Briggs v. Yi et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSHUA D. BRIGGS,
Plaintiff,
v.
OREAN YI, in his personal capacity;
and MUNICIPALITY OF
ANCHORAGE,
Defendants.
Case No. 3:22-cv-00265-SLG
ORDER RE PARTIAL SUMMARY JUDGMENT
Before the Court at Docket 24 is Defendants Orean Yi and the Municipality
of Anchorage’s Motion for Partial Summary Judgment.1 	Plaintiff Joshua Briggs
responded in opposition at Docket 44, to which Defendants replied at Docket 50.
Oral 	argument 	was 	not 	requested 	and 	was 	not 	necessary 	to 	the 	Court’s
determination.
BACKGROUND
Mr. Briggs alleges violations of his constitutional rights arising under the
First, Fourth, and Fourteenth Amendments to the United States Constitution.2 His
claims relate to his July 12, 2022, arrest for Disorderly Conduct pursuant to
1 Defendants move for partial summary judgment at Docket 24, incorporating by reference their
arguments in Opposition to Motion for Preliminary Injunction at Docket 23.
2 Docket 40 at 1.
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Anchorage Municipal Code (“AMC”) 08.30.120(A)(2) and Harassment pursuant to
AMC 08.10.110(A)(1).3 In this Motion, Defendants are seeking summary judgment
solely with regard to Mr. Briggs’s claim that AMC 08.30.120(A)(2) is facially
unconstitutional.
According to Mr. Briggs, on the day in question he entered a Holiday
Stationstore to purchase a few items and got in line to pay behind Officer Orean
Yi, who was on duty and in uniform.4 	Upon noticing the officer, Mr. Briggs said,
“Oh look, a pig”; Officer Yi turned and assumed an “aggressive stance” and
requested Mr. Brigg’s identification.5 	As Officer Yi “leaned closer[,]” Mr. Briggs
“could smell alcohol on his breath” and asked whether Officer Yi had been
drinking.6 Mr. Briggs then stated that he was going to file a complaint with Officer
Yi’s supervisor; in response, Officer Yi “became increasingly aggressive” and
proceeded to arrest Mr. Briggs, search the contents of his wallet without his
consent, and put him in the back of a patrol car.7 	Mr. Briggs was eventually
3 Id. at 3, ¶ 7, 6 ¶ 20.
4 Docket 44-1 at 1, ¶¶ 2–3.
5 Id. at 1, ¶¶ 3–4.
6 Id. at 1–2, ¶ 4.
7 Id. at 1–3, ¶¶ 4–7. Defendants’ version of events differs from the facts outlined in Mr. Briggs’s
amended complaint, opposition, and affidavit. For example, according to Defendants, “it was Mr.
Briggs’[s] conduct, and not the content of his speech, that resulted in charges being brought
against him.” Docket 23 at 2 (quoting Docket 23-1 at 2, ¶ 5) (citation omitted). Defendants
contend that Mr. Briggs “raised his voice” and “continued to yell and create loud noise disturbing
other customers by acting disorderly,” prompting arrest and subsequent charges. Id. at 2
(quoting Docket 8 at 8 and Docket 8-1 at 5–6). Mr. Briggs disputes this, arguing that he
maintained a normal volume and tone when speaking with Officer Yi. Docket 44-1 at 2, ¶ 5.
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charged with Disorderly Conduct under AMC 08.30.120(A)(2); the Municipality of
Anchorage later dismissed this charge, citing “scarce [prosecutorial] resources.”8
In his amended complaint at Docket 40, Mr. Briggs alleges that he was
arrested 	in 	retaliation 	for 	criticizing 	a 	police 	officer, 	which 	he 	maintains 	is
constitutionally protected speech.9 Mr. Briggs brings this action against Officer Yi
in his personal capacity and the Municipality of Anchorage.10 	The amended
complaint contains the following counts: (1) First Amendment retaliation; (2) false
arrest; (3) unreasonable search and seizure; (4) municipal liability for failure to train
and 	supervise; 	(5) 	punitive 	damages; 	(6) 	facial 	unconstitutionality 	of 	AMC
08.30.120(A)(2); and (7) municipal liability for practice and custom of using AMC
08.30.120 to violate civil rights.11 	Mr. Briggs seeks compensatory damages,
punitive damages, and attorney’s fees and costs.12 	Mr. Briggs initially sought a
Despite these factual discrepancies, because the issues at summary judgment—standing and
the facial constitutionality of AMC 08.30.120(A)(2)—are pure questions of law, these disputed
facts are not material to the Court’s resolution of the Motion for Partial Summary Judgment.
