Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.N.S. 932, 14 Am.Ann.Cas. 764 (U.S.Minn.

,Mar 23, 1908) It would seem to be clear that the attorney general, under his power existing at common law, and by virtue of these various statutes, had a general duty imposed upon him, which includes the right and the power to enforce the statutes of the state, including, of course, the act in question, if it were constitutional. His power by virtue of his office sufficiently connected him with the duty of enforcement to make him a proper party to a suit of the nature of the one now before the United States circuit court. It is further objected (and the objection really forms part of the contention that the state cannot be sued) that a court of equity has no jurisdiction to enjoin criminal proceedings, by indictment or otherwise, under the state law. This, as a general rule, is true. **But there are exceptions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject-matter of inquiry in a suit already pending in a Federal court, the latter court, having first obtained jurisdiction over the subject-matter, has *162 the right, in both civil and criminal cases, to hold and **455 maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed. Prout v. Starr, 188 U. S. 537-542-544, 47 L. ed. 584-586, 587, 23 Sup. Ct. Rep. 398. But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court. Taylor v. Taintor, 16 Wall. 366-370, 21 L. ed. 287-290; Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119. Where one commences a criminal proceeding who is already party to a suit then pending in a court of equity, if the criminal proceedings are brought to enforce the same right that is in issue before that court, the latter may enjoin such criminal proceedings. Davis & F. Mfg. Co. v. Los Angeles, 189 U. S. 207, 47 L. ed. 778, 23 Sup. Ct. Rep. 498. In Dobbins v. Los Angeles, 195 U. S. 223-241, 49 L. ed. 169-177, 25 Sup. Ct. Rep. 18, it is remarked by Mr. Justice Day, in delivering the opinion of the court, that it is well settled that where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity. Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418, distinctly enjoined the proceedings by indictment to compel obedience to the rate act. These cases show that a court of equity is not always precluded from granting an injunction to stay proceedings in criminal cases, and we have no doubt the principle applies in a case such as the present. Re Sawyer, 124 U. S. 200, 211, 31 L. ed. 402, 406, 8 Sup. Ct. Rep. 482, is not to the contrary. That case holds that, in general, a court of equity has no jurisdiction of a bill to stay criminal proceedings, but it expressly states an exception, unless they are instituted by a party to the suit already pending before it, and to try the same right that is in issue there. Various authorities are cited to sustain the exception. The criminal proceedings here that could be commenced by the state authorities would be under the statutes relating to passenger or freight rates, and their validity is the very question involved in the suit in the United States circuit court. The right to restrain proceedings by mandamus is based upon the same foundation and governed by the same principles. *163 It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated, does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a state court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he commences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account. The difference between the power to enjoin an individual from doing certain things, and the power to enjoin courts from proceeding in their own way to exercise jurisdiction, is plain, and no power to do the latter exists because of a power to do the former. It is further objected that there is a plain and adequate remedy at law open to the complainants, and that a court of equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pending

subsequent proceedings to test its validity. But in the event of a single violation the prosecutor might not avail himself of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If, however, he should do so while the company was thereafter obeying the law, several years might elapse before there was a final determination of the question, and, if it should be determined that the law was invalid, the property of the company would have been taken during that time without due process of law, and there would be no possibility of its recovery. Another obstacle to making the test on the part of the company might be to find an agent or employee who would disobey *164 the law, with a possible fine and imprisonment staring him in the face if the act should be held valid. Take the passenger-rate act, for instance: A sale of a single ticket above the price mentioned in that act might subject the ticket agent to a charge of felony, and, upon conviction, to a fine of $5,000 and imprisonment for five years. It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. It would not be wonderful if, under such circumstances, there would not be a crowd of agents offering to disobey the law. The wonder would be that a single agent should be found ready to take the risk. If, however, one should be found, and the prosecutor should elect to proceed against him, the defense that the act was invalid, because the rates established by it were too low, would require a long and difficult examination **456 of quite complicated facts upon which the validity of the act depended. Such investigation it would be almost impossible to make before a jury, as such body could not intelligently pass upon the matter. Questions of the cost of transportation of passengers and freight, the net earnings of the road, the separation of the cost and earnings within the state from those arising beyond its boundaries, all depending upon the testimony of experts and the examination of figures relating to these subjects, as well, possibly, as the expenses attending the building and proper cost of the road, would necessarily form the chief matter of inquiry, and intelligent answers could only be given after a careful and prolonged examination of the whole evidence, and the making of calculations based thereon. All material evidence having been taken upon these issues, it has been held that it ought to be referred to the most competent and reliable master to make all needed computations, and to find therefrom the necessary facts upon which a judgment might be rendered that might be reviewed by this court. Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 44 L. ed. 417, 20 Sup. Ct. Rep. 336. From all these considerations it is plain that this is not a proper suit for investigation by a jury. Suits for penalties, or indictment*165 or other criminal proceedings for a violation of the act, would therefore furnish no reasonable or adequate opportunity for the presentation of a defense founded upon the assertion that the rates were too low and therefore the act invalid. We do not say the company could not interpose this defense in an action to recover penalties or upon the trial of an indictment ( St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. ed. 567, 15 Sup. Ct. Rep. 484), but the facility of proving it in either case falls so far below that which would obtain in a court of equity that comparison is scarcely possible. To await proceedings against the company in a state court, grounded upon a disobedience of the act, and then, if necessary, obtain a review in this court by writ of error to the highest state court, would place the company in peril of large loss and its agents in great risk of fines and imprisonment if it should be finally determined that the act was valid. This risk the company ought not to be required to take. Over eleven thousand millions of dollars, it is estimated, are invested in railroad property, owned by many thousands of people, who are scattered over the whole country, from ocean to ocean, and they are entitled to equal protection from the laws and from the courts, with the owners of all other kinds of property,-no more, no less. The courts having jurisdiction, Federal or state, should, at all times, be opened to them as well as to others, for the purpose of protecting their property and their legal rights. All the objections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit, and enjoining the enforcement of the act until the decision of the court upon the legal question. An act of the legislature fixing rates, either for passengers or freight, is to be regarded as prima facie valid, and the onus rests upon the company to prove its assertion to the contrary. Under such circumstances it was stated by Mr. Justice Miller, *166 in his concurring opinion in Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418-460, 33 L. ed. 970-982, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702, that the proper, if not the only, mode of judicial

relief against the tariff of rates established by the legislature or by its commission is by a bill in chancery, asserting its unreasonable character; and that until the decree of the court in such equity suit was obtained, it was not competent for each individual having dealings with a carrier, or for the carrier in regard to each individual who demands its services, to raise a contest in the courts over the questions which ought to be settled in this general and conclusive manner. This remedy by bill in equity is referred to and approved by Mr. Justice Shiras, in delivering the opinion of the court in St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 659, 666, 39 L. ed. 567, 570, 573, 15 Sup. Ct. Rep. 484, although that question was not then directly before the court. Such remedy is undoubtedly the most convenient, the most comprehensive, and the most orderly way in which the rights of all parties can be properly, fairly, and adequately passed upon. It cannot be to the real interest of anyone to injure or cripple the resources of the railroad companies of the country, because the prosperity of both the railroads and the country is most intimately connected. The question of sufficiency of rates is important and controlling; and, being of a judicial nature, it ought to be settled at the earliest moment by some court, and when a Federal court first obtains jurisdiction it ought, on general principles of jurisprudence, to be permitted to finish the inquiry and make a conclusive judgment, to the exclusion of all other courts. This is all that is claimed, and this, we think, must be admitted. Finally, it is objected that the necessary result of upholding this suit in the circuit court will be to draw to the lower Federal courts a great flood of litigation of this character, where one Federal judge would **457 have it in his power to enjoin proceedings by state officials to enforce the legislative acts of the state, either by criminal or civil actions. To this it may be answered, in the first place, that no injunction ought to be granted unless in a case reasonably free from doubt. We *167 think such rule is, and will be, followed by all the judges of the Federal courts. And, again, it must be remembered that jurisdiction of this general character has, in fact, been exercised by Federal courts from the time of Osborn v. Bank of United States up to the present; the only difference in regard to the case of Osborn and the case in hand being that in this case the injury complained of is the threatened commencement of suits, civil or criminal, to enforce the act, instead of, as in the Osborn Case, an actual and direct trespass upon or interference with tangible property. A bill filed to prevent the commencement of suits to enforce an unconstitutional act, under the circumstances already mentioned, is no new invention, as we have already seen. The difference between an actual and direct interference with tangible property and the enjoining of state officers from enforcing an unconstitutional act, is not of a radical nature, and does not extend, in truth, the jurisdiction of the courts over the subject-matter. **In the case of the interference with property, the person enjoined is assuming to act in his capacity as an official of the state, and justification for his interference is claimed by reason of his position as a state official . Such official cannot so justify when acting under an unconstitutional enactment of the legislature. So, where the state official, instead of directly interfering with tangible property, is about to commence suits which have for their object the enforcement of an act which violates the Federal Constitution, to the great and irreparable injury of the complainants, he is seeking the same justification from the authority of the state as in other cases. The sovereignty of the state is, in reality, no more involved in one case than in the other. The state cannot, in either case, impart to the official immunity from responsibility to the supreme authority of the United States. See Re Ayers, 123 U. S. 507, 31 L. ed. 230, 8 Sup. Ct. Rep. 164. This supreme authority, which arises from the specific provisions of the Constitution itself, is nowhere more fully illustrated than in the series of decisions under the Federal habeas *168 corpus statute ( 753, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 592), in some of which cases persons in the custody of state officers for alleged crimes against the state have been taken from that custody and discharged by a Federal court or judge, because the imprisonment was adjudged to be in violation of the Federal Constitution. The right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the state by reason of serving the writ upon one of the officers of the state in whose custody the person was found. In some of the cases the writ has been refused as matter of discretion; but in others it has been granted, while the power has been fully recognized in all. Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734; Re Loney (Thomas v. Loney) 134 U. S. 372, 33 L. ed. 949, 10 Sup. Ct. Rep. 584; Re Neagle (Cunningham v. Neagle) 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658; Baker v. Grice, 169 U. S. 284, 42 L. ed. 748, 18 Sup. Ct. Rep. 323; Ohio v. Thomas, 173 U. S. 276, 43 L. ed. 699, 19 Sup. Ct. Rep. 453; Minnesota v. Brundage, 180 U. S. 499, 502, 45 L. ed. 639, 640, 21 Sup. Ct. Rep. 455; Reid v. Jones, 187 U. S. 153, 47 L. ed. 116, 23 Sup. Ct. Rep. 89; United States ex rel. Drury v. Lewis, 200 U. S. 1, 50 L. ed. 343, 26 Sup. Ct. Rep. 229; Re Lincoln, 202 U. S. 178, 50 L. ed. 984, 26 Sup. Ct. Rep. 602. It is somewhat difficult to appreciate the distinction which, while admitting that the taking of such a person from the

custody of the state by virtue of service of the writ on the state officer in whose custody he is found is not a suit against the state, and yet service of a writ on the attorney general, to prevent his enforcing an unconstitutional enactment of a state legislature, is a suit against the state. There is nothing in the case before us that ought properly to breed hostility to the customary operation of Federal courts of justice in cases of this character. The rule to show cause is discharged and the petition for writs of habeas corpus and certiorari is dismissed. Shaw v. Garrison, 467 F.2d 113 (5th Cir.(La.),Jul 31, 1972)

Defendant in a pending state criminal prosecution brought action to enjoin state prosecutor from further prosecution of the case. The United States District Court for the Eastern District of Louisiana, Christenberry, J., ordered issuance of permanent injunction, 328 F.Supp. 390, and the state prosecutor appealed. The Court of Appeals, Wisdom, Circuit Judge, held that upon showing that the perjury prosecution was brought in bad faith and for purposes of harassment after defendant in that prosecution took the stand and was acquitted in conspiracy prosecution, further prosecution of the perjury action was properly enjoined; and that it was not necessary that irreparable injury be independently established. Affirmed. West Headnotes [1] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Civil rights statute created exception to statute prohibiting injunction against pending state court prosecutions. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [2] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Showing of bad faith or harassment in the institution of a state criminal prosecution is equivalent to a showing of great and immediate irreparable injury for purposes of comity restraints on issuance of federal injunctions against pending state criminal prosecutions; **irreparable injury need not be independently established. [3] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court

106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases There is a federal right to be free from bad faith state prosecutions. [4] Federal Courts 170B 858

170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk855 Particular Actions and Proceedings, Verdicts and Findings 170Bk858 k. Civil Rights Cases. Most Cited Cases (Formerly 106k406.3(13)) In action under civil rights statutes to enjoin pending state perjury prosecution, finding that bringing of perjury charge against plaintiff after he took the stand and was acquitted in a conspiracy prosecution in which sole state witness offered to show plaintiff's presence at conspiratorial meeting was unable to identify him as having been present was in bad faith and for purpose of harassment was not clearly erroneous in light of evidence, inter alia, that at the time the perjury charge was filed there were no new witnesses available against plaintiff. 42 U.S.C.A. 1983, 1985; Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A. [5] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases While showing of a threat of repeated prosecutions is an alternative path to federal injunctive relief against pending state criminal prosecution, such showing is not necessary where bad faith or harassment is established. [6] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Where state perjury prosecution was instituted in bad faith by state prosecutor and for purposes of harassment after defendant in the state prosecution had taken the stand and been acquitted in a conspiracy prosecution, federal district court properly enjoined state prosecutor from further prosecution of the action. *114 WISDOM, Circuit Judge: In this case the district court found that Jim Garrison, District Attorney for the Parish of Orleans, Louisiana, in bad faith and for purposes of harassment brought a criminal prosecution for perjury against Clay Shaw. 328 F.Supp. 390 (1971). The court found that the prosecution would cause great and irreparable injury to Shaw and enjoined the district attorney and his staff from further prosecution of the pending criminal action. 328 F.Supp. at 404. We affirm: the findings were not clearly erroneous; they meet the special circumstances requirements of younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. [1] The district court held also that Title 42 U.S.C. 1983 was an express exception to the anti-injunction statute, 28 U.S.C. 2283. The Supreme Court has now confirmed the correctness of this view. Mitchum v. Foster, 407 U.S.

225, 92 S.Ct. 2151, 32 L.Ed.2d 705, 1972. I. The Facts Clay Shaw was active in business and civic affairs in New Orleans and for twenty years was Managing Director of the International Trade Mart, an organization for the promotion of business and cultural activities between New Orleans and foreign countries. The prosecution for perjury grew out of the State's unsuccessful attempt to convict Shaw of conspiracy to assassinate President John F. Kennedy. The State charged that Shaw, who took the stand in his own defense, perjured himself when he denied having known either Lee Harvey Oswald or David Ferrie, the alleged co-conspirators in the assassination plot. The plaintiff relies, in part, on the fear of multiple prosecutions, that is, the first was for conspiracy to assassinate President Kennedy; the second was for perjury; a third and fourth may be in store for him. The district court agreed with the plaintiff. FN1 Based on the facts showing the district attorney's relentless harassment of Shaw, the trial judge could fairly infer that Shaw ran the risk of additional prosecutions. We feel, however, that it is unnecessary to go beyond the bad faith nature of the perjury prosecution to affirm the judgment. In reaching that conclusion we cannot ignore the first prosecution; that prosecution is an inseparable part of the factual *115 context within which the second prosecution should be considered. The perjury charge was based on Shaw's testimony in the conspiracy trial. Garrison's theory of the assassination and the trial itself were widely publicized. Whatever ambitions he may have had as the man who solved the Kennedy assassination crumbled to bits when the jury came in with a verdict of not guilty. FN1. The district court found: This court is not dealing with a single good-faith criminal prosecution wherein allegations of unconstitutional procedures are made. This court is dealing with a case of continuing harassment and multiple prosecutions, with the likelihood that such harassment and prosecution will continue in the future, unless abated by direct federal court intervention. Herein lies the unique nature of this case and the resulting impotency of traditional avenues of relief. If plaintiff is forced to stand trial for perjury, takes the stand and is acquitted, this court has no doubt but that plaintiff will be charged anew on the basis of statements made by him from the witness stand. A request for relief in this subsequent prosecution would be met with the same arguments put forth by the defendant in the instant proceeding and so on ad infinitum. Surely at some point plaintiff's precious constitutional rights must be vindicated. 328 F.Supp. at 403. Shaw testified: Originally when I was charged, as you know, you, as my attorney, counseled me that I need not take the stand and that no inference would be drawn from the fact that I did not take the stand, but I knew I was not guilty of this charge, so I did take the stand, and then of course I was found not guilty, and then I found myself facing perjury charges arising out of my testimony given at the conspiracy trial. If I had not taken the stand, I would not be charged with perjury today, yet I took the stand in my own defense because I knew I was innocent. Yet I was charged with perjury because of the very truthful testimony that I gave, and I see no reason to believe that if I take the stand in the new proceedings in my own defense and testify again truthfully as I did in the conspiracy trial the District Attorney will not have me reindicted for perjury for this testimony that I will give. On November 22, 1963, President John F. Kennedy was assassinated. Less than forty-eight hours later, Jack Ruby shot and killed the accused assassin, Lee Harvey Oswald. Oswald had spent the summer of 1963 in New Orleans. Learning of this, the district attorney for Orleans Parish conducted an investigation of Oswald's activities in New Orleans. As a result of this investigation, David Ferrie, allegedly an acquaintance of Oswald's, was arrested and turned over to the F.B.I. for questioning.FN2 Ferrie died in February, 1967. FN2. In his book, Heritage of Stone, an exhibit, Garrison states that his office had been informed that Oswald and Ferrie were associated together in the Civil Air Patrol in New Orleans.

