Opinion
Case No. 1:17-CV-716
03-28-2019
Stephen NYLEN, Plaintiff, v. CITY OF GRAND RAPIDS and Sergeant Barry Bryant, Defendants.
Stephen James van Stempvoort, Miller Johnson PLC, Grand Rapids, MI, for Plaintiff. Elizabeth J. Fossel, Lindsay Anne Bondy, Grand Rapids, City of, Grand Rapids, MI, for Defendants.
Stephen James van Stempvoort, Miller Johnson PLC, Grand Rapids, MI, for Plaintiff.
Elizabeth J. Fossel, Lindsay Anne Bondy, Grand Rapids, City of, Grand Rapids, MI, for Defendants.
OPINION AND ORDER
ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff has strong feelings about his religion and regularly spoke about that on a public sidewalk near a health clinic that provides abortion services. When Plaintiff used an electronic amplifier for his voice, Police responded to complaints from neighbors about the loudness of the speech. Police told Plaintiff he could continue to speak his message, as others do, without amplification, but that Plaintiff would be vulnerable to a noise ordinance violation if he continued to amplify his voice to the annoyance of his neighbors.
Plaintiff says the noise ordinance is unconstitutional as vague and as an infringement on his First Amendment rights. There are no factual disputes, and no claim of selective or discriminatory enforcement. In fact, the critical interactions are on video. Those videos and the rest of the record demonstrate that the noise ordinance is sufficiently clear to reasonable people, and that its enforcement here is a proper time, place, and manner restriction, not an unconstitutional infringement of free speech.
BACKGROUND
Plaintiff Stephen Nylen challenges the constitutionality of the City of Grand Rapids’ Noise Control Ordinance, § 9.63(1) (the "Noise Ordinance") under Due Process and First Amendment theories. (Second Am. Compl., ECF No. 26.) He asserts that the Noise Ordinance is unconstitutionally vague on its face and that the Noise Ordinance violates the right to freedom of speech both on its face and as applied to him. (Id. , PageID.269-70.)
The Noise Ordinance appears in Article 5, "Noise Control," which is part of Chapter 151, "Nuisances," in Title IX of the Grand Rapids City Code. Article 1 of Chapter 151 articulates the general public policy against nuisances. Section 9.2 of Article 1 includes a general definition of nuisances:
Whatever annoys, injures or endangers the safety, health, comfort or repose of the public; offends public decency; interferes with, obstructs or renders dangerous any street, highway or any body of water; or in any way renders the public insecure in life or property is hereby declared to be a public nuisance.
The Section goes on to state that "nuisances shall include, but not be limited to, whatever is forbidden by any provision of this Chapter and shall include any provision of this Code declared in this Code to be a nuisance."
Article 5 addresses public nuisances caused by sound. The Noise Ordinance states:
No person shall make, or cause, permit, or allow to be made, upon a public way, or in such close proximity to a public way as to be distinctly and loudly audible upon such public way, any noise of any kind by crying, calling or shouting, or by means of any whistle, rattle, bell, gong, clapper, hammer, drum, horn, hand organ, mechanically operated piano, other musical instrument, wind instrument, mechanical device, radio, phonograph, sound amplifying or other similar electronic device [subject to exceptions for peddlers and musical bodies not applicable in this case].
(ECF No. 17, PageID.171-72.) The Ordinance does not expressly define the word "noise," but the general provision of Chapter 1, already quoted, makes clear that the term means sounds that "annoy[ ], injure[ ] or endanger[ ] the comfort and repose of the public." Indeed, that is consistent with the dictionary definition of the word "noise" as "loud, confused, or senseless shouting or outcry: din or uproar of persons; ... sound that ... is noticeably loud, harsh, or discordant[,]" Merriam-Webster Unabridged (online ed. 2019), http://unabridged.merriam-webster.com/unabridged.noise (last visited March 28, 2019); "[s]enses relating to sound or the disturbance caused by this." Oxford English Dictionary (online ed. 2019), http://www.oed.com (last visited March 28, 2019).