8 Docket 40 at 6, ¶ 20; Docket 23-1 at 3, ¶¶ 5, 7. Mr. Briggs was also charged with Harassment
under AMC 08.10.110(A)(1); however, the prosecutor dismissed this charge for lack of probable
cause on September 13, 2022. See Docket 8-1 at 11–12; Docket 44 at 2.
9 Docket 40 at 10–11, ¶¶ 41–47.
10 See id. at 2–3, ¶¶ 1–3.
11 Id. at 10–20, ¶¶ 41–93.
12 Id. at 21.
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preliminary injunction against enforcement of AMC 08.30.120(A)(2), which the
Court denied at Docket 39.13
JURISDICTION
Mr. Briggs brought this suit pursuant to 42 U.S.C. §§ 1983 and 1985 seeking
redress for alleged violations of his federal constitutional rights guaranteed by the
First, Fourth, and Fourteenth Amendments. The Court has jurisdiction over these
claims pursuant to 28 U.S.C. §§ 1331 and 1343.14
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” When considering
a motion for summary judgment, a court views the facts in the light most favorable
to the non-moving party and draws “all justifiable inferences” in the non-moving
party’s favor.15
13 See generally Docket 8.
14 According to the amended complaint, this action is also brought pursuant to 42 U.S.C. § 1988,
which provides for attorney’s fees in proceedings to enforce sections 1983 and 1985. Section
1988, however, does not provide a cause of action. See Docket 40 at 1.
15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158–59 (1970)).
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DISCUSSION
I. 	Standing
Under Article III of the Constitution, “[t]he jurisdiction of the federal courts is
limited to ‘cases’ and ‘controversies.’”16 	Federal courts enforce this jurisdictional
limitation through the doctrine of standing.17 	A plaintiff bears the burden of
demonstrating the “irreducible constitutional minimum of standing,” which consists
of three elements.18 A plaintiff must show (1) an injury in fact, meaning an “invasion
of a legally protected interest that is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical”; (2) causation; and (3) redressability,
meaning that “the injury will likely be redressed by a favorable decision.”19
“First 	Amendment 	challenges 	‘present 	unique 	standing 	considerations’
because of the ‘chilling effect of sweeping restrictions’ on speech.”20 	These
considerations “tilt[] dramatically toward a finding of standing.”21 	“‘[T]he Supreme
Court has dispensed with rigid standing requirements’ for First Amendment
16 Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1138 (9th Cir. 2013) (quoting U.S. Const. art. III,
§ 2).
17 See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006).
18 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
19 Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013) (citing Lujan, 504 U.S. at 560–61).
20 Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (quoting Ariz. Right to Life
Pol. Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003)).
21 Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010) (alteration in original) (quoting LSO, Ltd.
v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000)).
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protected speech claims and has instead endorsed a ‘hold your tongue and
challenge now’ approach.”22
Yet even in the First Amendment context, a plaintiff must demonstrate a
credible threat of adverse state action.23 	Courts within the Ninth Circuit examine
three factors, outlined in Thomas v. Anchorage Equal Rights Commission,24 to
determine whether a credible threat of enforcement exists: (1) whether the plaintiff
has a “concrete plan” to violate the law, (2) whether the prosecuting authorities
have “communicated a specific warning or threat to initiate proceedings,” and (3)
whether 	there 	is 	a 	“history 	of 	past 	prosecution 	or 	enforcement 	under 	the
challenged statute.”25
Defendants contend that Mr. Briggs does not have standing to challenge
AMC 8.30.120(A)(2) for two reasons: (1) he has failed to demonstrate an injury in
fact and (2) he has failed to demonstrate a causal connection between any injury
and the challenged conduct of Defendants, the enforcement of an alleged facially
unconstitutional municipal ordinance.26 First, Defendants maintain that there is no
injury in fact because “[i]t is undisputed that the criminal charges underlying Mr.
22 Tingley v. Ferguson, 47 F.4th 1055, 1067 (9th Cir. 2022) (quoting Cal. Pro-Life Council, Inc. v.
Getman, 328 F.3d 1088, 1094 (9th Cir. 2003)).
23 Italian Colors Rest., 878 F.3d at 1171 (citing Lopez, 630 F.3d at 786).
24 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc).
