“Unfair and unconstitutional.” “We live in America, not the mid-20th century U.S.S.R.” “I believe in life, liberty, and the pursuit of happiness, and this law infringes on all of my inalienable rights.”
Although they sound like rally cries from a Tea Party march to restore liberty, these remarks are actually all comments from Georgetown students on the online petition against D.C.’s new nighttime noise statute. The ordinance, enacted Jan. 19, is part of a larger overhaul of the city’s disorderly conduct law and has prompted many Georgetown students to get their Glenn Beck on.
The statute—which outlaws “unreasonably loud noise between 10 p.m. and 7 a.m. that is likely to annoy or disturb one or more other persons in their residences” and comes with a punishment of up to 90 days in prison, a $500 fine, or both—has come under attack for being overly vague and inviting selective enforcement.
“I would call this noise ordinance the picture of a vague and standardless law,” Mark Stern, who wrote an article on the constitutionality of the statute for the Georgetown Progressive and D.C. Students Speak, said. “It appears that this statute is targeting the student population of the District as specifically and as harshly as a law possibly could.”
This type of criticism is ironic given that the revision of D.C.’s disorderly conduct law, the previous version of which dates back to 1953, was undertaken to minimize abuses of police discretion and eliminate unclear language.
“I don’t think there is a Constitutional issue—rather, I think we solved one,” Councilmember Phil Mendelson (D – At-Large), who sponsored the Disorderly Conduct Amendment Act, wrote in an email.
The revision certainly addressed civil rights issues, most importantly limiting the potential for unwarranted “contempt of cop” arrests. But while other parts of the law were scutinized in an effort to clarify what constitutes disorderly conduct, the nighttime noise provision seems to have slipped through the cracks.
There’s no better evidence for this than the D.C. Council’s Committee on Public Safety and the Judiciary’s report on the DCA Act. The report’s introduction argues that the old disorderly conduct laws should be changed “to eliminate vagueness in the language of the statute … [which] uses terms that are vague and difficult to define, such as ‘annoy’ and ‘congregate’”—yet the updated nighttime noise ordinance hinges on the highly ambiguous phrase “likely to annoy or disturb.”
The ironically opaque language of the nighttime noise statue is largely a product of the process through which it was included in the DCA Act. While the old disorderly conduct law had a nighttime noise statute, the initial draft of the new law made no mention of it. Rather, it was the Council on Court Excellence’s Disorderly Conduct Arrest Project Subcommittee that suggested its inclusion in the revised disorderly conduct law. The D.C. Council faithfully incorporated their suggestion into the final bill.
The CCE is a nonprofit, nonpartisan group focused on improving the District’s court system. The CCE’s DCAPS report primarily focused on protecting free speech and assembly, but also touched on nighttime noise issues.
In revising the old nighttime noise statute, DCAPS worked to better define what “nighttime” means, laying out the specific hours of “10 p.m. to 7 a.m.” According to DCAPS’s co-Chair Leslie McAdoo, DCAPS also recommended setting the standard of “unreasonable” noise because that was the standard used in the most recent relevant D.C. Court of Appeals case, 2010’s In re T.L.
Although the DCAPS considered a specific decibel standard, which many students have advocated, McAdoo said, their discussions with the attorney general convinced them that setting a decibel limit would be highly complicated for technical reasons.
“If we were going to go down that road, it would take time and resources,” McAdoo said. “We decided not to do that because obviously we had deadlines and because this was not the only issue in the statute … Everything is imperfect, it’s not possible to write statutes that are so precise that everyone’s happy with them.”
There are certainly people who are unhappy with the new ordinance. But although some students, such as the leaders of D.C. Students Speak, have claimed the law deliberately targets students, that doesn’t seem to have been the case. Instead, it seems to be a classic example of legislators and advocates working on a broad issue with limited resources, and unfortunately letting a careless sentence slide through. But don’t worry—it only took the Council 58 years to update the last version of the disorderly conduct laws.
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