Mr. Nylen avers that he has "regularly engaged in public speaking in or on public fora within City limits" since approximately 2015. (ECF NO. 42-1, PageID.414). He has "had several interactions with members of the City's police department over the last few years" regarding his public speaking. (Id. ) He states that city police officers several times "have instructed me to stop voicing my message and told me that if I did not stop, then they may arrest me or charge me under the City of Grand Rapids, Noise Control Ordinance., § 9.63(1)." (Id. ) Mr. Nylen has become "increasingly concerned about the limits of [his] free speech rights." (Id. , PageID.415.) Mr. Nylen occasionally preached "in front of an abortion clinic located in the City" during the fall of 2016 and 2017. (Id. ) He acknowledges that he "often turned on an amplification device as [he] was preaching in front of the clinic." (Id. ) Sometimes when he used this amplification device, "individuals called the police to complain about [his] preaching." (Id. )
Among Plaintiff's summary judgment exhibits is a GRPD Incident Report describing officers’ response to a complaint that "a man with a portable sound amplification device was protesting outside the abortion clinic and causing a disturbance." (ECF No. 42-4, PageID.462.) The man was Mr. Nylen. (Id. ) Officer Johnston, who prepared the report, states that when he arrived, he did not hear any noise disturbance. (Id. ) He noted that Mr. Nylen was wearing a headset microphone and had a speaker box. (Id. ) Officer Johnston "advised Stephen that he was welcome to exercise his right to free speech and attempt to engage people walking past in conversation." (Id. ) He also told Mr. Nylen "that if he was using the sound amplification device at a volume that it could be heard from inside by nearby residents [sic] ... and they made a complaint, he could be cited for violation of the city's noise ordinance." (Id. ) Another GRPD Incident Report reflects that on September 9, 2016, Officer Bryant and another officer "talked with Nylen who had a megaphone and was protesting outside the clinic. R/Os advised him that he could not use the sound amplifying device. Nylen understood and followed the rules of protesting. Police presence was no longer needed." (ECF No. 42-5, PageID.464.)
The summary judgment record also includes video footage of Mr. Nylen's encounters with Sgt. Bryant and other officers in front of the clinic on September 9, 2016 and October 21, 2016. (ECF No. 42, DVD Exs. 6, 8.) The September 9 video reflects Mr. Nylen amid several other people on the sidewalk in front of the clinic. Sgt. Bryant beckons Mr. Nylen and explains to him, "you are not supposed to wear a megaphone." The other responding officer tells Mr. Nylen that "no one is infringing on speech; you just can't use an amplification device." Sgt. Bryant adds, "we have no problem with you protesting; you've just got to follow the rules when you do it." Sgt. Bryant tells Mr. Nylen that a person named Mary protests regularly in front of the clinic and suggests that Mr. Nylen look to her as a model.
The record does not include a transcript of the videos.
The October 21, 2016 video depicts Mr. Nylen again using an amplification device as he protests in front of the clinic. Officer Bryant again tells Mr. Nylen that he is free to protest but may not use an amplification device. Officer Bryant asks Mr. Nylen whether he has spoken with Mary. Mr. Nylen says that he has not, and Officer Bryant again recommends that he do so. Officer Bryant observes that Mary has been protesting for years and "is good at it. She gets results." Officer Bryant attempts several times to confirm that Mr. Nylen understands that he may not use an amplifier but that he is still free to express his message. Officer Bryant states plainly and repeatedly that Mr. Nylen may not use an amplifying device. Officer Bryant points out to Mr. Nylen that he has warned him twice now. Mr. Nylen concedes that Officer Bryant has told him that he may not use an amplifier.
Mr. Nylen has not received a citation for his violation of the ordinance, but officers, including Sgt. Bryant, have informed him that they will issue a citation to him if he continues to use an amplification device while he protests. An e-mail from Sgt. Bryant to other officers dated October 21, 2016 states that he had interacted with Mr. Nylen that day and that Mr. Nylen
has been warned for the last time from our team and will get cited the next time he has an amplified mic in front of the clinic. He admitted that he had been warned by your team also. We have explained to him the city ordinance and he even claims he was given a copy. Nylen has been cooperative but pretends not to have any knowledge of the rules of protest. If you have to deal with him he no longer deserves any warnings.
(ECF No. 42-11, PageID.484.)