25 Thomas, 220 F.3d at 1139 (citation omitted).
26 Docket 23 at 1–2, 5–7; Docket 50 at 2–3.
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Briggs’ claim were dismissed.”27 And since Mr. Briggs “no longer faces any risk of
prosecution as a result of the July 12, 2022 incident[,]” the Municipality maintains
that he cannot show a credible threat of adverse state action.28 This is especially
true, according to Defendants, because “almost nobody is actually prosecuted for
violations of AMC 8.30.120(a)(2),” explaining that “more than 97% of all cases
referred 	to 	Anchorage 	prosecutors 	by 	police 	. 	. 	. 	[are] 	either 	declined 	or
dismissed.”29 	Defendants also maintain that AMC 8.30.120(A)(2) does not limit
the content of constitutionally protected speech, so there is no credible threat that
Mr. Briggs will be prosecuted because of the content of his insults.30
Defendants further contend that Mr. Briggs has not presented a sufficiently
“imminent injury” because his affidavit fails to outline a “concrete plan” that would
violate 	AMC 	08.30.120(A)(2).31 	Defendants 	assert 	that 	Mr. 	Briggs 	has 	not
expressed an “intent to generate loud noise in a public place” that would violate
the municipal ordinance in question.32 In addition, Defendants express incredulity
that Mr. Briggs has “engaged in self-censorship” since arrest. 	In support of this
position, Defendants highlight that Mr. Briggs was quite vocal while seated in a
27 Docket 23 at 6 (citing Docket 23-1).
28 Id. (citing Docket 23-1).
29 Id. (citing Docket 23-1).
30 Docket 23 at 7.
31 Docket 50 at 2.
32 Id. at 3.
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police car after his arrest and that he has not been “afraid of commenting publicly”
online and to the media since his arrest.33
Second, Defendants claim that because Mr. Briggs did not explicitly address
the second factor in the standing inquiry, he has failed to show a causal connection
between his injury and the enforcement of AMC 08.30.120(A)(2).34
In opposition, Mr. Briggs submits an affidavit and accompanying exhibits,
contending that he faces a credible threat of adverse state action. 	Mr. Briggs
states that since his arrest he has “not fe[lt] free to express criticism to any police
officer, no matter the circumstances[,]” and he “will not do so for fear of arrest and
prosecution under the disorderly conduct statute.”35 	Specifically, Mr. Briggs
asserts that on “a recent trip to the park with [his] dog,” he observed police officers
standing in the street and he felt that “their behavior was causing a safety issue.”36
However, Mr. Briggs felt “hesitant to speak up” and decided not to communicate
with the officers because he “was certain that this encounter would end” in a similar
way to his encounter with Officer Yi. 37
33 Id. at 3–6.
34 Id. at 3.
35 Docket 44-1 at 3, ¶ 13.
36 Id. at 3, ¶ 14.
37 Id. at 3, ¶14.
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Two cases from the Ninth Circuit guide this Court’s injury-in-fact analysis. In
Porter v. Martinez, Susan Porter drove past a group of protestors and honked in
support.38 	Shortly thereafter, a sheriff’s deputy pulled her over and gave her a
citation for misuse of a vehicle horn, which was a violation of a California state law
that prohibited honking except when reasonably necessary to warn of a safety
hazard. Even though Porter’s citation was eventually dismissed, the Ninth Circuit
held that she had standing to assert a First Amendment claim challenging the
statute.39 The Ninth Circuit reasoned that, because Porter provided testimony that
she would have continued to engage in honking as an expressive activity but for
her fear of adverse state action, her testimony was specific enough to show that
her expressive activity “[was] being chilled.”40 	Further, the Ninth Circuit held that
even if, as the government argued, the “odds of anyone being cited for honking”
were “vanishingly small[,]” Porter possessed an actual and well-founded fear that
this challenged statute would again be enforced against her as evidenced by the
citation she had already received.41 As a result, Porter’s reported “self-censorship”
constituted a sufficiently concrete injury.
38 68 F.4th 429, 435 (9th Cir. 2023).
39 Porter, 68 F.4th at 435, 438.
40 Id. at 437.
41 Id. at 437–38.
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In 	McCormack 	v. 	Hiedeman, 	the 	Ninth 	Circuit 	considered 	a 	similar
question.42 	Jennie Linn McCormack was alleged to have purchased medication
over the internet to terminate her pregnancy. The State of Idaho charged her with
a violation of Chapter 6 of the Idaho Code, which made it a felony to undergo an
unauthorized abortion procedure.43 	The Idaho state court dismissed the criminal
complaint without prejudice several months later. 	McCormack pursued a class
action lawsuit in federal court and the district court issued a preliminary injunction
restraining the prosecuting attorney from enforcing several subsections of Chapter
6.44 The Ninth Circuit affirmed, holding that McCormack faced a genuine threat of
prosecution under those subsections of Chapter 6 and one additional subsection
of that chapter, notwithstanding the fact that the charges had been dropped. The
Circuit pointed out that the charges were dismissed without prejudice and the
prosecutor “filed a declaration stating that he may still re-file the complaint” against
McCormack. 	Moreover, her past prosecution “weigh[ed] in favor of a preliminary
injunction for McCormack.”45
Similarly, 	in 	this 	case, 	Mr. 	Briggs 	was 	charged 	with 	violating 	AMC
08.30.120(A)(2), 	his 	charges 	were 	dismissed 	due 	to 	limited 	prosecutorial
42 694 F.3d 1004 (9th Cir. 2012).
