Appendix — McLamb v. Arizona

APPENDIX A

Supreme Court State of Arizona

Supreme Court

STATE OF ARIZONA

402 ARIZONA STATE COURTS BUILDING

1501 WEST WASHINGTON

PHOENIX, ARIZONA 85007-3329

TELEPHONE: (602) 542-9396

February 28, 1997

RE: STATE OF ARIZONA vs. GERALD J.

MCLAMB

Supreme Court No. CR-96-0624-PR

Court of Appeals No. 1 CA-CR 95-0329

Maricopa County No. LC 94-00904

GREETINGS :

The following action was taken by the

Supreme Court of the State of Arizona on

February 26, 1997, in regard to the

above-referenced cause:

ORDERED: Petition for Review = DENIED.

Record returned to Court of Appeals,

Division One, Phoenix, this 28th day of

February, 1997.

NOEL K. DESSAINT, Clerk

la

APPENDIX B

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

STATE OF ARIZONA,

Appellee, 1 CA-CR 95-0329

Vv. DEPARTMENT B

GERALD J. MCLAMB,

Appellant.

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Appeal from the Superior Court of

Maricopa County

Cause No. LC 94-00904

The Honorable Bernard J. Dougherty, Judge

AFFIRMED

Roderick G. McDougall, City Attorney

by F. Tyler Rich, Assistant City

Prosecutor

Attorneys for Appellee Phoenix

Snell & Wilmer

By Steve C. Thornton

Attorneys for Appellant Phoenix

EHRLICH, Judge

O

Gerald J. "Jack" McLamb ("defendant")

appeals from a judgment of the Maricopa

County Superior Court affirming his

conviction in the City of Phoenix

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Municipal Court for a violation of Phoenix

City Code ("Code") section 23021

proscribing the unauthorized wearing of

the official insignia of the Phoenix

Police Department. We have jurisdiction

to determine the facial validity of this

ordinance. Ariz. Rev. Stat. Ann.

("A.R.S.") § 22-375. Because we find that

the ordinance is valid, the judgment of

the superior court is affirmed.

FACTS AND PROCEDURAL HISTORY

The facts essential to the resolution

of this appeal are not disputed. The

defendant was a City of Phoenix Police

Officer from 1976 through 1986 when he

retired. At that time, he was given a

Phoenix Police Department retired

Officer’s badge. The defendant also had

what he called his "retirement uniform"

which, in part, consisted of an official

Phoenix Police Department shirt on which

were shoulder patches with the official

department insignia.

The defendant had long been involved

in a number of political activities. For

example, he was the publisher of a

newsletter named Aid and Abet which was

directed to law enforcement officers with

the expressed purpose of "educating them

concerning constitutional issues." In

1993, he helped form an organization

called "Police Against the New World

Order." This organization produced a

Manual, to which he contributed, called

Operation Vampire Killer 2000.

On December 12, 1993, the defendant

operated a booth at a gun show at the

Arizona Veterans Memorial Coliseum in

Phoenix. Over the booth hung banners

declaring "Police Against the New World

Order," "Police Support Your Right to Bear

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Arms" and "We Will Not Take Your Guns

Away." The defendant distributed his Aid

and Abet newsletter and advertised the

Operation Vampire Killer 2000 manual. He

wore his "retirement uniform" with the

official Phoenix Police Department

insignia shoulder patches, as well as his

police department retired officer’s badge

and a whistle used by department motor

officers. Visible in the defendant’s

booth was a police helmet. The defendant

admitted that he wore the uniform to give

weight and credibility to his political

views. However, he maintained that he

never represented himself to be an active

police officer or a spokesman for the

Phoenix Police Department.

The Phoenix Police Department

received a complaint about the defendant’s

conduct in handing out political

literature in a police officer’s uniform.