Not until November 1966 did Garrison resume his investigation of the Kennedy assassination. The resumption apparently was triggered by the release of the Warren Commission's report on the assassination. Garrison testified at the hearing below that the Federal Government had not been looking into it [the assassination] honestly, and that it had been a fake investigation . . . Garrison first interviewed Shaw in connection with the investigation in December 1966. In his testimony in the district court Garrison offered no explanation for the initial interrogation of Shaw. On March 1, 1967, Shaw was arrested and charged with conspiracy to assassinate President Kennedy. At the time of Shaw's arrest, according to James L. Alcock, Garrison's chief prosecuting attorney, the State's only witness against Shaw was Perry Raymond Russo. Garrison learned about Russo, and found him in Baton Rouge, Louisiana, as the result of a newspaper article in which Russo was quoted as having made several statements concerning David Ferrie. After Assistant District Attorney Sciambra interviewed Russo in Baton Rouge, Garrison had Russo brought to New Orleans where he was given sodium pentothal, subjected to hypnosis, and again interrogated. Two days later, Shaw was arrested. On March 1, 1969, a unanimous state court jury, after fifty-five minutes of deliberation, found Shaw not guilty of the charge that he conspired to assassinate President Kennedy. The verdict culminated a forty-day trial. On March 3, 1969, the next working day, Garrison signed an information charging Shaw with the crime of perjury. The information charged that Shaw perjured himself when, in testimony at the conspiracy trial, he denied having known David Ferrie or Lee Harvey Oswald. II. The Proceedings Below On January 18, 1971, the date of the state court perjury trial, Shaw applied to the United States District Court for the Eastern District of Louisiana for a temporary restraining order enjoining Garrison from prosecuting the perjury charge. Shaw invoked jurisdiction under 28 U.S.C. 1343(3) and 1343(4) for a cause of action based on 42 U.S.C. 1983 and 1985 and under the Constitution of the United States. Shaw alleged that he suffered and will continue to suffer grave and irreparable injury as the result of the state perjury prosecution brought in bad faith and in furtherance of Garrison's scheme of harassment and intimidation of [Shaw]. The district court refused to issue a temporary restraining order, and Shaw applied to this Court for emergency relief. This Court ordered the district court to hold a hearing on Shaw's request for injunctive relief. Meanwhile, the state case was continued until January 20, 1971. On remand, the district*116 court issued a temporary restraining order pending a hearing on the preliminary injunction set for January 25, 1971. The hearing lasted three days. The district court received fifty-five exhibits and heard eighteen witnesses on behalf of Shaw. Garrison offered no proof. FN3 FN3. As to Garrison's failure to offer proof, the district court said: The burden of proof is, of course, upon the plaintiff Shaw to prove by a preponderance of the evidence the existence of exceptional and unusual circumstances that would justify this court's intervention. . . . When the plaintiff's evidence constitutes a prima facie case, the burden is on the defendant of going forward with any evidence to rebut the plaintiff's case. . . . In this case the defendant Garrison offered no proof, apparently relying on the supposed inability of Shaw to sustain his burden and that even if Shaw did, he would not be entitled to any relief by this court. In those instances where the plaintiff proved certain facts by a preponderance of the credible evidence, and the defendant failed to rebut those facts either on crossexamination or by offering contrary evidence, this court has accepted those facts as true. 328 F.Supp. at 395. III. The Ruling Below On May 27, 1971, the district court issued a permanent injunction restraining Jim Garrison, District Attorney for the Parish of Orleans, his assistants, employees, agents and all persons in active concert and participation with him

from further prosecution of the pending criminal action entitled State of Louisiana v. Clay L. Shaw, No. 208260. 328 F.Supp. at 404. In a thoroughly considered opinion the experienced district judge made detailed findings of fact and conclusions of law. Characterizing the facts as unique and bizarre, the court held: [T]he perjury charge was brought in bad faith and for purposes of harassment . . . such bad faith constitutes irreparable injury which is great and immediate. 328 F.Supp. at 400. Thus, the court concluded that the special circumstances' requirements of YoungerFN4 were met and that Shaw was entitled to relief. 328 F.Supp. at 393. FN4. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 1971, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781. As to Garrison's prosecution of Shaw for conspiracy, the district court found bad faith and harassment on the following facts: **(1) The court found a serious question concerning the basis for Garrison's decision to investigate the assassination of President Kennedy. Apparently, his jurisdiction was based on Oswald's activities in New Orleans in the summer of 1963. However, it is strange indeed that, nearly three years after the assassination, Garrison would decide to undertake an investigation of such gravity merely because he disagreed with the findings of the Warren Commission and Oswald had spent some time in New Orleans. 328 F.Supp. at 394. William A. Gurvich, an experienced investigator and Executive Director of an established detective agency in New Orleans, testified that Garrison solicited his help in conducting the investigation. He worked on this project for about six months. Gurvich testified that he resigned because he believed the investigation to be a fraudulent, criminal act. (2) There was no basis for Garrison's initial interrogation of Shaw. Just how [Shaw] . . . was first selected to be interviewed by [Garrison] . . . when he was not a suspect is *117 another unanswered question in this case. [Garrison] . . . offered no evidence to show any basis or cause for his office's interrogation of [Shaw] . . . concerning such a shocking crime. 328 F.Supp. at 394. (3) The extreme measures the state resorted to in extracting information from Perry Raymond Russo and the use of his testimony at the trial were incompatible with the American System of Justice. Russo was given sodium pentothal and subjected to hypnosis to obtain a degree of corroboration of what Russo had allegedly related to Garrison's assistant about a conspiratorial meeting. Yet the report of Garrison's assistant, Sciambra, who interviewed Russo, made no mention of any conspiratorial meeting involving Shaw. The district court stated: It should be borne in mind that the memorandum which [Garrison's assistant] . . . wrote on his return from Baton Rouge did not mention any such meeting . . . [S]ubstantial doubts are raised regarding the validity and objectivity of the state's case when a prosecuting attorney resorts to the use of such extraordinary tactics as were employed by Garrison on Russo. A fair inference to be drawn is that these ex parte procedures were used to implant into Russo's mind a story implicating the plaintiff in an alleged conspiracy plot. This could have been accomplished by posthypnotic suggestion. This inference is supported by the fact that Garrison immediately moved to arrest and charge Shaw based solely on Russo's questionable, vague story. Such hasty action on the part of the defendant without submitting the matter, at that time, to the grand jury demonstrates ulterior motives. 328 F.Supp. at 395. Russo's testimony at trial was significantly different from the testimony he gave at the preliminary hearing. For instance, at the preliminary hearing Russo stated unequivocally that Shaw was present at a conspiratorial meeting; in the trial Russo was unable to identify Shaw as having been present at the alleged meeting.FN5 In the trial in the district court Russo invoked his Fifth Amendment privilege when asked the precise questions he had previously answered in state court proceedings. The district court concluded:

FN5. Lieutenant O'Donnell a member of the New Orleans Police Department for nineteen years testified that he attempted to give Russo a lie detector test . . . . . . It was not successful. However, O'Donnell stated he took the machine's attachment from Russo's body and continued on with the interview. According to O'Donnell, Russo told him that he did not know if Shaw was at David Ferrie's apartment the night of the alleged meeting to plot the assassination. Russo stated that if he were pressed for an answer, he would have to say that Shaw was not present. He further stated to O'Donnell that he was under a great deal of pressure and that he was sorry that he ever got involved in this mess. O'Donnell testified that he gave Garrison both an oral and written account of his interview with Russo. The written report was filed into evidence in this case by the plaintiff. O'Donnell said Garrison became enraged when he made his report and insinuated that O'Donnell had sold out to the press or * * * to someone. The defendant Garrison did not make available to the plaintiff's counsel the report of Lt. O'Donnell. Instead, he withheld it despite the fact that its subject matter pertained directly to statements that were pertinent to the credibility of Russo, the only witness upon whose story Shaw had been arrested. 328 F.Supp. at 395-396. Normally no inference can be drawn when one invokes a right secured to him by the Constitution. However, in the circumstances of this case the court believes that it can and it does draw the narrow inference from Russo's action, that even today, he at least has substantial doubts as to the truthfulness of the testimony he gave in state court. 328 F.Supp. at 396. (4) Garrison used funds received from private sources to pursue his investigation of Shaw. A group known as *118 Truth or Consequences was formed in February 1967 to solicit and contribute funds to Garrison's investigation. The evidence is overwhelming that these funds were used in preparation for Shaw's conspiracy trial. 328 F.Supp. at 397. The group, all friends of Garrison, made it clear that they expected results. Garrison gave them results in the form of the prosecution of Clay Shaw-for conspiracy and for perjury. (5) The manner of Shaw's arrest is described by the district court as follows: Garrison carefully set the stage for Shaw's arrest, which took place at approximately 5:30 P.M., four and a half hours after Shaw voluntarily appeared in Garrison's office. During this time, a representative of Life Magazine photographed Shaw through a two-way mirror unbeknownst to him. The hallway outside the defendant's office on the second floor of the New Orleans Criminal Courts Building had mysteriously become congested with newsmen, photographers, television camera crews, and members of the general public. Shaw was led handcuffed into the hallway, where he was shoved and pushed through the crowd to reach an elevator leading to the basement of the building and then to Central Lockup. All of this appeared on television. Shaw could have been taken down in a private elevator located in Garrison's office, but this would not have afforded the publicity Garrison was obviously seeking. Shaw's arrest and the manner in which it was effected was outrageous and inexcusable. The only conclusion that can be drawn from Garrison's actions is that he intentionally used the arrest for his own purposes, with complete disregard for the rights of Clay Shaw. 328 F.Supp. at 399. (6) Garrison's pretrial conduct showed a total disregard of Shaw's rights. 328 F.Supp. at 399. He held press conferences and issued press releases during the pretrial period. Garrison even released information to the press that he had refused to give to Shaw. [T]he action of Garrison in releasing information to the press while denying it to Shaw clearly reveals that . . . [ Garrison] was not prosecuting Shaw in good faith. 328 F.Supp. at 399.

The district court also found bad faith and harassment in the events relating to the perjury prosecution.

(1) No witness who testified at the hearing before the district court, including Garrison, could recall an instance where a defendant who took the stand and was acquitted was later charged with perjury. (2) No perjury charges were filed against State witnesses although their testimony at the conspiracy trial contradicted their testimony previously given. (3) The chief prosecuting attorney at the state conspiracy trial testified that at the time the perjury charge was filed there were no witnesses available other than those who were available at the conspiracy trial. 328 F.Supp. at 400. (4) Garrison has a significant financial interest in the continued prosecution of Clay Shaw: Garrison's book, Heritage of Stone, concerns his investigation of President Kennedy's assassination. Defendant also has a contract to write three additional books. It is obvious that the sale of defendant's book may be promoted by the publicity resulting from the continued prosecution of Clay Shaw. **It provides a means whereby defendant himself may profit, and also repay the substantial obligations owed to one of his financial backers. The court finds that this desire for financial gain is among the motives which prompt the continued prosecution of Clay Shaw. 328 F.Supp. at 400. The State's case against Shaw for conspiracy to assassinate President Kennedy turned on the testimony of Perry *119 Russo. No one knew better than Garrison how unreliable Russo was. If he had ever any faith in Russo's credibility, it must have vanished when he heard Russo testify. Russo was equally important in the State's case against Shaw for perjury. And any hope of winning that case vanished when Russo, asserting his Fifth Amendment privilege, declined to answer any questions when put on the stand in the trial in the district court. In view of the extreme lengths Garrison went in the first place to persuade Russo to corroborate the alleged conspiracy theory, it is a fair inference that he knew Russo would be as ineffective in the second trial as he was in the first. Moreover, considering also the extreme lengths to which Garrison went for the purpose of proving his case, it is a fair inference that he well knew that Russo would take the Fifth. Hobbs v. Thompson, 5 Cir. 1971, 448 F.2d 456, 465. In Younger, the Supreme Court defined the prerequisites-special circumstances-which must be present before a federal court will issue an injunction against a pending state criminal proceeding. Reviewing the prior cases, the Court concluded: **In all of these case the Court stressed the importance of showing irreparable injury the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is both great and immediate. 401 U.S. at 46, 91 S.Ct. at 751. [2][3] In the present case we are asked to clarify the meaning of irreparable injury. Shaw argues that a *120 showing of bad faith prosecution or prosecution for the purpose of harassment establishes the requisite irreparable injury. Garrison, on the other hand, contends that a showing of bad faith or harassment is insufficient; he argues that irreparable injury must be independently established. **We hold, as the language of Younger makes clear, that a showing of bad faith or harassment is equivalent to a showing of irreparable injury for purposes of the comity restraints defined in Younger, because there is a federal right to be free from bad faith prosecutions .FN7 Irreparable injury need not be independently established. FN7. Irreparable injury is not merely inferred; irreparable injury for the purposes of Younger is conclusively shown by a showing of bad faith or harassment. In Younger, the Court repeatedly spoke of good faith and bad faith prosecution in such a manner as to indicate that a showing of bad faith was sufficient, although not necessary, FN8 to establish irreparable injury. Quoting from Watson v. Buck, 1941, 313 U.S. 387, 400, 61 S.Ct. 962, 85 L.Ed. 1416, 1423, citing Beal v. Missouri Pacific Railroad Corp., 1941, 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577, 579, the Court said, No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts'. 401 U.S. at 46, 91 S.Ct. at 751, 27 L.Ed.2d 669 (emphasis supplied). Similarly, quoting from Douglas v. City of Jeannette, 1943, 319 U.S. 157, 164, 63 S.Ct. 877, 87 L.Ed. 1324, 1330, the Court stated, It does not appear from the record that petitioners have

been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith . . . 401 U.S. at 47, 91 S.Ct. at 752 (emphasis supplied). Also, in speaking of Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, the Court said that the circumstances presented in that case as viewed by the Court sufficiently establish the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention. 401 U.S. at 48, 91 S.Ct. at 752 (emphasis supplied). FN8. There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the Buck case, supra, [Watson v. Buck, 1941, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416] we indicated: It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it. 313 U.S., at 402, 61 S.Ct., at 967. Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be. 401 U.S. at 53, 91 S.Ct. at 755. See also Younger v. Harris, supra, 401 U.S. at 54, 91 S.Ct. 746 (Stewart J., with whom Harlan, J. joined, concurring). **Bad-faith harassment can, of course, take many forms, including arrests and prosecutions under valid statutes where there is no reasonable hope of obtaining conviction, see e. g., Cameron v. Johnson, supra, 390 U.S. [611] at 621, 88 S.Ct. [1335] at 1340, 20 L.Ed.2d 182, and a pattern of discriminatory enforcement designed to inhibit the exercise of federal rights, see, e. g., Bailey v. Patterson, 323 F.2d 201 (CA 5 1963). Perez v. Ledesma, supra, 401 U.S. at 118, 91 S.Ct. at 693, 27 L.Ed.2d 701 (Brennan, J., with whom White, J. and Marshall, J. joined, concurring in part and dissenting in part). In Dyson v. Stein, the Court stressed that the existence of such irreparable injury was a matter to be determined carefully under the facts of each case. 401 U.S. at 203, 91 S.Ct. 769, 27 L.Ed.2d 781.

Cameron v. Johnson, 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182, 1968 U.S. LEXIS 1879 (1968)
Action for judgment declaring Mississippi antipicketing law to be void on its face and for permanent injunction against enforcement of the statute. A three-judge District Court, 244 F.Supp. 846, dismissed the complaint. The United States Supreme Court, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715, vacated the judgment and remanded for reconsideration. The three-judge District Court, 262 F.Supp. 873, then dismissed the complaint with prejudice, and plaintiffs appealed. The Supreme Court, Mr. Justice Brennan, held that the law was not void for vagueness or overbreadth, and that federal injunction against enforcement was properly denied where it appeared that there was no **harassment, **intimidation, or **oppression of accused, but that they had been arrested and were being prosecuted in good faith for their deliberate violation of statute. Affirmed. [1] Disorderly Conduct 129 101

129 Disorderly Conduct 129k101 k. Constitutional and Statutory Provisions. Most Cited Cases (Formerly 129k1, 110k13.1(3), 110k13) Disorderly Conduct 129 111

129 Disorderly Conduct 129k111 k. Parades, Demonstrations, and Picketing in General. Most Cited Cases (Formerly 129k1, 110k13.1(3), 110k13) Mississippi antipicketing law prohibiting picketing which obstructs or unreasonably interferes with free ingress or egress to and from public buildings and property is not void for vagueness. Code Miss.1942, 2318.5. [2] Constitutional Law 92 1178

92 Constitutional Law 92X First Amendment in General 92X(B) Particular Issues and Applications 92k1178 k. Government Property or Facilities. Most Cited Cases (Formerly 92k91) Constitutional Law 92 2085

92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(V) Judicial Proceedings 92XVIII(V)1 In General 92k2085 k. In General. Most Cited Cases (Formerly 92k90.1(3), 92k90) Prohibition of conduct which obstructs or unreasonably interferes with ingress or egress to or from courthouse does not abridge constitutional liberty since such activity bears no necessary relation to freedom to distribute information or opinion. Disorderly Conduct 129 101

129 Disorderly Conduct 129k101 k. Constitutional and Statutory Provisions. Most Cited Cases (Formerly 129k1, 110k13.1(3), 110k13) Disorderly Conduct 129 111

129 Disorderly Conduct 129k111 k. Parades, Demonstrations, and Picketing in General. Most Cited Cases (Formerly 129k1, 110k13.1(3), 110k13) Mississippi antipicketing law, prohibiting picketing which obstructs or unreasonably interferes with free ingress or egress to or from public buildings or property is not void as overbroad. Code Miss.1942, 2318.5. [6] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Federal injunction against enforcement of Mississippi antipicketing law was properly denied where statute was not void on its face and it appeared that there was no harassment, intimidation, or oppression of accused, but that they had been arrested and were being prosecuted in good faith for their deliberate violation of statute. Code Miss.1942, 2318.5.

[8] Courts 106

508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases **Record in proceeding to enjoin enforcement of Mississippi antipicketing law did not support contention that prosecutions were bad faith attempts to harass accuseds' exercise of protected expression with no intention of pressing charges or obtaining convictions, despite claims that accused had been entrapped by failure to make arrests on other occasions, that the evidence was insufficient to secure convictions, and that parades had been permitted. Code Miss.1942, 2318.5. [10] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Mere possibility of erroneous application of state criminal statute does not amount to irreparable injury necessary to justify federal injunction; issue of guilt or innocence is for state court at criminal trial and state need not prove accused guilty in federal proceeding to escape finding that state had no expectation of securing valid convictions.

