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ANTI-NOISE ORDINANCE; APPLICATION TO POSTAL EMPLOYEES
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ANTI-NOISE ORDINANCE; APPLICATION TO POSTAL EMPLOYEES
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1/3/2012 1:31:17 PM
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Legal Opinions
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ANTI-NOISE ORDINANCE; APPLICATION TO POSTAL EMPLOYEES
Date
8/15/1974
Agency
Police
Notes
OPINION 74-30
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However, past case-law has generally rejected attacks on <br />anti-noise ordinances on such due process grounds. The courts <br />have held that such words, although abstract, have through daily <br />use acquired a content that conveys to any interested person a <br />sufficiently accurate concept of what is forbidden. The mere fact <br />that the meaning of a term is difficult to ascertain or suscep- <br />tible of different interpretations is not sufficient to void an <br />ordinance. The courts will view the statt~te from the standpoint <br />of a reasonable man and will allow the use of ordinary terms to <br />express ideas which find adequate interpretation in common usage <br />and understanding. Kovacs v. Cooper,336 U.S. 77, 69 S. Ct. 448 <br />(1949); Ha er_t v. Associated Farmers, 279, P. 2d 734 (1955); <br />Smith v. Petersen, 280 P. 2d 522 19 5). <br />Some applications of the anti-noise ordinance may bring <br />forth First Amendment attacks - e. g, the regulation of sound <br />trucks and voice amplifiers. These have been discussed in a pre- <br />vious opinion of this office (No. 72-28) acid are not relevant to <br />the fact situation here, which does not involve activities pro- <br />tected by the First Amendment. (reference: Wollam v. City of <br />Palm Springs, 29 Cal. Rptr. 1 (1963) ). <br />The anti-noise ordinance, at least insofar as the speci- <br />fic prohibitions are concerned, appear generally safe from con- <br />stitutional attack. They do present obvious enforcement problems, <br />but these are primarily problems of proof at trial. The trier <br />of fact is sometimes called upon to determine whether the noise <br />is excessive or disturbing The City must be able to present <br />evidence that the noise was in violation of such a standard when <br />it applies. The testimony of complaining witnesses is one source <br />of evidence, but the testimony of the police officer on the scene <br />may often be the deciding factor. The decision of the trier of <br />fact may depend upon whether it is felt that the police officer <br />acted reasonably in the circumstances, as, for example, in attempt- <br />ing to obtain a voluntary abatement of the noise prior to making <br />an arrest when such action is practicable. The ordinance obviously <br />imposes a rather heavy burden on the police officer's discretion. <br />III <br />APPLICATION TO THE POSTAL SERVICE <br />In general, the activities and instrumentalities of the <br />federal government are immune from taxation or regulation by state <br />and local governments. This follows from the supremacy o.f federal <br />law over state and local law, in all areas where Congress may <br />legitimately legislate pursuant to its constitutional powers. <br />McCullou v. Mar land, 4 L. Ed. 579 (1819); .Mayo v. U.S., 63 S. Ct <br />1137 1943 . <br />The rule of federal immunity, however, has its limita- <br />tions and qualifications. An employee of the United States does <br />not secure a general immunity from state and local laws while <br />acting in the course of his employment Johnson v. TZaryland, 41 <br />S. Ct. 16 (1920). The activity may be immune, however, if to <br />apply the state or local law would be to impose too great a burden <br />of the federal activity, or if the state or local law is contrary <br />-84- <br />
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