STATE OF MICHIGAN IN THE DISTRICT COURT FOR THE COUNTY OF BERRIEN

CITY OF BENTON HARBOR,

PLAINTIFF, v.

CHRIS ANN LAMERE, DEFENDANT, and SEAN MICHAEL CRAWFORD, DEFENDANT,

and ROBERT CURTIS MABBITT III DEFENDANT.

JAMES LIGGINS JR (P66816) CITY OF BENTON HARBOR MILLER CANFIELD PADDOCK & STONE PLLC ATTORNEY FOR THE PEOPLE 277 South Rose Street, Suite 5000 Kalamazoo Michigan 49007 (269) 383-5897

JOHN TARGOWSKI (P70740) ACLU Cooperating Attorney TARGOWSKI & GROW, PLLC ATTORNEY FOR THE DEFENDANTS 141 E. Michigan, Suite 201 Kalamazoo, MI 49007 (269) 290-5606 MIRIAM AUKERMAN (P63165) ACLU Fund of Michigan ATTORNEY FOR THE DEFENDANTS 89 Ionia, Suite 300 Grand Rapids, MI 49503 (616) 301-0930

DEFENDANTS’ MOTION TO DISMISS AND BRIEF IN SUPPORT

Case No.: 2012007907OM Case No.: 2012007906OM Case No.: 2012007908OM HON. ALFRED BUTZBAUGH (P11492)

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MOTION TO DISMISS

Now come the Defendants, by and through counsel, and move that this Honorable Court

dismiss the charges against them for the reasons set forth in the accompanying brief.

__________________________ JOHN TARGOWSKI (P70740) ACLU Cooperating Attorney Targowski & Grow, PLLC 141 E. Michigan, Suite 201 Kalamazoo, MI 49007 (269) 290-5606

__________________________ MIRIAM AUKERMAN (P63165) ACLU Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 (616) 301-0930 Dated: August ____ , 2012

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

INTRODUCTION

Defendants Chris Ann Lamere, Sean Michael Crawford, and Robert Curtis Mabbitt III

are all charged with violating Sections 24-2 and 24-4 of Benton Harbor’s noise ordinance while

participating in a public protest in Jean Klock Park.

Defendants now bring this Motion to Dismiss on the grounds that: (a) Section 24-2 does

not apply to their conduct; (b) Section 24-4 is facially unconstitutional as an overbroad, content-

based, prior restraint on speech and assembly that is not narrowly tailored and does not leave

open ample alternatives for communication; and (c) Section 24-4 is unconstitutional as applied

because defendants’ use of noise making devices during their public demonstration is protected

by the free speech and assembly clauses of the U.S. and Michigan Constitutions.

STATEMENT OF FACTS 1 AND PROCEDURAL HISTORY

On the afternoon of Saturday, May 26, 2012, Mr. Mabbitt, Mr. Crawford, and Ms.

Lamere all participated in a public protest in Jean Klock Park within the City of Benton Harbor.

The protest concerned Michigan’s emergency financial manager law, the appointment of an

emergency financial manager in the City of Benton Harbor, and the taking of public land from

Jean Klock Park for the development of a private golf course. The protest took place at the same

time as the Senior PGA Golf Tournament, which was being held at the Golf Club of Harbor

Shores. The Golf Club is situated next to Jean Klock Park and was built partially on land from

the park.

1 Here, the essential facts are not in dispute: the defendants have been charged for tooting either a bike horn or an air horn during a public protest a Jean Klock Park. Because this is a Motion to Dismiss, the facts must be taken in the light most favorable to the prosecution. Thus, the facts here are drawn from the police reports.

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Mr. Mabbitt was standing in the park holding a cardboard sign with the handwritten

words “P A 4” crossed out, as well as a smaller decal with the words “emergency manager”

crossed out. (Public Act 4 is the emergency financial manager law.) The cardboard sign had a

bicycle horn attached to it. See Exhibit A (photographs of cardboard sign with bicycle horn)2.

After Mr. Mabbitt tooted the horn attached to the sign, he was approached by Benton Harbor

Police Officer Deenik and issued a citation for violating the city’s noise ordinance.

Some time after Mr. Mabbitt was ticketed, the sign with the attached bicycle horn was

given to Mr. Crawford. After Mr. Crawford tooted the bicycle horn on the sign, he was

approached by Benton Harbor Police Officer Harmon, who issued him a citation for violating the

noise ordinance.