In response, Officers David Lundberg and

Ted Music went to the gun show and saw the

defendant in his attire. They advised the

defendant that he could not wear the

Phoenix Police Officer’s badge nor the

official Phoenix Police Department

insignia shoulder patches because his

unauthorized use of the badge and insignia

violated the Phoenix City Code. The

defendant refused to remove his shirt or,

alternatively, to remove the patches,

claiming that he had a First Amendment

right to wear his "retirement uniform."

He then was issued two citations, one for

impersonating a police officer in

violation of Code section 23-20 and one

for wearing an official badge or insignia

without authorization in violation of Code

section 23-21.

The Phoenix Municipal Court dismissed

the Code section 23-20 charge on the basis

that it was preempted by state

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legislation. The court also found that

the defendant had not violated section 23-

21 by wearing his retired officer’s badge

because the badge was not an official one.

However, it found that the defendant had

violated section 23-21 by wearing the

shoulder patches with the official Phoenix

Police department Insignia.

Following an evidentiary hearing on

the defendant’s claim of selective and

discriminatory enforcement, the municipal

court found that there was no such

exclusive enforcement and that the

defendant was guilty of violating Code

section 23-21. It fined him $79.

The defendant appealed the conviction

and sentence to the superior court, which

affirmed the municipal court’s judgment.

The defendant timely appealed to this

court. He presents the following issues:

3. Whether his prosecution was

impermissibly selective and

discriminatory;

Zz Whether Code section 23-21 is

preempted by A.R.S. section 13-2406;

zi Whether Code section 23-21 is

unconstitutionally vague;

4. Whether Code section 23-21 is

unconstitutional because it violates

the First Amendment to the United

States Constitution;

5. Whether Code section 23-21 is

unconstitutionally overbroad.

DISCUSSION

A. Selective and Discriminatory

Prosecution

Sa

Our review is limited to the facial

validity of Code section 23-21 because

this action was instituted in municipal

court and appealed to superior court.

A.R.S. § 22-375; State v. Phillips, 178

Ariz. 368, 370, 873 P.2a 706, 708 (App.

1994). If the ordinance is facially

constitutional, we have no jurisdiction to

examine its application to the individual

defendant. Id. Since the issue of

selective and discriminatory enforcement

involves only the implementation of the

ordinance, we will not consider this

issue.

B. Preemption >

The City of Phoenix, as authorized by

the Arizona Constitution, Article 13,

Section y ¥ has adopted a charter

permitting it to enact municipal

ordinances. As a charter city, Phoenix

may exercise "all the powers authorized by

its charter, providing those powers are

not inconsistent with the Arizona

Constitution or the general laws of this

state." State v. Jacobsen, 121 Ariz. 65,

68, 588 P.2d 358, 361 (App. 1978); see

A.R.S. § 9-284.

The defendant argues that Code

section 23-21 is preempted by A.R.S.

section 13-2406, thus invalidating the

ordinance. We disagree.

The rule regarding preemption states:

[Bloth a city and state may legislate

on the same subject when that subject

is of local concern or when, though

the subject is not of local concern,

the charter or particular state

legislation confers on the city

express power to legislate thereon;

but where the subject is of statewide

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concern, and the legislature has

appropriated the field by enacting a

Statue pertaining thereto, that

Statute governs throughout the state,

and local ordinances contrary thereto

are invalid.

Phoenix Respirator & Ambulance Service v.

McWilliams, 12 Ariz. App. 186, 188, 468

P.2d 951 (1970) (citations omitted).

Section 13-2406(A) of the Arizona

Statues provides:

A person commits [the crime of]

impersonating a public servant if

such person pretends to be a public

servant and engages in any conduct

with the intent to induce another to

submit to his pretended official

authority or to rely upon his

pretended official acts.

Section 23-21 of the Code provides:

It shall be unlawful for any person

to wear a fireman’s or policeman’s

badge or insignia, or the badge or

insignia of any public officer or

inspector of the City when not

properly authorized to wear such

badge or insignia.

The ordinance bars the unauthorized use of

a public officer’s insignia on clothing.

In contrast, the statute, with no mention

of an insignia, prohibits the

impersonation of a public servant engaging

in "conduct with the intent to induce

another to submit" to his faked authority.