43 Id. at 1007–08.
44 Id. at 1007.
45 Id. at 1020–22.
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resources, and then he filed this First Amendment challenge. With respect to the
first Thomas factor, as in Porter, Mr. Briggs provided specific allegations by way of
his affidavit demonstrating that he has a “concrete plan” to continue to engage in
the same conduct that resulted in his arrest. 	Although Defendants maintain that
Mr. Briggs’s desire to engage in lawful activity—speaking with a police officer—
does not amount to a specific and imminent injury, the Court disagrees. 	Rather,
Mr. Briggs’s fear that his lawful interaction with the police may result in the same
type of charge under the challenged ordinance is a sufficiently specific and
imminent injury. As in Porter, Mr. Briggs states that he would persist in the conduct
that precipitated his charges under the municipal code but for his fear of being
charged with the same offense. Mr. Briggs has therefore satisfied the first Thomas
factor, alleging a sufficiently concrete plan to engage in the same conduct that led
to his charge under AMC 08.30.120(A)(2).
Turning to the second Thomas factor, as in McCormack, the prosecutor
“communicated a specific threat” to bring charges when the prosecutor “actually
brought a criminal complaint” against Mr. Briggs. 46 	Defendants’ argument that
97% of cases brought pursuant to AMC 08.30.120(A)(2) are declined or dismissed
is unavailing. 	In Ward v. Utah, the Tenth Circuit reversed the district court’s
determination that Ward lacked standing to challenge the constitutionality of a
46 See id. at 1022.
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hate-crimes statute.47 The Tenth Circuit explained that Ward would not have
standing if, for example, the prosecutor determined that the underlying statutes did
“not apply to Ward’s protesting activities” or if the “defendants admitted that they
misinterpreted the challenged statute to apply to the plaintiff’s conduct in the
past.”48 	Unlike in those instances, Defendants here have not alleged that AMC
08.30.120(A)(2) does not apply to Mr. Briggs’s conduct, nor that Mr. Briggs would
be unlikely to be arrested in the future for violating AMC 08.30.120(A)(2). Instead,
Defendants contend that if he were arrested and charged again for disorderly
conduct, it is unlikely that he would be prosecuted due to limited prosecutorial
resources. 	This is not enough to show that Mr. Briggs does not face a credible
threat of future criminal arrest.49
With respect to the third Thomas factor, the fact that a criminal complaint
was filed against Mr. Briggs weighs in his favor, as in McCormack. 	In sum, Mr.
47 321 F.3d 1263, 1264 (10th Cir. 2003). Ward, an animal-rights activist, was charged with
disorderly conduct after participating in an animal-rights demonstration. After his charges were
dismissed, Ward filed suit under 42 U.S.C. § 1983, alleging statutes underlying his charges
violated the First Amendment. For clarity, the Court shall refer to this case as Utah in its short
form citations because this order later references the similarly named case of Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989).
48 Utah, F.3d at 1268 (first citing Faustin v. City & County of Denver, 268 F.3d 942, 946 (10th Cir.
2001) then citing PeTA v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002)).
49 A criminal arrest alone may constitute adverse state action. “[A] threat of government
prosecution is credible if the government has indicted or arrested the plaintiffs, . . . if
‘prosecuting authorities have communicated a specific warning or threat to initiate proceedings’
under the challenged speech restriction, or if there is a ‘history of past prosecution or
enforcement under the challenged statute.’” Lopez, 630 F.3d at 786 (first citing Younger v.
Harris, 401 U.S. 37, 41–42 (1971); then quoting Thomas, 220 F.3d at 1139; and then citing
Steffel v. Thompson, 415 U.S. 452, 459 (1974)).
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Briggs “faces a credible threat of future prosecution and suffers from an injury in
the 	form 	of 	a 	‘chilling 	effect’ on 	his 	desire 	to 	engage 	in 	First 	Amendment
activities.”50
On the issue of causation, the Court finds that Mr. Briggs has demonstrated
a causal connection between his alleged injury and the challenged action of
Defendants.51 	As evinced in the foregoing analysis, Mr. Briggs has sufficiently
demonstrated that he has a well-founded fear that the municipal ordinance will be
enforced 	against 	him 	if 	he 	participates 	in 	certain 	expressive 	activity.52 	In
conclusion, because these considerations “tilt[] dramatically toward a finding of
standing,” the Court finds that Mr. Briggs has standing to bring a facial challenge
