MILFORD — A Milford resident has filed a civil tort claim against Milford Police Lt. Timothy Miller and the town of Milford over its “unconstitutionally vague and overbroad local noise ordinance, in violation of his fourth, first and 14th Amendments to the U.S. Constitution.” He is also claiming unlawful search and seizure, and trespassing.
The civil tort claim was filed Friday, Nov. 2, in Kosciusko Circuit Court by attorneys for Richard Costa, North Shaffer Street, Milford.
Documents state Costa is seeking an order permanently enjoining the enforcement of the town’s noise ordinance Milford Town Code 3-7-1-1.3 that has interfered with his ability to play music in his garage. Facts in the case state Feb. 17 at approximately 3:45 p.m. Costs was inside his enclosed garage playing classic rock music at a “reasonable volume” with his father and friend present. Miller, who was on duty at the time, entered the garage without any warrant or “probable cause or reasonable suspicion to believe a crime was taking place in the garage.” It also states before entering the garage, Miller did not attempt to contact Costa by telephone, knock on any entrance to his home or contact Costa prior to unlawfully entering the garage.
Miller allegedly entered the garage at which time Costa questioned the officer why he had unlawfully entered the garage. Miller cited the town’s noise ordinance as justification for his action. The claim states Miller allegedly responded by threatening to assist in prosecuting Costa for a crime, even though Costa allegedly had committed no crime.
Regarding the violation of Costa’s three amendments to the U.S. Constitution, the claim states Miller subjected Costa to an unlawful search and seizure, violated Costa’s right to artistic speech and expression, and the ordinance is unconstitutionally vague and overbroad and in violation of the 14th Amendment to the U.S. Constitution. It also states Miller had no probable cause, nor reasonable suspicion requisite to subject Costa to search and seizure or interfere with his artistic speech and expression and no reasonable officer would believe Miller had probable cause and his acts and omissions were intentional, willful, wanton and malicious. As a result, the claim states Costa suffered unlawful search and seizure, trespass to land, interference with artistic speech and expression, emotional distress and other damages and injury.
The claim also states the town’s local noise ordinance is so vague a “reasonable person is unable to know what artistic speech and expression is prohibited and is so overbroad that a person’s reasonable and lawful artistic speech and expression may be prohibited.”
Costa is requesting a jury trial to declare the town’s noise ordinance in violation of the 14th Amendment to the U.S. Constitution, enjoin the town from enforcement of the ordinance, be awarded compensatory and punitive damages along with legal costs and attorney fees.
The relevant portion of the town ordinance, as stated in the claim, says “The following noises and/or actions are declared to be unlawful and further declared to be public nuisances for which injunctive relief under Indiana Code 34-1-52-1 et seq. shall apply:
(a) Any loud, unnecessary or unusual noises whatsoever which shall annoy, injure or endanger the comfort, peace, health or safety of others, unless the making of such noise is necessary for the protection or preservation of property, or for the health or safety of some person or persons.
(b) The blowing of horns, whistles or any other attachments on any motor vehicles or bicycles, except when necessary as a warning of danger.
(c) Loud noises created by the use of musical instruments except as permitted in authorized parades or public functions pursuant to permission of the Town of Milford.
(d) Radios, stereos, tape players, compact disc players, or any loud noises by or from any motor vehicles or bicycles.”
3-7-1-3 “Anyone who shall violate the terms of this chapter shall be fined in the sum not to exceed $100 per offense and in the case of any continuance noise in violation of this chapter, every day that a violation shall continue shall constitute a separate offense.”