There is no conflict between Code Section

23-21 and A.R.S. section 13-2406(A).

The question remains whether the

Statute "has so completely occupied the

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filed that it becomes the sole and

exclusive law on the subject, leaving no

room for any supplementary or additional

local regulation." Jacobsen, 121 Ariz. at

69, 588 P.2d at 362; see Prendergast v.

City of Tempe, 143 Ariz. 14, 691 P.2d 726

(App. 1984). Simply because the state and

local legislation "touch upon a common

element" does not mean that the ordinance

is preempted. Jacobson, 121 Ariz. at 70,

588 P.2d at 363. An ordinance will not be

found invalid if a reasonable

interpretation of it avoids conflict with

a statute. State v. Crisp, 175 Ariz. 281,

284, 855 P.2d 795, 798 (App. 1993). In

the case of these two laws, there is no

suggestion that the legislature intended

to preempt the regulation of municipal

insignias. Id. In passing its statute,

the state’s manifest purpose was to

protect its populace from persons having

the intent to persuade or cause innocent

individuals to submit to simulated

authority or to rely upon pretended

“official” acts. The City of Phoenix,

with a different purpose altogether,

sought to regulate the use of indicia of

its governmental authority.

C. Vagueness

The defendant argues that Code

section 23-21 is unconstitutionally vague.

He claims that it failed to give him

adequate notice of how and when the

ordinance would be enforced and under what

circumstances the wearing of Phoenix

Police Department insignia would be

authorized.

When the law is challenged on the

basis of vagueness or overbreadth, the

appellate court has the duty of construing

a law in such a manner that it will be

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constitutional. State v. Tocco, 156 Ariz.

116, 119-20, 750 P.2d 874, 877-78 (1988) ;

State v. Lycett, 133 Ariz. 185, 190, 650

P.2d 487, 492 (App. 1982). In this

regard, the defendant has the burden of

establishing the ordinance invalidity

beyond a reasonable doubt. JId.; State v.

Steiger, 162 Ariz. 138, 145, 781 P.2d 616,

623 (App. 1989).

"A legislative enactment is

unconstitutionally vague if it does not

give persons of ordinary intelligence a

reasonable opportunity to learn what it

prohibits and does not provide explicit

Standards for those who will apply it."

State v. Takacs, 169 Ariz. 392, 394, 819

P.2d 978, 980 (App. 1991); see State v.

Tober, 173 Ariz. 211, 214, 841 P.2d 206,

209 (1992); Bird v. State, 184 Ariz. 198,

203, 908 P.2d 12, 17 (App. 1995).

The Constitution only requires that

language convey a sufficiently

definite warning as to proscribed

conduct when measured by common

understanding and practices. That

there will be marginal cases in which

it is difficult to determine the side

of the line of which a particular

fact situation falls is no sufficient

reason to hold the language too

ambiguous to define a criminal

offense. [Citation omitted.]

State v. Cota, 99 Ariz. 233, 236, 408 P.2d

23, 26 (1965). See United States v. Nat’l

Dairy Products Corp., 372 U.S. 29, 32

(1963). If a statute gives notice of

prohibited conduct, it is not void for

vagueness "Simply because it may be

difficult to determine how far one can go

before the statute is violated."

Phillips, 178 Ariz. at 370, 873 P.2d at

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708 (quoting Berenter Vv. Gallinger, 173

Ariz. 75, 81, 839 P.2d 1120, 1126 (App.

1992).

The word "insignia" as used in Code

section 23-21 has a well-established,

common meaning which a person of ordinary

intelligence would understand,* and the

defendant does not challenge this word.

Rather, he claims that the word

"authorized" as used in the same code

section is vague because the ordinance

does not specify when a person is

permitted to wear the insignia.

The Oxford English Dictionary (1971)

defines the word "authorize" as "to give

legal force to; to make legally valid; to

give formal approval to; to give legal or

formal warrant to (a person) to do

something; to empower, permit

authoritatively." See also, Webster’s New

Universal Unabridged Dictionary (2d ed.).