Mr. Nylen brings this lawsuit against the City of Grand Rapids and Sgt. Bryant. He claims the Noise Ordinance is unconstitutionally vague and that it violates the First Amendment both on its face and as applied to him. In addition to damages and other relief, he seeks a permanent injunction against the enforcement of the Noise Control Ordinance.
LEGAL STANDARDS AND DISCUSSION
1. Fourteenth Amendment - Vagueness
"To satisfy due process, ‘a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.’ " Skilling v. United States , 561 U.S. 358, 402-03, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). "The void-for-vagueness doctrine embraces these requirements." Id. "A law is impermissibly vague if it ‘denies fair notice of the standard of conduct for which the citizen is to be held accountable,’ or gives law enforcement officials ‘an unrestricted delegation of power which leaves the definition of its terms to [them].’ " Gaughan v. City of Cleveland , 212 F. App'x 405, 409 (6th Cir. 2007) (quoting Am.-Arab Anti-Discrimination Comm. v. City of Dearborn , 418 F.3d 600, 608-09 (6th Cir. 2005) ). The Supreme Court instructs that instead of striking a statute as impermissibly vague, a federal court must adopt a limiting construction if it is possible to do so fairly. Skilling, 561 U.S. at 405-06, 130 S.Ct. 2896.
To interpret a municipal ordinance, the Court first looks to see whether state courts have interpreted the ordinance at issue. Gaughan , 212 F. App'x at 409 (citing Grayned v. City of Rockford , 408 U.S. 104, 109-11, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ). If no state court has interpreted the ordinance, then the Court looks to the plain language of the ordinance and interpretations state courts have given similar ordinances or statutes. Id. If state courts have applied a narrowing construction to a similar ordinance, the Court applies a similar narrowing construction to the ordinance before it. Id. at 410. A court may also look to the interpretation given by those who enforce the ordinance at issue. Id. at 409.
"The rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances." Gora v. City of Ferndale , 456 Mich. 704, 711, 576 N.W.2d 141(1998). Giving effect to the Legislature's intent is the principal purpose of statutory construction. McCormick v. Carrier , 487 Mich. 180, 191, 795 N.W.2d 517 (2010). If the statutory language is clear and unambiguous, the Court presumes that the Legislature intended the meaning the plain language conveys. Id. "Judicial construction of an unambiguous statute is neither required nor permitted." Id. at 191-92, 795 N.W.2d 517. All non-technical "words and phrases shall be construed and understood according to the common and approved use of the language." MICH. COMP. L. § 8.3a. If a statute does not define a term, the Court may consult a dictionary. McCormick , 487 Mich. at 192, 795 N.W.2d 517. The Court must consider a statute's words in context, attending to the words’ "placement and purpose in the statutory scheme." Id. (quotation omitted). "An ordinance is presumed to be constitutional and will be so construed unless the party challenging the statute clearly establishes its unconstitutionality." Twp. of Plymouth v. Hancock , 236 Mich. App. 197, 199, 600 N.W.2d 380 (1999).
Mr. Nylen contends that the Noise Ordinance is impermissibly vague. He asserts that the Noise Ordinance fails to put an ordinary person on notice of what conduct is prohibited. Mr. Nylen says that the word "noise" is vague and could mean any sound of any kind. But Mr. Nylen conceded at oral argument that the Noise Ordinance would pass constitutional muster if it included the adjective "unreasonable" before the word "noise." In the Court's view, that concession is fatal to Mr. Nylen's vagueness claim because the language and context of the Noise Ordinance make it clear to ordinary people that this is exactly what the Noise Ordinance is targeting: sounds that are unreasonable because they are loud enough to annoy and disturb the repose of people living in the area. The City could have used the language of "unreasonable" in the Article 5 Noise Ordinance itself, but chose instead to embed the concept in the general definitions of Section 9.2 of Chapter 1. Either way, the scope of the prohibition is sufficiently clear to reasonable people.
Mr. Nylen also says the Noise Ordinance invites arbitrary and discriminatory enforcement; however, he is not advancing that theory here. Plaintiff acknowledges that the record includes no factual basis for concluding the Police were enforcing the Noise Ordinance in a discriminatory or selective way.
