As Applied Challenge Legal Definition
An "as applied" challenge to a statute seeks "relief from a specific application of a facially valid statute . . . to an individual . . . under allegedly impermissible present restraint . . . as a result of the manner . . . in which the statute . . . has been applied." (Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1084 [40 Cal. Rptr. 2d 402, 892 P.2d 1145].)
Such a challenge "contemplates analysis of the facts of a particular case . . . to determine the circumstances in which the statute . . . has been applied and to consider whether . . . the application deprived the individual to whom it was applied of a protected right." (Ibid.)
Apart from an as-applied challenge, a litigant may also make a challenge to the face of the statute. However, the United States Supreme Court has held that "a facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.
The fact that the [Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." (United States v. Salerno (1987) 481 U.S. 739, 745 [107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697], italics added.)
Thus, a pretrial commerce clause argument by a California resident whose victim also resided in California necessarily is a facial challenge to the statute, rather than an as applied challenge to a particular case, instance or pattern of attempted enforcement of a statute.
As our own Supreme Court has observed with respect to the same proposition: "A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.
"To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." (Tobe v. City of Santa Ana, supra, 9 Cal. 4th at p. 1084.)
An exception to the limited scope of a facial challenge is the assertion that a statute is overbroad, restricting speech protected under the First Amendment, and "the defect in the statute is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech." ( Secretary of State of Md. v. J. H. Munson Co. (1984) 467 U.S. 947, 967-968 [104 S. Ct. 2839, 2852-2853, 81 L. Ed. 2d 786].)