Ms. Lamere also participated in the protest, and was likewise issued a citation for

violating the noise ordinance. The citation was issued by Benton Harbor Police Officer Deenik,

who heard the sound of an airhorn and determined that it came from Ms. Lamere.

The police reports indicate that in not one of the three cases did the officers first ask the

defendants to cease tooting their horns. Rather, the defendants were immediately ticketed after

the officers heard the defendants toot their horns.

All three incidents occurred during the afternoon. The police reports indicate that the

tickets were issued between three and four p.m..

The tickets issued to Mr. Mabbitt and Mr. Crawford both indicate that they were charged

with violating Section 24-3 of city’s noise ordinance. Ms. Lamere’s ticket did not indicate which

section of the noise ordinance she allegedly violated, but the police report in her case shows that

she was likewise charged under Section 24-3.

2 The photographs depict the sign/bicycle horn used by both Mr. Mabbitt and Mr. Crawford. The horn used by Ms. Lamere was broken, and was discarded after the protest. Therefore, no photograph of that horn is available.

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In defense counsel’s initial conversations with Benton Harbor’s attorney about the

charges at Mr. Crawford’s arraignment on June 21, 2012, the city’s attorney indicated that he

was not yet certain under which ordinance section he would be prosecuting the defendants, and

that the city might in fact proceed on charges that were different from those listed on the tickets.

On June 22, 2012 defense counsel sent a letter to the city’s attorney asking him to clarify

the sections under which Mr. Crawford would be charged, and asked that this occur by July 2,

2012 so that defense counsel would have adequate time to prepare a motion to dismiss. In a

letter dated July 16, 2012, the city’s counsel resolved the uncertainty about what charges the

defendant faced by stating that Mr. Crawford and the other protesters would be prosecuted under

Section 24-2 (Horns, warning devices) and Section 24-4 (Devices to attract attention of public)

of the Benton Harbor Code, not under Section 24-3 (Radios, phonographs, musical instruments).

Violations of Sections 24-2 and 24-4 are misdemeanors, not civil infractions, and are punishable

by up to 90 days in jail.

In an order dated July 31, 2012, and based on the stipulation of the parties, the three

defendants’ cases were consolidated.

STANDARD OF REVIEW

Defendants ask that the charges against them be dismissed by this Court because the

City’s prosecution of Defendants for their conduct implicates constitutional rights to free speech

and assembly accorded to them by the United States and Michigan Constitutions. In general a

person challenging a statute bears the burden of proving that it is unconstitutional. Gora v City

of Ferndale, 456 Mich 704, 711; 576 NW2d 141, 145 (1998). However, when the government

restricts speech, it bears the burden of proving the constitutionality of its actions. United States v

Playboy Entertainment Group, 529 US 803, 816; 120 S Ct 1878; 146 L Ed 2d 865 (2000).

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Because defendants’ horn-tooting was protected speech, the burden shifts to Benton Harbor to

prove the constitutionality of its ordinance.

DISCUSSION

Of the two Benton Harbor Code sections now being used to charge the defendants,

Section 24-2 is inapplicable by its plain meaning, and Section 24-4 is unconstitutional on its face

and in its application to defendants. For these reasons, the defendants ask that the charges

against them be dismissed.

A. SECTION 24-2 IS INAPPLICABLE TO THE CONDUCT WHICH F ORMS THE BASIS OF THE CHARGES AGAINST THE DEFENDANTS. Section 24-2 of the Benton Harbor Code reads in full:

Sec. 24-2. Horns, warning devices.

The sounding of any horn or other warning device on any automobile, motorcycle or other vehicle on any street or public place of the city, except as a danger warning; the creating by means of any such warning device of any unreasonably loud or harsh sound; the sounding of any such device for an unnecessary and unreasonable period of time; and the use of such warning device when traffic for any reason is held up shall be deemed a violation of this chapter. (Gen. Code 1946, Ch. 3, §109.2; Code 1972, §§ 9.32) (emphasis added). Section 24-2, by its plain language, deals specifically with “any horn or other warning

device on any automobile, motorcycle or other vehicle on any street or public place of the city.”

