To call downtown Durham on Monday night "lively" might be the understatement of the year: shortly after seven p.m., activists pulled down a Confederate memorial statue on Main Street. But a few blocks away, in Durham Central Park, the samba-reggae percussion ensemble Batalá Durham simultaneously hosted its weekly practice. And, for the first time in several weeks, it was enjoying rehearsal without the threat of police intervention.
"All we want to share is one love," declared Caique Vidal, the band's leader, between rolling tides of percussion.
Since late June, the group has struggled with a number of noise complaints phoned in by a resident of the new Liberty Warehouse Apartments, which opened in May and are located across from the park on Foster Street. The band has had permission from DCP to practice there. But calls from one resident—who's remained anonymous even to other Liberty residents—have resulted in Durham police pausing or outright ending the band's rehearsals on multiple occasions.
By Friday morning, Batalá Durham had applied for a twelve-week special event permit to continue its Monday night rehearsals at the park through the end of October. City council member Charlie Reece delivered the petition to city manager Thomas Bonfield via email, writing, "The special event permit would allow Batalá Durham to continue their rehearsals at Durham Central Park in full compliance with the noise ordinance—and without putting our police officers in this situation going forward."
That afternoon, Bonfield responded, noting that the permit was being considered and that Batalá should carry on with its August 14 gathering. He added, "I have asked the police department [that] should a complaint be made to simply respond and document what they find but not disrupt the rehearsal."
The group is taking next week off, as Vidal and a few other members of the group travel to Cuba. As of press time, Batalá hasn't yet received its permit. But Bonfield's initial response and support from city officials like Reece and fellow council member Jillian Johnson, as well as from many Liberty residents and other Durhamites, all indicate that Batalá Durham will get to stay.
Batalá' Durham may be out of the woods, but the group's struggle marks the beginning of some long-term changes in Durham as the city continues to develop.
"This isn't the last go-round we're going to have with this," says Reece.
Reece notes that noise ordinances are enforced differently than other issues. Reports and subsequent citations are almost exclusively complaint-driven, and their subjective nature can bring up the question of using the state to enforce taste. The same neighbor who might enjoy hearing a Shostakovich symphony at full blast may not be thrilled to hear a metal band at the same volume, for example. Reece says he's also concerned about these complaints going to police, rather than neighbors working out the issues among themselves.
And, as one legal expert argues, the current wording of Durham's noise ordinance may even mean that it's unconstitutional.
Jonathan Jones, a Durham-based First Amendment lawyer and communications instructor at Elon University, explains that the constitutional problems with noise ordinances are twofold.
"Whenever you're evaluating a restriction on speech, there's sort of two questions you ask yourself about the restriction at the beginning of that evaluation: Is this restriction on speech overly broad? Does it capture more than it is intended to capture?" he says.
Durham's restrictions qualify as being overly broad, Jones says. It's difficult for a resident with "ordinary sensibilities" to determine what kinds of activities, like a drum ensemble in a park, are or are not prohibited. The second problem, Jones says, is the specific decibel limitation.
"My view is that the sixty-decibel limit during the day creates an overly broad restriction on speech," Jones says. "I'm no sound engineer, but if you start looking at the limits, things like running your lawn mower are going to exceed sixty decibels."
According to the National Institute of Health's National Institute on Deafness and Other Communication Disorders, normal conversation levels generally register between 50 and 65 decibels. Vacuums and hair dryers operate at 70 decibels; a dishwasher and washing machine run at 75 and 78 decibels, respectively. (Durham's ordinance caps permissible noise at 60 decibels from eight a.m. to eleven p.m., and 50 decibels during overnight hours.)
When officers arrived to end Batalá Durham's practice last week, they didn't have a decibel meter with them—it had been sent away to its manufacturer for a regular calibration, they said. But even if Batalá Durham was violating Durham's ordinance, the bar to do so is almost shockingly low.
Many noise ordinances across the country have the same potential problems, but as Jones points out, they're rarely challenged on a constitutional basis because the stakes are so low. Most of these infractions are low-level misdemeanors, and challenging them simply isn't worth the time and financial resources (a violation citation in Durham lands you a $35 fine and $173 in court costs).
In his email to Bonfield, Reece said the city council will be taking another look at the noise ordinance to head off future problems. But crafting a constitutional ordinance won't be simple, Jones says. The city will have to craft one that more specifically outlines its criteria, and he suggests that residents get the opportunity to weigh in, too.
In the meantime, Batalá Durham is happy with its outcome, and is eager to help the city develop better practices for handling similar issues. Its members recognize that its struggles are not their own, and that the city council's next steps will have an even greater ramifications for Durham artists.
For now, though, Batalá gets to keep marching to the beat of its own drums.