No Michigan cases construe the Noise Ordinance, but the context and plain language of the Noise Ordinance are clear enough. The Noise Ordinance appears in the chapter of Title IX of the Grand Rapids City Code entitled "Nuisances." The context demonstrates that the Noise Ordinance concerns noise that amounts to a public nuisance. Under Michigan law, "[a] public nuisance is an unreasonable interference with a common right enjoyed by the general public." Cloverleaf Car Co. v. Phillips Petroleum Co. , 213 Mich. App. 186, 190, 540 N.W. 2d 297 (1995). Read in context, the Noise Ordinance prohibits making unreasonable noise upon or near a public way, including by using a sound amplifying device. The plain language of the Noise Ordinance puts an ordinary person on notice that using an amplifying device to make distinct and loud noise on a public way is prohibited. And as Mr. Nylen concedes, an ordinance prohibiting unreasonable noise passes muster.
Michigan courts have rejected similar challenges to similar ordinances. In City of Lansing v. Hartsuff , a defendant challenged the constitutionality of a municipal ordinance that prohibits "[d]isturbing the public peace and quiet by loud and boisterous conduct." City of Lansing v. Hartsuff , 213 Mich. App. 338, 343, 539 N.W.2d 781 (1995). The defendant claimed the Lansing ordinance was imprecise and failed to notify an ordinary person of the proscribed conduct, and that it was unduly subjective and vague, increasing the likelihood of arbitrary enforcement. Id. at 344, 539 N.W.2d 781. The Michigan Court of Appeals rejected the challenge, finding that "the phrase ‘loud or boisterous,’ as used in the Lansing ordinance, is sufficiently precise to be constitutional." Id. The court readily found that "an ordinary person exercising common sense can sufficiently understand the term ‘loud or boisterous,’ especially when the term is modified by the phrase ‘disturb the public peace and quiet.’ " Id. at 345, 539 N.W.2d 781. For the same reason, the court found that the phrase "loud or boisterous" is "not so subjective and vague as to permit unlimited discretion on the part of prosecutors, police officers, and jurors." Id . The court construed the Lansing ordinance "to refer to noise levels that would offend a reasonable person of common sensibilities and disrupt the reasonable conduct of basic human activities." Id. at 346-47, 539 N.W.2d 781.
Similarly, in Township of Plymouth v. Hancock , a defendant challenged a municipal ordinance that made it unlawful for a person to "disturb the public peace and quiet by shouting, whistling, loud, boisterous, or vulgar conduct ... or any ... means of amplification at any time or place so as to unreasonably annoy or disturb the quiet, comfort, and repose of persons in the vicinity." Township of Plymouth v. Hancock , 236 Mich. App. 197, 198, 600 N.W. 2d 380 (1999). The court found that the ordinance was not impermissibly vague. Id. The court emphasized the reasonable person standard, which the court described as "a hallmark of the American legal system," embedded in the ordinance. Id. The court found that "the reasonable person standard serves to prepare fair notice of the type of conduct prohibited, as well as preventing abuses in application of the ordinance." Id.
The same basic analysis Michigan courts applied in City of Lansing and Township of Plymouth applies to Mr. Nylen's challenge of the Noise Ordinance. A common sense reading of the Noise Ordinance puts an ordinary person on notice of what conduct is prohibited: unreasonable noise, including without limitation noise made by using an amplification device. The video interactions of the officers with Mr. Nylen demonstrate patient and repeated efforts by law enforcement to provide Mr. Nylen with precisely this kind of practical, common sense explanation of what he could and could not do, consistent with the Noise Ordinance. By the same token, the Noise Ordinance is definite enough to prevent arbitrary or subjective application by those empowered to enforce it. Indeed, Plaintiff has identified no instance of selective enforcement of the Noise Ordinance, despite ample opportunity to do so.
Plaintiff contends that U.S. Labor Party v. Rochford , 416 F. Supp. 204 (N.D. Ill. 1975), which struck down an ordinance containing the same language at issue here, requires a different result. Of course, the case is not binding on this Court. But more importantly, the case is distinguishable. Unlike the case before the Court, there is no indication in the Rochford case that the ordinance at issue was situated in the context of regulating nuisances. Nor did Rochford reference any state court guidance for the construction of the ordinance. Moreover, the Rochford court believed that enforcement of the ordinance in that case would foreclose emergency vehicle sirens, Salvation Army bell ringers, police whistles, and any effective advocacy by the plaintiffs in the case. Id. at 207. None of these things is prohibited by enforcement of the Grand Rapids ordinance prohibiting noise that amounts to a public nuisance. Furthermore, the officers involved in Grand Rapids were at pains to give Plaintiff a concrete reference for how he could effectively preach and protest without violating the Noise Ordinance.
