STEPHEN AMELKIN , Broadway Chiropractic v. ANN MCC LURE , Document Custodian

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0066P (6th Cir.)
File Name: 00a0066p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
S TEPHEN AMELKIN , Broadway
Chiropractic; DR. BRIAN
C HRISTOPHER FEE ; S TUART
LYON ; NICOLAS BAKER;
DAVID KAPLAN ; J AMES W.
C HAMBERS; S IDNEY HANISH ;
R HODA DANIELS; THOMAS H.
W ATSON ; KENNETH W.
W ALL; J AMES BOGARD , doing
business as Bogard &
Associates,
Plaintiffs-Appellees,
C ITY OF LOUISVILLE , Division
of Police,
Plaintiff,
v.
ANN M CC LURE , Document
Custodian; GARY R OSE ,
Commissioner of Department
of State Police; BEN
C HANDLER, Attorney General,
Defendants-Appellants,
;>

No. 96-5942

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2 Amelkin, et al. v. McClure, et al. No. 96-5942
J USTICE C ABINET , Department
of State Police,
Plaintiff/Counter Defendant-
Appellant,
J EFFERSON C OUNTY ,
KENTUCKY ,
Defendant.

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On Remand from the United States Supreme Court.
Nos. 94-00360, 95-00022, 95-00352—Charles M. Allen,
District Judge.
Argued: April 24, 1998
Decided and Filed: February 24, 2000
Before: SUHRHEINRICH, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: William B. Pettus, OFFICE OF THE
ATTORNEY GENERAL, CIVIL & ENVIRONMENTAL
LAW DIVISION, Frankfort, Kentucky, Lucy B. Richardson,
COMMONWEALTH OF KENTUCKY JUSTICE
CABINET, GENERAL COUNSEL, Frankfort, Kentucky, for
Appellants. Donald L. Cox, LYNCH, COX, GILMAN &
MAHAN, Louisville, Kentucky, for Appellees. ON BRIEF:
William B. Pettus, OFFICE OF THE ATTORNEY
GENERAL, CIVIL & ENVIRONMENTAL LAW
DIVISION, Frankfort, Kentucky, Lucy B. Richardson,
COMMONWEALTH OF KENTUCKY JUSTICE
CABINET, GENERAL COUNSEL, Frankfort, Kentucky, for
Appellants. Mary J. Lintner, LYNCH, COX, GILMAN &
MAHAN, Louisville, Kentucky, for Appellees. Laurence J.

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6 Amelkin, et al. v. McClure, et al. No. 96-5942
§ 189.635 and the California statute that the Supreme Court
considered in United Reporting. Because the district court
only addressed the plaintiffs’ facial challenge, as indicated by
the fact that it permanently enjoined the state of Kentucky
from enforcing KRS § 189.635, see Amelkin v. McClure, 936
F.Supp. 428 (W.D. Ky. 1996), we must reverse and remand
the case for the district court to consider the plaintiffs’ as-
applied challenge.
B. The Challenge to KRS § 61.874
The district court also enjoined the enforcement of KRS
§ 61.874, the statute that allows the state custodian of
nonexempt public documents to charge commercial users for
producing copies of police accident reports. It did so without
making specific findings regarding the four factors that are
used in determining whether a preliminary injunction should
be granted. See Washington v. Reno, 35 F.3d 1093, 1099 (6th
Cir. 1994). Without the benefit of such factual findings, it is
impossible for us to judge the validity of the plaintiffs’
arguments. Accordingly, our prior opinion vacated and
remanded the case back to the district court to make findings
of fact and conclusions of law as to how KRS § 61.874 has
been applied by the state agency. See Amelkin, 168 F.3d at
901-02. This portion of our prior opinion was not modified
by United Reporting, and continues to be the ruling of this
court.
III. CONCLUSION
For the reasons set forth above, the district court’s decision
regarding KRS § 189.635 is REVERSED and REMANDED
for consideration of the plaintiffs’ as-applied challenge, and
its decision regarding KRS § 61.874 is VACATED and
REMANDED, all for further proceedings consistent with this
opinion.
No. 96-5942 Amelkin, et al. v. McClure, et al. 3
Zielke, PEDLEY, ZIELKE, GORDINIER, OLT & PENCE,
Louisville, Kentucky, for Amicus Curiae.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. On
December 13, 1999, the Supreme Court vacated our February
17, 1999 decision in the above-styled matter, see Amelkin v.
McClure, 168 F.3d 893 (6th Cir. 1999), and remanded the
case for further consideration in light of Los Angeles Police
Dep’t v. United Reporting Publishing Corp., 528 U.S. __, 120
S.Ct. 483 (1999). After taking into account the majority’s
holding in United Reporting, we REVERSE the district
court’s decision to enjoin the enforcement of Kentucky
Revised Statute § 189.635(5)-(6), which was based upon the
plaintiffs’ “facial challenge” to the statute restricting access
to police accident reports. We further REMAND the case for
consideration of the plaintiffs’ “as-applied” challenge to the
statute. The remainder of our prior decision was not affected
by the Supreme Court’s action and continues to be the ruling
of this court.
I. FACTUAL SUMMARY
A number of attorneys and chiropractors, as well as the
proposed publisher of a commercial newspaper to be called
The Accidental Journal, filed suit to challenge two Kentucky
statutes, one restricting access to police accident reports and
the other allowing the state custodian of nonexempt public
documents to charge commercial users “a reasonable fee” for
producing copies of the reports. The district court
permanently enjoined the enforcement of both statutes,
finding that they violated the plaintiffs’ First Amendment
right to freedom of expression. On appeal, we affirmed the
district court’s injunction regarding KRS § 189.635
(restricting access to police accident reports), but vacated and
remanded its decision regarding KRS § 61.874 (allowing fees