to the constitutionality of AMC 08.30.120(A)(2).53
II. 	Facial Challenge to AMC 8.30.120(A)(2)
Defendants move for partial summary judgment on Count VI of the amended
complaint, which asserts that AMC 8.30.120(A)(2) is facially unconstitutional
because it is “overbroad and vague.”54 	AMC 8.30.120(A)(2) provides that it is
50 Utah, 321 F.3d at 1269 (citations omitted).
51 See Lujan, 504 U.S. at 560.
52 Docket 44 at 23–24; Dkt. 44-1 at 3–4, ¶¶ 12–17.
53 Lopez, 630 F.3d at 781 (alteration in original) (quoting Stroh, 205 F.3d at 1155).
54 See Docket 24 at 1; see also Docket 40 at 16 ¶ 80. Since filing the Motion for Partial
Summary Judgment, Mr. Briggs filed an amended complaint at Docket 40, Count IV remains the
same in both filings. Compare Docket 1 at 16–18, ¶¶ 80–83, with Docket 40 at 16–18, ¶¶ 80–
83.
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“unlawful for any person to . . . [k]nowingly generate loud noise in a public place
with the intent to disturb others or in reckless disregard of the peace and privacy
of others.” 	The ordinance defines “loud noise[] in a public place” as “noise which
is loud enough to inhibit the ability of the average person in the same place to
converse freely without leaving the public place.”55 	A “public place” is “a place
where the public is permitted to assemble, enter or pass through, whether publicly
or privately maintained, including but not limited to places of accommodation,
transportation, business and entertainment, or any other place which is not a
private place.”56
When considering a First Amendment challenge to an ordinance regulating
expression in a public forum, courts must first determine whether the law is content
based 	or 	content 	neutral. 	The 	“principal 	inquiry 	in 	determining 	content
neutrality . . . is whether the government has adopted a regulation of speech
because of [its agreement or] disagreement with the message [the regulation]
conveys.”57 “The ‘crucial first step’ in determining whether a law is content based
is to ‘consider whether a regulation of speech “on its face” draws distinctions based
on the message a speaker conveys.’”58 	Here, the Court agrees with the parties
55 AMC 8.30.120(B)(2).
56 AMC 8.30.120(B)(3).
57 Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989)).
58 Recycle for Change v. City of Oakland, 856 F.3d 666, 670 (9th Cir. 2017) (quoting Reed v.
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that the ordinance is facially content neutral.59 	The plain language of AMC
8.30.120(A)(2) prohibits a person from creating a “loud noise in a public place with
the intent to disturb others or in reckless disregard of the peace and privacy of
others.” 	It does not draw distinctions based on the message a speaker conveys
and instead regulates the volume and manner in which a person may express
themselves in public settings.
Consequently, to pass constitutional muster, AMC 8.30.120(A)(2) must
survive intermediate scrutiny. 	In other words, the ordinance’s “restriction on
speech 	or 	expression 	must 	be 	‘narrowly 	tailored 	to 	serve 	a 	significant
governmental interest[,]’” 60 “unrelated to the suppression of free expression,” and
its “incidental restriction on alleged First Amendment freedoms [must be] no
greater than is essential to the furtherance of that interest.”61 	To be “no more
burdensome” than necessary, an ordinance “‘need not be the least restrictive or
least intrusive means’ of serving that interest. 	But the ‘[g]overnment may not
regulate expression in such a manner that a substantial portion of the burden on
Town of Gilbert, 576 U.S. 155, 163–65 (2015)).
59 Docket 44 at 6; Docket 50 at 8.
60 City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022) (quoting
Rock Against Racism, 491 U.S. at 791).
61 Porter, 68 F.4th at 439 (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)).
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speech does not serve to advance its goals.’”62 	The ordinance must therefore
“leave open ample alternative channels for communication of the information.”63
In this case, Defendants contend that Mr. Briggs’s facial challenge to the
ordinance 	fails 	as 	a 	matter 	of 	law 	because 	AMC 	8.30.120(A)(2) furthers a
“substantial 	interest 	in 	protecting 	its 	citizens 	from 	unwelcome 	noise.” 64
Specifically, 	Defendants 	assert 	that 	the 	Municipality 	of 	Anchorage 	“may
legitimately exercise its police powers to advance esthetic values” because, as the
Supreme Court has recognized, local governments have “a weighty, essentially
esthetic interest in proscribing intrusive and unpleasant formats for expression.”65
According to Defendants, the esthetic interest at issue in this case is “noise
regulation,” which is a legitimate exercise of the state’s police power.66
Defendants also maintain that the ordinance is narrowly tailored to serve this
interest 	because 	of 	the 	ordinance’s 	scienter 	requirement, 	which 	requires 	a
potential offender to create a loud noise “with the intent to disturb others or in
reckless disregard of the peace and privacy of others.”67 Additionally, Defendants
62 Id. at 443 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
63 Id. (quoting Clark, 468 U.S. at 293).
64 Docket 50 at 10.
65 Id. (quoting Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806
(1984)).
