City Council's recently passed noise ordinance is no stranger to criticism, but now it's feeling full-force constitutional flak from local defense lawyer Steve Benjamin.
He represents members of the rock band Little Master and a resident of a house in the 1200 block of West Clay Street, who were cited April 4 for “creating loud music” and “louse noise from residence” during a concert at the house.
Under the noise ordinance, the defendants' alleged violations are class 2 misdemeanors punishable by a $1,000 fine, six months in jail, or both.
In their motions to dismiss the charges and suppress evidence, band members Timothy Morris, Michael Bourlotos and Leah Clancy and house resident Rozalia Janicki allege that city and Virginia Commonwealth University police officers forced open the front door of the house; entered without a warrant; blocked the front and back doors of the house while “demanding identification from everyone”; and conducted a house-wide search despite Janicki's protestations.
The defendants allege that the police officers, lacking probable cause for a warrantless search, violated U.S. and state constitutional protections against unreasonable search and seizure. “The officers went into the home because they heard music,” the suit charges, “but they had no information that the music fell within the category of unlawful speech regulated by the Richmond City noise ordinance.”
In a motion to suppress evidence, the defendants conclude that “had anyone else acted in this manner, they would have been prosecuted for burglary and abduction.”
The suit also challenges the constitutionality of the noise ordinance, calling it by turns “substantially overbroad,” “an unconstitutional restriction on speech,” “impermissibly vague” and as promoting “the establishment of religion.”
The motion to dismiss also appears to take delight in offering examples of alleged punishable offenses, such as: “a crying child, footsteps, or a front door closing at 6 a.m.” and “wind chimes on your front porch sounded by a breeze between the hours of 11:00 p.m. and 7:00 a.m.”
Marshaling a bevy of case law, the motion to dismiss also criticizes the noise ordinance's exemption for religious sounds, asking, “Is any music by a self-styled ‘Christian rock band' automatically exempt?”
A hearing in Richmond General District Court is set for Aug. 30.