None of the defendants had a horn attached to any vehicle, not even a bicycle. Rather, the small

horn used by Mr. Crawford and Mr. Mabbitt was attached to a cardboard sign carried during the

protest. See Exhibit A (photographs of cardboard sign with bicycle horn). The air horn used by

Ms. Lamere was not attached to anything. When interpreting a statute, “each word or phrase . . .

should be given its plain meaning.” Burleson v Dep’t of Environmental Quality, 292 Mich App

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544, 549; 808 NW2d 792 (2011), lv den 490 Mich 917 (2011) (citation omitted).3 The law

requires courts to give the most straightforward reading possible, and discourages over-

interpretation on the part of courts. If the language of a statute is clear and unambiguous,

judicial construction is precluded. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich

511, 515; 573 NW2d 611 (1998) (citing Gross v General Motors Corp, 448 Mich 147, 158-159;

528 NW2d 707 (1995)). Thus, based on the plain meaning of the language of the ordinance,

Section 24-2 does not apply to the instant case because none of the horns at issue were attached

to a vehicle. Burleson, 292 Mich App at 549.

The City of Benton Harbor may argue that the inclusion of the term “horn” in Section 24-

2 makes it applicable to the defendants. However, this goes against a plain reading of the statute.

First, such a construction ignores the fact that the term “horn” is modified by the phrase “on any

automobile or other vehicle.” The court should not read that modifying phrase out of the statute.

Second, applying Section 24-2 to all horns would force the court to ignore the repeated

references in Section 24-2 to “any such warning device.” This does not mean any horn or

warning device, but devices as already defined in the ordinance – those attached to an

automobile, motorcycle, or other vehicle. It is presumed that every word of a statute has some

meaning, Burleson, 292 Mich App at 549, and if the ordinance applied to any horn, the word

“such” is rendered unnecessary. The word “such” refers to the warning devices as already

defined in the ordinance. In other words, if Section 24-2 applied to any horn, beyond those

already defined in the statute, it would refer to “any warning device” rather than “any such

warning device.” Courts should consider that “each statutory word or phrase has some meaning

and thus avoid rendering any part of a statute nugatory” and that “[t]he various parts of the

3 Rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances. Gora, 456 Mich at 711.

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statute must be read in the context of the whole statute to produce a harmonious whole.”

Burleson, 292 Mich App at 549. Courts must give a statute “a valid and reasonable construction

that will reconcile any inconsistencies and give effect to all its parts.” Girard v Wagenmaker,

437 Mich 231, 238; 470 NW2d 372 (1991).

Finally, reading Section 24-2 as only applying to vehicular horns does not simply accord

with the plain meaning of that section but also is supported by a review of the Benton Harbor

noise ordinance as a whole. Section 24-4 of the ordinance states “[n]o person shall operate any

sound amplifying device…nor blow any horns…for the purpose of advertising or attracting the

attention of the public.” Section 24-4 by its plain language applies to situations in which a horn

is being used for “attracting the attention of the public” and covers circumstances where a horn is

not attached to a vehicle. Reading the two sections together, it is clear that only Section 24-4 is

potentially applicable to the defendants’ actions. Therefore, Section 24-2 does not apply in this

case, and charges brought against the defendants under it must be dismissed.4

Thus, the only remaining charge is under Section 24-4 of the noise ordinance. However,

as explained below, that section is unconstitutional both on its face and as applied.

B. SECTION 24-4 IS UNCONSTITUTIONAL ON ITS FACE AS A V IOLATION OF THE U.S. AND MICHIGAN CONSTITUTIONS 5.

Section 24-4 of the Benton Harbor Code reads in full:

4 If the Court should find that Section 24-2 can be applied to defendants’ conduct, then it is unconstitutional for many of the same reasons as Section 24-4. Compare Section 24-4 (prohibiting use of vehicular horn except as danger warning), with Goedert v City of Ferndale, 596 F Supp 2d 1027, 1031-1032 (ED Mich, 2008) (finding ordinance that prohibited use of vehicular horns except as a warning to unconstitutionally interfere with free speech). 5 First Amendment limitations on governmental authority are applicable to city ordinances through the Fourteenth Amendment. Members of the City Council of Los Angeles v Taxpayers for Vincent, 466 US 789, 792 n 2; 104 S Ct 2118; 80 L Ed 2d 772 (1984). Moreover, the rights to free speech under the Michigan and federal constitutions are coterminous. Up & Out of Poverty Now Coalition v Michigan, 210 Mich App 162, 168; 533 NW2d 339 (1995).

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Sec. 24-4. Devices to attract attention of public.

