City's noise ordinance at heart of lawsuit

A Huntington Beach resident has sued the city, the Police Department and an officer, claiming that the officer entered his apartment without a warrant during the investigation of a noise complaint.

Lawyer Mark Eisenberg filed the Orange County Superior Court claim June 19 on behalf of Roger Mielke, alleging that his client's civil rights were violated and that the city's noise ordinance is unconstitutional.

City attorney Jennifer McGrath declined to comment on the pending lawsuit.

The lawsuit alleges that at 2 a.m. Aug. 24, Bernard Atkins and another Huntington Beach police officer, while responding to a noise complaint, entered Mielke's apartment in the 7700 block of Garfield Avenue and began to search the living room.

Before officers arrived, Mielke's roommate, who has not been identified, left the apartment with the lights off and the doors closed but unlocked.

The plaintiff was awakened by the officers in the home, and his dog began to growl, according to the complaint.

The lawsuit alleges that when Mielke opened his bedroom door, Atkins told him twice to control his dog or the officers would shoot it.

The officers told Mielke that they were searching his home to find the "source of unlawful music" and were able to enter the apartment to enforce the city's municipal noise code, according to the lawsuit.

The noise ordinance states that police can arrest any person without a warrant when there is reasonable cause to believe a misdemeanor has been committed in their presence. A loud-noise violation is a misdemeanor.

Mielke was not arrested.

Huntington Beach Police Chief Robert Handy said that under department policy, officers do not enter a home on a noise complaint unless there are extenuating circumstances.

Mielke asked if police had a warrant and the officers responded that they did not, according to the suit. The plaintiff then asked Atkins and the other officer to leave, which they did, and no arrests were made or citations given, Eisenberg said.

Eisenberg is alleging that the police have been using the municipal code to circumvent 4th Amendment protections again unreasonable searches and seizures.

It isn't the first time the lawyer has sued the city and Police Department regarding the ordinance.

In September 2013, the city paid $150,000 to settle a lawsuit brought by a Huntington Beach couple, who alleged that after receiving a noise complaint officers entered their home without a warrant, falsely arrested them and inappropriately touched one of them.

Eisenberg, who represented the couple, claims the ordinance is unconstitutional and wants the City Council to amend it.

"This will go on and on unless the city changes its ways," he said.

Eisenberg said he is offering to settle the lawsuit with the city for $75,000 until the end of July.

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