Its meaning is clear.* The fact that the

4 The Oxford English Dictionary

(1971) defines insignia as "distinguishing

marks of office or honour." See also,

Webster’s New International Dictionary (2d

ed.).

2 The word "authorize" or its

variants is founds in many criminal

statutes. See e.g. A.R.S. § 13-1504(2)

(unlawful to enter and look into

residential structure without lawful

"authority"); § 13-1803 (unlawful use of

means of transportation is temporary

"unauthorized" control over another’s

means of transportation); § 13-2104

(forgery of credit card is alteration of

credit card without the express

"suthorization" of the issuer); § 13-

2316(B) (computer fraud includes altering

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defendant now contends that he did not

know prior to being told by Officer Music

that he was not authorized to wear the

patches with the official Phoenix Police

Department insignia does not render the

word "authorize" unconstitutionally vague.

Rather, the defendant understood the word

but allegedly did not know that to wear

the insignia was not permitted.

The defendant also claims that the

word "authorize" is vague because it gives

law enforcement officers discretion

whether to enforce Code section 23-21. He

illustrates his point by claiming that the

spouses and children of Phoenix Police

officers wear hats and shirts with the

department badges and insignia at picnics

or outings without allowance to do so but

that they are not prosecuted. He

concludes that this demonstrates that the

ordinance is vague because the city can

arbitrarily enforce it.

As a preliminary issue, there is the

question of the defendant’s standing to

make this argument. A statute "must of

necessity be examined in the light of the

conduct with which a defendant is

charged." Nat’l Dairy Products, 372 U.S.

at 33.

A defendant whose conduct is clearly

proscribed by the core of the statute

has no standing to attack the

statute. "One to whose conduct a

Statute clearly applies may not

successfully challenge it for

vagueness." Parker v. Levy, 417 U.S.

733, 756 (1974). See also Broadrick

v. Oklahoma, 413 U.S. 601, 610

or destroying any computer without

“authorization").

lla

(1973).

Tocco, 156 Ariz. at 119, 750 P.2d at 877.

Proceeding nonetheless to address the

defendant's argument, the ordinance

sufficiently defines the behavior

prohibited: wearing the insignia of any

city officer when not properly authorized

to wear such insignia. The code section

does not apply to a replica, facsimile or

other likeness of an insignia. Thus,

interpretation of the ordinance is not

dependent on the judgment of police

officers. To the contrary, the ordinance

"gives fair and objective guidelines to

both potential offenders and law

enforcement personnel" exactly what

behavior is prohibited. Phillips, 178

Ariz. at 371, 873 P.2d at 709. Further,

it must be supposed that public "officers

will act fairly and impartially and in

accordance with their best judgment," and

a statute will not be held

unconstitutional because of a supposed

possibility they will not do so. Brady v.

Mattern, 100 N.W. 358, 362 (Iowa 1904).

When the language is clear, the

Statue is not rendered unconstitutionally

vague because there is a theoretical

potential for arbitrary enforcement or the

exercise of discretion by a law

enforcement officer or prosecutor, or even

if the conduct is prevalent and ignored.

Matter of Pima County Juvenile App. No.

74802-2, 164 Ariz. 25, 29, 790 P.2d 723,

725 (1990). Indeed, statues that require

some assessment by a law enforcement

officer or prosecutor of the surrounding

circumstances consistently have been

upheld against vagueness challenges. For

example, in State v. Miller, 398 S.E.2d

547 (Ga. 1990), the Georgia Supreme Court

ruled constitutional an anti-mask statute

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directed primarily at persons wearing Ku

Klux Klan regalia. The defendant argued

that the statute was vague and subject to

arbitrary enforcement because, by its

terms, it also prohibited wearing a ski

mask in winter or sunglasses on a sunny

day. Noting that the purpose of the anti-

mask law was to prevent conduct provoking

a reasonable apprehension of intimidation,

threats or violence, the court concluded

that the statute was no unconstitutionally

vague because persons of ordinary

intelligence could readily discern when

behavior would or would not be criminal.