No person shall operate any sound amplifying device, or shout or cry, nor blow any horns, ring any bell or use any similar device for the purpose of advertising or attracting the attention of the public; provided that any governmental unit or any bona fide nonprofit organization may use such device if proper application is made to the city clerk and permission is issued therefor. In no case will permission be granted for such use on a Sunday nor at any other time or in any other manner which in the opinion of the chief of police will constitute a nuisance. (Gen. Code 1946, Ch. 3, §109.4; Code 1972, §§ 7.75, 9.34). Section 24-4 is unconstitutional on its face because it violates the rights to free speech

and assembly guaranteed by the First Amendment of the United States Constitution6 and Article

1, Sections 3 and 5 of the Michigan Constitution.7 In addressing a facial challenge, "a court's

first task is to determine whether the enactment reaches a substantial amount of constitutionally

protected conduct." City of Houston v Hill, 482 US 451, 458; 107 S Ct 2502; 96 L Ed 2d 398

(1987) (citations omitted). "Because First Amendment freedoms need breathing space to

survive, government may regulate in the area only with narrow specificity." N.A.A.C.P. v Button,

371 US 415, 433; 83 S Ct 328, 9 L Ed 2d 405 (1963). A statute is overbroad if there is "a

realistic danger that the statute itself will significantly compromise recognized First Amendment

protections of parties not before the Court." City of Los Angeles v Taxpayers for Vincent, 466 US

789, 801; 104 S Ct 2118, 80 L Ed 2d 772 (1984). Under the overbreadth doctrine, criminal

statutes, such as the Benton Harbor ordinance at issue here, “must be scrutinized with particular

care.” City of Houston, 482 US at 459. “[T]hose that make unlawful a substantial amount of

constitutionally protected conduct may be held facially invalid,” even though some conduct

6 The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 7 Article 1, Section 3 of the Michigan Constitution states: “The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.” Article 2, Section 5 of the Michigan Constitution states: “Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.”

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prohibited under the statute could legitimately be criminalized. Id. See also People v. Rapp,

2012 WL 3064002; __ NW 2d __ (July 27, 2012) (laws that prohibit substantial amount of

protected conduct are facially overbroad even if they have otherwise legitimate applications).

Thus, even assuming the defendants’ conduct itself could be penalized, if the ordinance is

facially invalid, the charges against them must be dismissed.

1. The US Supreme Court’s Decision in Saia v. People of New York Striking a Similar Ordinance as a Facial Violation of the First Amendment Controls this Case.

In Saia v People of New York, 334 US 558, 558 n 1; 68 S Ct 1148, 92 L.Ed. 1574 (1948),

the United States Supreme Court struck down a noise ordinance that prohibited the use of sound

amplifying devices “maintained for advertising purposes or for the purpose of attracting the

attention of the passing public” unless permission was obtained from the police chief. The Court

held that the ordinance unconstitutionally violated the First Amendment on its face, explaining

that sound amplification devices

are today indispensable instruments of effective public speech….The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life. Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. But to allow the police to bar the use of loud-speakers because their use can be abused is like barring radio receivers because they too make a noise. The police need not be given the power to deny a man the use of his radio in order to protect a neighbor against sleepless nights. The same is true here….Any abuses which loud-speakers create can be controlled by narrowly drawn statutes. When a city allows an official to ban them in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas. In this case a permit is denied because some persons were said to have found the sound annoying. In the next one a permit may be denied because some people find the ideas annoying. Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice.

Id. at 561-62.

Just as in Saia, Section 24-4 prohibits the use of sound amplifying devices to attract

public attention or advertise. Just as in Saia, Section 24-4 functions as an absolute prohibition on

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sound-making devices, and therefore fails the narrow tailoring test because it does not consider

how time or place affect the appropriateness of sound-making devices. Just as in Saia, Section

24-4 gives the police chief uncontrolled discretion to decide which speakers may or may not

make sounds. And just as in Saia, the noise ordinance can – and future development of the facts

may well show actually did – use purported annoyance at sound as a basis for stifling speech

because of annoyance with the speakers’ ideas. In sum, Saia is directly on point and controls the

outcome here.

2. Section 24-4 is Unconstitutionally Overbroad Because it Severely Restricts the Public’s Right to Assemble and to Speak Freely.