66 Id. (first citing Kovacs v. Cooper, 336 U.S. 77 (1949); and then citing Berman v. Parker, 348
U.S. 26, 32–33 (1954)).
67 See Docket 23 at 10.
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contend 	that 	the 	ordinance 	“leaves 	open 	ample 	alternative 	channels 	for
communication of speech directed at police officers” because the ordinance merely
controls the volume of the communication and does not attempt “to ban any
particular manner or type of expression at any given place or time,” thereby
permitting Mr. Briggs and other residents of the Municipality many other adequate
“avenues of communication.” 68
In response, Mr. Briggs asserts that Defendants have “not met their burden”
to 	demonstrate 	a 	“substantial 	government 	interest” 	that 	might 	justify 	AMC
8.30.120(A)(2)’s restriction on expression.69 	In support of this argument, Mr.
Briggs cites Ward v. Rock Against Racism,70 stating that “the validity of [a]
regulation depends on the relation it bears to the overall problem the government
seeks to correct, not on the extent to which it furthers the government's interests
in an individual case.” 71
Mr. Briggs also contends that, even if the Court finds the Municipality has a
“substantial government interest” to protect the public from “unwelcome noise,” the
ordinance is “not narrowly tailored to meet this interest.”72 Mr. Briggs reasons that
68 Docket 50 at 11 (citing Clark, 468 U.S. at 293).
69 Docket 44 at 6–7.
70 491 U.S. 781, 801 (1989).
71 Docket 44 at 8 (citation omitted).
72 Id.
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the “scienter requirement does not save the ordinance” because the municipal
code does not define the terms “knowingly” or “reckless,” rendering it both
overbroad and vague. 73 In support, Mr. Briggs gives various examples of potential
ordinance violators, such as a speaker at a political rally, a band or DJ playing in
a bar, or a high school sports announcer. 74 	Mr. Briggs ultimately concludes that
although “AMC 08.30.120 does give fair notice of the conduct it purports to
punish . . . it is so overbroad and criminalizes so much quotidian activity that it
cannot be enforced as written.”75
The Supreme Court’s holding in a similar case is instructive. In Members of
City Council of City of Los Angeles v. Taxpayers for Vincent,76 several supporters
of a candidate for election to the Los Angeles City Council challenged an ordinance
that prohibited the posting of signs on public property. 	Upholding the ordinance,
the United States Supreme Court confirmed that “the state may sometimes curtail
speech when necessary to advance a significant and legitimate state interest,”
such as the advancement of “esthetic values.” 77 	The Court explained that
governments “may legitimately exercise [their] police powers” to promote the public
73 Id. at 10.
74 Id. at 10–11.
75 Id. at 13.
76 466 U.S. 789 (1984).
77 Id. at 804–05.
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welfare, and noted that “[t]he concept of the public welfare is broad and inclusive,”
representing “spiritual . . . [,] physical, aesthetic[,] . . . [and] monetary” values. 78
Reasoning that “municipalities have a weighty, essentially esthetic interest in
proscribing intrusive and unpleasant formats for expression,” the Court denied the
facial challenge to the ordinance.79
Similarly, in Kovacs v. Cooper,80 Charles Kovacs mounted a facial and as
applied challenge to a city ordinance that prohibited the use of sound amplifying
devices that made “loud and raucous” noises on public streets or thoroughfares,
arguing that the ordinance was “vague, obscure and indefinite.”81 	The Supreme
Court rejected this challenge and held that the city had a substantial interest in
protecting its citizens from loud noise; the Court reasoned that “[t]he police power
of a state extends beyond health, morals and safety, and comprehends the duty,
within constitutional limitations, to protect the well-being and tranquility of a
community.”82
After 	considering 	this 	caselaw, 	the 	Court 	concludes 	that 	AMC
08.30.120(A)(2) furthers a significant governmental interest that is unrelated to the
78 Id. at 805.
79 Id. at 806.
80 336 U.S. 77 (1949).
81 Id. at 78–79.
82 Id. at 83.
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suppression of free expression. 	The plain language of the ordinance seeks to
curtail “loud noise in a public place,” defining a “loud noise” as “loud enough to
inhibit the ability of the average person in the same place to converse freely without
leaving the public place.” 83 Taxpayers for Vincent establishes that the government
may “legitimately exercise its police powers to advance esthetic values” and
promote a broad concept of the public welfare.84 	And Kovacs demonstrates that
the Municipality of Anchorage has a “substantial interest in protecting its citizens
from loud noise.”85 	AMC 08.30.120(A)(2) furthers this interest by regulating
excessive noise.