2. First Amendment – Freedom of Speech
"A facial challenge to a law's constitutionality is an effort ‘to invalidate the law in each of its applications, to take the law off the books completely.’ " Speet v. Schuette , 726 F.3d 867, 871 (6th Cir. 2013) (quoting Connection Distrib. Co. v. Holder , 557 F.3d 321, 335 (6th Cir. 2009) (en banc)). Generally, to succeed in a facial attack of a statute, a plaintiff must establish that under no set of circumstances would the statute be valid. Id. at 872. An exception to this general rule exists for First Amendment challenges. A facial challenge under the First Amendment focuses on substantial over-breadth. Id. "To succeed in an overbreadth challenge ... a plaintiff must demonstrate from the text of the statute and from actual fact that a substantial number of instances exist in which the statute cannot be applied constitutionally." Id. (alterations and internal quotation omitted). "If the law does not reach a substantial amount of constitutionally protected conduct, then the overbreadth challenge must fail." Id. (internal quotation omitted). "A plaintiff may not ‘leverag[e] a few alleged unconstitutional applications of the statute into a ruling invalidating the law in all of its applications.’ " Id. at 878 (quoting Connection Distrib. Co. , 557 F.3d at 340 ).
"Restrictions on speech in traditional public fora must either be (1) reasonable time, place, and manner regulations or (2) ‘narrowly drawn to accomplish a compelling government interest.’ " Saieg v. City of Dearborn , 641 F.3d 727, 734 (6th Cir. 2011) (quoting United States v. Grace , 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) ). "[T]ime, place, and manner restrictions may be enforced even in a traditional public forum so long as they are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. at 735 (quotation omitted). The Court considers these requirements in turn.
Whether a restriction is content neutral depends principally, "in speech cases generally and in time, place, or manner cases in particular, [on] whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism , 491 U.S. 781, 792, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The Noise Ordinance is content neutral. On its face, the Noise Ordinance addresses the manner of expression and takes no position as to the content of the expression it restricts. Nor is there any extrinsic evidence in the record suggesting that the government adopted or applied the Noise Ordinance to restrict expression based on content. "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id.
The Noise Ordinance is narrowly tailored to serve the significant government interest of controlling nuisance noise. The government "ha[s] a substantial interest in protecting its citizens from unwelcome noise." Members of the City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 806, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The government "may act to protect even such traditional public forums as city streets and parks from excessive noise." Ward , 491 U.S. at 796, 109 S.Ct. 2746. "For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not ‘burden substantially more speech than is necessary to further the government's legitimate interests.’ " McCullen v. Coakley , 573 U.S. 464, 486, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014) (quoting Ward , 491 U.S. at 799, 109 S.Ct. 2746 ). "[T]he regulation need not be the least restrictive or least intrusive means of promoting a substantial government interest, nor is there any stringent duty of calibration." Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government , 879 F.3d 224, 229 (6th Cir. 2018) (internal quotations omitted). "There must be a sufficient basis – more than mere speculation or conjecture – to demonstrate that the restriction will further the governmental interests." Id. at 228 (internal quotation omitted). "In all but the most ‘exceptional case’ ... ‘the requirement of narrow tailoring is satisfied so long as the substantial government interest would be achieved less effectively absent the regulation.’ " Id. at 229 (quoting McCullen , 134 S.Ct. at 2535-37 and Ward , 491 U.S. at 799, 109 S.Ct. 2746 (internal quotation and alteration omitted)). The Noise Ordinance plainly advances the government's legitimate interest in controlling nuisance noise, and it does so without burdening substantially more speech than necessary to achieve this goal.