In evaluating whether an ordinance is overbroad the court must consider whether the

ordinance will “chill constitutionally protected speech.” Twp of Plymouth v Hancock, 236 Mich

App 197, 202; 600 NW2d 380 (1999), lv den 463 Mich 908 (2000) (citing Vincent, 466 US at

799-801). The language of Section 24-4 could not be more sweeping in the constitutionally

protected speech it forbids. It prohibits not just sound amplifying devices, horns, and bells, but

also any “shout or cry” used “for the purpose of advertising or attracting the attention of the

public.” It is hard to imagine how any protest (other than perhaps a completely silent march)

would be possible under the ordinance. The constitutionally protected right of the people to

assemble would be eviscerated if the people could only do so inaudibly. After all, the whole

point of a protest is to “attract the attention of the public.” Yet the ordinance makes it illegal for

protestors to chant, shout, or sing. A protest leader could not use a microphone or bullhorn.

The ordinance not only severely restricts the speech and assembly rights of those

involved in public assemblies or protests, but also the free speech rights of individual speakers.

For example, under the ordinance a preacher could not stand on a soapbox in the town square

and proclaim a sermon. A holiday bellringer could not ring for change. A child selling

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lemonade on the sidewalk could not shout out to attract the attention of passersby. Indeed, even

the spectators at a golf tournament (such as the one occurring simultaneously with the protest at

issue here), could not cheer and clap to draw attention to a golfer’s great shot.8

Because the ordinance restricts a vast amount of constitutionally protected speech and

virtually eliminates the right to assemble, it is overbroad and, therefore, unconstitutional on its

face.

3. Section 24-4 is Unconstitutionally Content Based.

“Content-based regulations [on speech] are presumptively invalid.” RAV v St Paul, 505

US 377, 382; 112 S Ct 2538; 120 L Ed 2d 305(1992) (citations omitted). To determine whether

a restriction is content-based, courts look at whether a government regulation “restrict(s)

expression because of its message, its ideas, its subject matter, or its content.” Consolidated

Edison Co of New York v Public Serv Comm of NY, 447 US 530, 537; 100 S Ct 2326; 65 L Ed 2d

319 (1980). A restriction on speech is content-based if its applicability turns on the speaker’s

message. Turner Broadcasting System, Inc v FCC, 512 US 622, 643; 114 S Ct 2445; 129 L Ed

2d 497 (1994).

a. Section 24-4 Is Content-based because it Distinguishes Based on the Identity of the Speaker.

Section 24-4 is content-based because it allows two defined categories of speakers and

prohibits all others. The only two groups of speakers allowed to express themselves under

Section 24-4 are those who belong to a “governmental unit” or those who belong to a “bona fide

nonprofit organization.” These are the only types of speakers who can make an application to

the city clerk in order to employ the sounds proscribed by Section 24-4. All private citizens,

8 The City’s selective enforcement of the ordinance – such as applying it to protestors who make noise but not to golf spectators who are similarly loud – raises additional concerns. Because those issues require factual development, they will not be raised at this time.

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commercial enterprises, or any other classification of speaker are prohibited from speaking in the

matter proscribed by Section 24-4. Here, the restriction is based not only on the speaker’s

message, but also on the identity of the speaker, a clear violation of First Amendment doctrine.

Turner Broadcasting System, Inc, 512 US at 643.

Content-based restrictions that target some speakers, but not others, not only violate the

First Amendment, but also the Equal Protection Clause of the United States Constitution. For

example, in Carey v Brown, 447 US 455; 100 S Ct 2286; 65 L Ed 2d263 (1980), the Supreme

Court struck down an Illinois statute that prohibited peaceful picketing of residences or

dwellings, but exempted labor picketing. Because the statute discriminated among those allowed

to picket “based on the subject matter of their expression,” it violated the Equal Protection

Clause of the Fourteenth Amendment. Id. at 471. See also Rosenberger v Rector and Visitors of

University of Virginia, 515 US 819, 828; 115 S Ct 2510; 132 L Ed 2d 700 (1995) (“government

regulation may not favor one speaker over another”). When an equal protection claim is based

on the violation of a fundamental right – here, freedom of speech – courts will uphold the law

only if the distinctions drawn by the state are “finely tailored to serve substantial state interests.”

Carey, 447 US at 461-62. Just as in Carey, two people could be engaging in the same behavior,

even holding the same sign (e.g. “Peace on Earth”) and ringing the same kind of bell. Under

Section 24-4 a non-profit representative could do it legally, while a private citizen could not.

Because there is no justification for such a distinction between speakers, the ordinance is

unconstitutional.

b. Section 24-4 is Content-based Because It Distinguishes Based on the Purpose for Which a Horn is Used or a Noise is Made.

Section 24-4 is also content-based because it restricts blowing horns and making other

noises “for the purpose of advertising or attracting the attention of the public.” Thus, honking

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horns to advertise or attract attention is prohibited, but honking horns for other purposes is not.