The Court also finds that AMC 08.30.120(A)(2) is narrowly tailored to further
this substantial interest. In Porter, the Ninth Circuit held that the plain language of
the honking statute was narrowly tailored to further California’s interest in traffic
safety. 	The Court reasoned that, by banning any honking other than “when
reasonably necessary to [e]nsure safe operation” of a vehicle, the state “did no
more than eliminate the exact source of the evil it sought to remedy.” 86
AMC 08.30.120(A)(2) is similarly limited in scope to restrict excessive noise
in the community. 	And, like the statute upheld in Porter, AMC 08.30.120(A)(2)
83 AMC 08.23.120(A)(2), (B)(2).
84 Taxpayers for Vincent, 466 U.S. at 805.
85 Id. at 806 (citing Kovacs, 366 U.S. 86–87).
86 Porter, 68 F.4th at 446–47 (alteration in original) (citing Taxpayers for Vincent, 466 U.S. at
808).
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includes a limiting requirement. 87 	Here, the ordinance prohibits a person from
“[k]nowingly” generating a loud noise “with the intent to disturb others” or acting “in
reckless disregard of the peace and privacy of others.”88 The ordinance thus limits
noise only in instances where a person has the requisite, specifically defined
scienter.
Further, neither the ordinance’s definition of “loud noise,” nor its scienter
terms are vague. 	The term “loud noise,” as defined by the ordinance,89 is
specifically and narrowly defined. 	And, despite Mr. Briggs’s assertions to the
contrary, both “knowingly” and “reckless” are relatively common scienter terms
found throughout state and municipal penal codes.90 	For example, the notes at
the end of the AMC 08.30.120 reference Alaska Statute 11.61.110 (Disorderly
Conduct), which uses the same scienter terms as the municipal ordinance.91
87 Id. at 435 (California law provides: “[t]he driver of a motor vehicle when reasonably necessary
to insure safe operation shall give audible warning with his horn”) (emphasis added).
88 AMC 08.30.120(A)(2) (emphasis added).
89 A loud noise is a “noise which is loud enough to inhibit the ability of the average person in the
same place to converse freely without leaving the public place.” AMC 8.30.120(B)(2).
90 See AS 11.81.900(a)(3); AS 11.81.900(a)(2); see also, e.g., Johnson v. State, 224 P.3d 105,
108 (Alaska 2010) (defining the term “reckless” as it pertains to criminal liability); State v.
Strane, 61 P.3d 1284, 1288 (Alaska 2003) (discussing the term “knowingly” as it relates to
criminal acts).
91 Compare AMC 08.30.120(A)(2) (“Knowingly generate loud noise in a public place with the
intent to disturb others or in reckless disregard of the peace and privacy of others.”), with AS
11.61.110 (“A person commits the crime of disorderly conduct if . . . with intent to disturb the
peace and privacy of another not physically on the same premises or with reckless disregard
that the conduct is having that effect after being informed that it is having that effect, the person
makes unreasonably loud noise.”) (emphasis added).
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Although the ordinance does not define the terms “knowingly” or “reckless,” state
law does:
Knowingly: “a person acts ‘knowingly’ with respect to
conduct or to a circumstance described by a provision of
law defining an offense when the person is aware that
the conduct is of that nature or that the circumstance
exists.”92
Reckless: “a person acts ‘recklessly’ with respect to a
result or to a circumstance described by a provision of
law defining an offense when the person is aware of
and 	consciously 	disregards 	a 	substantial 	and
unjustifiable risk that the result will occur or that the
circumstance exists.”93
Therefore, the Court determines that the ordinance and its terms are not vague.
Mr. Briggs also claims that AMC 08.30.120(A)(2) is facially overbroad. 94
When considering a facial challenge under the First Amendment, a law may be
invalidated 	“as 	overbroad 	if 	‘a 	substantial 	number 	of 	its 	applications 	are
unconstitutional, judged in relation to the statute's plainly legitimate sweep.’”95 The
challenging 	party 	“need 	not 	necessarily 	introduce 	admissible 	evidence 	of
overbreadth, but generally must at least ‘describe the instances of arguable
overbreadth of the contested law.’ The overbreadth doctrine exists ‘out of concern
92 AS 11.81.900(a)(2) (emphasis added).
93 AS 11.81.900(a)(3) (emphasis added).
94 See, e.g., Docket 44 at 13.
95 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir.
2011) (quoting United States v. Stevens, 559 U.S. 460, 473 (2010)).