Id. at 552. It gave as an illustration a

person wearing a ski mask in winter who

would not warrant alarm unlike a person

wearing a mask in summer while entering a

bank. Id. Measured by the standard of

“common understanding and practice."

United States v. Petrillo, 332 U.S. 1, 8

(1947), Code section 23-21 is not void for

vagueness because it sufficiently warns

against the proscribed conduct.

D. Violation of First Amendment

The defendant contends that the

ordinance on its face violates his First

Amendment right to free speech.? In

3 The First Amendment to the United

States Constitution provides, in part,

that there "shall" be "no law...

abridging the freedom of speech." While

the defendant also refers to Article 2,

section 6, of the Arizona constitution

(the state counterpart to the First

Amendment), because he only relies on

cases interpreting the First Amendment, we

do not separately discuss the Arizona

Constitution.

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support of his position, he relies on

Schacht v. United States, 398 U.S. 58

(1970), wherein the defendant, wearing as

a costume a United States Army uniform,

participated in a skit protesting American

involvement in Vietnam. .He was convicted

under a federal statute which made it a

crime to wear a military uniform without

authority to do so. A statutory exception

provided, however, that an actor in a

theatrical production "may wear the

uniform of that armed force if the

portrayal does not tend to discredit that

armed force." The Court in Schacht was

concerned solely with the last portion of

the statutory exception, specifically

stating: .

Our previous cases would seem to make

it clear that 18 U.S.C. § 702, making

it an offense to wear our military

uniforms without authority is,

standing alone, a valid statute on

its face. But the general

prohibition of 18 U.S.C. § 702 cannot

always stand alone in view of 10

U.S.C. § 772 which authorizes the

wearing of military uniforms under

certain conditions and circumstances

including the circumstances of an

actor portraying a member of the

armed serves in a "theatrical

production."

Id. at 61 (citations omitted). The Court

held that the clause restricting

authorization to those dramatic portrayals

which do not "tend to discredit" the

military was an unconstitutional

abridgement of the freedom of speech. Id.

at 62-63.

It is for that reason, though, that

Schacht is distinguishable from this case.

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In Schacht, the statute contained a

content-based qualification on political

speech. Such restrictions are subject to

the most exacting scrutiny. See Boos v.

Barry, 485 U.S. 312 (1988) (District of

Columbia prohibition against displaying

signs within 500 feet of embassy "bringing

foreign governments in disrepute" was

content-based restriction on political

speech violative of First Amendment.).

Code section 23-21, on the other hand, is,

on its face, content-neutral. It

prohibits the unauthorized wearing of an

official insignia without regard to a

particular expressive activity or the

political viewpoint communicated by the

wearer.

The defendant argues that to wear the

insignia was a form of expressive speech

integral to the spoken presentation of his

political views. He relies on Texas v.

Johnson, 491 U.S. 397 (1989), as well as a

line of other United States Supreme Court

flag-desecration cases and additional

cases involving symbolic speech.‘

In Johnson, the defendant was

convicted of burning a United States flag

contrary to a Texas statute making flag-

desecration a crime. In reversing the

conviction, the Court stated that,

: See e.g., United States

V

Eichman, 496 U.S. 310 (1990); Spence v.

Washington, 418 U.S. 405 (1974); Smith v.

Goguen, 415 U.S. 566 (1974); Cohen v

California, 403 U.S. 15 (1971); Street v.

New York, 394 U.S. 576 (1969); Tinker v.

Des Moines Independent Community School

District, 393 U.S. 503 (1969); United

States v. O’Brien, 391 U.S. 367 (1968) ;

Stromberg v. California, 283 U.S. 359

(1931).