Shouting or crying to advertise or attract attention is prohibited, but shouting or crying for other

purposes is not. To determine if a noise is restricted by Section 24-4, officials need to look at the

content of the speech and determine if it is for the purpose of advertising or attracting the

attention of the public. Because making noise is only banned for certain purposes, the police

must examine the content of the noise before issuing a ticket. Consolidated Edison Co of New

York, 447 US at 537; Turner Broadcasting System, Inc, 512 US at 643. That makes the

ordinance impermissibly content-based.

In Goedert v City of Ferndale, 596 F Supp 2d 1027 (ED Mich, 2008), the court held that

ordinance provisions barring vehicular horn honking other than as a warning sound violated the

plaintiffs’ free speech rights. There, Ferndale police had ticketed both protestors holding signs

asking passing motorists to honk for peace in Iraq, as well as a motorist who honked in response

to the signs. The court ruled the ordinance at issue was impermissibly content-based because

“any message, other than a warning, delivered by the ‘honk’ sign or horn honking violates the

Ordinance,” and that with respect to the honks themselves, the “content of the message contained

within the honk must be determined by the police before issuing citations.” Id. at 1033.

Likewise, in Benton Harbor, police must decide whether a noise is being used to advertise or

attract the attention of the public, or whether it is meant to convey some other message.

Therefore, Section 24-4 is a content-based restriction, which is presumptively invalid.

4. Section 24-4 Does Not Meet the Standards for a Valid Time/Place/Manner Restriction.

The City of Benton Harbor will likely claim that Section 24-4 survives as a time, place,

and manner restriction. The First Amendment of the U.S. Constitution and the free speech

clause of the Michigan Constitution only allow time, place and manner restrictions that are (i)

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content-neutral; (ii) narrowly tailored to further substantial government interests; and (iii) leave

open ample alternative means for communicating the desired message. Perry Education Ass’n v

Perry Local Educators’ Ass’n, 460 US 37, 45; 103 S Ct 948; 74 L Ed 2d 794 (1983). Section

24-4 fails all three tests.

As discussed above, Section 24-4 is content-based, and therefore presumptively

unconstitutional. But even if it were not, the ordinance would fail because it is not narrowly

tailored to further substantial government interests. While the city may have an interest in the

abstract in regulating excessive noise, the city does not have a substantial interest in prohibiting

all types of sounds (bells, horns, shouts, and cries) that would attract public attention.9 Benton

Harbor’s ordinance categorically prohibits entire categories of attention-attracting sounds, such

as shouting or crying or using sound amplifying devices, irrespective of location (e.g. traditional

public forum versus residential area); time of day (day or night); or other factors relevant to the

city’s interest in noise reduction. A sound that might be too loud in a residential neighborhood in

the middle of the night is a sound that might be perfectly acceptable in a public park on a noisy

beach in the middle of the afternoon. But the ordinance is not tailored to make any such

distinctions. See Saia, 334 US at 560 (“The statute is not narrowly drawn to regulate the hours or

places of use of loud-speakers, or the volume of sound (the decibels) to which they must be

adjusted.”); Lilly v City of Salida, 192 F Supp 2d 1191 (D Col, 2002) (25 foot limitation on

audibility of sound measured from private property line is so limiting that it constitutes a

complete ban on the use of amplified sound and cannot be justified as a reasonable time, place

and manner restriction or considered to be narrowly tailored).

9 Whatever explanation Benton Harbor may offer for its blanket prohibition on attention-attracting sounds, the “government has the burden of showing that there is evidence supporting its proffered justification.” Weinberg v City of Chicago, 310 F 3d 1029, 1038 (7 CA, 2002), reh den 320 F3d 682 (2003), cert den 540 US 817 (2003). “Mere speculation of harm does not constitute a compelling state interest.” Consolidated Edison, 447 US at 543.

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In addition, courts have repeatedly held that sound ordinances that do not account for the

use of traditional public fora as a site for protest fail the narrow tailoring test. See e.g., United

States v. Doe, 968 F 2d 86 (DC CA, 1992) (federal regulation prohibiting playing a musical

instrument higher than a proscribed decibel level in a national park is not a permissible time,

place, and manner restriction, noting “the very concept of a situs being designated as a ‘public

forum’ for First Amendment purposes presupposes that the situs has been used for purposes of

assembly, communicating thoughts between citizens and discussing public questions”); Lionhart

v Foster, 100 F Supp 2d 383, 388 (ED Pa, 1999) (ordinance limiting sound over 55 decibels in

designated “quiet zones,” which included traditional public fora, was unconstitutional because

the sound limit was “so unreasonably broad in the context of normal activities on public streets

and in public parks”).