Ample alternative channels of communication remain open to Plaintiff after the application of the Noise Ordinance. Indeed, the application of the Noise Ordinance to Plaintiff does not prevent him from continuing to preach the same message on the same sidewalk in front of the clinic without use of an amplification device. As in Ward , the Noise Ordinance "has no effect on the quantity or content of that expression beyond regulating the extent of amplification." Id. at 802, 109 S.Ct. 2746. Additional alternative channels available to Plaintiff include, without limitation, internet-based platforms; and more traditional channels, such as posters, newspapers, and leaflets.
For example, the record indicates that Plaintiff maintains his own YouTube Channel.
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Plaintiff fails to show that the Noise Ordinance reaches a substantial amount of constitutionally protected conduct. His substantial overbreadth challenge to the Noise Ordinance fails.
Plaintiff also challenges the Noise Ordinance as applied to him. He invokes a "heckler's veto" theory. A heckler's veto occurs when officers restrict suppress speech based on the reaction of the audience. See Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept. , 533 F.3d 780, 787 (9th Cir. 2008) ("If the statute, as read by the police officers on the scene, would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of an independent species of prohibitions on content-restrictive regulations, often described as a First Amendment ban on a ‘heckler's veto.’ "). In the Sixth Circuit, Bible Believers v. Wayne County, Mich. , 805 F.3d 228, 248 (6th Cir. 2015) (en banc) governs the analysis of a heckler's veto claim. "Free Speech claims require a three-step inquiry: first, we determine whether the speech at issue is afforded constitutional protection; second, we examine the nature of the forum where the speech was made; and third, we assess whether the government's action in shutting off the speech was legitimate, in light of the applicable standard of review." Bible Believers , 805 F.3d at 242. As in Bible Believers , it is undisputed that the speech was made in a public forum. Plaintiff Nylen's speech – an expression of his religious views – is constitutionally protected. But no one "shut off" Plaintiff Nylen's speech. Instead, Sgt. Bryant, consistent with the Noise Ordinance, told Mr. Nylen he was free to speak and simply could not use an amplifier. Officer Bryant enforced a legitimate, content-neutral time, place, or manner restriction. Applying intermediate scrutiny, his warnings to Mr. Nylen were narrowly tailored to further the substantial government interest in limiting nuisance noise. The record does not support a finding of selective enforcement, whether under a heckler's veto theory or a more general as-applied challenge.
3. Qualified Immunity
"Qualified immunity protects public officials from liability for civil damages if their conduct does not violate ‘clearly established statutory or constitutional statutory rights of which a reasonable person would have known.’ " Martin v. City of Broadview Heights , 712 F.3d 951, 957 (6th Cir. 2013) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). To determine whether an officer is entitled to qualified immunity, courts apply a two-tiered inquiry. Id. "The first step is to determine if the facts alleged make out a violation of a constitutional right." Id. "The second is to ask if the right at issue was ‘clearly established’ when the event occurred such that a reasonable officer would have known that his conduct violated it." Id. A court may address these two steps in any order. Id. If either factor is not satisfied, qualified immunity shields the officer from damages. Id.
" ‘[C]learly established law’ should not be defined at a high level of generality." White v. Pauly , ––– U.S. ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (internal quotation omitted). The inquiry "must be taken in light of the specific context of the case." Brosseau v. Haugen , 543 U.S. 194, 195, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam). For a right to be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate." White , 137 S.Ct. at 552 (internal quotation omitted). "Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law." Mullenix v. Luna , 577 U.S. 7, 136 S.Ct. 305, 311, 193 L.Ed.2d 255 (2015) (internal quotation omitted).
Sgt. Bryant did not violate any constitutional right by enforcing the Noise Ordinance as to Mr. Nylen. There is no record evidence that Sgt. Bryant sought to suppress Mr. Nylen's message or promote another message. The record reflects that Sgt. Bryant reasonably enforced a legitimate time, place, or manner restriction narrowly tailored to further a substantial government interest. The Court does not believe Sgt. Bryant violated any constitutional right, but if he did, the right was not clearly established. Sgt. Bryant is entitled to qualified immunity.
CONCLUSION
For these reasons, the Court finds that Defendants are entitled to summary judgment in their favor.
ACCORDINGLY, IT IS ORDERED :
1. Plaintiff's Motion for Summary Judgment (ECF No. 41) is DENIED .
2. Defendants’ Motion for Summary Judgment (ECF No. 44) is GRANTED .