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although the First Amendment encompasses

both speech and expressive conduct, "[t]he

government generally has a freer hand in

restricting expressive conduct than it has

in restricting the written or spoken

word." Id. at 406. In articulating when

the state may regulate symbolic speech

consistent with the First Amendment, the

Court stated that, first, it must be

decided if the conduct is indeed

expressive. The test is whether "[a]Jn

intent to convey a particularized message

was present, and [whether] the likelihood

was great that the message would be

understood by those who viewed it." Id.

at 404 (quoting Spence v. Washington, 418

U.S. 405, 410-11 (1974)). If the conduct

is expressive, the court must next decide

whether the state’s regulation is "related

to the suppression of free expression."

Id. at 403. If the state’s regulation is

not related to expression, then the less-

Stringent standard for regulation of

noncommunicative conduct controls as

applied in United States v. O’Brien, 391

U.S. 367, #377 4=~(1968) (federal statute

making it a crime to burn Selective

Service card did not violate First

Amendment) . Id. If the state’s

regulation is related to expression, then

the court determines whether the

governmental interest justifies the

conviction under a= more "demanding

Standard" as applied in Spence, 418 U.S.

at 414-415 (defendant displaying United

States flag upside down with peace symbol

on it engaged in constitutionally-

protected activity). Id. at 403-04.

Wearing an official Phoenix Police

Department insignia in the context in

which the defendant was wearing it was

expressive conduct. The defendant

conceded that he wore the insignia in

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order to convey a message that he was a

former Phoenix officer advocating certain

political ideas.> He also admitted that

the insignia was intended to imbue his

political beliefs with an aura 0of

importance.

Since the ordinance is not related to

the suppression of free expression, the

less-stringent standard of O’Brien

applies. A four-part test is used to

determine when a governmental interest

sufficiently justifies the regulation of

expressive conduct:

es if it is within the

constitutional power of the

Government ; if it furthers an

important or substantial governmental

interest; if the governmental

interest is unrelated to the

Suppression of free expression; and

if the incidental restriction on

alleged First Amendment freedoms is

no greater than is essential to the

furtherance of that interest.

> The defendant, had he been still

employed by the Phoenix Police Department,

nonetheless would have been prohibited

from wearing his uniform at the gun show

to promote his political beliefs. "[Nl]o

court has recognized a right to exploit

one’s rank in public employment solely for

the purpose of enhancing credibility for

personal or political gain -- in effect,

to use the fact of public employment as a

‘soap box’ from which the employee can

advocate a political position on an issue

of public debate." Thomas v. Whalen, 51

F.3d 1285, 1291 (6th Cir.), cert. denied

mini, see Wy SO BCS OSS Ware: .

17a

ann Ue. SS 277.

By its term, Code section 23-21

neither attempts to regulate or restrict

the content of the defendant’s expression,

nor is it "directed at the communicative

aspect of [the defendant’s) conduct."

Bird 184 Ariz. at 205, 908 P.2d at 19. It

does not burden "core political speech,"

which then would prompt "exacting

scrutiny." See McIntyre v. Ohio Elections

Commesiogs,;. . - U8: ...., 226°8.Ce. 1811,

1519 (1995). Except for the city’s bar to

wearing an official insignia, the

defendant is otherwise free to express his

political views.

The City of Phoenix has a legitimate

governmental interest in regulating the

use of its official insignia. The police

insignia has a "communicative force all

its own." Thomas v. Whalen, 51 F.3d 1285,

1293 (6th Cir.), cart. denied,... v.s. _,

146 S.Ct. Sis. (3995). Its unauthorized

use jeopardizes the appearance of

political neutrality and impartiality of

the Phoenix Police Department and the

city, particularly because the insignia is

itself the imprimatur of authority.

Such governmental interest has been

discussed in analogous cases dealing with

Statutes or regulations restricting the

political and speech activities of

government employees. The United States

Supreme Court in Unites States Civil

Service Commission v. National Ass’n of

Letter Carriers, 413 U.S. 548, 565 (1973),

recognized the interests of the federal

government in restricting the political

activities of its employees to maintain an

appearance of neutrality.