Finally, the ordinance does not leave open ample alternatives for communication. A

regulation that “foreclose[s] an entire medium of expression” fails the ample alternatives test.

City of Ladue v Gilleo, 512 US 43, 55; 114 S Ct 2038; 129 L Ed 2d 36 (1994). Additionally, the

Supreme Court has repeatedly struck down laws which effect complete bans on particular forms

of speech, despite the availability of other forms. See Gilleo, 512 US 43 (invalidating ordinance

prohibiting residential signs); Jamison v Texas, 318 US 413, 416; 63 S Ct 669; 87 L Ed 869

(1943) (invalidating ban on distribution of handbills on public streets); Martin v City of

Struthers, 319 US 141, 145-149; 63 S Ct 862; 87 L Ed 1313 (1943) (invalidating ban on door-to-

door distribution of literature).

In the instant case, Section 24-4 prohibits expression through any type of attention-

attracting sound. Protestors may not shout. They may not cry. They may not honk horns or ring

bells. They may not, it seems, do anything that would “attract[] the attention of the public.” In

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addition, Section 24-5 of the Benton Harbor noise ordinance further prohibits “[y]elling,

shouting, hooting, whistling or singing on the public streets” if it might cause annoyance. If

protestors’ only alternative to making these kinds of sounds is a silent march, that does not

provide an ample alternative for communication for those who wish to assemble and speak on

issues of public concern.

5. Section 24-4 Constitutes an Impermissible Prior Restraint on Speech.

Not only does Section 24-4 categorically exclude large numbers of speakers, it also

imposes a prior restraint on the speech on those speakers who can get permission to speak

(governmental units and bona fide nonprofit organizations) by mandating that in order to

communicate through attention-attracting sounds, they first must make “proper application” to

the city clerk, and obtain permission at the discretion of the police chief.

A prior restraint gives “public officials the power to deny use of a forum in advance of

actual expression.” Ward v Rock Against Racism, 491 US 781, 795 n 5 (1989) (quotations

omitted). “The simple knowledge that one must inform the government of his desire to speak

and must fill out appropriate forms and comply with applicable regulations discourages citizens

from speaking freely.” N.A.A.C.P. v City of Richmond, 743 F 2d 1346, 1355 (9 CA, 1984).

While prior restraints are not invalid, per se, there is a “heavy presumption” against their

validity. Bantam Books v Sullivan, 372 US 58, 70; 83 S Ct 631, 9 L Ed 584 (1951). To be valid,

a permit ordinance must meet each of five constitutionally-mandated standards. It must: (1) be

narrowly tailored to serve a significant government interest; (2) leave open ample alternatives for

communication; (3) constrain the discretion of administering officials; (4) be content-neutral;

and (5) require mens rea for any criminal penalties. Forsyth County v Nationalist Movement,

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505 US 123, 130; 112 S Ct 2395; 120 L Ed 2d 101 (1992); Smith v California, 361 US 147; 80 S

Ct 215; 4 L Ed 2d 205 (1959).

As laid out above in the discussion of time, place and manner restrictions, Section 24-4

on its face is not narrowly-tailored, does not leave open ample alternatives for communication,

and is not content neutral. Nor does it constrain the discretion of administering officials. Under

Section 24-4, the police chief may forbid activities at “any other time or in any other manner

which in the opinion of the chief of police will constitute a nuisance.” This is exactly the

problem that the U.S. Supreme Court identified with the ordinance at issue in Saia, which was

held to be an unconstitutional prior restraint because “[t]here are no standards prescribed for the

exercise of [the police chief’s] discretion.” Saia, 334 U.S. at 560. Finally, Section 24-4 does not

require that a person have mens rea before being ticketed under the ordinance. Violators do not

have to act “knowingly” and a good-faith belief in the legality of their actions is no defense.

This impermissibly imposes strict liability on individuals participating in public protests who

have no intent to violate the law. American-Arab Anti-Discrimination Committee v City of

Dearborn, 418 F 3d 600, 612 (6 CA, 2005) (holding protestors who participated in a permitless

march could not be held strictly liable because “[a]utomatically criminalizing participation in a

permitless march destroys the spontaneity and enthusiasm which public demonstrations of this

nature are meant to engender”).

