Lawsuit Against Milford Now In Federal Court
December 28, 2018 at 8:39 p.m.
By David [email protected]
Through his attorneys, plaintiff Richard Costa filed a suit against police Lt. Timothy Miller and the town Nov. 2 in Kosciusko County Circuit Court. He is seeking “an order permanently enjoining the enforcement of the town of Milford’s unconstitutionally vague and overbroad local noise ordinance that, among other things, has interfered with his ability to play music in his garage.”
The suit states Costa brings the action against the defendants for violations of the Fourth, First and 14th Amendments to the U.S. Constitution and for “the tort of trespass to land.”
On Nov. 27, attorney William Ramsey, of Fort Wayne, on behalf of Miller and the town, filed a joint notice of removal of the case to the U.S. District Court.
The defendants’ joint notice of removal states that they received notice of Costa’s complaint on Nov. 12, and that pursuant to U.S. 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.”
According to pacermonitor.com, the case has been assigned to District Court Judge Philip P. Simon and referred to Magistrate Judge Michael G. Gotsch Sr.
A jury trial is requested in the case by Costa.
The Milford noise ordinance prohibits “any loud, unnecessary or unusual noises whatsoever which shall annoy, injure or endanger the comfort, peace, health or safety of others.” That includes “radios, stereos, tape players, compact disc players or any loud noises by or from any motor vehicles or bicycles.”
The ordinance also stipulates fines for violation of the ordinance.
On Feb. 17 at around 3:45 p.m., Costa was inside a garage at his home on North Shaffer Street in Milford, the claim states. He began playing rock music with his father and a friend. Costa was playing drums and his friend and father were playing guitars. All doors and entrances to Costa’s garage were shut, the original complaint states.
Costa had installed insulation in his garage to minimize the sound of music.
While Costa was playing music on Feb. 17, Miller came to Costa’s home. Miller came onto Costa’s property by walking onto the driveway and opened the door to Costa’s garage and yelled, “Shut it off.”
Miller was outside of Costa’s home no more than three minutes before entering the garage, the claim states. Miller did not have authorization from Costa or anyone else at the residence to enter the garage. He also didn’t have a warrant to enter and didn’t have probable cause or reasonable suspicion to believe a crime was taking place in the garage.
Before entering the garage, the suit states Miller had no exigent circumstance necessitating he enter the garage and he did not call Costa by phone, knock on any entrance to the home or contact Costa in anyway prior to “unlawfully” entering the garage.
The town is liable for Miller’s actions because he is an employee of Milford, the suit states.
Costa wants the court to declare Milford’s noise ordinance unconstitutionally vague and overbroad in violation of the 14th Amendment. He wants the court to enjoin the town from enforcing the ordinance, award him compensatory and punitive damages against all defendants, award his legal costs and attorneys’ fees and grant all other just and proper relief.
Through his attorneys, plaintiff Richard Costa filed a suit against police Lt. Timothy Miller and the town Nov. 2 in Kosciusko County Circuit Court. He is seeking “an order permanently enjoining the enforcement of the town of Milford’s unconstitutionally vague and overbroad local noise ordinance that, among other things, has interfered with his ability to play music in his garage.”
The suit states Costa brings the action against the defendants for violations of the Fourth, First and 14th Amendments to the U.S. Constitution and for “the tort of trespass to land.”
On Nov. 27, attorney William Ramsey, of Fort Wayne, on behalf of Miller and the town, filed a joint notice of removal of the case to the U.S. District Court.
The defendants’ joint notice of removal states that they received notice of Costa’s complaint on Nov. 12, and that pursuant to U.S. 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.”
According to pacermonitor.com, the case has been assigned to District Court Judge Philip P. Simon and referred to Magistrate Judge Michael G. Gotsch Sr.
A jury trial is requested in the case by Costa.
The Milford noise ordinance prohibits “any loud, unnecessary or unusual noises whatsoever which shall annoy, injure or endanger the comfort, peace, health or safety of others.” That includes “radios, stereos, tape players, compact disc players or any loud noises by or from any motor vehicles or bicycles.”
The ordinance also stipulates fines for violation of the ordinance.
On Feb. 17 at around 3:45 p.m., Costa was inside a garage at his home on North Shaffer Street in Milford, the claim states. He began playing rock music with his father and a friend. Costa was playing drums and his friend and father were playing guitars. All doors and entrances to Costa’s garage were shut, the original complaint states.
Costa had installed insulation in his garage to minimize the sound of music.
While Costa was playing music on Feb. 17, Miller came to Costa’s home. Miller came onto Costa’s property by walking onto the driveway and opened the door to Costa’s garage and yelled, “Shut it off.”
Miller was outside of Costa’s home no more than three minutes before entering the garage, the claim states. Miller did not have authorization from Costa or anyone else at the residence to enter the garage. He also didn’t have a warrant to enter and didn’t have probable cause or reasonable suspicion to believe a crime was taking place in the garage.
Before entering the garage, the suit states Miller had no exigent circumstance necessitating he enter the garage and he did not call Costa by phone, knock on any entrance to the home or contact Costa in anyway prior to “unlawfully” entering the garage.
The town is liable for Miller’s actions because he is an employee of Milford, the suit states.
Costa wants the court to declare Milford’s noise ordinance unconstitutionally vague and overbroad in violation of the 14th Amendment. He wants the court to enjoin the town from enforcing the ordinance, award him compensatory and punitive damages against all defendants, award his legal costs and attorneys’ fees and grant all other just and proper relief.
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