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4 Amelkin, et al. v. McClure, et al. No. 96-5942
to be charged to commercial users for copies of the reports).
See Amelkin, 168 F.3d at 901-02.
II. ANALYSIS
A. The Facial Challenge to KRS § 189.635
The first issue that must be addressed is whether the
plaintiffs can bring a facial challenge to KRS § 189.635, the
statute that regulates access to police accident reports in
Kentucky, in light of the Supreme Court’s recent decision in
United Reporting. In United Reporting, a private publishing
company in California had been providing the names and
addresses of recently arrested individuals to its customers,
who included attorneys, insurance companies, drug and
alcohol counselors, and driving schools. It received the
names and addresses from local law enforcement agencies
until the state of California amended Cal. Gov’t Code
§ 6254(f)(3) to require that a person requesting an arrestee’s
name and address declare that the request is being made for
one of five prescribed purposes, and that the name and
address will not be used directly or indirectly to sell a product
or service. United Reporting sought declaratory and
injunctive relief, and requested that the amended section be
declared unconstitutional under the First and Fourteenth
Amendments.
The district court construed United Reporting’s claim as a
facial challenge to § 6254(f)(3), granted United Reporting’s
motion for summary judgment, and enjoined the enforcement
of the statute. Upon appeal, the Ninth Circuit affirmed the
district court’s judgment, concluding that the statute was
facially invalid. The Supreme Court, however, reversed the
Ninth Circuit, and held that § 6254(f)(3) did not warrant the
drastic measure of declaring facial invalidity. See United
Reporting, 120 S.Ct. at 489.
An overbreadth facial attack is made when a challenger
argues that an otherwise valid law might be applied
unconstitutionally in a specific context. See generally United
Reporting, 120 S.Ct. at 488-89. If a facial challenge is
No. 96-5942 Amelkin, et al. v. McClure, et al. 5
upheld, then the state cannot enforce the statute against
anyone. See Board of Trustees v. Fox, 492 U.S. 469, 483
(1989) (“Where an overbreadth attack is successful, the
statute is obviously invalid in all of its applications, since
every person to whom it is applied can defend on the basis of
the same overbreadth.”). On the other hand, an “as-applied”
challenge consists of a challenge to the statute’s application
only to the party before the court. See generally City of
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758-
59 (1988) (noting that as-applied challenges are reviewed on
a case-by-case basis). If it is successful, the statute may not
be applied to the challenger, but is otherwise enforceable. Id.
Overbreadth facial challenges are normally rejected because
“a person to whom a statute may constitutionally be applied
may not challenge that statute on the ground that it may
conceivably be applied unconstitutionally to others in
situations not before the Court.” New York v. Ferber, 458
U.S. 747, 767 (1982). As explained by the Supreme Court in
United States v. Salerno, 481 U.S. 739, 745 (1987), “[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.”
One of the few exceptions to the presumption against facial
challenges is if a statute proscribes speech and threatens
violators with prosecution. See Gooding v. Wilson, 405 U.S.
518, 520-21 (1972). In United Reporting, the Supreme Court
held that a facial challenge was not warranted because
§ 6254(f)(3) neither imposed a threat of criminal prosecution
nor “chilled” expressive speech—it simply restricted access
to government information. Id. at 489-90.
Based on the reasoning set out in United Reporting, KRS
§ 189.635 is similarly not subject to a facial challenge
because it does not carry the threat of prosecution for
violating the statute and it does not restrict expressive speech,
but simply regulates access to the state’s accident reports. In
this regard we find no material differences between KRS

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