C. SECTION 24-4 IS UNCONSTITUTIONAL AS APPLIED.

The undisputed facts10 here are that the defendants were charged because they tooted

horns in the middle of the afternoon while at Jean Klock Park participating in a public protest

concerning Michigan’s emergency financial manager law, the appointment of an emergency

10 While future factual development may provide additional bases for further as applied challenge (e.g. selective enforcement of the ordinance against the protestors based on the content of their speech), even on the undisputed facts, it is clear that the ordinance was unconstitutional as applied.

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financial manager in the City of Benton Harbor, and the taking of public land from Jean Klock

Park for the development of a private golf course. Because the defendants’ actions were clearly

constitutionally protected under the free speech and assembly clauses of the United States and

Michigan Constitutions, the ordinance cannot constitutionally be applied to them.

Political speech related to current events is the prototypical example of protected speech.

Texas v Johnson, 491 US 397, 411; 109 S Ct 2533; 104 L Ed 2d 342 (1989). Here the

defendants were not just speaking on matter of public concern, but were doing so through a

public protest, which is a “unique and cherished form of political expression, serving as a symbol

of our democratic tradition.” American-Arab Anti-Discrimination Committee, 418 F 3d at 611.

Moreover, they were doing so in a public park, where the government’s ability to forbid

expressive conduct is extremely limited. Public parks are “prototypical” examples of public

fora, and have immemorially been considered a rightful place for public discourse.11 “[St]reets

and parks which have immemorially been held in trust for the use of the public and, time out of

mind, have been used for the purposes of assembly, communicating thoughts between citizens,

and discussing public questions.” Perry Education Ass’n v Perry Local Educators’ Ass’n, 460

US 37, 44; 103 S Ct 948; 74 L Ed 2d 794 (1983) (internal citations omitted). In other words,

speech that occurs during public protests in traditional public fora receives the highest level of

constitutional protection. The city simply cannot demonstrate that it has a compelling, or even

substantial, interest in criminalizing the tooting of horns during day-time public protests in public

parks.12

11 Also significant is that the protest took place in Jean Klock Park -- the very park from which land was taken for the building of the controversial golf course. It is an especially bitter irony for defendants to be denied their constitutional right to protest in public parks, when the privatization of that very park was a trigger for the protest. 12 Content-based restrictions and laws that impose an “absolute prohibition on a particular type of expression” within a traditional public forum will be upheld only if narrowly drawn to accomplish a compelling governmental interest. Boos v. Barry, 485 US 312, 321; 108 S Ct 1157 (1988); United States v. Grace, 461 US 171, 177 (1983).

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Finally, the court should reject any claim that defendants’ horn-tooting was not political

speech. Indeed, in the case of Mr. Crawford and Mr. Mabbitt, the bicycle horn at issue was even

physically attached to a sign criticizing Public Act No. 4. Texas v Johnson, 491 US at 404

(quotation omitted) (“In deciding whether particular conduct possesses sufficient communicative

elements to bring the First Amendment into play, we have asked whether an intent to convey a

particularized message was present and whether the likelihood was great that the message would

be understood by those who viewed it.”). As is clear from Goedert, 596 F Supp 2d at 1031-

1032, the tooting of horns in relation to political matters conveys a particularized message

understood by those who hear it, and therefore is protected speech.

In sum, employing Section 24-4 to suppress defendants’ political speech in a public

forum violates the defendants’ constitutional rights to free speech and assembly as applied.

CONCLUSION

By its plain language, Section 24-2 of the Benton Harbor Code does not apply to

defendants’ actions of honking horns in Jean Klock Park. Section 24-4 violates the U.S. and

Michigan Constitutions on its face and as applied. For the reasons discussed above, defendants

respectfully ask that this Honorable Court dismiss the charges against them.

Time/place/manner restrictions that are content-neutral must be narrowly tailored to further a substantial government interest. Perry Education Ass’n, 460 US at 45. Here, Benton Harbor cannot demonstrate a substantial interest, much less a compelling one.

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Dated: August ____ , 2012

__________________________ JOHN TARGOWSKI (P70740) ACLU Cooperating Attorney Targowski & Grow, PLLC 141 E. Michigan, Suite 201 Kalamazoo, MI 49007 (269) 290-5606

__________________________ MIRIAM AUKERMAN (P63165) ACLU Fund of Michigan 89 Ionia NW, Suite 300 Grand Rapids, MI 49503 (616) 301-0930