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that 	the 	threat 	of 	enforcement 	of 	an 	overbroad 	law 	may 	deter 	or 	“chill”
constitutionally protected speech—especially when the overbroad statute imposes
criminal 	sanctions.’” 96 	Ultimately, 	when 	assessing 	First 	Amendment 	facial
challenges, the Court must not “apply the ‘strong medicine’ of overbreadth analysis
where the parties fail to describe the instances of arguable overbreadth of the
contested law.”97
Considering 	this, 	the 	Court 	finds 	Mr. 	Briggs’s 	proffered 	hypotheticals,
involving seemingly innocent individuals that he asserts could be prosecuted under
the ordinance, fail to show arguable statutory overbreadth.98 	None of these
theoretical situations shows either a knowing or reckless intent to invade the peace
of others, as required by the statute. 	Therefore, none of these hypotheticals
satisfies the mens rea required to violate the ordinance. 	Accordingly, Mr. Briggs
has not arguably demonstrated the ordinance’s overbreadth.99
96 Id. at 944 (first quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 n.6; and then quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)).
97 Wash. State Grange, 552 U.S. at 449 n.6 (emphasis added) (citing N.Y. State Club Ass’n v.
City of New York, 487 U.S. 1, 14 (1988)). “Because of the wide-reaching effects of striking
down a statute on its face at the request of one whose own conduct may be punished despite
the First Amendment,” the overbreadth doctrine is considered to be “strong medicine” and
should be applied “only as a last resort.” New York v. Ferber, 458 U.S. 747, 769 (1982).
98 For example, Mr. Briggs contends that a “speaker at a political rally[,]” “an announcer at a
sporting event[,]” “a band or DJ playing in a bar[,]” a “Salvation army bell ringer[,]” and a “pilot
flying a cargo jet out of Ted Stevens [airport]” would all be violators of AMC 08.30.120(A)(2).
Dkt. 44 at 10–11.
99 See New York v. Ferber, 458 U.S. 747, 770 n.25 (1982) (citing Parker v. Levy, 417 U.S. 733,
760 (1974) (“This Court has . . . repeatedly expressed its reluctance to strike down a statute on
its face where there were a substantial number of situations to which it might be validly applied.
Thus, even if there are marginal applications in which a statute would infringe on First
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Finally, AMC 08.30.120(A)(2) leaves open ample alternative channels for
people to communicate their ideas and messages. 	In Porter, Porter argued that
the honking statute “prevent[ed] spontaneous communication by drivers about
protests 	or 	other 	events” 	and 	thus 	restricted 	the 	opportunity 	for 	alternative
communication channels.100 	However, the Ninth Circuit concluded that “common
sense and Porter’s own testimony indicate[d] otherwise” because Porter testified
that she and other politically-minded drivers may alternatively “park their cars and
attend political demonstrations on foot.”101 In addition, the Ninth Circuit suggested
that, instead of honking and violating the state statute in question, drivers may
“express agreement with protestors from their cars by waving, giving a thumbs up,
or raising a fist as they drive by.” 102
Here, 	as 	in 	Porter, 	Mr. 	Briggs 	has 	various 	alternative 	methods 	of
communication available to him that do not violate AMC 08.30.120(A)(2). 	The
ordinance, on its face, seeks to temper an individual’s volume—and not the content
of the communication or the channel of communication. 	Mr. Briggs is therefore
free to communicate his sentiments about law enforcement in myriad other ways,
such as engaging with the news media, speaking at an appropriate volume with
Amendment values, facial invalidation is inappropriate if the ‘remainder of the statute ... covers a
whole range of easily identifiable and constitutionally proscribable . . . conduct . . . .’”).
100 Porter, 68 F.4th at 447.
101 Id.
102 Id.
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fellow 	citizens 	in 	public, 	and 	posting 	on 	social 	media; 	all 	of 	which 	are
communication methods that would not expose him to prosecution under the plain
language of the ordinance.103
In 	sum, 	although 	Mr. 	Briggs 	has 	standing 	to 	facially 	challenge 	the
constitutionality of AMC 08.30.120(A)(2), after applying intermediate scrutiny, the
Court concludes that the ordinance is not facially unconstitutional.
CONCLUSION
In light of the foregoing, IT IS ORDERED that
Defendants’ 	Motion 	for 	Partial 	Summary 	Judgment 	at 	Docket 	24 	is
GRANTED 	with 	respect 	to 	Count 	VI; 	AMC 	08.30.120(A)(2) 	is 	not 	facially
unconstitutional.
DATED this 17th day of August 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
103 Mr. Briggs has recently engaged with the news media. See Docket 43-4 (Anchorage Daily
News article published April 9, 2023).
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