[4][5] Dombrowski recognized, 380 U.S., at 483-485, 85 S.Ct., at 1119-1120, the continuing validity of the maxim that a federal district court should be slow to act where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court. Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 880, 87 L.Ed. 1324; see Zwickler v. Koota, supra, 389 U.S., at 253, 88 S.Ct., at 398. Federal interference with a State's good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework and a showing of special circumstances' beyond the injury incidental to every proceeding brought lawfully and in good faith is requisite to a finding of irreparable injury sufficient to justify the extraordinary remedy of an injunction. 380 U.S., at 484, 85 S.Ct., at 1119, 1120. We found such special circumstances' in Dombrowski. The prosecutions there begun and threatened were not, as here, for violation of a statute narrowly regulating conduct which is intertwined with expression, but for alleged violations of various sections of excessively broad Louisiana statutes regulating expression itself-the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law. These statutes were challenged as overly broad and vague regulations of expression. Despite state court actions quashing arrest warrants and suppressing evidence purportedly seized in enforcing them, Louisiana officials continued to threaten prosecutions of Dombrowski and his co-appellants under them. In that context, we held that a case of the threat of irreparable injury required by traditional doctrines of equity was made *619 out. 380 U.S., at 490, 85 S.Ct., at 1123. We held further that the sections of the Subversive Activities and Communist Control Law (for alleged violations of which indictments had been obtained while the case was pending in the federal court) were patently unconstitutional on their face, and remanded with direction to frame an appropriate injunction restraining prosecution of the indictments. [6] In short, we viewed Dombrowski to be a case presenting a situation of the impropriety of (state officials) invoking the statute in bad faith to impose **1340 continuing harassment in order to discourage appellants' activities * * *. 380 U.S., at 490, 85 S.Ct., at 1123. In contrast, the District Court expressly found in this case that there was no harassment, intimidation, or oppression of these complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities by all citizens alike. 262 F.Supp., at 876, see also 244 F.Supp., at 848-849. We cannot say from our independent examination of the record

that the District Court erred in denying injunctive relief. [7][8] Any chilling effect on the picketing as a form of protest and expression that flows from good-faith enforcement of this valid statute would not, of course, constitute that enforcement an impermissible invasion of protected freedoms. Cox v. State of Louisiana, supra, 379 U.S. at 564, 85 S.Ct. at 480. Appellants' case that there are special circumstances' establishing irreparable injury sufficient to justify federal intervention must therefore come down to the proposition that the statute was enforced against them, not because the Mississippi officials in good faith regarded the picketing as violating the statute, but in bad faith as harassing appellants' exercise of protected expression with no intention of pressing the charges or with no expectation of obtaining *620 convictions, knowing that appellants' conduct did not violate the statute. We agree with the District Court that the record does not establish the bad faith charged. This is therefore not a case in which * * * a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford (appellants) any protection which they could not secure by prompt trial and appeal pursued to this Court.' Douglas v. City of Jeannette, supra, 319 U.S. at 164, 63 S.Ct. at 881. **We have not hesitated on direct review to strike down applications of constitutional statutes which we have found to be unconstitutionally applied to suppress protected freedoms. See Cox v. State of Louisiana, supra; Wright v. State of Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349; Edwards v. State of South Carolina, supra. [9] Appellants argue that the adoption of the statute in the context of the picketing at the courthouse, and its immediate enforcement by the arrests on April 10 and 11, provide compelling evidence that the statute was conceived and enforced solely to bring a halt to the picketing. Appellants buttress their argument by characterizing as indefensible entrapment the enforcement of the statute on April 10 against picketing conduct which county officials had permitted for almost three months along the march route marked out by the officials themselves. This argument necessarily implies the suggestion that had the statute been law when the picketing started in January it would not have been enforced. There is no support whatever in the record for that proposition. The more reasonable inference is that the authorities believed that until enactment of the statute on April 8 they had no choice but to allow the picketing. In any event, upon the adoption of the law, it became the duty of the authorities in good faith to enforce it, and to prosecute for picketing that violated that law. Similarly, insofar as appellants argue that selective enforcement was shown by the failure to arrest *621 those who were picketing from April 11 to May 18, the short answer is that it is at least as reasonable to infer from the record that the authorities did not regard their conduct in that period as violating the statute. Indeed, the fact that no arrests were made over that five-week period is itself some support for the District Court's rejection of appellants' primary contention that appellees used the statute in bad faith to discourage the pickets **1341 from picketing to foster increased voter registration of Negro citizens. [10] Nor are we persuaded by the argument that, because the evidence adduced at the hearing of the pickets' conduct throughout the period would not be sufficient, in the view of appellants, to sustain conviction on a criminal trial, it was demonstrated that the State had no expectation of securing valid convictions. Dombrowski v. Pfister, supra, 380 U.S. at 490, 85 S.Ct. at 1122. This argument mistakenly supposes that special circumstances' justifying injunctive relief appear if it is not shown that the statute was in fact violated. But the question for the District Court was not the guilt or innocence of the persons charged; the question was whether the statute was enforced against them with no expectation of convictions but only to discourage exercise of protected rights. The mere possibility of erroneous application of the statute does not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings. Dombrowski v. Pfister, supra, 380 U.S. at 485, 85 S.Ct. at 1120. The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions.FN11 Appellants say that the picketing was nonobstructive,*622 but the State claims quite the contrary, and **the record is not totally devoid of support for the State's claim. FN11. See 244 F.Supp., at 849: (T)his Court indicates nothing as to the guilt or innocence of the plaintiffs * * *; 262 F.Supp., at 876: We do not sit in this proceeding to determine the guilt or innocence of the plaintiffs * * *. Appellants argue that selective enforcement was shown by the evidence that subsequent to the arrests of the pickets parades were held in Hattiesburg during which the streets of the downtown area, including the locale of the courthouse, were cordoned off during daytime business hours and the sidewalks were obstructed by crowds of spectators during the parades. But this statute is not aimed at obstructions resulting from parades on the city streets.

All that it prohibits is the obstruction of or unreasonable interference with ingress and egress to and from public buildings, including courthouses, and with traffic on the streets or sidewalks adjacent to those buildings. There was no evidence of conduct of that nature at any other place which would have brought the statute into play, let alone evidence that the authorities allowed such conduct without enforcing the statute. Affirmed. Bailey v. Patterson, 323 F.2d 201, 7 Fed.R.Serv.2d 444 (5th Cir.(Miss.),Sep 24, 1963) Proceeding by Negroes to enjoin enforcement of state and municipal segregation laws affecting common carriers, to enjoin maintenance of racial segregation, and to enjoin municipal authorities from continuing to arrest or coerce plaintiffs in exercise of their federally protected rights. The United States District Court for the Southern District of Mississippi, Sidney C. Mize, J., denied injunctive and class relief, and the plaintiffs appealed. The Court of Appeals, Hays, Circuit Judge, held that Negroes were entitled to decree running not only to benefit of Negro plaintiffs but also for all persons similarly situated, regardless whether action was properly brought as class action under federal rules, but that denial of injunctive relief against state Attorney General was not abuse of discretion. Affirmed in part, reversed and remanded in part. Cameron, Circuit Judge, dissented. [1] Civil Rights 78 1331(6)

78 Civil Rights 78III Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General 78k1331(6) k. Other Particular Cases and Contexts. Most Cited Cases (Formerly 78k201, 78k13.6) Injunction 212 114(2)

212 Injunction 212III Actions for Injunctions 212k114 Parties 212k114(2) k. Complainants. Most Cited Cases Negroes as users of carriers' segregated facilities had standing to maintain suit to enjoin enforcement of state and municipal segregation laws affecting carriers and to enjoin maintenance of racial segregation. Code Miss.1942, 2351, 2351.5, 2351.7, 7784-7787.5. [2] Civil Rights 78 1451

78 Civil Rights 78III Federal Remedies in General 78k1449 Injunction 78k1451 k. Public Accommodations or Facilities. Most Cited Cases (Formerly 78k263, 78k13.2(1)) Injunction 212 114(2)

212 Injunction 212III Actions for Injunctions 212k114 Parties

212k114(2) k. Complainants. Most Cited Cases Negroes as users of carriers' segregated facilities were not required to subject themselves to arrest in order to maintain suit to enjoin enforcement of state and municipal segregation laws affecting common carriers and to enjoin municipal authorities from continuing to arrest Negroes in exercise of their federally protected rights. Code Miss.1942, 2351, 2351.5, 2351.7, 7784-7787.5; 28 U.S.C.A. 1343; 42 U.S.C.A. 1983

[5] Civil Rights 78

1451

78 Civil Rights 78III Federal Remedies in General 78k1449 Injunction 78k1451 k. Public Accommodations or Facilities. Most Cited Cases (Formerly 78k262.1, 78k262, 78k13.16) Injunction 212 189

212 Injunction 212V Permanent Injunction and Other Relief 212k189 k. Nature and Scope of Relief. Most Cited Cases Negroes suing to enjoin enforcement of state and municipal segregation laws affecting common carriers and to enjoin maintenance of racial segregation were entitled to decree running not only to benefit of Negro plaintiffs but also for all persons similarly situated, regardless whether action was properly brought as class action under federal rules. Fed.Rules Civ.Proc. rule 23(a), 28 U.S.C.A. HAYS, Circuit Judge. Plaintiffs, Negroes living in Jackson, Mississippi, appeal from judgments of the United States District Court for the Southern District of Mississippi, S.C. Mize, Judge, which declared unconstitutional both the so-called Segregation Statutes of the State of Mississippi, FN1 and a similar ordinance of the City of Jackson, *203 and declared that each of the plaintiffs had a right to unsegregated transportation service from each of the carrier defendants, FN2 but denied to appellants injunctive or class relief against any of the defendants. We hold that appellants are entitled to injunctive relief and reverse the judgments, pro tanto. FN1. Miss.Code Ann. tit. 11, 2351, 2351.5, 2351.7, and tit. 28, 7784, 7785, 7786, 7786-01, 7787, 7787.5 (1942). FN2. The defendants-appellees, Jackson City Lines, Inc., Jackson Municipal Airport Authority, Continental Southern Lines, Inc. (Trailways), Southern Greyhound Lines, and Illinois Central Railroad, Inc. are referred to hereafter as the carrier defendants or carrier appellees. The latter four are referred to as the interstate carriers. Jackson City Lines, Inc., Continental Southern Lines, Inc. and Southern Greyhound Lines are referred to as bus company defendants or bus company appellee. Jurisdiction was invoked under the Civil Rights Act, 28 U.S.C. 1343, and 42 U.S.C. 1983. Plaintiffs alleged that defendants, acting under color of state law, policy, and custom, denied to plaintiffs and the class of all others similarly situated, their right to transportation service free from racial discrimination. They based their claim on the Fourteenth Amendment and the Commerce Clause of the Constitution of the United States, and on the Interstate Commerce Act, 19 U.S.C. 3(1), 316(d). Plaintiffs sought to enjoin the enforcement of state and municipal segregation laws affecting common carriers, and to enjoin all defendants from maintaining racial segregation in any manner, by the use of signs or otherwise, on the carriers FN3 or in or around their terminals or other facilities anywhere in the state. Plaintiffs also sought to enjoin the municipal authorities from continuing to arrest, harass, intimidate, threaten or coerce plaintiffs or members of their class in the exercise of their federally protected rights.

FN3. While the complaint does not allege that seating on the trains of the Illinois Central Railroad is segregated, this exception does not extend to its depots. A three judge court, convened pursuant to 28 U.S.C. 2281, invoked the doctrine of equitable abstention to give the State Courts of Mississippi a reasonable opportunity to act. 199 F.Supp. 595, 603 (S.D.Miss.1961) (Rives, C.J., dissenting). On a direct appeal, the Supreme Court vacated the judgment, and remanded the case to the district court for expeditious disposition * * * of appellants' claims of right to unsegregated transportation service. 369 U.S. 31, 34, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962). The Supreme Court held that the abstention doctrine was inapplicable, and that there was no justification for convening a three judge court. We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. Morgan v. (Com. of) Virginia, 328 U.S. 373 (66 S.Ct. 1050, 90 L.Ed. 1317); Gayle v. Browder, 352 U.S. 903 (77 S.Ct. 145, 1 L.Ed.2d 114); Boynton v. (Com. of) Virginia, 364 U.S. 454, (81 S.Ct. 182, 5 L.Ed.2d 206). The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. * * * We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. 369 U.S. at 33, 82 S.Ct. at 550-551, 7 L.Ed.2d 512. The Court also disposed of the argument that plaintiffs lacked standing to bring the action. As passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. Mitchell v. United States, 313 U.S. 80, 93 (61 S.Ct. 873, 85 L.Ed. 1201); Evers v. Dwyer, 358 U.S. 202 (79 S.Ct. 178, 3 L.Ed.2d 222). 369 U.S. at 33, FN4 82 S.Ct. at 550-551, 7 L.Ed.2d 512. FN4. Plaintiffs had also sought to enjoin certain criminal prosecutions under Mississippi's breach of peace statutes. The Supreme Court held that since plaintiffs did not allege that they had been prosecuted or threatened with prosecution under these statutes, they lacked standing to sue. 369 U.S. at 32, 82 S.Ct. at 550, 7 L.Ed.2d 512. *204 Upon the remand, the district court, on the original record before the three judge court, entered judgment declaring the statutes and ordinance unconstitutional, and stating that each of the three plaintiffs has a right to unsegregated transportation service from each of the carrier defendants. It ruled, however, that the action was not a proper class action, and no relief may be granted other than that to which the plaintiffs are personally entitled. The district court found that the segregation statutes were no longer enforced, that the record disclosed only isolated instances' of improper behavior by law enforcement officials, that segregation signs had been removed from the premises of the carrier defendants, and that all terminal facilities of the carriers were now being fully used by members of all races. It therefore denied injunctive relief, but retained jurisdiction for the entry of further orders as might subsequently appear appropriate. Plaintiffs appeal from all three orders, insofar as they **(a) refused to grant injunctive relief, **(b) refused to recognize the class nature of the action, and **(c) refused to enjoin the City of Jackson from maintaining racial signs on the sidewalks outside the waiting rooms at the terminals of the carrier defendants. These signs had been ignored in the findings and orders of the district court. Our decision in United States v. City of Jackson, 5 Cir., 318 F.2d 1, after the notice of appeal herein was filed, renders moot the third of the three bases of the appeal. We ordered that an injunction should issue against the City of Jackson, its Commissioners, and its Chief of Police directing the removal of these same signs and any others indicating or suggesting that any of the terminal facilities are for the use of persons of any particular race or color . We further directed that the defendants be enjoined from otherwise seeking to enforce or encourage racial segregation in the use of terminal facilities of the carriers.' Only the first two bases for the appeal herein remain for our consideration.

Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (U.S.La. Apr 26, 1965) Action under Civil Rights Act for declaratory relief and injunction restraining defendants from prosecuting or threatening to prosecute plaintiffs for alleged violations of Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law. The United States District Court for the Eastern District of Louisiana, 227 F.Supp. 556, dismissed the complaint, and plaintiffs appealed. The United States Supreme Court, Mr. Justice Brennan, held that provision of Louisiana Subversive Activities and Communist Control Law defining subversive organization violates due process in that language is unduly vague and uncertain and broad. Judgment reversed and cause remanded. Mr. Justice Harlan and Mr. Justice Clark dissented. West Headnotes [1] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In general. Most Cited Cases Statute providing that United States court may not grant injunction to stay state court proceedings except as expressly authorized by act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments does not preclude injunction against institution of state court proceedings but only bars stays of suits already instituted. 28 U.S.C.A. 2283. [2] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal proceedings. Most Cited Cases Where grand jury had not been convened and indictments had not been obtained until after filing of complaint seeking interlocutory and permanent relief under Civil Rights Act from prosecution for alleged violation of Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law, no state proceedings were pending within purview of statute providing that United States court may not grant injunction to stay proceedings in state court. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983; LSA-R.S. 14:358-14:374, 14:39014:390.8. [3] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal proceedings. Most Cited Cases Indictments obtained subsequent to filing of complaint under Civil Rights Act seeking declaratory and injunctive relief against prosecution for alleged violations of Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law were not proceedings against which federal injunctive relief was precluded by statute. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983; LSA-R.S. 14:358-14:374, 14:390-14:390.8.

[4] Courts 106

508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In general. Most Cited Cases Evidence 157 82

157 Evidence 157II Presumptions 157k82 k. Judicial proceedings. Most Cited Cases Evidence 157 83(1)

157 Evidence 157II Presumptions 157k83 Official Proceedings and Acts 157k83(1) k. In general. Most Cited Cases It is generally assumed that state court and prosecutors will observe constitutional limitations as expounded by Supreme Court and that mere possibility of erroneous initial application of constitutional standards will usually not amount to irreparable injury necessary to justify disruption of orderly state proceedings. [5] Injunction 212 1

212 Injunction 212I Nature and Grounds in General 212I(A) Nature and Form of Remedy 212k1 k. Nature and purpose in general. Most Cited Cases Injunctive relief looks to the future. [6] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal proceedings. Most Cited Cases Allegations, if true, depicting situation in which defense of state's criminal prosecution would not assure adequate vindication of constitutional rights and suggesting that substantial loss or impairment of freedoms of expression would occur if plaintiffs were required to await state court's disposition and ultimate review in Supreme Court of any adverse determination established irreparable injury necessary to warrant injunctive relief. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [7] Injunction 212 105(2)

212 Injunction 212II Subjects of Protection and Relief 212II(H) Matters Relating to Conspiracies or Criminal Acts 212k105 Criminal Prosecutions

212k105(2) k. Invalidity of statute or ordinance. Most Cited Cases Assumption that defense of criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in cases involving statutes regulating expression where such statutes have overbroad sweep lending themselves readily to denial of constitutional rights of freedom of speech and expression. U.S.C.A.Const. Amend. 1. [8] Civil Rights 78 1395(5)

78 Civil Rights 78III Federal Remedies in General 78k1392 Pleading 78k1395 Particular Causes of Action 78k1395(4) Criminal Law Enforcement; Police and Prosecutors 78k1395(5) k. In general. Most Cited Cases (Formerly 78k235(5.1), 78k235(5), 78k13.12(3)) Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal proceedings. Most Cited Cases Complaint under Civil Rights Act seeking declaratory relief and injunction restraining defendants from prosecuting or threatening to prosecute plaintiffs for alleged violations of Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law alleged sufficient irreparable injury to justify equitable relief. LSA-R.S. 14:358-14:374, 14:390-14:390.8; 42 U.S.C.A. 1983. [9] Federal Courts 170B 53

170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(B) Right to Decline Jurisdiction; Abstention Doctrine 170Bk47 Particular Cases and Subjects, Abstention 170Bk53 k. First Amendment; freedom of religion, speech and press. Most Cited Cases (Formerly 106k260.4) District Court erred in holding that it should abstain from determining constitutionality of Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law pending authoritative interpretation of statutes in state courts, where complaint under Civil Rights Act attacked such statutes as being unconstitutional on their face as abridging free expression or as applied for purpose of discouraging protected activities. LSA-R.S. 14:358-14:374, 14:390-14:390.8; 42 U.S.C.A. 1983; U.S.C.A.Const. Amends. 1, 14. [10] Federal Courts 170B 53

170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(B) Right to Decline Jurisdiction; Abstention Doctrine 170Bk47 Particular Cases and Subjects, Abstention 170Bk53 k. First Amendment; freedom of religion, speech and press. Most Cited Cases (Formerly 106k260.4) Doctrine of abstention is inappropriate in cases where statutes are justifiably attacked on their face as abridging free expression or as applied for purpose of discouraging protected activities. [11] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal proceedings. Most Cited Cases Allegations attacking good faith of defendants in enforcing Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law and claiming that defendants had invoked and threatened to continue to invoke criminal process without any hope of ultimate success but only to discourage plaintiffs' civil rights activities sufficiently stated claim under Civil Rights Act. LSA-R.S. 14:358-14:374, 14:390-14:390.8; 42 U.S.C.A. 1983. [12] Injunction 212 85(1)

212 Injunction 212II Subjects of Protection and Relief 212II(E) Public Officers and Entities 212k85 Enforcement of Statutes, Ordinances, or Other Regulations 212k85(1) k. In general. Most Cited Cases In considering whether injunctive relief should be granted, federal district court should consider statute as of time its jurisdiction is invoked rather than at some hypothetical future date. [13] Injunction 212 105(1)

212 Injunction 212II Subjects of Protection and Relief 212II(H) Matters Relating to Conspiracies or Criminal Acts 212k105 Criminal Prosecutions 212k105(1) k. In general. Most Cited Cases Where no readily apparent construction of statute suggests itself as vehicle for rehabilitating statute in single prosecution, parties who claim irreparable injury will result as result of enforcement of such statute are entitled to injunction. Mr. Justice BRENNAN delivered the opinion of the Court. Appellants filed a complaint in the District Court for the Eastern District of Louisiana, invoking the Civil *482 Rights Act, Rev.Stat. s 1979, 42 U.S.C. s 1983 (1958 ed.) and seeking declaratory relief and an injunction restraining appellees-the Governor, police and law enforcement officers, and the Chairman of the Legislative Joint Committee on Un-American Activities in Louisiana-from prosecuting or threatening to prosecute appellants for alleged violations of the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law.FN1 Appellant Southern Conference Educational Fund, Inc. (SCEF), is active in fostering civil rights for Negroes in Louisiana and other States of the South. Appellant Dombrowski is its Executive Director; intervenor Smith, its Treasurer; and intervenor Waltzer, Smith's law partner and an attorney for SCEF. The complaint alleges that the statutes on their face violate the First and Fourteenth Amendment guarantees securing freedom of expression, because over-breadth makes them susceptible of sweeping and improper application abridging those rights. Supported by affidavits and a written offer of proof, the complaint further alleges that the threats to enforce the statutes against appellants are not made with any expectation **1119 of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana. FN1. The Subversive Activities and Communist Control Law is La.Rev.Stat. ss 14:358 through 14:374 (Cum.Supp.1962). The Communist Propaganda Control Law is La.Rev.Stat. ss 14:390 through 14:390.8

(Cum.Supp.1962). A three-judge district court, convened pursuant to 28 U.S.C. s 2281 (1958 ed.) dismissed the complaint, one judge dissenting, for failure to state a claim upon which relief can be granted. 227 F.Supp. 556, 564. The majority*483 were of the view that the allegations, conceded to raise serious constitutional issues, did not present a case of threatened irreparable injury to federal rights which warranted cutting short the normal adjudication of constitutional defenses in the course of state criminal prosecutions; rather, the majority held, this was an appropriate case for abstention, since a possible narrowing construction by the state courts would avod unnecessary decision of constitutional questions. In accordance with this view the court withdrew its initial determination that the statutes were not unconstitutional on their face. 227 F.Supp., at 562-563. Postponement of consideration of the federal issues until state prosecution and possible review here of adverse state determination was thought to be especially appropriate since the statutes concerned the State's basic right of self-preservation and the threatened prosecution was imbued * * * with an aura of sedition or treason or acts designed to substitute a different form of local government by other than lawful means * * *; federal court interference with enforcement of such statutes truly * * * would be a massive emasculation of the last vestige of the dignity of sovereignty. 227 F.Supp., at 559, 560. We noted probable jurisdiction in order to resolve a seeming conflict with our later decision in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377, and to settle important questions concerning federal injunctions against state criminal prosecutions threatening constitutionally protected expression. 377 U.S. 976, 84 S.Ct. 1881, 12 L.Ed.2d 745. We reverse. I. [1][2][3][4][5] **In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, the fountainhead of federal injunctions against state prosecutions, the Court characterized the power and its proper exercise in broad terms: it would be justified where state officers * * * threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties *484 affected an unconstitutional act, violating the Federal Constitution * * *. 209 U.S., at 156, 28 S.Ct., at 452. Since that decision, however, considerations of federalism have tempered the exercise of equitable power,FN2 for the Court has recognized that **1120 federal interference with a State's goodfaith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application *485 of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings. In Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, for example, the Court upheld a district court's refusal to enjoin application of a city ordinance to religious solicitation, even though the ordinance was that very day held unconstitutional as so applied on review of a criminal conviction under it. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. Since injunctive relief looks to the future, and it was not alleged that Pennsylvania courts and prosecutors would fail to respect the Murdock ruling, the Court found nothing to justify an injunction. And in a variety of other contexts the Court has found no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a criminal prosecution. FN3 In such cases it does not appear that the plaintiffs have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court. Douglas v. City of Jeannette, supra, 319 U.S., at 164, 63 S.Ct., at 881. [6] But the allegations in this complaint depict a situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights. *486 They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury. [7] A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e.g., Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that **1121 defense of a criminal

prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, 377 U.S., at 379, 84 S.Ct., at 1326. For (t)he threat of sanctions may deter * * * almost as potently as the actual application of sanctions. * * * NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression-of transcendent value to all society, and not merely to those exercising their rights-might be the loser. Cf. Garrison v. State of Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215, 216, 13 L.Ed.2d 125. For example, we have consistently allowed attackes on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; NAACP v. Button, supra, 371 U.S., at 432-433, 83 S.Ct., at 337338; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517, 84 S.Ct. 1659, 1668-1669, 12 L.Ed.2d 992; United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of *487 the * * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. NAACP v. Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. If the rule were otherwise, the contours of regulation woudl have to be hammered out case by case-and tested only by those hardy enough to risk criminal prosecution to determine the properscope of regulation. Cf. Ex parte Young, supra, 209 U.s., at 147-148, 28 S.Ct., at 448-449. By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v. Button, supra, 371 U.S., at 432-433, 83 S.Ct., at 337-338; cf. Baggett v. Bullitt, supra, 377 U.S., at 378-379, 84 S.Ct., at 1326; Bush v. Orleans School Board, D.C., 194 F.Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U.S. 907, 81 S.Ct. 1926, 6 L.Ed.2d 1250; Gremillion v. United States, 368 U.S. 11, 82 S.Ct. 119, 7 L.Ed.2d 75. Appellants' allegations and offers of proof outline the chilling effect on free expression of prosecutions initiated and threatened in this case. Early in October 1963 appellant Dombrowski and intervenors Smith and Waltzer were arrested by Louisiana state and local police and charged with violations of the two statutes. Their offices were raided and their files and records seized. FN4 Later in **1122 October a state judge quashed the *488 arrest warrants as not based on probable cause, and discharged the appellants. Subsequently, the court granted a motion to suppress the seized evidence on the ground that the raid was illegal. Louisiana officials continued, however, to threaten prosecution of the appellants, who thereupon filed this action in November. Shortly after the three-judge court was convened, a grand jury was summoned in the Parish of Orleans to hear evidence looking to indictments of the individual appellants. On appellants' application Judge Wisdom issued a temporary restraining order against prosecutions pending hearing and decision of the case in the District Court. Following a hearing the District Court, over Judge Wisdom's dissent, dissolved the temporary restraining order and, at the same time, handed down an order dismissing the complaint. Thereafter the grand jury returned indictments under the Subversive Activities and Communist Control Law against the individual appellants.FN5 FN4. The circumstances of the arrests are set forth in Judge Wisdom's dissenting opinion: At gunpoint their homes and offices were raided and ransacked by police officers and trustees from the House of Detention acting under the direct supervision of the staff director and the counsel for the State Un-American Activities Committee. The home and office of the director of Southern Conference Educational Fund were also raided. Among the dangerous articles removed was Thoreau's Journal. A truckload of files, membership lists, subscription lists to SCEF's newspaper, correspondence, and records were removed from SCEF's office, destroying its capacity to function. At the time of the arrests, Mr. Pfister, Chairman of the Committee, announced to the press that the raids and arrest resulted from racial agitation.' 227 F.Supp., at 573. FN5. Prosecution under these indictments is awaiting decision of this case. These events, together with repeated announcements by appellees that the appellant organization is a subversive or Communist-front organization, whose members must register or be prosecuted under the Louisiana statutes, have

appellants allege, frightened off potential members and contributors. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. Seizures of documents and records have paralyzed operations and threatened exposure of the *489 identity of adherents to a locally unpopular cause. See NAACP v. State of Alabama, ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. Although the particular seizure has been quashed in the state courts, the continuing threat of presecution portends further arrests and seizures, some of which may be upheld and all of which will cause the organization inconvenience or worse. In Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, we struck down a motion picture censorship statute solely because the regulatory scheme did not sufficiently assure exhibitors a prompt judicial resolution of First Amendment claims. The interest in immediate resolution of such claims is surely no less where criminal prosecutions are threatened under statutes allegedly overbroad and seriously inhibiting the exercise of protected freedoms. Not only does the complaint allege far more than an injury other than that incidental to every criminal proceeding brought lawfully and in good faith, but appellants allege threats to enforce statutory provisions other than those under which indictments have been brought. Since there is no immediate prospect of a final state adjudication as to those other sections-if, indeed, there is any certainty that prosecution of the pending indictments will resolve all constitutional issues presented-a series of state criminal prosecutions will not provide satisfactory resolution of constitutional issues. [8] It follows that the District Court erred in holding that the complaint fails to allege sufficient irreparable injury to justify equitable relief. [9][10] The District Court also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to SCEF, or that they were unconstitutional as applied to SCEF. We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably*490 attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities. **1123 [11] First, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities. If these allegations state a claim under the Civil Rights Act, 42 U.S.C. s 1983, as we believe they do, see Beauregard v. Wingard, 230 F.Supp. 167 (D.C.S.D.Calif.1964); Bargainer v. Michal, 233 F.Supp. 270 (D.C.N.D.Ohio 1964), the interpretation ultimately put on the statutes by the state courts is irrelevant. For an interpretation rendering the statute inapplicable to SCEF would merely mean that appellants might ultimately prevail in the state courts. It would not alter the impropriety of appellees' invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities, as appellees allegedly are doing and plan to continue to do. Beauregard v. Wingard, 230 F.Supp. 167 (S.D.Cal. Jun 01, 1964)

on point
Action for deprivation of civil rights. Upon motion to dismiss, the District Court, Weinberger, J., held that complaint which alleged that police officers of California city arrested and imprisoned plaintiff on charge that plaintiff had violated California bookmaking statute, and that officers' acts were without cause, malicious, and intentional for purpose of punishing plaintiff for having criticized officers and in violation of plaintiff's rights under Fourteenth Amendment to Federal Constitution stated cause of action under federal civil rights statute, and that doctrine of abstention was inapplicable. Order in accordance with opinion. Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (U.S.La.,Feb 23, 1971) Action by operators of newsstand seeking a judgment declaring Louisiana obscenity statute unconstitutional and seeking injunctive relief. The three-judge District Court, 304 F.Supp. 662, entered judgment decreeing return of seized materials and their suppression as evidence, denied injunctive relief, and adjudged parish ordinance

unconstitutional, and certiorari was granted. The Supreme Court, Mr. Justice Black, held that where there was nothing in record to suggest that Louisiana officials undertook prosecutions under obscenity statute other than in a good-faith attempt to enforce Louisiana's criminal laws, three-judge federal court improperly intruded into State's criminal processes by entering order suppressing evidence in pending State prosecution and directing return of all seized materials. Judgment reversed in part, vacated and case remanded with instructions in part. Mr. Justice Stewart filed concurring opinion in which Mr. Justice Blackmun joined. Mr. Justice Douglas dissented in part and filed opinion. Mr. Justice Brennan concurred in part and dissented in part and filed opinion in which Mr. Justice White and Mr. Justice Marshall joined. [2] Federal Courts 170B 501 170B Federal Courts 170BVII Supreme Court 170BVII(E) Review of Decisions of State Courts 170Bk501 k. In General. Most Cited Cases (Formerly 106k394(1)) Habeas Corpus 197 448.1 197 Habeas Corpus 197II Grounds for Relief; Illegality of Restraint 197II(A) Ground and Nature of Restraint 197k448 Lawful Detention; Valid or Errorless Judgment or Order; Conviction 197k448.1 k. In General. Most Cited Cases (Formerly 197k448, 197k45.1(1)) Propriety of arrests and admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, subject to review by certiorari or appeal in the Supreme Court or, in the proper case, on federal habeas corpus. [3] Courts 106 508(7) 106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction, and perhaps in other extraordinary circumstances where irreparable injury can be shown, is federal injunctive relief against pending state prosecutions appropriate. [4] Courts 106 508(7) 106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court

106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Where there was nothing in record to suggest that Louisiana officials undertook prosecutions under obscenity statute other than in a good-faith attempt to enforce Louisiana's criminal laws, three-judge federal court improperly intruded into State's criminal processes by entering order suppressing evidence in pending State prosecution and directing return of all seized materials. LSA-R.S. 14:106. [5] Declaratory Judgment 118A 276 118A Declaratory Judgment 118AIII Proceedings 118AIII(B) Jurisdiction and Venue 118Ak276 k. Concurrent and Conflicting Jurisdiction. Most Cited Cases Interference with pending state criminal prosecutions by declaratory judgments is subject to the same restrictions curbing federal interference by injunction.

No. 83, Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792; and No. 41, Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781, in which we have determined when it is appropriate for a federal court to intervene in the administration of a State's criminal laws, the disposition of this case should not be difficult. I [1] Ledesma and the other appellees operated a newsstand in the Parish of St. Bernard, Louisiana, where they displayed for sale allegedly obscene magazines, books, and playing cards. As a result of this activity, appellees were charged in four informations filed in state court with violations of Louisiana statute, La.Rev.Stat.Ann. s 14-106 (Supp.1970), and St. Bernard Parish Ordinance 21-60. After the state court proceedings had commenced by the filing of the informations, appellees instituted the instant suit in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Since the appellees sought a judgment declaring a state statute of statewide application unconstitutional, together with an injunction against pending or future prosecutions under the statute, a three-judge court was convened. That court held the Louisiana statute constitutional on its face, but ruled that the arrests of appellees and the seizure of the allegedly obscene materials were invalid for lack of a prior adversary hearing on the character of the seized materials. **Although the three-judge court declined to issue an injunction against the pending *84 or any future prosecutions, it did enter a suppression order and require the return of all the seized material to the appellees. 304 F.Supp. 662, 667-670 (1969). The local district attorney and other law enforcement officers appealed and we set the case for argument but postponed the question of jurisdiction to the hearing on the merits. 399 U.S. 924, 90 S.Ct. 2234, 26 L.Ed.2d 790 (1970).FN1 FN1. Under 28 U.S.C. s 1253 an aggrieved party in any civil action required to be heard and determined by a district court of three judges may appeal to the Supreme Court from an order granting or denying * * * an interlocutory or permanent injunction. The orders directing the suppression of evidence and the return of the seized material were injunctive orders against the appellants. Thus, we have jurisdiction to review those orders. [2][3][4] It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution. In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials, the prosecutions should be effectively terminated. 304 F.Supp., at 670. (Emphasis added.) Moreover, the District Court retained jurisdiction for the purposes of hereafter entering any orders necessary to enforce its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding

in Younger v. Harris, supra, such federal interference with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see *85Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), subject, of course, to review by certiorari or appeal in this **677 Court or, in a proper case, on federal habeas corpus. Here Ledesma was free to present his federal constitutional claims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or **prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. See Younger v. Harris, supra; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). There is nothing in the record before us to suggest that Louisiana officials undertook these prosecutions other than in a good-faith attempt to enforce the State's criminal laws. We therefore hold that the three-judge court improperly intruded into the State's own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of all seized materials. II [5] After crippling Louisiana's ability to enforce its criminal statute against Ledesma, the three-judge court expressed the view that the Parish of St. Bernard Ordinance 21-60 was invalid. Although the court below recognized that it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance, the court nevertheless seized the opportunity to express its views on the constitutionality of the ordinance. 304 F.Supp. 662, 670 n. 31 (1969). Judge Boyle, the District Judge who initially referred the action to the three-judge court, adopted that court's view and declared the parish ordinance invalid. There is considerable question concerning*86 the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case. FN2 FN2. At the time the instant federal court suit was filed, there was pending in Louisiana state court a criminal prosecution under the parish ordinance. In Samuels v. Mackell, supra, we held that interference with pending state criminal prosecutions by declaratory judgments is subject to the same restrictions curbing federal interference by injunction. 401 U.S., at 73, 91 S.Ct., at 768. As indicated above, there are no facts present in this record to show that appellees would suffer irreparable injury of the kind necessary to justify federal injunctive interference with the state criminal processes. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (U.S.Fla.,Jun 19, 1972) Complaint for injunctive and declaratory relief wherein plaintiff alleged that actions of state judicial and law enforcement officials in closing down his bookstore as a public nuisance were depriving him of rights protected by First and Fourteenth Amendments. A single federal district judge issued temporary restraining orders, and a threejudge court was thereafter convened. After a hearing, the three-judge District Court, 315 F.Supp. 1387, dissolved temporary restraining orders and refused to enjoin state court proceeding on ground that it was without power to do so under anti-injunction statute, and plaintiff brought a direct appeal. The Supreme Court, Mr. Justice Stewart, held that provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution is within expressly authorized exception of federal antiinjunction statute prohibiting a federal court from enjoining a state court proceeding except as expressly authorized by Act of Congress. Reversed and remanded. [1] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases

Federal anti-injunction statute imposes an absolute ban on issuance of a federal injunction against a pending state court proceeding in absence of one of recognized exceptions. 28 U.S.C.A. 2283. [2] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases (Formerly 106k8(1)) National policy forbids federal courts to stay or enjoin pending state court proceedings except under special circumstances. 28 U.S.C.A. 2283. [3] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases There is a fundamental policy against federal interference with state criminal prosecutions. 28 U.S.C.A. 2283. [4] Injunction 212 85(2)

212 Injunction 212II Subjects of Protection and Relief 212II(E) Public Officers and Entities 212k85 Enforcement of Statutes, Ordinances, or Other Regulations 212k85(2) k. On Ground of Invalidity. Most Cited Cases (Formerly 106k262.4(5)) Even possible unconstitutionality of a state statute on its face does not in itself justify federal injunction against good-faith attempts to enforce it. 28 U.S.C.A. 2283. [5] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Federal injunctive intervention in a pending state court prosecution is justified in certain exceptional circumstanceswhere irreparable injury is both great and immediate, where state law is flagrantly and patently violative of express constitutional prohibitions, or where there is a showing of bad faith, harassment, or other unusual circumstances that would call for equitable relief. 28 U.S.C.A. 2283. [6] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts

106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. 28 U.S.C.A. 2283. [7] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) Federal courts are empowered to enjoin state court proceedings, despite anti-injunction statute, in carrying out will of Congress under legislation **(1) providing for removal of litigation from state to federal courts, (2) limiting liability of shipowners, (3) providing for federal interpleader actions, (4) conferring federal jurisdiction over farm mortgages, (5) governing federal habeas corpus proceedings, and (6) providing for control of prices. Bankr.Act, 75, sub. s(2), 11 U.S.C.A. 203(s) (2); 28 U.S.C.A. 1441-1450, 1446(e), 2251, 2283, 2361; 46 U.S.C.A. 185. [8] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) In addition to exceptions to anti-injunction statute found to be embodied in various acts of Congress, **other implied exceptions to blanket prohibition of anti-injunction statute are recognized, **one being an in rem exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction, **another being a relitigation exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation, and a third exception permitting a federal injunction of state court proceedings when plaintiff in federal court is United States itself, or a federal agency asserting superior federal interests. 28 U.S.C.A. 2283. [9] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases In order to qualify under expressly authorized exception of anti-injunction statute, a federal law need not contain an express reference to that statute, nor need it expressly authorize an injunction of a state court proceeding, **but it must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, **which could be frustrated if federal court were not empowered to enjoin state court proceeding. 28 U.S.C.A. 2283. [10] Courts 106 106 Courts 508(1)

106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases To come within exception of anti-injunction statute, it is not required that an act of Congress, on its face and in every one of its provisions, be totally incompatible with prohibition of anti-injunction statute; rather, test is whether act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by stay of a state court proceeding. 28 U.S.C.A. 2283. [11] Civil Rights 78 1004

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1002 Constitutional and Statutory Provisions 78k1004 k. Purpose and Construction in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) Civil Rights 78 1325

78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1325 k. State or Territorial Action, or Individual or Private Action, in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) Provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution was intended to enforce provisions of Fourteenth Amendment against state action, whether that action be executive, legislative, or judicial. 42 U.S.C.A. 1983; U.S.C.A.Const. Amend. 14. [12] Civil Rights 78 1004

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1002 Constitutional and Statutory Provisions 78k1004 k. Purpose and Construction in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) In enacting provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution, Congress conceived that it was altering relationship between states and the nation with respect to protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to vindication of those rights; and it believed that these failings extended to state courts. 42 U.S.C.A. 1983. [13] Civil Rights 78 1004

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1002 Constitutional and Statutory Provisions 78k1004 k. Purpose and Construction in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) **Purpose of provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution is to interpose federal courts between the states and the people, as guardians of the people's federal rights, and to protect the people from unconstitutional action under color of state law, whether that action be executive, legislative or judicial. 42 U.S.C.A. 1983.

[14] Courts 106

508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases By enacting statute expressly authorizing a suit in equity as one of means of redressing deprivation under color of state law of any rights, privileges, or immunities secured by Constitution, Congress authorized federal courts to issue injunctions against a state court proceeding in order to prevent great, immediate, and irreparable loss of a person's constitutional rights. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [15] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) Provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law or any rights, privileges, or immunities secured by Constitution is within expressly authorized exception of federal antiinjunction statute prohibiting a federal court from enjoining a state court proceeding except as expressly authorized by act of Congress. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [16] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) In concluding that statute governing deprivation of civil rights fell within expressly authorized exception of federal anti-injunction statute prohibiting a federal court from enjoining a state court proceeding except as expressly authorized by act of Congress, United States Supreme Court was not questioning or qualifying in any way principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [17] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) **District court was in error in holding that, because of anti-injunction statute, it was absolutely without power in action brought under statute governing deprivation of civil rights to enjoin a proceeding pending in a state court under any circumstances whatsoever. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983.

The prosecuting attorney of Bay County, Florida, brought a proceeding in a Florida court to close down the appellant's bookstore as a public nuisance under the claimed authority of Florida law. The state court entered a preliminary order prohibiting continued operation of the bookstore. After further inconclusive proceedings in the state courts, the appellant filed a complaint in the United States District Court for the Northern District of Florida, alleging that the actions of the state judicial and law enforcement officials were depriving him of rights protected by the First and Fourteenth Amendments. Relying upon 42 U.S.C. s 1983.FN5 he asked for injunctive and declaratory relief against the state court proceedings, on the ground that Florida laws were being unconstitutionally applied by the state court so as to cause him great and irreparable harm. A single federal district judge issued temporary restraining orders, and a three-judge court was convened pursuant to 28 U.S.C. ss 2281 and 2284. After a hearing, the three-judge court dissolved the temporary restraining orders and refused to enjoin the state court proceeding, holding that the injunctive relief sought here *228 as to the proceedings pending in the Florida courts does not come under any of the exceptions set forth in Section 2283. It is not expressly authorized by Act of Congress, it is not necessary in the aid of this court's jurisdiction and it is not sought in order to protect or effectuate any judgment of this court. 315 F.Supp. 1387, 1389. An appeal was brought directly here under 28 U.S.C. s 1253,FN6 and we noted probable jurisdiction. **2155402 U.S. 941, 91 S.Ct. 1612, 29 L.Ed.2d 109. FN5. Federal jurisdiction was based upon 28 U.S.C. s 1343(3). The statute states in relevant part: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . . FN6. The statute provides: Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges. II [1] In denying injunctive relief, the District Court relied on this Court's decision in Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234. The Atlantic Coast Line case did not deal with the expressly authorized exception of the anti-injunction statute, FN7 but the Court's opinion in that case does bring into sharp focus the critical importance of the question now before us. For in that case we expressly rejected he view that the anti-injunction statute merely states a flexible doctrine of comity,FN8 and made clear that the statute imposes an absolute ban upon the issuance of a federal injunction against a pending *229 state court proceeding, in the absence of one of the recognized exceptions: FN7. At issue were the other two exceptions of the anti-injunction statute: where necessary in aid of it jurisdiction, or to protect or effectuate its judgments. Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 288, 90 S.Ct. 1739, 1744, 26 L.Ed.2d 234. FN8. See First National Bank & Trust Co. of Racine v. Village of Skokie, 7 Cir., 173 F.2d 1; Baines, 337 F.2d, at 593. See also Taylor & Willis, The Power of Federal Court to Enjoin Proceedings in State Courts, 42 Yale L.J. 1169, 1194 (1933). On its face the present Act is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a principle of comity, not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by

any of the three exceptions. We cannot accept any such contention. . . . (We) hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to s 2283 if it is to be upheld. . ..' 398 U.S., at 286-287, 90 S.Ct., at 1744. It follows, in the present context, that if 42 U.S.C. s 1983 is not within the expressly authorized exception of the anti-injunction statute, then a federal equity court is wholly without power to grant any relief in a s 1983 suit seeking to stay a state court proceeding. In short, if a s 1983 action is not an expressly authorized statutory exception, the anti-injunction law absolutely prohibits in such an action all federal equitable intervention in a pending state court proceeding, whether civil or criminal, and regardless of how extraordinary the particular circumstances may be. [2] Last Term, in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases, FN9 the Court dealt at length with the subject of federal judicial intervention in pending *230 state criminal prosecutions. In Younger a three-judge federal district court in a s 1983 action had enjoined a criminal prosecution pending in a California court. In asking us to reverse that judgment, the appellant argued that the injunction was in violation of the federal anti-injunction statute. 401 U.S., at 40, 91 S.Ct., at 748. But the Court carefully eschewed any reliance on the statute in reversing the judgment, basing its decision instead upon what the Court called Our Federalism-upon the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances. 401 U.S., at 41, 44, 91 S.Ct., at 749, 750. FN9. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792. **2156 [3][4][5][6] In Younger, this Court emphatically reaffirmed the fundamental policy against federal interference with state criminal prosecutions. 401 U.S., at 46, 91 S.Ct., at 751. It made clear that even the possible unconstitutionality of a statute on its face does not in itself justify an injunction against good-faith attempts to enforce it.' 401 U.S., at 54, 91 S.Ct., at 755. **At the same time, however, the Court clearly left room for federal injunctive intervention in a pending state court prosecution in certain exceptional circumstances-where irreparable injury is both great and immediate, 401 U.S., at 46, 91 S.Ct., at 751, where the state law is flagrantly and patently violative of express constitutional prohibitions, 401 U.S., at 53, 91 S.Ct., at 755, or where there is a showing of **bad faith, **harassment, or . . . other unusual circumstances that would call for equitable relief. 401 U.S., at 54, 91 S.Ct., at 755. In the companion case of Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701, the Court said that (o)nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending *231 state prosecutions appropriate . 401 U.S., at 85, 91 S.Ct., at 677. See also Dyson v. Stein, 401 U.S. 200, 203, 91 S.Ct. 769, 771, 27 L.Ed.2d 781. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (U.S.Fla. Jun 19, 1972) lists the special circumstances for injunctions, and that complaint for declaratory relief, damages under 42 U.S.C. 1983 is a cause of action which allows an injunction. Showing of bad faith, harassment, or other unusual circumstances that would call for equitable relief. And In addition to

exceptions to anti-injunction statute found to be embodied in various acts of Congress, **other implied exceptions to blanket prohibition of anti-injunction statute are recognized, **one being an in rem exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction, **another being a relitigation exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation, and a third exception permitting a federal injunction of state court proceedings when plaintiff in federal court is United States itself, or a federal

agency asserting superior federal interests. 28 U.S.C.A. 2283.

Complaint for injunctive and declaratory relief wherein plaintiff alleged that actions of state judicial and law enforcement officials in closing down his bookstore as a public nuisance were depriving him of rights protected by First and Fourteenth Amendments. A single federal district judge issued temporary restraining orders, and a threejudge court was thereafter convened. After a hearing, the three-judge District Court, 315 F.Supp. 1387, dissolved temporary restraining orders and refused to enjoin state court proceeding on ground that it was without power to do so under anti-injunction statute, and plaintiff brought a direct appeal. The Supreme Court, Mr. Justice Stewart, held that provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution is within expressly authorized exception of federal antiinjunction statute prohibiting a federal court from enjoining a state court proceeding except as expressly authorized by Act of Congress. Reversed and remanded.

[1] Courts 106

508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases Federal anti-injunction statute imposes an absolute ban on issuance of a federal injunction against a pending state court proceeding in absence of one of recognized exceptions. 28 U.S.C.A. 2283. [2] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases (Formerly 106k8(1)) National policy forbids federal courts to stay or enjoin pending state court proceedings except under special circumstances. 28 U.S.C.A. 2283. [3] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases There is a fundamental policy against federal interference with state criminal prosecutions. 28 U.S.C.A. 2283. [4] Injunction 212 85(2)

212 Injunction 212II Subjects of Protection and Relief

212II(E) Public Officers and Entities 212k85 Enforcement of Statutes, Ordinances, or Other Regulations 212k85(2) k. On Ground of Invalidity. Most Cited Cases (Formerly 106k262.4(5)) Even possible unconstitutionality of a state statute on its face does not in itself justify federal injunction against good-faith attempts to enforce it. 28 U.S.C.A. 2283. [5] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Federal injunctive intervention in a pending state court prosecution is justified in certain exceptional circumstanceswhere irreparable injury is both great and immediate, where state law is flagrantly and patently violative of express constitutional prohibitions, or where there is a showing of bad faith, harassment, or other unusual circumstances that would call for equitable relief. 28 U.S.C.A. 2283. equitable relief. 28 U.S.C.A. 2283. [6] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. 28 U.S.C.A. 2283. [7] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) Federal courts are empowered to enjoin state court proceedings, despite anti-injunction statute, in carrying out will of Congress under legislation **(1) providing for removal of litigation from state to federal courts, (2) limiting liability of shipowners, (3) providing for federal interpleader actions, (4) conferring federal jurisdiction over farm mortgages, (5) governing federal habeas corpus proceedings, and (6) providing for control of prices. Bankr.Act, 75, sub. s(2), 11 U.S.C.A. 203(s) (2); 28 U.S.C.A. 1441-1450, 1446(e), 2251, 2283, 2361; 46 U.S.C.A. 185. [8] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court

106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) In addition to exceptions to anti-injunction statute found to be embodied in various acts of Congress, **other implied exceptions to blanket prohibition of anti-injunction statute are recognized, **one being an in rem exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction, **another being a relitigation exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation, and a third exception permitting a federal injunction of state court proceedings when plaintiff in federal court is United States itself, or a federal agency asserting superior federal interests. 28 U.S.C.A. 2283. [9] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases In order to qualify under expressly authorized exception of anti-injunction statute, a federal law need not contain an express reference to that statute, nor need it expressly authorize an injunction of a state court proceeding, **but it must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, **which could be frustrated if federal court were not empowered to enjoin state court proceeding. 28 U.S.C.A. 2283. [10] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases To come within exception of anti-injunction statute, it is not required that an act of Congress, on its face and in every one of its provisions, be totally incompatible with prohibition of anti-injunction statute; rather, test is whether act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by stay of a state court proceeding. 28 U.S.C.A. 2283. [11] Civil Rights 78 1004

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1002 Constitutional and Statutory Provisions 78k1004 k. Purpose and Construction in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) Civil Rights 78 1325

78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1325 k. State or Territorial Action, or Individual or Private Action, in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) Provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution was intended to enforce provisions of Fourteenth Amendment against state action, whether that action be executive, legislative, or judicial. 42 U.S.C.A. 1983; U.S.C.A.Const. Amend. 14.

[12] Civil Rights 78

1004

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1002 Constitutional and Statutory Provisions 78k1004 k. Purpose and Construction in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) In enacting provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution, Congress conceived that it was altering relationship between states and the nation with respect to protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to vindication of those rights; and it believed that these failings extended to state courts. 42 U.S.C.A. 1983. [13] Civil Rights 78 1004

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1002 Constitutional and Statutory Provisions 78k1004 k. Purpose and Construction in General. Most Cited Cases (Formerly 78k196.1, 78k196, 78k13.5(1)) **Purpose of provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law of any rights, privileges, or immunities secured by Constitution is to interpose federal courts between the states and the people, as guardians of the people's federal rights, and to protect the people from unconstitutional action under color of state law, whether that action be executive, legislative or judicial. 42 U.S.C.A. 1983. [14] Courts 106 508(1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(1) k. In General. Most Cited Cases By enacting statute expressly authorizing a suit in equity as one of means of redressing deprivation under color of state law of any rights, privileges, or immunities secured by Constitution, Congress authorized federal courts to issue injunctions against a state court proceeding in order to prevent great, immediate, and irreparable loss of a person's constitutional rights. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [15] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) Provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law or any rights, privileges, or immunities secured by Constitution is within expressly authorized exception of federal antiinjunction statute prohibiting a federal court from enjoining a state court proceeding except as expressly authorized by act of Congress. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [16] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) In concluding that statute governing deprivation of civil rights fell within expressly authorized exception of federal anti-injunction statute prohibiting a federal court from enjoining a state court proceeding except as expressly authorized by act of Congress, United States Supreme Court was not questioning or qualifying in any way principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. [17] Courts 106 508(2.1)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(2.1) k. In General. Most Cited Cases (Formerly 106k508(2)) **District court was in error in holding that, because of anti-injunction statute, it was absolutely without power in action brought under statute governing deprivation of civil rights to enjoin a proceeding pending in a state court under any circumstances whatsoever. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983.

**Title 42 U.S.C. s 1983, which authorizes a suit in equity to redress the deprivation under color of state law of
any rights, privileges, or immunities secured by the Constitution . . ., is within that exception of the federal antiinjunction statute, 28 U.S.C. s 2283, which provides that a federal court may not enjoin state court proceedings except as expressly authorized by Act of Congress. And in this s 1983 action, though the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding (cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and companion cases) are not questioned, **the District Court is held to have erred in holding that the anti-injunction statute absolutely barred its enjoining a pending state court proceeding under any circumstances whatsoever. Pp. 2154-2162. 315 F.Supp. 1387, reversed and remanded. Robert Eugene Smith, Atlanta, Ga., for appellant. The prosecuting attorney of Bay County, Florida, brought a proceeding in a Florida court to close down the appellant's bookstore as a public nuisance under the claimed authority of Florida law. The state court entered a preliminary order prohibiting continued operation of the bookstore. After further inconclusive proceedings in the state courts, the appellant filed a complaint in the United States District Court for the Northern District of Florida, alleging that the actions of the state judicial and law enforcement officials were depriving him of rights protected by the First and Fourteenth Amendments. Relying upon 42 U.S.C. s 1983.FN5 he asked for injunctive and declaratory relief against the state court proceedings, on the ground that Florida laws were being unconstitutionally applied by the state court so as to cause him great and irreparable harm. A single federal district judge issued temporary restraining orders, and a three-judge court was convened pursuant to 28 U.S.C. ss 2281 and 2284. After a hearing, the three-judge court dissolved the temporary restraining orders and refused to enjoin the state court proceeding, holding that the injunctive relief sought here *228 as to the proceedings pending in the Florida courts does not come under any of the exceptions set forth in Section 2283. It is not expressly authorized by Act of Congress, it is not necessary in the aid of this court's jurisdiction and it is not sought in order to protect or effectuate any judgment of this court. 315 F.Supp. 1387, 1389. An appeal was brought directly here under 28 U.S.C. s 1253,FN6 and we noted probable jurisdiction. **2155402 U.S. 941, 91 S.Ct. 1612, 29 L.Ed.2d 109.

FN5. Federal jurisdiction was based upon 28 U.S.C. s 1343(3). The statute states in relevant part: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . . FN6. The statute provides: Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges. II [1] In denying injunctive relief, the District Court relied on this Court's decision in Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234. The Atlantic Coast Line case did not deal with the expressly authorized exception of the anti-injunction statute, FN7 but the Court's opinion in that case does bring into sharp focus the critical importance of the question now before us. For in that case we expressly rejected he view that the anti-injunction statute merely states a flexible doctrine of comity,FN8 and made clear that the statute imposes an absolute ban upon the issuance of a federal injunction against a pending *229 state court proceeding, in the absence of one of the recognized exceptions: FN7. At issue were the other two exceptions of the anti-injunction statute: where necessary in aid of it jurisdiction, or to protect or effectuate its judgments. Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 288, 90 S.Ct. 1739, 1744, 26 L.Ed.2d 234. FN8. See First National Bank & Trust Co. of Racine v. Village of Skokie, 7 Cir., 173 F.2d 1; Baines, 337 F.2d, at 593. See also Taylor & Willis, The Power of Federal Court to Enjoin Proceedings in State Courts, 42 Yale L.J. 1169, 1194 (1933). On its face the present Act is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a principle of comity, not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. . . . (We) hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to s 2283 if it is to be upheld. . ..' 398 U.S., at 286-287, 90 S.Ct., at 1744. It follows, in the present context, that if 42 U.S.C. s 1983 is not within the expressly authorized exception of the anti-injunction statute, then a federal equity court is wholly without power to grant any relief in a s 1983 suit seeking to stay a state court proceeding. In short, if a s 1983 action is not an expressly authorized statutory exception, the anti-injunction law absolutely prohibits in such an action all federal equitable intervention in a pending state court proceeding, whether civil or criminal, and regardless of how extraordinary the particular circumstances may be. [2] Last Term, in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases, FN9 the Court dealt at length with the subject of federal judicial intervention in pending *230 state criminal prosecutions. In Younger a three-judge federal district court in a s 1983 action had enjoined a criminal prosecution pending in a California court. In asking us to reverse that judgment, the appellant argued that the injunction was in violation of the federal anti-injunction statute. 401 U.S., at 40, 91 S.Ct., at 748. But the Court carefully eschewed any reliance on

the statute in reversing the judgment, basing its decision instead upon what the Court called Our Federalism-upon the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances. 401 U.S., at 41, 44, 91 S.Ct., at 749, 750. FN9. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792. **2156 [3][4][5][6] In Younger, this Court emphatically reaffirmed the fundamental policy against federal interference with state criminal prosecutions. 401 U.S., at 46, 91 S.Ct., at 751. It made clear that even the possible unconstitutionality of a statute on its face does not in itself justify an injunction against good-faith attempts to enforce it.' 401 U.S., at 54, 91 S.Ct., at 755. **At the same time, however, the Court clearly left room for federal injunctive intervention in a pending state court prosecution in certain exceptional circumstances-where irreparable injury is both great and immediate, 401 U.S., at 46, 91 S.Ct., at 751, where the state law is flagrantly and patently violative of express constitutional prohibitions, 401 U.S., at 53, 91 S.Ct., at 755, or where there is a showing of **bad faith, **harassment, or . . . other unusual circumstances that would call for equitable relief. 401 U.S., at 54, 91 S.Ct., at 755. In the companion case of Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701, the Court said that (o)nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending *231 state prosecutions appropriate . 401 U.S., at 85, 91 S.Ct., at 677. See also Dyson v. Stein, 401 U.S. 200, 203, 91 S.Ct. 769, 771, 27 L.Ed.2d 781. [7] Despite the seemingly uncompromising language of the anti-injunction statute prior to 1948, the Court soon *234 recognized that exceptions must be made to its blanket prohibition if the import and purpose of other Acts of Congress were to be given their intended scope. So it was that, in addition to the bankruptcy law exception that Congress explicitly recognized in 1874, the Court through the years found that federal courts were empowered to enjoin state court proceedings, despite the anti-injunction statute, in carrying out the will **2158 of Congress under at least six other federal laws. These covered a broad spectrum of congressional action: **(1) legislation providing for removal of litigation from state to federal courts,FN12 (2) regislation limiting the liability of ship-owners, FN13 (3) legislation providing for federal interpleader actions, FN14 (4) legislation conferring federal jurisdiction over farm mortgages, FN15 (5) legislation*235 governing federal habeas corpus proceedings,FN16 and (6) legislation providing for control of prices.FN17 FN12. See French v. Hay, 22 Wall. 250, 22 L.Ed. 857; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226. The federal removal provisions, both civil and criminal, 28 U.S.C. ss 1441-1450, provide that once a copy of the removal petition is filed with the clerk of the state court, the State court shall proceed no further unless and until the case is remanded. 28 U.S.C. s 1446(e). FN13. See Providence & N.Y.S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 3 S.Ct. 379, 27 L.Ed. 1038. The Act of 1851, 9 Stat. 635, as amended, provides that once a shipowner has deposited with the court an amount equal to the value of his interest in the ship, all claims and proceedings against the owner with respect to the matter in question shall cease. 46 U.S.C. s 185. FN14. See Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85. The Interpleader Act of 1926, 44 Stat. 416, as currently written provides that in any civil action of interpleader . . . a district court may . . . enter its order restraining (all claimants) . . . from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action. 28 U.S.C. s 2361. FN15. See Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370. The Frazier-Lemke FarmMortgage Act, as amended in 1935, 49 Stat. 944, provides that in situations to which it is applicable a federal court shall stay all judicial or official proceedings in any court. 11 U.S.C. s 203(s)(2) (1940 ed.).

FN16. See Ex parte Royall, 117 U.S. 241, 248-249, 6 S.Ct. 734, 738-739, 26 L.Ed. 868. The Federal Habeas Corpus Act provides that a federal court before which a habeas corpus proceeding is pending may stay any proceeding against the person detained in any State court . . . for any matter involved in the habeas corpus proceeding. 28 U.S.C. s 2251. FN17. Section 205(a) of the Emergency Price Control Act of 1942, 56 Stat. 33, provided that the Price Administrator could request a federal district court to enjoin acts that violated or threatened to violate the Act. In Porter v. Dicken, 328 U.S. 252, 66 S.Ct. 1094, 90 L.Ed. 1203, we held that this authority was broad enough to justify an injunction to restrain state court proceedings. Id., at 255, 66 S.T., at 1096. The Emergency Price Control Act was thus considered a congressionally authorized exception to the antiinjunction statute. Ibid.; see also Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. Section 205(a) expired in 1947. Act of July 25, 1946, 60 Stat. 664. [8] In addition to the exceptions to the anti-injunction statute found to be embodied in these various Acts of Congress, the Court recognized other implied exceptions to the blanket prohibition of the anti-injunction statute. **One was an in rem exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction.FN18 **Another was a relitigation exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation.FN19 Still a third exception, more recently developed permits a federal injunction of state *236 court proceedings**2159 when the plaintiff in the federal court is the United States itself, or a federal agency asserting superior federal interests.'FN20 FN18. See, e.g., Toucey v. New York Life Ins. Co., 314 U.S., at 135-136, 62 S.Ct., at 144-145; Freeman v. Howe, 24 How. 450, 16 L.Ed. 749; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed.2d 226. FN19. See, e.g., Toucey, supra, 314 U.S., at 137-141, 62 S.Ct., at 145-148; Dial v. Reynolds, 96 U.S. 340, 24 L.Ed. 644; Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673. See generally 1A J. Moore, Federal Practice 2302-2311 (1965). FN20. Leiter Minerals Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267; NLRB v. NashFinch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328. In Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, the Court in 1941 issued an opinion casting considerable doubt upon the approach to the anti-injunction statute reflected in its previous decisions. The Court's opinion expressly disavowed the relitigation exception to the statute, and emphasized generally the importance of recognizing the statute's basic directive of hands off by the federal courts in the use of the injunction to stay litigation in a state court.' 314 U.S., at 132, 62 S.Ct., at 143. The congressional response to Toucey was the enactment in 1948 of the anti-injunction statute in its present form in 28 U.S.C. s 2283, which, as the Reviser's Note makes evident, served not only to overrule the specific holding of Toucey, FN21 but to restore the basic law as generally understood and interpreted prior to the Toucey decision.'FN22 FN21. The Reviser's Note states in part: The exceptions specifically include the words to protect or effectuate its judgments, for lack of which the Supreme Court held that the Federal courts are without power to enjoin relitigation of cases and controversies fully adjudicated by such courts. (See Toucey v. New York Life Insurance Co., 62 S.Ct. 139, 314 U.S. 118, 86 L.Ed. 100. A vigorous dissenting opinion ( 62 S.Ct. 148 (314 U.S. 141)) notes that at the time of the 1911 revision of the Judicial Code, the power of the courts . . . of the United States to protect their judgments was unquestioned and that the revisers of that code noted no change and Congress intended no change.)' H.R.Rep. No. 308, 80th Cong., 1st Sess., A181182 (1947). FN22. Ibid. [9][10] We proceed, then, upon the understanding that in determining whether s 1983 comes within the expressly

authorized exception of the anti-injunction statute, the *237 criteria to be applied are those reflected in the Court's decisions prior to Toucey.FN23 A review of those decisions makes reasonably clear what the relevant criteria are. In the first place, it is evident that, in order to qualify under the expressly authorized exception of the anti-injunction statute, a federal law need not contain an express reference to that statute. As the Court has said, no prescribed formula is required; an authorization need not expressly refer to s 2283. Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 511, 516, 75 S.Ct. 452, 455, 99 L.Ed. 600. Indeed, none of the previously recognized statutory exceptions contains any such reference. FN24 Secondly, a federal law need not expressly authorize an injunction of a state court proceeding in order to qualify as an exception. Three of the six previously recognized statutory exceptions contain no such authorization. FN25 Thirdly, it is clear that, in order to qualify as an expressly authorized exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding. This is not *238 to say that in order to come within the exception**2160 an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute.FN26 The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding. See Toucey, supra, 314 U.S. at 132-134, 62 S.Ct. at 143-144; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226; Providence & N.Y.S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 599 3 S.Ct. 379, 392, 27 L.Ed. 1038; Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct., 44, 50, 84 L.Ed. 85; Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. FN23. Cf. Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 511, 521, 75 S.Ct. 452, 458, 99 L.Ed. 600 (dissenting opinion). FN24. See nn. 12, 13, 14, 15, 16, and 17, supra. gress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts. V [13][14][15] Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century when the anti-injunction statute was enacted. The very purpose of s 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights-to protect the people from unconstitutional action under color of state law, whether that action be executive, legislative, or judicial. Ex parte Virginia, 100 U.S., at 346, 25 L.Ed. 676. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in s 1983 actions, by expressly authorizing a suit in equity as one of the means of redress. And this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person's constitutional rights. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; cf. Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. **For these reasons we conclude that, under the *243 criteria established in our previous decisions construing the anti-injunction statute , s 1983 is an Act of Congress that falls within the expressly authorized exception of that law.

Duncan v. Perez, 445 F.2d 557 (5th Cir.(La.) Jun 14, 1971)

reprosecution
Pizzolato v. Perez, 524 F.Supp. 914 (E.D.La.,Sep 04, 1981)

instructive on damages in civil rights actions

Election commissioner brought action seeking a permanent injunction preventing a pending state court prosecution on state voting law charges. The District Court, Arceneaux, J., held that election commissioner was entitled to a permanent injunction preventing pending state court prosecution for voter fraud and to compensatory and punitive damages in view of fact that prosecution was brought in bad faith as the result of a conspiracy to harass and retaliate against election commissioner for his opposition to defendants' political organization. Judgment accordingly. [2] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Exception to general rule that federal courts should not intervene in pending state criminal prosecutions arises where plaintiff makes a showing of either bad faith or harassment by the state authorities who are pressing the prosecution. [4] Civil Rights 78 1420

78 Civil Rights 78III Federal Remedies in General 78k1416 Weight and Sufficiency of Evidence 78k1420 k. Criminal Law Enforcement; Prisons. Most Cited Cases (Formerly 78k242(5), 78k13.13(3)) Effect of showing of a bad-faith criminal prosecution is equivalent to a showing of irreparable injury. [5] Civil Rights 78 1088(5)

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1088 Police, Investigative, or Law Enforcement Activities 78k1088(5) k. Criminal Prosecutions. Most Cited Cases (Formerly 78k134, 78k13.4(4)) Prosecution brought under a valid state statute in an attempt to retaliate for a federal plaintiff's exercise of constitutional rights constitutes bad faith prosecution. [6] Civil Rights 78 1088(5)

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1088 Police, Investigative, or Law Enforcement Activities 78k1088(5) k. Criminal Prosecutions. Most Cited Cases (Formerly 78k134, 78k13.4(4)) A serious state prosecution undertaken for a relatively minor offense, coupled with a selective process arising in an atmosphere of political and/or racial hostility, constitutes bad faith prosecution. [7] Civil Rights 78 78 Civil Rights 1088(5)

78I Rights Protected and Discrimination Prohibited in General 78k1088 Police, Investigative, or Law Enforcement Activities 78k1088(5) k. Criminal Prosecutions. Most Cited Cases (Formerly 78k134, 78k13.4(4)) State criminal prosecution brought under a valid statute but with no reasonable belief that a conviction will follow constitutes bad faith prosecution. [8] Civil Rights 78 1088(5)

78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1088 Police, Investigative, or Law Enforcement Activities 78k1088(5) k. Criminal Prosecutions. Most Cited Cases (Formerly 78k134, 78k13.4(4)) State court prosecution motivated by a desire for personal and political gain, which prosecution evidences some degree of impermissible selectivity even though taken pursuant to a lawful statute, constitutes bad faith prosecution. [9] Constitutional Law 92 1435

92 Constitutional Law 92XV Right to Petition for Redress of Grievances 92k1435 k. In General. Most Cited Cases (Formerly 92k91) Access to the courts is protected by the First Amendment right to petition for a redress of grievances. U.S.C.A.Const.Amend. 1. [10] Civil Rights 78 1420

78 Civil Rights 78III Federal Remedies in General 78k1416 Weight and Sufficiency of Evidence 78k1420 k. Criminal Law Enforcement; Prisons. Most Cited Cases (Formerly 78k242(5), 78k13.13(3)) In attempt to prove bad faith prosecution, standard governing requisite showing of unlikeliness of prosecution's success is a flexible and realistic one, and **it need not be proven that prosecution could not possibly result in a conviction. [10] Civil Rights 78 1420

78 Civil Rights 78III Federal Remedies in General 78k1416 Weight and Sufficiency of Evidence 78k1420 k. Criminal Law Enforcement; Prisons. Most Cited Cases (Formerly 78k242(5), 78k13.13(3)) In attempt to prove bad faith prosecution, standard governing requisite showing of unlikeliness of prosecution's success is a flexible and realistic one, and **it need not be proven that prosecution could not possibly result in a conviction. [11] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction

106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Demonstration by local election commissioner that state court criminal prosecution for voter fraud was in retaliation for commissioner's refusal to settle civil case involving same election and that state's bringing of criminal prosecution was motivated at least in part by a purpose to so retaliate, together with state's failure to show by a preponderance of the evidence that it would have reached the same decision as to whether to prosecute even had the impermissible purpose not been considered, was sufficient to warrant issuance of injunction preventing state court criminal prosecution. [12] Civil Rights 78 1376(9)

78 Civil Rights 78III Federal Remedies in General 78k1372 Privilege or Immunity; Good Faith and Probable Cause 78k1376 Government Agencies and Officers 78k1376(9) k. Attorney General and Prosecuting Attorneys. Most Cited Cases (Formerly 78k214(9), 78k13.8(6)) District attorney was immune from damage liability in a suit under Section 1983 of the Civil Rights Act alleging bad-faith prosecution since acts complained of were within scope of his duties as district attorney. 42 U.S.C.A. 1983. [13] Conspiracy 91 7.5(1)

91 Conspiracy 91I Civil Liability 91I(A) Acts Constituting Conspiracy and Liability Therefor 91k7.5 Conspiracy to Interfere with Civil Rights 91k7.5(1) k. In General. Most Cited Cases (Formerly 91k7.5) Conspiracies to deprive one of his constitutional rights are actionable under Civil Rights Act, and a showing of class-based discrimination is not a prerequisite to liability. 42 U.S.C.A. 1983. [14] Civil Rights 78 1401

78 Civil Rights 78III Federal Remedies in General 78k1400 Presumptions, Inferences, and Burdens of Proof 78k1401 k. In General. Most Cited Cases (Formerly 78k240(1), 78k13.13(1)) To sustain a claim under Section 1983 of the Civil Rights Act, a plaintiff must show both a deprivation by defendant of a constitutionally secured right and that defendant acted under color of state law. 42 U.S.C.A. 1983. [15] Civil Rights 78 1326(5)

78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(3) Private Persons or Corporations, in General 78k1326(5) k. Cooperation with State Actor. Most Cited Cases (Formerly 78k198(4), 78k13.5(4)) Private persons, conspiring or participating in joint activity with state officials in prohibited conduct, may be sued

under Section 1983 of the Civil Rights Act, inasmuch as they are deemed to be acting under color of state law. 42 U.S.C.A. 1983. [16] Civil Rights 78 1326(5)

78 Civil Rights 78III Federal Remedies in General 78k1323 Color of Law 78k1326 Particular Cases and Contexts 78k1326(3) Private Persons or Corporations, in General 78k1326(5) k. Cooperation with State Actor. Most Cited Cases (Formerly 78k198(4), 78k13.7) Private individuals may be held liable for damages under Section 1983 of the Civil Rights Act even if they have conspired with immune state officials. 42 U.S.C.A. 1983. [17] Conspiracy 91 19

91 Conspiracy 91I Civil Liability 91I(B) Actions 91k19 k. Evidence. Most Cited Cases Circumstantial evidence consisting of private individuals' discussion of case of local election commissioner and charges of voter fraud with district attorney shortly after commissioner's rejection of offer to settle civil suit arising from same election and involving same individuals, and shortly before filing of information and initiating of state criminal prosecution against election commissioner, supported finding that conspiracy existed between district attorney and said individuals to coerce commissioner into settlement of civil suit. [18] Conspiracy 91 7.5(3)

91 Conspiracy 91I Civil Liability 91I(A) Acts Constituting Conspiracy and Liability Therefor 91k7.5 Conspiracy to Interfere with Civil Rights 91k7.5(3) k. Color of State Law; State Action. Most Cited Cases (Formerly 91k7.7) To establish a claim under civil rights conspiracy statute, a plaintiff need not prove that the alleged wrong occurred under color of state law, inasmuch as statute is applicable to private conspiracies. 42 U.S.C.A. 1985(3). [19] Civil Rights 78 1462

78 Civil Rights 78III Federal Remedies in General 78k1458 Monetary Relief in General 78k1462 k. Grounds and Subjects; Compensatory Damages. Most Cited Cases (Formerly 78k271, 78k13.17(3), 78k13.17) Damages are available under civil rights statute making violation of an individual's civil rights under color of state law actionable for actions found to have been violative of constitutional rights, which such actions are proved to have caused compensable injury. 42 U.S.C.A. 1983. [20] Civil Rights 78 1463

78 Civil Rights 78III Federal Remedies in General

78k1458 Monetary Relief in General 78k1463 k. Mental Suffering, Emotional Distress, Humiliation, or Embarrassment. Most Cited Cases (Formerly 78k273, 78k13.17(5), 78k13.17) **Since the principles of tort damages apply to civil rights actions, an award of compensatory damages may encompass compensation for emotional distress. [21] Conspiracy 91 20

91 Conspiracy 91I Civil Liability 91I(B) Actions 91k20 k. Damages. Most Cited Cases Bad-faith prosecution brought against local election commissioner on voting fraud charges as the result of a conspiracy to harass and retaliate against commissioner for his opposition to local political organization warranted award of $10,000 compensatory damages and $10,000 punitive damages. [22] Civil Rights 78 1465(1)

78 Civil Rights 78III Federal Remedies in General 78k1458 Monetary Relief in General 78k1465 Exemplary or Punitive Damages 78k1465(1) k. In General. Most Cited Cases (Formerly 78k275(1), 78k13.17(7), 78k13.17) Punitive damages are available for violations of those rights secured by Section 1983 of the Civil Rights Act. 42 U.S.C.A. 1983. [23] Civil Rights 78 1465(1)

78 Civil Rights 78III Federal Remedies in General 78k1458 Monetary Relief in General 78k1465 Exemplary or Punitive Damages 78k1465(1) k. In General. Most Cited Cases (Formerly 78k275(1), 78k13.17(7), 78k13.17) Award of punitive damages for violations of those rights secured by Section 1983 of the Civil Rights Act **is appropriate where the violation is willful and in gross disregard for the rights of the complaining party. 42 U.S.C.A. 1983. ARCENEAUX, District Judge. This action, brought pursuant to 42 U.S.C. ss 1983, 1985(2), 1985(3) and 1986, came on for trial on March 26, 1981. The parties submitted post-trial memoranda. Having considered these materials, the testimony and the applicable law, IT IS ORDERED that: 1. The pending state prosecution of plaintiff be permanently enjoined; and, 2. Compensatory damages in the amount of $10,000.00 and punitive damages in the amount of $10,000.00 are owing to plaintiff from defendants Petrovich and Jurjevich, for those violations of plaintiff's constitutional rights, all as more fully set forth below. Preface

Plaintiff alleges that his criminal prosecution on state voting law charges, now pending in the Twenty-fifth Judicial District Court for Plaquemines Parish, constitutes a bad faith prosecution by the District Attorney, Leander Perez, Jr. This prosecution is the result, plaintiff contends, of a conspiracy between defendant Perez and the other defendants, in an attempt to harass and retaliate against him for his opposition to the defendants' political organization. Defendants are also motivated, plaintiff claims, by his refusal to settle, on terms favorable to defendants, an allegedly politically-motivated civil suit for damages filed against him by the defendants. Plaintiff seeks an injunction against defendant Perez, prohibiting plaintiff's prosecution on the state criminal charges, and damages against the remaining defendants. The Parties 1. Defendant Leander Perez, Jr. is the District Attorney for the Twenty-Fifth Judicial District, a position he has held since 1960. Defendants acknowledge that Mr. Perez has been active in Plaquemines Parish politics for many years. 2. Defendant Luke Petrovich is the Commissioner of Public Safety for Plaquemines Parish, and has held that position since 1961. He is the brother and attorney of an original defendant, Mary Petrovich Russell Sinks (since deceased), and a close friend and attorney of defendant Leander S. Jurjevich. 3. Leander S. Jurjevich has been an employee of the Plaquemines Parish Commission Council since 1969, working under the supervision of defendant Luke Petrovich. He has served on occasion as a Poll Commissioner and, on June 25, 1977, was a Poll Commissioner in Plaquemines Parish, Ward 3, Precinct 2. 4. Mary Petrovich Russell Sinks (Ms. Sinks), named as an original defendant, died prior to trial of this matter. Ms. Sinks worked for the Plaquemines Parish Commission Council as a secretary for many years before her death, under the direction of her brother. She had also served as a Parish Poll Commissioner and, on June 25, 1977, was a Poll Commissioner in Plaquemines Parish, Ward 3, Precinct 3. 5. Samuel C. Pizzolato, the plaintiff, is an independent oilfield contractor and boat owner. He was Chairman of the Board of Supervisors of Elections for the Parish of Plaquemines and served as a Poll Commissioner for Elections on numerous occasions. He sought public office on three occasions-State Representative, Constitutional Convention Delegate and Democratic Executive Committee member. He founded and was Chairman of the Plaquemines Parish Loyal Democrat Organization, which organization was made up of supporters of the National Democratic Party. **His political opposition to Mr. Luke Petrovich has included political *917 speeches and radio broadcasts critical of Petrovich. As both parties concede, Mr. Pizzolato has been for many years a political adversary of defendant Leander H. Perez and his family and their political supporters. Background In October of 1976, an election was conducted in the First Congressional District (consisting of the parishes of Plaquemines, St. Bernard and part of Orleans). Mr. Rick Tonry won that race, but subsequently resigned amidst charges of vote fraud. An offshoot of that disputed election was a libel action filed in the Twenty-Fifth Judicial District Court by 68 election commissioners against numerous defendants, including Pizzolato. He, in turn, exerted a counterclaim against plaintiffs and their attorney, Luke Petrovich. Among the plaintiffs were Mary Russell Sinks and Leander Jurjevich. The complaint in the libel action alleged that defendants had published allegations that vote fraud had occurred in Plaquemines Parish and that these allegations had libeled all the election officials working in the October election. The matter was removed to federal court and was pending as this case went to trial. As a result of Mr. Tonry's resignation, a special primary election was held on June 25, 1977 in the First Congressional District. In this election, plaintiff was a campaign worker for Mr. Tonry and was selected by the Board of Election Commissioners to work as an election commissioner in the primary. He volunteered to work in Ward 3, Precinct 3, in Buras, Louisiana (not his home polling place), because there would not otherwise be a Tonry supporter working in that polling place. Ms. Sinks had also been assigned to that poll. At approximately 11:30 a. m. on election day, a machine in Ward 3, Precinct 3, was set incorrectly. Margaret

Kleinpeter, the wife of one of that precinct's election commissioners and a registered Republican, entered a machine to vote. Mrs. Kleinpeter called out from inside the curtain that she could not cast her vote and exited the machine, leaving it ready to register a Democrat's vote. She was then directed to a machine set for a Republican. At this point, there is some conflict in the testimony as to who said what. Pizzolato indicates that Mr. Kleinpeter said, It's set for a Democrat, Sam, you go in and vote. Kleinpeter testified that it was Pizzolato who suggested that he, Pizzolato, vote. It is not disputed, however, that plaintiff then entered the machine and cast a vote, despite the fact that he was not registered to vote in that precinct. Upon exiting the machine, Pizzolato indicated that he had made an error in voting in that precinct. Kleinpeter testified that he and Pizzolato realized at the same time that a mistake had occurred; i. e., as Pizzolato exited the machine. As Kleinpeter described it: You would have to actually been there. It's hard to describe. You know, your mind plays tricks on you, or mine does frequently, and it was as if we both got the same ... arrived at the same conclusion at the same time. We were standing very closely. And it might have been me who did it rather than Sam, and it was very evident to me that when he ... that he did it unintentionally. That is, he forgot momentarily that he was not a voter at the precinct and in that ward. Unfortunately, until after he pulled the trigger ... and we both realized it almost immediately that he had done it the wrong way. I just ... it was to me at *918 that time it was ... it wasn't going to be that big a deal, but it turned out to be. (Transcript 103). Pizzolato then immediately announced that he wished to sign an affidavit and Ms. Sinks wrote the following on a blank sheet of paper 11:50 A.M. 6-25-77 Samuel J. Pizzolato voted in 3-3 Machine # 15471. Kleinpeter wrote on the back of the paper voted in error by confusion. All the commissioners, including Pizzolato, signed the paper, and it was placed in the election paraphernalia. After this occurrence, Mrs. Sinks phoned Luke Petrovich and told him what happened. This action was allegedly precipitated by Ms. Sinks' experiences with the previous election, relative to the allegations of vote fraud. **Petrovich came to the poll and, according to plaintiff, accused Pizzolato of vote fraud. Petrovich then left the polling place. Later that day, Pizzolato left the Buras poll (Ward 3, Precinct 3), and went to his home precinct in Boothville (Ward 3, Precinct 2) and again cast a vote. He mentioned to several acquaintances that he had, by mistake, voted in Buras. Defendant Jurjevich, a commissioner at the Boothville poll, called defendant Sinks with this information, which Ms. Sinks then relayed to Petrovich. Later that day, Petrovich prepared a set of typed affidavits for all commissioners, except Pizzolato, to sign. Commissioners Pelas, Sercovich, Kleinpeter and Sinks signed these affidavits, which stated that Pizzolato had voted in a precinct other than the one in which he was registered and that he had been absent from the poll several times during the day. Petrovich then proceeded to the Boothville poll and asked the commissioners there to sign the affidavit he had prepared, which affidavit stated that Pizzolato had voted in that precinct. Defendant Jurjevich and two other commissioners signed the affidavit. Plaquemines Deputy Sheriff Martinez, who had driven Petrovich to Boothville, prepared a Supplementary Investigation Report which recounted his receipt of two complaints from Petrovich concerning Pizzolato voting twice. **This report was filed in the office of District Attorney Leander Perez. Inasmuch as Pizzolato was present at the Buras poll when Petrovich arrived with the affidavits he was aware that an investigation was underway relative to the voting incident. He then called the Federal Bureau of Investigation (F.B.I.) that evening to report the incident and request an investigation. He was, four to five days after this incident, interviewed by F.B.I. agents. On the Monday following the Saturday primary, defendants Petrovich and Jurjevich and Deputy Martinez drove to New Orleans and met with U.S. Attorney Gerald Gallinghouse to complain about Pizzolato's actions. Copies of the affidavits were given to Gallinghouse and the F.B.I. investigated the matter. On July 15, 1977, the U.S. Attorney's Office declined to prosecute the matter, finding:

Even though it is evident that Pizzolato cast two votes during this election, it is unlikely that any criminal intent could be proved. He made no effort to conceal his mistake and there is no evidence to support a finding that he intentionally cast a fraudulent vote or deprived citizens of their civil rights. For these reasons, we are closing our files on this matter and request no further investigation. (Rpt. of Irving Warshauer, Asst. U.S. Atty., July 15, 1977, Pl. Ex. # 3). Except for the June 25 investigative report of Deputy Martinez, no further state or local action was taken against Pizzolato relative to this matter for two years. On the evening of June 21, 1979, Petrovich called the District Attorney, defendant Perez, and asked what action that office intended to take in the matter, inasmuch as the two-year prescriptive period was about to run. Perez told Petrovich to have his clients (Sinks and Jurjevich) appear as prosecution witnesses before the Justice of the Peace, swear out a complaint, and meet with Assistant District Attorney Mr. Frank *919 Klein. **This meeting occurred the next morning, on June 22, 1979, and subsequently Klein filed a Bill of Information against Pizzolato for vote fraud, which charge was a felony under the then-existing state statute. **It is at this point, plaintiff claims, that the bases of the claims exerted in this matter and the civil action filed by the 68 election commissioners (Ragas v. Davis ) become intertwined. **Petrovich, who in the spring of 1979 was the sole attorney representing those 68 plaintiffs, approached Pizzolato's attorney in that matter, one Joseph Defley, with a settlement proposal. Defley relayed the proposal to Pizzolato and another defendant in that matter, whom he also represented, both of whom rejected the settlement offer. On June 20, 1979, Defley conveyed this rejection, by certified letter, to Petrovich. This Court finds that this letter was received by the office of defendant Petrovich on June 21, 1979. This finding results, despite Petrovich's testimony that he did not think he first saw the letter on June 21, and could not say when he did see it, from the following indicia of receipt: 1) the certified receipt tab shows the first notice of receipt as June 21, 1979. The date of July 6, 1979, which Petrovich testified was indicative of receipt, was the return date (i. e., the date on which the post office would have returned the letter to Defley had it not been claimed); and, 2) the original of the letter is stamped Received June 21, 1978 by a stamp Petrovich identified as the one used by his office, which stamp was obviously mistakenly set for 1978 instead of 1979. It was on June 21, 1979 that Petrovich called defendant Perez to discuss the prescription issue relative to the incident of July 25, 1977. On the evening of June 23, Pizzolato was arrested and subsequently released on his own recognizance. In late July or early August, Mr. Defley filed a motion to recuse the state judge to whom the criminal case had been allotted. Defley testified about a conversation he had with defendant Perez incident to that motion: ... I went to see Mr. Perez in his office, and I told him I thought this was a garbage case, and I asked him to dismiss it. I said there was no intent to commit fraud here. **He said he could not dismiss this case because it was his understanding that there was a civil action pending, and that the civil action had to be completed, disposed of before he would take care of this case, dispose of this case. Q. To your knowledge was there any civil action pending regarding Mr. Pizzolato except for Ragas v. Davis ? A. None, none whatsoever. Mr. Perez also advised me that the action on the criminal matter, that there would be no problem withholding any further proceedings in the criminal matter until the civil matter was disposed of. (Transcript 119-120).

At the time of the trial of this matter, the state criminal charges against Pizzolato relative to the voting incident remained open, though the U.S. Attorney's report, quoted above, indicates that the matter was not being pursued by that office. The opposing parties' explanations for the actions which brought about this complex and bizarre sequence of events are important to the legal analysis of plaintiff's claims. Defendant Petrovich testified that he was motivated by a desire to protect his clients, Sinks and Jurjevich, from charges that they, as election commissioners, might be somehow responsible for Pizzolato voting twice. Defendant Perez testified that during the two years between the incident and the prosecution, the voting error was always in my mind and that he was watching closely the prescription date. This purported concern was obviously never communicated to anyone, and Perez testified that he conducted no prosecution because he had no formal complaint about the matter. The suggestion was also made by counsel for the defense that the conversation between Defley and Perez, in which Perez allegedly told Defley the criminal matter could be put in abeyance once the pending civil case was settled, occurred in *920 October of 1979, at the time of Pizzolato's arraignment. Thus, that conversation referred to this case, rather than Ragas. Plaintiff claims that defendants were merely motivated by a desire to harass him for his political opposition and were finally prompted to do so by his refusal to settle the Ragas case on their terms. Consequently, in retaliation, they conspired to file the criminal charges which were the catalyst for this litigation. Factual and Interpretive Findings **This Court finds that a conspiracy did exist among the defendants. This finding arises from the facts set forth above and the conclusions which they mandate. This Court is not convinced that Sinks and Jurjevich feared being prosecuted themselves as a result of the voting incident of 1977. The results of the June 1977 primary were never challenged, and no suggestion of wrongdoing on the part of the election commissioners was ever made by anyone. Defendant Petrovich admitted that he did not make a single contact with any other law enforcement official until his call to Perez on June 21, 1979, and that he was then aware that the United States Attorney was not going to investigate the matter further. As a result of his legal background, Petrovich must have also been aware that no state prosecution would begin without the filing of a formal complaint. This Court has already found as a matter of fact that the Defley letter rejecting the settlement offer by Petrovich on behalf of his clients was received by Petrovich's office on June 21, 1979. This Court does not believe that, after a two-year lapse, it was mere coincidence that Petrovich called Perez about Pizzolato on the evening of June 21, 1979. This Court also does not believe that Mr. Petrovich would jeopardize a settlement proposal which was allegedly still on the table (assuming Mr. Petrovich had not seen the letter by June 21) by having his clients file criminal charges against Pizzolato. Nor is the Court convinced by the explanation offered by defense counsel of Perez' conversation with Defley. Defley emphatically stated that his conversation with Perez occurred in July or August of 1979-i. e., before the instant suit had been filed. The complaint in this matter, filed in September of 1979, alleges that, on August 6, 1979, plaintiff's attorney in the state court case, Mr. Defley, had the conversation testified to by Mr. Defley with Mr. Perez. It is not within the realm of possibility that plaintiff's counsel in this case would have alleged a conversation that was yet to take place. Thus, defendant's suggestion that this conversation arose in October and was relative to this litigation is rejected. Law [1][2] It is well settled that, absent extraordinary circumstances, principles of comity and federalism mitigate against federal court intervention in a pending state criminal prosecution. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971). **The exception to this general rule arises where plaintiff makes a showing of either bad faith or harassment by the state authorities who are pressing the prosecution; Moore v. Sims, 442 U.S. 415, 432, 99 S.Ct. 2371, 2381-2382, 60 L.Ed.2d 994 (1979); Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed.2d 701 (1971); Kolski v. Watkins, 544 F.2d 762 (5th Cir. 1977); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979); Shaw v. Garrison, 467 F.2d 113, 120 (5th Cir. 1972), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); Stewart v. Dameron, 448 F.2d 396 (5th Cir. 1971); Duncan v. Perez, 445 F.2d 557, 560 (5th Cir. 1971), cert. denied, 404 U.S. 940, 92 S.Ct. 282, 30 L.Ed.2d 254 (1971). [3] The Younger doctrine is premised upon the assumption that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights. Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15 (1975). A good faith prosecution cannot constitute irreparable*921 harm merely because the individual subject to the prosecution undergoes inconvenience, anxiety and expense. Douglas v. City of Jeannette, 319 U.S. 157, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943), inasmuch as no citizen ... is immune from prosecution in good faith, for his alleged criminal acts. Younger, supra, at 46, 91 S.Ct. at 751, quoting Beal v. Missouri Pacific R.R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941). [4] If, however, the element of bad faith or harassment exists, the above presumptions cease to operate. **The effect of showing of a bad faith prosecution is equivalent to a showing of irreparable injury. Wilson v. Thompson, supra at 1382. [5][6][7][8] The guises under which bad faith prosecutions appear are many. Perez v. Ledesma, supra at 117, 91 S.Ct. at 693. **There are four major forms which have been distinguished by the courts, however. Davila v. State of Texas, 489 F.Supp. 803, 808-809 (S.D.Tex.1980). **One such form occurs where prosecution is brought under a valid statute in an attempt to retaliate for a federal plaintiff's exercise of constitutional rights. Heimbach v. Village of Lyons, 597 F.2d 344 (2d Cir. 1979); Wilson v. Thompson, supra at 1382 n.7. **A second type of bad faith harassment occurs when a serious prosecution is undertaken for a relatively minor offense, and is coupled with a selective process arising in an atmosphere of political and/or racial hostility. Sobol v. Perez, 289 F.Supp. 392 (E.D.La.1968); Duncan v. Perez, supra. **Another type of bad faith prosecution occurs where the prosecution is brought under a valid statute but with no reasonable belief that a conviction will follow. Perez v. Ledesma, supra at 118 n.11, 91 S.Ct. at 693 n.11; Kugler v. Helfant, supra at 126 n.6, 95 S.Ct. at 1531 n.6. **It is not required in this circuit, however, that a showing of an unquestionable legal bar to prosecution be made prior to a finding of bad faith. Jarvis v. Knowlton, 459 F.Supp. 687, 691 (N.D.Tex.1978); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. 1981). The final form of recognized bad faith prosecution arises when the prosecution is motivated by a desire for personal and political gain, which prosecution evidences some degree of impermissible selectivity, even though taken pursuant to a lawful statute. Shaw v. Garrison, supra. [9] The facts of this case indicate that a bad faith prosecution has occurred here, and that the prosecution contains some elements of all of the modes cited above. In its most compelling shape, however, it arose in retaliation for, and to discourage, the exercise by plaintiff of his constitutional rights. Plaintiff, in filing his counterclaim in the Ragas case and in refusing to settle same, was engaged in constitutionally protected conduct. **Access to the courts is protected by the first amendment right to petition for a redress of grievances. Wilson v. Thompson, supra at 1387; N.A.A.C.P. v. Button, 371 U.S. 415, 429-430, 83 S.Ct. 328, 335-336, 9 L.Ed.2d 405 (1963); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). The retaliatory and/or deterrent nature of the prosecution is indicated by the conversation (the occurrence of which was never controverted by defendant Perez) between Perez and Mr. Defley. Perez indicated that he would not drop the criminal prosecution until the civil matter in which plaintiff was involved (i. e., Ragas ), was terminated. His willingness to delay the prosecution pending resolution of the Ragas matter is further indication of his readiness to wield his prosecutorial powers to bring about a chilling of plaintiff's exercise of his first amendment rights. There are numerous factual similarities between this case and the setting in Wilson v. Thompson, supra. There, the federal plaintiffs had previously been charged with misdemeanors in state court. They brought suit, under Section 1983, alleging that the once-dormant state prosecution was re-activated in bad faith, so as to deter them from seeking redress of grievances. The Fifth Circuit reversed the lower court's denial of a preliminary injunction as to

the state prosecutions and applied the following test for determination of whether bad faith had occurred: *922 The Court should consider whether the plaintiffs have shown, **first, that the conduct allegedly retaliated against or sought to be deterred was constitutionally protected, and, **second, that the State's bringing of the criminal prosecution was motivated at least in part by a purpose to retaliate for or to deter that conduct. If the court concludes that the plaintiffs have successfully discharged their burden of proof on both of these issues, it should then consider a third: whether the State has shown by a preponderance of the evidence that it would have reached the same decision as to whether to prosecute even had the impermissible purpose not been considered. Wilson, supra at 1387. The Court went on to state that factors pertinent to **the third consideration were whether the state prosecution was undertaken without hope of a valid conviction and the seriousness of the criminal activity alleged. As indicated by the foregoing discussion, this Court considers plaintiff to have borne his burden in proving the first and second parts of the aforementioned three-part test. It is not convinced, however, that the State has shown by a preponderance of the evidence that it would have reached the same decision to prosecute had the impermissible purpose not been considered. The testimony of defendant Perez leads this Court to the conclusion that he would have taken no action in the criminal matter without the impetus of Petrovich's June 21st phone call. It was uncontested that, in the period between August 1977 and June 21, 1979, no action had been taken on the state or federal level relative to the allegedly fraudulent voting incident. Furthermore, defendant Perez knew then, and certainly knows now, the questionable basis for the state prosecution. The significance of the activity, and the reasonable expectation of conviction are, in light of the circumstances surrounding the occurrence, minimal. [10] As stated in Kugler v. Helfant, supra at 126 n.6, 95 S.Ct. at 1531 n.6, bad faith in (the Younger ) context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction. The standard governing plaintiff's showing of the unlikeliness of the prosecution's success is a flexible and realistic one, Jarvis v. Knowlton, supra, and **plaintiff need not prove that the prosecution could not possibly result in a conviction. Fitzgerald v. Peek, supra at 945. The incident resulting in plaintiff's arrest was promptly investigated by the federal authorities. Their findings convinced them that the matter should not be pursued. Since that time, no new facts have been discovered, nor has any subsequent investigation been made. This Court has found evidence of improper motivation. The element of selectiveness is also apparent in that the other election commissioners present at Buras and Boothville could have been charged with the second of the two counts entered against plaintiff-i. e., the action taken, as an election commissioner, in counting a fraudulent vote. No such charges were brought against anyone other than plaintiff. While defendants make much of the fact that plaintiff is charged in the criminal prosecution with a felony , the gravity of this fact is mitigated by the unlikelihood of finding criminal intent, given the strange chain of events surrounding the voting fraud incident. Duncan v. Perez, supra at 560. While the charges pending against the plaintiff are now punishable at a maximum of six months each, defendant Perez seeks to prosecute him under the statute in effect at the time of the incident. That prior statute treats these allegations as punishable by up to four years imprisonment. See Duncan v. Perez, supra at 559 n.3 (maximum penalty sought for trivial offense is a factor to be considered in a determination of bad faith). Relative to defendant Perez's current knowledge of the circumstances surrounding this matter, his continued pursuit of this prosecution is, itself, an indication of a bad faith prosecution which should be enjoined. Wilson v. Thompson, supra at 1388 n.23 (noting that subsequent discovery by prosecution of its mistaken factual basis may be a ground for injunctive relief). *923 [11] Plaintiff has therefore established to this Court's satisfaction that a bad faith prosecution occurred. Where the Younger doctrine is inapplicable, the Anti-Injunction Act, 28 U.S.C. s 2283 does not bar an injunction. Accordingly, the lower court's prosecution of plaintiff on the criminal charge described above is to be enjoined. Henry v. First National Bank of Clarksdale, 595 F.2d 291, 300 (5th Cir. 1979); Mitchum v. Foster, 407 U.S. 225, 92

S.Ct. 2151, 32 L.Ed.2d 705 (1972). [12][13] Defendant Perez is immune from damage liability in a suit under Section 1983, since the acts complained of were within the scope of his duties as district attorney. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979). Plaintiff seeks damages from the two remaining defendants, Petrovich and Jurjevich, based upon his allegations that they acted in concert with the prosecutor in bringing about the bad faith prosecution. Conspiracies to deprive one of his constitutional rights are actionable under Section 1983, and a showing of class-based discrimination is not a prerequisite to liability. Mizell v. North Broward Hospital Dist., 427 F.2d 468, 472 (5th Cir. 1970); Crowe v. Lucas, 595 F.2d 985, 990 (5th Cir. 1979). [14][15][16] To sustain a claim under Section 1983, plaintiff must show both a deprivation by defendant of a constitutionally secured right and that defendant acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Private persons, conspiring or participating in joint activity with state officials in prohibited conduct, may be sued under Section 1983, inasmuch as they are deemed to be acting under color of state law. Adickes v. Kress, supra at 150-152, 90 S.Ct. at 1604-1605; Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. 1981); Williams v. Rhoden, 629 F.2d 1099, 1102 (5th Cir. 1980). Private individuals may be held liable for damages under Section 1983 even if they have conspired with immune state officials. Cook v. Houston Post, 616 F.2d 791, 794 (5th Cir. 1980), Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976, 983 (5th Cir. 1979) (en banc); aff'd sub nom; Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). This Circuit has held that proof of a civil conspiracy's existence does not require direct evidence of the agreement between the conspirators. Rather, the proof of an agreement to act in concert must often rest on circumstantial evidence. **The evidence here showed that the defendants had participated in private meetings at which (plaintiff) was discussed. From this evidence and the testimony regarding the defendants' course of conduct toward (plaintiff) the jury could reasonably have inferred that a conspiracy existed. Crowe v. Lucas, supra at 993. [17] The Court is convinced that defendants Perez and Petrovich reached a meeting of minds relative to the manner in which the plaintiff was to be pressured into settling the Ragas litigation. Defendant Jurjevich shared in the general objective of defendants Petrovich and Perez, which objective was to coerce the plaintiff into a settlement of a suit in which he was a plaintiff. This shared objective constitutes the common plan; the overt acts of filing the information and initiating the prosecution constitute acts in furtherance of the conspiracy. Plaintiff was the object of discussion in the telephone conversation between defendants Petrovich and Perez, as well as in discussions between defendants Jurjevich and Petrovich. Crowe, supra. When these facts are coupled with the timing of subsequent events-the call to Perez following Defley's rejection of the complaint, the marshalling of complainants Jurjevich and Sinks, the arrest of plaintiff-strong circumstantial evidence permits this Court to conclude that a conspiracy existed between defendant Perez and defendants Jurjevich and Petrovich. Plaintiff also brings suit under 42 U.S.C. ss 1985(3) and 1985(2). However, as is conceded by plaintiff, since this Court has already found a violation of Section 1983 and also found conspiracy under that section,*924 this Court's decision may rest upon that ground, rather than the alternative Section 1985 conspiracy grounds. **It is noted that this Court is not convinced that plaintiff has made out a cause of action under Section 1985(2). This determination results from this Court's reading of Kimble v. D. J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981) (en banc). The Court referred to the four-part breakdown of 42 U.S.C. s 1985(2), which was enunciated by thenDistrict Court Judge Alvin Rubin: A. If two or more persons conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein ... or

B. to injure such party or witness in his person or property on account of his having so attended or testified, or C. if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or D. to injure him or his property for lawfully enforcing ... the right of any person, or class of persons, to the equal protection of the laws. Plaintiff bases his claim under this statute upon defendants' alleged violation of the second and third clauses (i. e., B and C above). The Court in Kimble v. McDuffy, supra, held that the racial or class-based animus requirement of Section 1985(3) is fully applicable to all parts of Section 1985(2). The Court reiterated that class-based animus may arise as a result of an individual's political beliefs or associations. This Court is convinced that plaintiff was the subject of class-based animus, stemming from his political alignments, which alignments were adverse to the defendants. However, the Kimble Court enunciated a very narrow construction of the attend or testify language appearing in Clause B. It quoted with approval the District Court's interpretation of the phrase: (Section 1985(2)) does not create a claim for every conspiracy entered into with intent to deny a citizen access to a court or to retaliate against a citizen for his utilization of the federal court system. If they are to come within the plain language of the statute, plaintiffs must allege that they were injured on account of having attended or testified in federal court. This they have not done .... At most, the conspiracy charged was aimed at injuring the plaintiffs on account of their having asserted a claim or filed a lawsuit. Congress did not undertake to make that behavior actionable. 445 F.Supp. at 276 (emphasis in original; footnotes omitted). The en banc decision then honed the meaning of this language even further: In light of the acts of violence that threatened the sanctity of federal courts, Congress meant Section 1985(2) to protect a party based on his physical presence while attending or testifying in court. Kimble, supra at 348. As a result of this interpretation of attend or testify, plaintiff's claim under Clause B of Section 1985(2) is denied. Plaintiff concedes that there is little jurisprudence relative to a claim brought under Clause C, other than to recognize that it too requires a finding of class-based animus and independent illegality. This Court is not disposed to interpret the obstructing ... the due course of justice language as encompassing the violation alleged here (i. e., institution of a frivolous criminal action), and would deny plaintiff's claim for relief based upon this section of Section 1985(2). [18] To establish a claim under Section 1985(3), plaintiff need not prove that the alleged wrong occurred under color of state law, inasmuch as Section 1985(3) is applicable to private conspiracies. Scott v. Moore, 640 F.2d 708, 717 (5th Cir. 1981); Sims v. Jefferson Downs, Inc., 611 F.2d 609, 614 (5th Cir. 1980). See generally Griffin v. Breckenridge, 403 U.S. 88, 101-103, 91 S.Ct. 1790, 1797-1799, 29 L.Ed.2d 338 (1971). *925 The elements of a civil action under this section were set out in Griffin, supra : **(1) The defendants must conspire or go in disguise on the highway or premises of another; **(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and **(3) one or more of the conspirators must commit some act in furtherance of the conspiracy; whereby

**(4) another is either (a) injured in his person or property or (b) deprived of having and exercising any right of privilege of a citizen of the United States. The Fifth Circuit has amplified on the above by the addition of the element of independent illegality-i. e., that the conduct complained of is unlawful, independent of the Section 1985(3) violation. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (en banc). This Court has determined that a conspiracy existed among the defendants. As set forth more fully, infra, the plaintiff incurred personal injury and loss as a result. **The Court has also determined that defendants were motivated in their conspiratorial acts by class-based bias, relative to plaintiff's political activities. This determination was made by application of Scott v. Moore, supra at 720, 723, citing cases relative to classes discriminated against because of their political beliefs. See also Kimble v. McDuffy, supra at 347. **This Court also finds that, inasmuch as the right to seek redress in the Courts, as well as the right of free association, are protected by the First Amendment, plaintiff has suffered a violation of a protected right. Scott v. Moore, supra at 716; Wilson v. Thompson, supra at 1383. However, this Court is not convinced that plaintiff has shown an independent illegality. Nor is it convinced that its own finding that a violation of Section 1983 occurred provides evidence of such an illegality. As stated in Great American Federal Savings & Loan Assn. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 2354, 60 L.Ed.2d 957 (1979) (J. Stevens, concurring): Neither of these sections (1983 and 1985(c)) created any substantive rights. Earlier this term we squarely held that Section 1983 merely provides a remedy for certain violations of federal rights, and today the Court unequivocally holds that Section 1985(c) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designated: Ante at 2349. This Court further finds that plaintiff has failed to prove a violation of any state law so as to satisfy the independent illegality requirement.[FN1] FN1. Plaintiff alleges violations of state extortion laws, as well as the intentional infliction of emotional distress and the tort of malicious prosecution. The Court does not find these proved. The Court also questions whether the act in furtherance of the conspiracy (i. e., the filing of charges) is legally sufficient for Griffin purposes. The oft-quoted language of United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883) describes the acts by which a private person can deprive another of the equal protection of the laws: ... some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault or murder. Id. at 643, 1 S.Ct. at 612. As stated in Scott v. Moore, supra at 724: But where ... force or violence is used to deprive ... workers ... of the right to freely associate ... a Section 1985(3) action will lie. See also McLellan v. Mississippi Power & Light, supra at 928 n.34: We also draw support for our reading of the statute from the very nature of a civil conspiracy. In a common law tort conspiracy, unlike a criminal conspiracy, a mere combination or agreement to commit a tort is not in itself actionable. Rather, some act which is itself a tort must be taken in furtherance of the object of the conspiracy. See generally W. Prosser, supra note 26, s 46; Burdick, Conspiracy as a Crime and as a Tort, 7 *926 Colum.L.Rev. 229 (1907). Section 1985(3), requiring as it does an act in furtherance of the object of the conspiracy and an injury to the plaintiff, closely tracks the elements of a common law conspiracy to commit a tort. Thus, plaintiff's claim to redress under Section 1985(3) is not cognizable; this Court does not believe that the requisite showings of an act in furtherance of the conspiracy and independent illegality have been made. DAMAGES

[19][20] Damages are available under 42 U.S.C. s 1983 for actions found to have been violative of constitutional right, which actions are proved to have caused compensable injury. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Since the principles of tort damages apply to civil rights actions, an award of compensatory damages may encompass compensation for emotional distress. Garner v. Giarrusso, 571 F.2d 1330 (5th Cir. 1978); