Latest ruling is Cape's third strike against the First Amendment

Cape Girardeau city laws and enforcement actions have run afoul of the First Amendment three times in the past four years.

Federal judges have struck down the restrictions as unconstitutional.

Twice, the cases have involved the same Cape Girardeau police officer.

The latest occurred Monday when U.S. District Judge Carol Jackson declared a provision of the city’s noise ordinance dealing with “yelling, shouting, hooting, whistling or singing” violates the First Amendment protection of free speech.

The judge issued a permanent injunction, barring the city from enforcing that provision, which she concluded is “unconstitutionally” broad and “sweeps far beyond the legitimate purpose of curtailing noise.”

The case was filed by the American Civil Liberties Union on behalf of motorist David Clary of St. Louis, who was arrested in August 2013 for yelling at police officer Matthew Peters after a traffic stop.

The two previous First Amendment violations involved a flag-burning incident in which Peters made an arrest and the Ku Klux Klan’s plan to place fliers on cars in Cape Girardeau.

A federal judge in September 2012 ruled the KKK could place fliers on cars.

A federal court earlier in the same year struck down a state statute banning flag-burning (the city removed a similar city ordinance before the ruling).

In December 2012, the judge awarded $7,000 in damages to the flag burner — $1,000 for each of the seven hours he was in custody.

In March 2013, the judge ordered Peters and the state of Missouri to pay more than $62,000 in lawyers’ fees.

Tony Rothert, Clary’s ACLU lawyer, welcomed the latest ruling.

“I am hopeful that the police department is making sure officers understand First Amendment rights better,” Rothert said.

Rothert said Cape Girardeau has a history of First-Amendment violations.

“There are certain cities where we get more complaints, and Cape Girardeau is one of them,” he said.

Attorney Al Spradling III, who represented the city and Peters in the noise-ordinance case, said the ruling applies to only one provision of the city’s noise ordinance.

Other provisions against loud stereos, loud animals and noise from late-night recreational activities still are prohibited under the city laws.

Rothert suggested the noise ordinance may have constitutional problems in other areas besides the one struck down in the latest case.

Several of the noise restrictions, for example, refer to noises that can be heard at a distance of 50 feet — a regulation that could be in question.

“Certainly it is a danger when there is a law that is so broad, it could apply to any speech,” the ACLU attorney said.

In the ruling, the judge said the plaintiff is entitled to a jury trial on two counts seeking monetary damages from the police officer and the city government as a whole.

Lawyers for both sides expressed hope for a settlement on those counts, now that the noise provision has been found unconstitutional.

Spradling said many municipalities have noise ordinances that are routinely enforced.

Cape Girardeau police have filed 144 reports involving noise-ordinance “prohibited acts” over the past four years, Sgt. Adam Glueck said. In many cases, police issued citations.

“A lot of these involved car stereos and loud music,” he said.

In all, the city ordinance contains 12 provisions, only one of which has been ruled unconstitutional.

Glueck said he didn’t know how many of these cases involved the unconstitutional provision that prohibited yelling, shouting, hooting, whistling or singing on any public street if it annoys or disturbs anyone in the vicinity.

Spradling estimated the city has had at least a half dozen such cases over the past three or four years.

Mayor Harry Rediger said the city council will look to remove the unconstitutional provision from the ordinance at an upcoming meeting.

Spradling, who was mayor when the council approved the noise ordinance in 1998, said the city has no reason to keep the provision on the books if it can’t be enforced.

The council enacted the noise ordinance in response to complaints about people playing loud music in their cars and on boom boxes, Spradling recalled.

Spradling said the ordinance was patterned after similar laws in other communities.

According to the Missouri Municipal League, a number of Missouri cities have noise restrictions similar to Cape Girardeau’s now-unconstitutional provision.

Those cities include Rolla, Jefferson City and Poplar Bluff.

The judge’s ruling applies only to the Cape Girardeau law, Spradling and Rothert said.

In her 39-page ruling, the federal judge said the city’s noise provision “fails to put a person of ordinary intelligence on notice of when his regulated forms of speech at any place and time actually violate the law and it also authorizes and encourages seriously discriminatory enforcement.”

Jackson cited numerous federal appellate and U.S. Supreme Court cases in support of her ruling.

She wrote that the fact “the ordinance criminalizes free speech that annoys or disturbs any third party without defining those terms means that an individual can avoid a criminal charge only by never yelling, shouting, whistling or singing anywhere, at any time.”

Jackson concluded that the city law is “unconstitutionally vague.”

The city’s contention the noise restrictions apply only to noises audible from at least a distance of 50 feet “does not cure the constitutional defect,” she wrote.

Jackson also found the city has given Cape Girardeau police officers complete discretion to decide whether a noise violation has occurred, which is “the hallmark of a vague regulation.”

The judge offered hypothetical examples of why the ordinance is unconstitutional.

“The sports fan in one of the city’s taverns who makes the mistake of hooting with glee at a Cubs’ victory might find himself jailed for drawing the ire of a despondent Cardinals fan across the bar. ... A veteran who, while standing in her backyard next to a flagpole on the Fourth of July, begins to sing ‘The Star-Spangled Banner’ slightly off-key could find herself arrested if a police officer patrolling nearby hears the song and is annoyed or disturbed by the imperfect rendition of America’s national anthem,” the judge wrote.

Jackson ruled the plaintiff legally may seek damages from Peters because the officer “lacked even arguable probable cause for his actions.”

Citing another court case, the judge wrote “there is no justification for harassing people for exercising their constitutional rights.”

Jackson wrote that even the city and Peters “concede that shouting profanity at a police officer is actively protected by the First Amendment.”

The judge found that Peters “failed to conduct even a cursory investigation of the alleged crime” and did not interview bystanders to even try to determine if they were annoyed or disturbed by the profanity directed at the officer.

Jackson wrote “sufficient circumstantial evidence exists here for a reasonable jury to find that Peters would not have arrested plaintiff” had the motorist not yelled at him.

The judge also found the city of Cape Girardeau is liable for damages for “violating the plaintiff’s constitutional rights” by enacting the unlawful noise provision.

Jackson ruled in the city’s favor on one count, finding the city was not “deliberately indifferent” to the training of Peters regarding First-Amendment rights.

mbliss@semissourian.com

(573) 388-3641

Pertinent address:

U.S. District Court, 599 Independence St., Cape Girardeau, Mo.