# Appendix — McLamb v. Arizona

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0817%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 814

## Text

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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I

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

16a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0817%3A2. Public record. Not legal advice.