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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                  FILED
                                                                             August 18, 2014
                                      No. 13-60806
                                                                              Lyle W. Cayce
                                                                                   Clerk
STEPHEN MUNN, Individually; PURPLE PELICAN, INCORPORATED,

                                                 Plaintiffs – Appellants
v.

CITY OF OCEAN SPRINGS, MISSISSIPPI,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
       Stephen Munn is the president and manager of the Purple Pelican. The
Purple Pelican is a bar and nightclub in the entertainment district of Ocean
Springs, Mississippi (“Ocean Springs” or “the City”). The bar often features
live music, including occasionally hosting larger musical events. After having
been cited for a violation, Munn 1 brings this challenge to the noise ordinance
of Ocean Springs, arguing that the ordinance is unconstitutionally vague.
Although we find it disturbing that the ordinance was improperly enforced
against Munn, the actual enforcement of the ordinance against Munn is not



       1 Although both Munn and the Purple Pelican are plaintiffs, we refer to “Munn” as the
plaintiff for simplicity.
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before us. The only question before us is the constitutionality of the ordinance
itself. The question of the appeal thus framed, we hold that the ordinance sets
an explicitly objective standard in accordance with Supreme Court precedent,
and therefore it is not unconstitutionally vague. Accordingly, we AFFIRM the
judgment of the district court dismissing the complaint
                                       I.
      During the early morning hours of November 21, 2011, the Ocean
Springs Police Department received three successive complaints about the
noise coming from the Purple Pelican. Officer Grimes, a member of the Ocean
Springs Police Department, responded to each complaint separately. He first
informed a security guard at the Purple Pelican of the complaint and asked
that the music be turned down. After the second complaint, Officer Grimes
returned and asked a bartender to have the music turned down. Finally, after
the third complaint, he returned and issued a criminal citation to Munn for
violation of the City’s noise ordinance.    After some time passed, the City
dismissed the citation and did not prosecute Munn for the violation.
      Nonetheless, Munn wrote a letter to the City’s mayor and aldermen
requesting that they repeal the noise ordinance on the grounds that it was
unconstitutionally vague and arbitrarily enforced. When the City did not
respond, Munn filed this suit in state court seeking to enjoin enforcement of
the ordinance and have it declared unconstitutional. The City removed the
case to federal court, and the district court denied the motion for preliminary
injunction.   After limited discovery, the district court granted summary
judgment to the City, rejecting Munn’s arguments that the ordinance was
unconstitutionally vague, and entered a final judgment dismissing Munn’s
case. Munn appeals that judgment.




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                                       II.
      We review the district court’s grant of summary judgment de novo. Serv.
Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 595 (5th Cir. 2010).
Summary judgment is proper if there are no genuine disputes as to any
material fact, and the moving party is entitled to judgment as a matter of law.
Id. Here, there are no disputes as to any material facts.
      Munn argues that the district court erred in holding that the ordinance
was not unconstitutionally vague. As relevant here, the ordinance states:
       (a) It shall be unlawful for any person to make, cause, or, on
       premises under his or her legal control, permit to be made any
       unreasonable noise or vibration audible or perceptible within
       the corporate limits or police jurisdiction of the city, including
       the waters lying within such areas.
       (b) For purposes of this section, “unreasonable noise or
       vibration” is defined to mean any unreasonably loud, raucous,
       or jarring sound or vibration which is not constitutionally
       protected speech in form and scope of audibility and which,
       under the circumstances of time, place, and manner in which it
       is produced and audible or perceptible, annoys, disturbs,
       injures, or endangers the comfort, repose, health, peace or
       safety of a reasonable person of normal sensitivities within the
       area of the audibility or perceptibility of the noise or vibration
       without the consent of such person.
Ocean Springs Ordinance Number 14-2007, Section 15-13.1 (emphasis added).
      Munn challenges virtually the entire ordinance.           Nonetheless, the
genuine legal dispute can quickly be focused on the alleged vagueness of one
word: “annoys.”    Munn argues that Supreme Court precedent specifically
indicates that “annoys” is such an amorphous term as to be unconstitutionally
vague, thus denying to Ocean Springs citizens an understanding of what noise
constitutes a crime.
      We begin by laying out the relevant legal background for vagueness
challenges generally and the precedents that the parties rely on.