In Thomas v. Whalen, 51 F.3d 1285, a

police officer challenged on First

Amendment grounds disciplinary action

against him after he had made an

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unauthorized appearance for the National

Rifle Association while wearing his

official uniform. -The court found that

the stat’s interests outweighed the

defendant’s First Amendment rights. The

defendant was free to express his ideas

but he could not "exploit [his) rank

for the purpose of enhancing credibility

for personal or political gain." Id. at

1291.

In Paulos v. Breier, 507 F.2d 1383

(7th Cir. 1974), it was held that a police

officer’s First Amendment rights’ to

publicly urge support for a political

candidate were outweighed by the rights of

the City of Milwaukee because "a

municipality has [) interests in

preserving the apolitical nature of its

police force." Id. at 1385. In Detroit

Fire Fighters Ass'n, Local 334 v. City of

Detroit, 508 F.Supp. 172 (E.D. Mich.

1981), the court held that the First

Amendment did not prevent the city from

restricting the public appearances of

uniformed firefighters to advocate defeat

of a charter amendment.

The City of Phoenix has a legitimate

governmental interest in restricting the

use of its official insignia when the use

serves to advance personal political views

of the wearer. The city’s tenable

interest outweighs the individual’s

interest in advocating those views while

wearing such an insignia. As in O’Brien,

the governmental interest is important and

substantial, and the interest is unrelated

to the regulation of free expression. 391

U.S. at 376-77. Moreover, the restriction

on free expression is minimal. " [A] ny

impact on First Amendment rights is only

incidental." Bird, 184 Ariz. at 205, 908

P.26 ae. Be, The ordinance does not

violate the defendant’s First Amendment

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rights.

E. Overbreadth

As a related issue, the defendant

argues that the statute is overbroad

because it prohibits wearing official

insignia without authorization under all

circumstances, including at home, at

social events, in photographs, dramatic

presentations, - video productions or

satirical presentations, or during

political protests. He argues that

wearing the insignia in these situations

is either harmless or directly infringes

upon First Amendment rights of

expression.

"An overbreadth statute is one

designed to burden or punish activities

which are not constitutionally protected,

but es includes within its scope

activities which are protected by the

First Amendment." State v. Baldwin, 184

AGis.: BET, SSO, - FOO. BeBe “603,485

(1995) (quoting State v. Jones, 177 Ariz.

94, 99, 865 P.2d 138, 143 (App. 1993)).

The defendant’s conduct does not come

within the areas in which he claims the

ordinance is overbroad. Thus, unless the

challenged legislation, "by its terms,

regulates the exercise of first amendment

rights, its constitutionality may not be

Challenged on the ground that it might

apply to parties not before the court."

Cacavas v. Bowen, 168 Ariz. 114, 117, 811

P.2d 366, 369 (App. 1991).

This exception to the ordinary rule

of standing has been carved out in the

First Amendment area because of the very

existence of an overbroad statute may have

a chilling effect on the person s not

before the court. Broadrick v. Oklahoma,

433 9.@:.° GOL 622-(a973) . In Broadrick,

20a

the Court found constitutional an Oklahoma

Statute prohibiting partisan political

activities of state employees. Although

the conduct of the employees challenging

the statute fell within its core, because

the statute covered potentially protected

expression, the litigants were permitted

to challenge its constitutionality.

However, as noted by the Court, "... where

conduct and not merely speech is involved

... the overbreadth of the statute must

not only be real, but substantial as well,

judged in relation to the _ statute’s

plainly legitimate sweep ... and that

whatever overbreadth may exist should be

cured through case-by-case analysis of the

fact situations to which its sanctions,

assertedly, may not be applied." Id. at

615-16. In Broadrick, the challenged

Statute validly prohibited many activities

but it also forbade constitutionally-

protected exercises. Nonetheless, the

Court found that it was not necessary to

discard the statute in toto and that

improper applications of the statute could

be dealt with as the situation arose. Id.

at 618.

