August 15, 2012
Unreasonable Noise

by Justice Paul E. Pfeifer

It must have been one heck of a Halloween bash. At the very least, the party that Jason Carrick hosted in a building he owned outside the Wooster city limits on the night of October 31, 2009, was quite loud.

The festivities began around 8 and showed no signs of slowing down well past midnight. Two neighbors – who each live about a quarter of a mile away – heard the loud music into the early morning hours. One neighbor testified that she could clearly hear the words to the music from her deck. The other neighbor said the noise rattled his windows.

Juan McCloud, an off-duty Wooster police officer, was at his home inside city limits that evening when he heard the repeated thumping of a bass. McCloud called a colleague to ask about the source of the music and was told that deputies were on the scene. About ten minutes later the music stopped, only to start up again five minutes after that.

Wayne County Sheriff’s Deputy Daniel Vaughn was the first to respond to the noise complaints. Vaughn testified that he notified Carrick of the complaints and gave him a verbal warning. While Vaughn was there, the music was still playing, but the volume was reduced. Vaughn warned Carrick that if he had to return, he would issue a citation.

Sure enough, the noise level increased soon after Vaughn left. Vaughn talked to one of the neighbors, and while he was taking her statement, another neighbor walked over and provided a written statement. Vaughn heard the music during the 25 minutes he was taking these statements.

After that, Vaughn and three other deputies returned to Carrick’s. Vaughn issued a minor-misdemeanor citation for disorderly conduct. He again cautioned Carrick, and the volume was lowered. The deputies told Carrick that if they had to return, he would be arrested.

By 1:30, the music was blaring again and Vaughn, after receiving another complaint, was back at the party. Carrick was arrested and subsequently charged and convicted of disorderly conduct for violating Ohio’s unreasonable noise law.

Carrick filed an appeal, but the Ninth District Court of Appeals affirmed his conviction. Afterward, the Ninth District found its judgment to be in conflict with the Fourth District’s judgment in a similar case. When such conflicts arise, the cases come before us – the Supreme Court of Ohio – to settle the differences.

The law that Carrick was arrested for violating states, “No person shall recklessly cause inconvenience, annoyance, or alarm to another by ... making unreasonable noise ...”  In his appeal, Carrick argued that this law was unconstitutional because it is vague.

Under the “vagueness doctrine,” laws which do not fairly inform a person of what is prohibited are considered unconstitutional because they violate due process. But “impossible standards of specificity are not required.”

Carrick made two arguments: first, that the law was unconstitutional on its face. To make such an argument, the challenger must show that upon examining the law, an individual of ordinary intelligence wouldn’t understand what he’s required to do under the law. Therefore, to win that challenge, Carrick had to prove, beyond a reasonable doubt, that the law was “so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.”

Carrick’s second argument was that the law was unconstitutional as it was applied. In making an “as-applied” challenge, the challenger contends that application of the law in the particular context in which he has acted is unconstitutional.

But we concluded – by a seven-to-zero vote – that the unreasonable noise law withstands both avenues of attack.

In resolving this issue, we looked to a case from 2008, called Columbus v. Kim. In that case, Rebecca Kim was charged with harboring an unreasonably loud animal in violation of a Columbus city ordinance. That ordinance states that “no person shall keep ... any animal which howls, barks, or emits audible sounds that are unreasonably loud or disturbing and which are of such character, intensity and duration as to disturb the peace and quiet of the neighborhood or to be detrimental to life and health of any individual.”

Kim argued that the ordinance was void for vagueness. But we concluded that the ordinance was not constitutionally vague “because it sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the ordinance prohibits.” And the prohibitions “are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.”

The analysis in the Kim case was applicable to Carrick’s. Despite Carrick’s assertions to the contrary, the unreasonable noise law does provide adequate qualifying language to prevent it from being unconstitutionally vague. The law sets for sufficient standards to place a person of ordinary intelligence on notice of what conduct the law prohibits. This objective standard undermined Carrick’s argument that the unreasonable noise law permits hypersensitive persons to impose criminal liability on others.

Beyond that, it enumerates specific factors – “inconvenience, annoyance, or alarm to another” – with which to judge the level of the disturbance.

Additionally, the law requires what’s called a “culpable mental state of recklessness.” That means that in order to violate the unreasonable noise law, a person must act “with heedless indifference to the consequences,” in “perversely disregarding a known risk that his conduct is likely to cause a certain result ...”

There was plenty of evidence that the music coming from Carrick’s party was loud enough to constitute “unreasonable noise” that inconvenienced and annoyed the neighbors. A person of ordinary intelligence would understand that the law prohibited playing music at a late hour at a volume high enough to keep the neighbors from sleeping and rattle the windows a quarter mile away.

Carrick never established “beyond a reasonable doubt, that the law was so unclear that he could not reasonably understand that it prohibited the acts in which he was engaged.” We therefore concluded that the unreasonable noise law is neither unconstitutionally vague on its face or as it was applied to Carrick.

EDITOR'S NOTE: The case referred to is State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608. Case No. 2011-0230. Decided February 22, 2012. Majority opinion written by Justice Robert R. Cupp.