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                                       A.
      “Vagueness doctrine is an outgrowth not of the First Amendment, but of
the Due Process Clause . . . .” United States v. Williams, 553 U.S. 285, 304
(2008). The Due Process Clause requires that a law provide sufficient guidance
such that a man of ordinary intelligence would understand what conduct is
being prohibited. Id. (“A conviction fails to comport with due process if the
statute under which it is obtained fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforcement.”); see also
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“[B]ecause we assume
that man is free to steer between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly.”). Thus, we must strike
down the ordinance if we find that it does not sufficiently define the line
between legal and illegal conduct.
                                       B.
      As we turn to the precedents upon which the parties rely, the arguments
focus on two Supreme Court cases. First, Munn relies heavily on Coates v. City
of Cincinnati, 402 U.S. 611 (1971), arguing that the Supreme Court mandates
a holding that the ordinance is unconstitutionally vague.        In Coates, the
plaintiff challenged the City of Cincinnati’s anti-loitering statute. The statute
prohibited a group of three or more people from assembling on a sidewalk “and
there conduct[ing] themselves in a manner annoying to persons passing by.”
Id. at 611.   The Court concluded that this statute was unconstitutionally
vague, reasoning that “[c]onduct that annoys some people does not annoy
others.” Id. at 614. The Court explained that the ordinance was vague “not in
the sense that it requires a person to conform his conduct to an imprecise but
comprehensible normative standard, but rather in the sense that no standard
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                                  No. 13-60806
of conduct is specified at all.” Id. Munn seizes upon this statement and runs
with it, arguing that Coates thus demonstrates that the use of the term
“annoys” is, in all situations, problematic because a violation of the term is
incapable of being enforced with any degree of uniformity acceptable to the
concept of due process.
      The City responds with Grayned v. City of Rockford, a case decided only
a year after Coates. In Grayned, the Court confronted a Rockford ordinance
that prohibited standing outside a school and making “any noise or diversion
which disturbs or tends to disturb the peace or good order” of the school. 408
U.S. at 108.   Although recognizing the vagueness of the phrase “tends to
disturb,” the Court upheld the statute, in part because the statute had been
read by the Supreme Court of Illinois to “prohibit only actual or imminent
interference with the ‘peace or good order’ of the school.” Id. at 111–12. With
this limiting interpretation, the Court upheld the statute because it contained
“no broad invitation to subjective or discriminatory enforcement.” Id. at 113.
The Court, in sentiments with which we quickly agree, recognized that writing
laws that provide sufficient notice to persons of reasonable intelligence is
particularly difficult in the context of noise ordinances. In a more philosophical
than legal musing, the Court said “[c]ondemned to the use of words, we can
never expect mathematical certainty from our language.”              Id. at 110.
Furthermore, the certainty of descriptive words will always be compromised to
one extent or the other because enforcement of laws requires “the exercise of
some degree of police judgment . . . .” Id. at 114. Recognizing these practical
limits on the precision of words, the Court in Grayned concluded that the City
of Rockford’s noise ordinance was not unconstitutionally vague. Id.
      Finally, Munn would have us focus on Tanner v. City of Virginia Beach,
674 S.E.2d 848 (Va. 2009), a subsequent case interpreting Coates, which held
that the word “annoys” lacks a sufficiently definitive meaning. In Tanner, the
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Virginia Supreme Court considered an ordinance that outlawed “any noise of
such character, intensity, and duration as . . . to disturb or annoy the quiet,
comfort or repose of reasonable persons.” Id. at 436. This ordinance, as does
the Ocean Springs ordinance, plainly imposed an objective standard of
conduct—outlawing only noise that would annoy “reasonable persons.”
Nonetheless, the Virginia court held that the ordinance was still on the wrong
side of constitutional clarity. The court was off-put that “[p]olice officers likely
will have differing perceptions regarding what levels of sound exceed the
described tolerance levels and sensitivities of reasonable persons. Because
these determinations required by the ordinance can only be made by police
officers on a subjective basis” the court struck down the ordinance. Id. at 441.
Thus, Tanner fully supports Munn’s argument: “annoys” is such a fuzzy
standard for regulating noise that even if the ordinance states an objective
standard, it imposes the standardless subjective judgments of police officers in
its enforcement.
                                        III.
      With these precedents as background, we now turn specifically to the
Ocean Springs ordinance.       As relevant to this analysis, we focus on the
language of the ordinance that prohibits noise that “annoys . . . a reasonable
person of ordinary sensibilities.” It is, of course, this language that imposes an
admittedly objective standard of conduct in its enforcement. For this reason,
we are fully satisfied that the ordinance meets the standard of due process of
law and consequently is not unconstitutionally vague.
      This conclusion, contrary to Munn’s argument, is not inconsistent with
Coates.   In our view, the problem with the ordinance in Coates was the
subjective standard to which “annoys” was attached. Namely, the statute in
Coates outlawed behavior that was annoying “to persons passing by.” 402 U.S.
at 611. Thus, the relevant standard of behavior was dictated by predilections
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of whomever per chance passed by, an unquantifiable standard. Id. at 614
(“[The City of Cincinnati] may not [prevent antisocial conduct] through the
enactment of an ordinance whose violation may entirely depend upon whether
or not a policeman is annoyed.”). This vagueness is constitutionally remedied
in the Oceans Spring ordinance by the inclusion of the reasonable person
standard.
       We find support for the ordinance’s constitutionality in two other
persuasive, albeit non-binding decisions. In a prior vacated decision from this
court discussing a Texas anti-harassment statute, we focused on the use of
“annoys.” Kramer v. Price, 712 F.2d 174 (5th Cir. 1983), vacated on reh’g en
banc by 723 F.2d 1164 (5th Cir. 1984). 2 The statute made it an offense to
communicate with a person in a vulgar or profane manner, when this
communication “intentionally, knowingly, or recklessly annoys or alarms the
recipient.” Kramer, 712 F.2d at 176 (emphasis added). The defendant was
convicted under this statute, and then filed a writ of habeas corpus arguing
that the statute was void for vagueness primarily based on the word “annoys.”
The panel was convinced, holding that the statute was unconstitutionally
vague, because “Coates recognized that a statute is unconstitutionally vague
when the standard of conduct it specifies is dependent on each complainant’s
sensitivity. . . . [T]he statute in this case makes no attempt at all to specify
whose sensitivity must be offended.” Id. at 178. The panel further observed
that the statute could have been saved by a limiting construction from Texas
state courts—in particular a reasonable person limitation—but none had been
provided. Id. at 178 n.6 (“We acknowledge that the statute at issue could have