"(T]he mere fact that one can

conceive of some impermissible

applications of a_ statute is not

sufficient to render it susceptible to an

overbreadth challenge." Members of City

Council v. Taxpayers for Vincent, 466 U.S

789, 800 (1984). To claim “substantial

overbreadth" is appropriate in cases when,

"despite some possibly impermissible

application, the remainder of the statute

; covers a whole range of easily

identifiable and constitutionally

prescribable ... conduct." Secretary of

State of Maryland v. Joseph H. Munson Co.,

467 U.S. 947, 964-65 (1984) (citations

omitted) .

21a

If the Court believes that the

Statute is so sweeping that it would

deter persons from engaging in

protected speech, or that the statute

may be used on an arbitrary basis

against political dissenters, the

Court will Strike the law as

overbroad. If the Court believes

that there is little chance that the

Statute will deter constitutionally

protected speech, or will uphold the

law and allow it to be applied on a

"case-by-case" basis.

Ronald D. Rotunda & John E. Nowak, 4

Treatise on Constitutional Law: Substance

and Procedure 2nd, § 20.8, p. 32 (1992).

Thus, to prevail on an overbreadth claim,

"(t)here must be a realistic danger that

the statute will significantly jeopardize

recognized first amendment protections of

individuals not before the court."

Steiger, 162 Ariz. at 144, 781 P.2d at 622

(citation omitted) (emphasis original) ;

see State v. Western, 168 Ariz. 169, 812

P.2d 997 (1991) (ordinance prohibiting

striptease performances substantially

overbroad because prohibited broad range

of legitimate artistic expression); State

v. Weinstein, 182 Ariz. 564, 898 P.2d 513

(App. 1995) (theft-by-extortion statute

substantially overbroad because it

Criminalized many "threats" common in

everyday business).

The defendant relies on Houston v.

Hill, 482 U.S. 451 (1987), and Lewis v.

New Orleans, 415 U.S. 130 (1974),- to

Support his claim that the ordinance is

overbroad. In 4Hill, the ordinance

prohibited speech that "interrupted a

police officer in the execution of his

duty." Zé. at 455. In Lewis, the

ordinance made it unlawful to use "obscene

22a

or opprobrious" language toward a police

officer. 415: 0.8. mt «i132. Those cases

are distinguishable because the statutes

prohibited a wide range of protected

speech.

Code section 23-21 is not

substantially overbroad. The core of the

ordinance regulates the wearing of

official insignia and is directed at

activities in which wearing such insignia

compromises the appearance of neutrality

and impartiality of the police, fore and

other city department. The ordinance is

not "a censorial statute, directed at

particular groups or viewpoints."

Broadrick, 413 U.S. t 616. There is not

realistic danger that the ordinance will

significantly infringe upon First

Amendment rights, will deter

constitutionally-protected speech or will

be used selectively to punish dissenters.

Accordingly, the law is not

unconstitutionally overbroad.

Conclusion

For the reasons discussed above, we

hold that Phoenix City Code section 23-21

is facially valid. We therefore affirm

the judgment of the superior court and

thereby affirm the defendant’s conviction

and sentence.

"s/Susan A. Ehrlich, Judge"

CONCURRING :

"s/Sarah D. Grant, Presiding Judge"

"s/E.G. Noyes, Jr., Judge"

23a

APPENDIX C

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

STATE OF ARIZONA,

1 CA-CR 95-0329

Appellee,

DEPARTMENT B

Maricopa County

Superior Court

No. LC 94-00904

)

)

)

)

vs. )

)

GERALD J. MCLAMB, )

)

)

Defendant.

) ORDER

The above-mentioned matter was duly

Submitted to the Court. The Court has

this day rendered its Opinion.

It is ORDERED that the Opinion be

filed by the Clerk.

IT IS FURTHER ORDERED that a copy of

this order, together with a copy of the

Opinion, be sent to each party appearing

herein or to the attorney for such party,

and to the Honorable Bernard J. Dougherty.

DATED this 17th day of September

1996.

"s/Susan A. Ehrlich, Judge"

24a