Guest Column: Challenge to Rockford’s noise and towing ordinances as unconstitutional

By Rene Hernandez

June 28, William Franzen of Rockford, filed suit in the 17th Judicial Circuit seeking to overturn the City of Rockford’s noise and towing ordinances as unconstitutional. The City of Rockford has removed this matter to United States District Court, Case No. 11 CV 50225, as it seeks to protect its ordinances.

Franzen has alleged that on Aug. 30-31, 2010, the City of Rockford subjected him to the noise ordinance where his car was impounded and he was forced to pay a towing company $477 to get his vehicle returned to him.

Franzen makes a claim that the ordinances are unconstitutional because, when directed by the police, private third-party towing companies are allowed to seize a citizen’s property as punishment for an ordinance violation, and then the ordinances require the payment of fees to a third-party towing company, all of which occurs before any type of due process is afforded the citizen. In effect, the city has a policy in which a citizen is deprived of his/her motor vehicle for a minimum 12 hours before there is any type of due process, forcing a citizen to be without his car for a fine-only offense. There is no one to go to once this process has begun. The only remedy for the citizen is to pay upfront several hundred dollars and wait the 12 hours before retrieving his car. Only after this has occurred can the citizen then try to recover his money from the city. But he can never recover the loss of the use of his car while it was impounded, even if he is innocent. This is a very painful loss when one has to be at work or take a sick child to the doctor.

There is also a challenge to the noise ordinance, as it is left to the whim of a city employee, in this case, a police officer, to determine if a sound violation has occurred. The standard is completely subjective, as the standard will vary from officer to officer. There is no set standard that will provide equal application to all citizens. It is alleged that because the standard is without a standard of application, it cannot be applied equally, making it vague and unconstitutional.

Taking this ordinance to its logical conclusion, the city will be able to declare such traffic offenses as speeding and stop sign violations (speeding and stop sign violations are greater risk to the public safety than loud car stereos) as a nuisance and impound a citizen’s car for 12 hours. The city already has an adequate remedy, as it can issue a ticket and then set the matter before a judge. If found guilty, then a citizen can be fined accordingly.

Rockford citizens should be troubled by local government being able to impound your car and punish you first, and at some other later date, maybe you can recoup the monetary punishment already inflicted upon you.(What’s next, impound your house for loud music?) But you can never get back the time your property was impounded. William Franzen is represented by Attorney Charles Hartman and Rene Hernandez.

From the Oct. 5-11, 2011, issue

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