State v. McLamb
| Decision Date | 17 September 1996 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 188 Ariz. 1,932 P.2d 266 |
| Parties | STATE of Arizona, Appellee, v. Gerald J. McLAMB, Appellant. 95-0329. |
| Court | Arizona Court of Appeals |
Gerald J. "Jack" McLamb ("defendant") appeals from a judgment of the Maricopa County Superior Court affirming his conviction in the City of Phoenix Municipal Court for a violation of Phoenix City Code ("Code") section 23-21 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.
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 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 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:
1. Whether his prosecution was impermissibly selective and discriminatory;
2. Whether Code section 23-21 is preempted by A.R.S. section 13-2406;
3. 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.
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.2d 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.
The City of Phoenix, as authorized by the Arizona Constitution, Article 13, Section 2, 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. Jacobson, 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:
[B]oth 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 concern, and the legislature has appropriated the field by enacting a statute pertaining thereto, that statute governs throughout the state, and local ordinances contrary thereto are invalid.
Phoenix Respirator & Ambulance Service, Inc. v. McWilliams, 12 Ariz.App. 186, 188, 468 P.2d 951, 953 (1970) (citations omitted).
Section 13-2406(A) of the Arizona statutes 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 field that it becomes the sole and exclusive law on the subject, leaving no room for any supplementary or additional local regulation." Jacobson, 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.
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 a 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 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's invalidity beyond a reasonable doubt. Id.; 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...
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