Bailey v. City of National City

In Bailey v. City of National City (1991) 226 Cal. App. 3d 1319, the appellant's employment as a police officer was terminated because he violated several police department rules, including one prohibiting continuous associations with felons. ( Id. at p. 1324.) The appellant contended the rule was unconstitutionally overbroad on its face because it could prohibit officers from associating with a variety of persons with whom they should not be prohibited from associating, such as family members, church members and rehabilitated felons whose convictions happened long ago. ( Id. at p. 1330.) Bailey rejected that contention, not because it found the rule was not overbroad, but because it found the appellant lacked standing to assert facial overbreadth. ( Bailey, supra, 226 Cal. App. 3d at p. 1330.) Bailey noted: " 'It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.' Further, a person to whose conduct a law clearly applies cannot avoid its penalties merely because the statute may be vague or unconstitutionally overbroad when applied to the conduct of others. There exists, however, an exception to this rule . . . . When First Amendment concerns are substantially implicated by the challenged statute, the traditional rules of standing are altered to permit attacks on overly broad statutes without requiring the litigant to demonstrate his own conduct could not be regulated by a narrowly drawn statute. " ( Id. at pp. 1330-1331.) Bailey noted the exception was a narrow one, described by the United States Supreme Court as " 'strong medicine . . . employed . . . sparingly and only as a last resort' . . . ." ( Bailey, supra, 226 Cal. App. 3d at p. 1331, quoting Broadrick v. Oklahoma, supra, 413 U.S. at p. 613.) The exception "is rooted in the special solicitude the courts afford to First Amendment values, and reflects the concern that the existence of an overly broad statute directed at activity sheltered by the First Amendment may 'chill' protected activity. However, because the overbreadth doctrine is 'strong medicine,' it has been limited to (and not recognized outside of) the First Amendment context. " ( Bailey, supra, 226 Cal. App. 3d at p. 1331.) Bailey then noted that the right of association "does not necessarily trigger First Amendment concerns and its attendant special rules permitting 'facial overbreadth' challenges. To the contrary, . . . there are two different forms of 'freedom of association' which enjoy constitutional protections, only one branch of which falls within the ambit of First Amendment. " ( Bailey, supra, 226 Cal. App. 3d at p. 1331.) The United States Supreme Court has referred to the two distinct branches of the constitutionally protected freedom of association as "intimate associational rights" and "expressive associational rights." (Ibid.)