MILFORD — The case of a Milford town resident alleging three of his amendments to the U.S. Constitution were violated and the town’s noise ordinance is “unconstitutionally vague and overboard” has been filed in U.S. District Court Northern District, South Bend.

The case has been assigned to District Court Judge Philip P. Simon and referred to Magistrate Judge Michael G. Gotsch Sr. Documents were filed in the district court in late November. A jury trial is requested.

A request to remove the case from Kosciusko Circuit Court to the district court has been filed by William A. Ramsey, attorney for Milford Police Lt. Timothy Miller and the town of Milford. Ramsey has filed answers and affirmative defenses to the complaint with the district court.

That filing states Richard Costa failed to state a claim for declaratory relief, and injunctive relief; Miller and the town are immune pursuant to qualified immunity, the Indiana Tort Claims Act and the common law; and Costa has failed to mitigate damages.

Court documents state pursuant to 28 U.S.C. § 1441(a), a federal code, “any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Kosciusko County is served to the U.S. District Court Northern District, South Bend.

Documents further state the district court has original jurisdiction because the plaintiff, Costa, raises federal questions, including alleged violations of the U.S. Constitution and is brought pursuant to a federal statute. A notice to remove the case from the local court to the district court was filed Nov. 27.

Facts As Filed

The original case was filed Nov. 2, in the local circuit court, with the town receiving notice of the summons Nov. 12.

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. Costa was inside his enclosed garage playing classic rock music at a “reasonable volume” with his father and friend present. Costa was playing the drums, his friend and father were playing guitars with all doors and entrances to the garage shut. The garage is reportedly insulated to minimize the sound of the music.

Miller, who was on duty at the time, opened the garage door at approximately 4:40 p.m. and yelled “Shut it off.” It is noted Miller was outside Costa’s home no more than three minutes before entering the garage.

Documents state Miller 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 any means prior to unlawfully entering the garage.

Miller allegedly entered the garage at which time Costa asked why the officer 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 over broad 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 over broad that a person’s reasonable and lawful artistic speech and expression may be prohibited.”

Costa is additionally asking to be awarded compensatory and punitive damages along with legal costs and attorney fees.