Attorney Steven Benjamin has been leading the charge for months now, consistently lambasting the city’s new noise ordinance as “unconstitutional”. He gave countless interviews to media outlets and even took up a case for free to fight it. Sure enough, a judge agreed with him this week.
Richmond General District Chief Judge Robert Pustilnik declared the ordinance unconstitutional. He ruled it was too broad and unfairly promotes religion.
The ordinance prohibits noise that can be heard 50 feet away after 11:00 at night. Violators face a class 2 misdemeanor and up to 6 months in jail. The ordinance allows for religious music, church bells and organs to be heard at anytime.
Steven Benjamin said after the hearing, “The city’s ordinance is completely unconstitutional on its face. It criminalizes noise that one makes within one’s own home and it advances religion and religious noise. The ordinance makes it impossible for people to know whether the sounds they make in their daily living are lawful sounds or not.”
Judge Pustilnik gave the city until December 14th to appeal his ruling to Circuit Court. If no appeal is made then Pustilnik will dismiss the charges against the four band members. Either way, it appears City Council will have to take up the issue again. Assistant City Attorney Greg Lukanuski says the city will take its time deciding whether or not to appeal.
Steven Benjamin said, “I hope the city will make the responsible decision and not waste anymore time defending this ridiculous thing, and will instead go to work and give us the noise ordinance that we deserve.”
In a statement issued shortly after the ruling, Councilman Charles Samuels (who led the way for reforming the noise ordinance) said he was, ” disappointed by the outcome, but respects the judge’s decision.” Samuels went on to say, ” Much has been made of the issue with our city’s current noise law. After the Virginia Supreme Court’s Tanner decision nullified the “unreasonably loud” standard in 2009, I worked with the city attorney’s office to review what other options we had. Since April I have been meeting with a workgroup to craft a new noise ordinance which I hope to introduce in December or January of 2011. ”
Here’s a link to a blog with more information on the “Tanner Decision” from the fine folks at VA Lawyers Weekly.