       2The panel opinion in Kramer was vacated when rehearing en banc was granted; thus
the opinion is not binding precedent. Before the en banc court rendered a decision, however,
the Texas statute at issue was repealed and replaced. Because of this change in
circumstances, the en banc court summarily affirmed the decision of the district court
“without approving or adopting its rationale.” Kramer, 723 F.2d at 1164.
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been given a narrowing construction that would have saved it from
constitutional infirmity. Our point is that the Texas court refused to narrow
the statute by, for example, holding that it applies to writings which would
annoy the hypothetical reasonable person and that this standard does not vary
with the sensitivity of each complainant.”). Thus, the panel opinion in Kramer
read Coates to prohibit the use of a subjective standard of annoyance, but
explicitly stated that a statute that uses an objective standard of annoyance
would survive constitutional scrutiny. 3
       In a similar fashion, the Sixth Circuit reached the same conclusion in an
unpublished case facing a substantially identical ordinance. Gaughan v. City
of Cleveland, 212 F. App’x 405 (6th Cir. 2007) (unpublished). At issue in
Gaughan was an ordinance that prohibited the playing of music or a television
“in such a manner or at such volume as to annoy or disturb the quiet, comfort
or repose of neighboring inhabitants.” Id. at 409. After recognizing that the
state court had, in similar ordinances, read into the ordinances an implied
reasonable person standard, the court upheld the statute by adopting that
limiting construction for the challenged statute.              The Sixth Circuit thus
recognized that Coates does not hold that the term “annoys” is always
forbidden. Id. at 412 (“First, the use of the term ‘annoy’ or ‘annoying’ does not
automatically make an ordinance impermissibly vague.”).                  The court read
Coates as being concerned about the lack of a definitive standard—i.e. who
must be annoyed for the statute to be violated—rather than with the use of
annoy.     Id.   (distinguishing Coates because “[h]ere, a violation of [the
challenged ordinance] depends upon the sensitivity of a reasonable person”).


       3Although Judge Rubin dissented from the panel decision in Kramer, the panel was
unanimous in its understanding of Coates. Kramer, 712 F.2d at 180 (Rubin, J. dissenting)
(“The vagueness in the [ordinance in Coates] did not result from the use of the word ‘annoy’
but from the imprecision of the phrase in which it appeared, ‘conduct themselves in a manner
annoying to persons passing by. . . .’” (emphasis in original)).
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       These cases converge on the single point: Coates was not so much about
the word “annoys” but about the impermissibility of a subjective standard. The
Ocean Springs ordinance does not suffer from this defect; it is specific about
the standard to be applied in enforcement of noise that “annoys”: The noise
must annoy a reasonable person. We are cognizant that the enforcement of
that standard will not be uniform, and that a police officer will be required to
apply his or her judgment in determining a violation.                 Nevertheless, the
Supreme Court precedents consider this level of uncertainty tolerable in the
noise ordinance context. We thus hold that the Ocean Springs ordinance is not
unconstitutionally vague. 4
                                            IV.
       Although the statute by its terms imposes an objective standard, we
digress briefly to address Munn’s citation. During discovery in this case, Munn
deposed Officer Grimes, who issued Munn’s citation, and other employees
present when the citation was issued. We have reviewed these depositions. It
is admittedly worrisome to us that Officer Grimes issued the citation almost
entirely on the basis of the repeated noise complaints from anonymous
individuals. This is eerily similar to the unconstitutional choice of words:
“persons passing by.” Officer Grimes testified that during the first visit to the
Purple Pelican, he warned a security guard about the noise, even though Officer
Grimes did not think that the music was unreasonably loud. 5 This warning is
clearly an improper enforcement of the ordinance; such enforcement causes the



       4 We are unconvinced by the reasoning in Tanner. Granting that police officers will
be forced to use their respective judgments to determine what level of noise is objectively
“annoying,” this distinction does not distinguish annoyance from other descriptive terms of
noise ordinances, all of which require the judgment of police officers.
       5 One of Munn’s employees stated in an affidavit that Officer Grimes made a similar

statement while writing the citation. Officer Grimes denied doing so and stated that, at the
time he issued the citation, he found the music to be unreasonably loud.
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ordinance to operate in precisely the way that Coates holds is impermissible—
that is, making violation of the ordinance dependent on the subjective
sensitivities of individuals who happen to be in the area.
      The particular enforcement of the ordinance is not before us—only the
constitutionality of the ordinance itself.     Nevertheless, we highlight these
citation facts because the objective standard established in the ordinance will
only protect the constitutional rights of Ocean Springs’s citizens if it is enforced
in an objective manner.      The assurance of such constitutional rights will
require an effort by the City to ensure that its officers are familiar with the
reasonable person standard for purposes of enforcement. And if the statute is
enforced in a purely subjective manner, the City is exposing itself to a
potentially different outcome. See Reeves v. McConn, 631 F.2d 377, 386 (5th
Cir. 1980) (“If actual experience with the ordinance were to demonstrate that
it represents a subjective standard, prohibiting a volume that any individual
person ‘within the area of audibility’ happens to find personally ‘disturbing,’
we would not hesitate to change our judgment accordingly.”).
                                        V.
      To conclude, we hold that the noise ordinance of Oceans Springs is not
impermissibly vague despite its inclusion of the word “annoys.” We reach this
conclusion because Coates only forbids the use of “annoys” when used in the
context of a subjective standard. Because the Ocean Springs ordinance applies
only to noise that annoys a reasonable person, the judgment of the district
court is
                                                                      AFFIRMED.




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