jackson to issue a summary judgment.

The case stems from a traffic stop that occurred Aug. 30, 2013. Motorist David Clary of St. Louis was pulled over in his pickup truck and cited by Cape Girardeau police officer Matthew Peters for making an illegal right turn from Clark Street onto Broadway.

Court records show Clary subsequently was arrested for insulting the officer multiple times over his displeasure at being issued a traffic ticket. Clary continued to use profanity as the officer walked away, the lawsuit states. The officer warned Clary he would be arrested for "prohibited acts" if he could be heard over 50 feet away. The motorist subsequently was arrested after again cursing at the officer, the suit said.

Clary was charged with a violating city law that prohibits "yelling, shouting, hooting, whistling or singing on any public street, particularly between the hours of 11 p.m. and 6 a.m., or at anytime or place so as to annoy, disturb the quiet, comfort or repose of any persons in any office, or in any dwelling, hotel or other type of residence, or of any persons in the vicinity."

The traffic citation was issued about 10:45 a.m. He was detained for about an hour on the noise-violation charge, according to the lawsuit.

The lawsuit, filed in September 2014, seeks to have the city ordinance declared unconstitutional and asks for damages and "reasonable attorneys' fees." The case is set for a jury and nonjury trial March 7 in federal court in Cape Girardeau.

Attorney Al Spradling III, who represents the city and Peters, said the constitutionality issue would be brought before the judge, and any "damages" issue would have to be determined in a jury trial.

Tony Rothert, Clary's ACLU attorney, responded by email a summary judgment "might negate the need for a trial."

Both attorneys filed a joint motion earlier this year asking the judge to stay the deadlines for pretrial filings. As of Monday, the judge had yet to rule on the joint motion.

The lawsuit seeks judgment against Peters for "First Amendment retaliation" and "unconstitutional application" of city law. The suit also seeks a judgment against the city for "failure to supervise and train" the police officer regarding the First Amendment and for having an "unconstitutionally overbroad" noise ordinance.

The suit contends Clary could not have been heard insulting the officer at a distance of 50 feet. At the time the suit was filed, Rothert insisted his client was speaking at a normal volume on a public street.

It is alleged in the lawsuit Clary was arrested for his "expressive conduct" that the plaintiff argued is protected by the First Amendment. According to the lawsuit, "plaintiff's speech did not violate any law."

But Spradling said Cape Girardeau's noise ordinance is similar to those of other cities.

"This isn't unusual," he said of the ordinance, adding it is "a very extensive noise ordinance."

Spradling said noise violations are a common offense in municipal court and often stem from loud house parties. Some cases involve screaming and yelling, he said.

In this case, Clary was "screaming and yelling," Spradling said, adding police have an audio recording of the incident.

While the federal case is pending, Clary's case ended long ago in municipal court. The municipal judge fined him for the traffic violation but ruled he had not violated the noise ordinance, Spradling said.

As for the federal case, Spradling wrote in a motion for summary judgment that Peters, the police officer, is entitled to "qualified immunity as his actions did not violate clearly established constitutional prohibitions." According to the defendants' motion, the city did not fail to supervise or train Peters and the ordinance is not unconstitutionally broad or vague.

This marked the second time officer Peters was sued by the ACLU. In March 2013, a federal judge ordered Peters and the state of Missouri to pay more than $62,000 in attorneys' fees for a 2009 arrest he made involving flag desecration.

mbliss@semissourian.com

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