Your neighbor next door or around the corner is making too much noise, and it’s late. You have to work early in the morning. You need your sleep, and you can’t sleep with that noise going on all night. You can’t (or you opt not to) ask them to quiet down. Instead, well within your rights as a member of the community, you call law enforcement and make a noise complaint. You just want the noise to stop.
Unfortunately, noise complaints may not be as simple as you think. Here are some things that you should know…
The noise complaint violation, and what gives deputies the right to contact and gain authority over a noise-making subject, is a violation of Penal Code Section 415(2). This section reads: “Any person who maliciously and willfully disturbs another person by loud and unreasonable noise” is in violation of disturbing the peace and is subject to a fine and/or a jail sentence. Violating Penal Code Section 415(2)is a misdemeanor. (Penal Code Section 415(2) being a misdemeanor will come into play later, as I explain below.)
The two tenets of a noise being unreasonable and maliciously and willfully generated must be met in order for deputies to have any authority (i.e. making the noise cease) in these types of calls. Meaning, a noise must be unreasonable and willfully malicious for deputies to stop the noise under the rule of law. While the state statute does not define “unreasonable,” “willful,” or “maliciousness,” case law has established some guidelines.
Simply put, the courts have defined noises as “unreasonable” using criteria (such as the time of day), with early morning and late night hours being the most accepted and by the distance the noise travels(i.e. the noise can be heard a certain distance away) or by the volume of the noise. The types of noises and/or the reasons for the noise (or lack thereof) can also play a role in determining whether a noise is reasonable or unreasonable. As such, noises being produced during normal and/or commonly-used waking hours and/or noises that do not travel hundreds of yards away from their source are often not seen as unreasonable by the courts.
It is not hard, even under these parameters, to have a noise deemed unreasonable. This alone, however, does not mean that the person making the noise is in violation of Penal Code Section 415(2). In order for that to happen, the person must also be producing the noise maliciously, with the willful intent to disturb another person’s peace. Case law has held that for the malicious and willful elements to be met in Penal Code Section 415(2), the subject making the noise must know that there is a person being bothered by the noise. Inversely stated, a subject’s noise-making actions cannot be deemed malicious if he/she is unaware that someone is being bothered by the noise. The absence of awareness means the absence of will, and the absence of will means the absence of malice.
As a result, law enforcement (in meeting the requirements of case law) seeks to first establish awareness when addressing noise complaints. Assuming unreasonableness is established, the common procedure for law enforcement in addressing noise complaints is as follows:
Once a call from a reporting party (i.e. the victim) has been dispatched, deputies will contact the noise-making subject and advise him/her of the complaint. Neither the name of the reporting party nor the location of the reporting party is given. With this advisement, the case law criteria of awareness is met and so, too, is the element of willful malice met should the noise continue to be made following the advisement.
Should the noise continue and law enforcement receives a second call from the same victim, deputies then have full authority to cite and/or arrest the noise-making subject for violating Penal Code Section 415(2) – a misdemeanor. Whether a person is arrested for violating Penal Code Section 415(2) or merely cited rests upon another Penal Code Section, Penal Code Section 853.6(i)(7). Penal Code Section 853.6(i)(7) says a person may be arrested for a misdemeanor (instead of being cited) if “there was a reasonable likelihood that the offense or offenses would continue or resume.” Meaning, if it appeared that the noise-making subject was likely not to stop making the noise in question upon being cited, he/she could be arrested and booked into the county jail.
1. There has to be a victim (a person bothered by the noise).
2. There has to be a person making the noise (the suspect).
3. The noise has to meet the case law criteria of unreasonableness.
4. The noise-making subject must know his/her noise is bothering the victim in order for his/her
noise-making actions to be considered willful and malicious.
If any of these elements are missing, there is no violation of Penal Code Section 415(2).
Plus, there’s more (and this is where Penal Code Section 415(2) being a misdemeanor becomes relevant)…
Generally, noting that there are some exceptions (per Penal Code Section 836(a)(1)), misdemeanors must be committed in the presence of a law enforcement officer for them to be enforceable at the scene. If a misdemeanor is not committed in the presence of a law enforcement officer, and it is not one of the exceptions listed in Penal Code 836 (e.g. domestic violence, violation of a court order, etc.), at-scene enforcement requires a “Citizen’s Arrest.” Penal Code Section 837(1) reads, “A private person may arrest another for a public offense committed or attempted in his presence.” In a citizen’s arrest (also known as a citizen’s complaint), law enforcement officers will act on behalf of the victim in issuing a citation and/or in making an arrest at the scene. Should the case go to court, the victim filing the citizen’s complaint can be called to testify.
Penal Code Section 415(2) requires a citizen’s complaint to be enforceable at the scene. This is why upon calling for the assistance of law enforcement, the dispatch call-taker will ask you if you are willing to sign the citizen’s complaint form. If you say “no,” or if you say you wish to remain anonymous (which by default means you will not sign the citizen’s complaint form), there is, in essence, no crime because legally there is, in essence, no victim. [Note: The law does not allow for a law enforcement officer to have his/her peace disturbed while on duty.]
Now, suppose you do not want to sign a citizen’s complaint form, but you still would like deputies to contact your neighbor and politely request on your behalf that he/she stop making the noise you find disturbing. This can sometimes be done but also sometimes cannot be done. It all depends upon call volume – how busy patrol is with other calls and what other types of calls they are handling that day (or night). With no violation of law involved in your request, and no danger or risk to life or limb involved, a law enforcement response to ask someone a favor on your behalf is going to be deemed “low priority.” Additionally, please note that should call volume allow for deputies to submit your request on your behalf (with no authority of law established) the noise-making subject can simply decline the request.
This may be more than you ever wanted to know about noise complaints. However, it is important to understand what the law states and what law enforcement officers are allowed to do and not do. Though noise complaints may seem simple to you, please be patient with our officers as they carry out the law.
And as always, stay alert, stay vigilant and…stay safe!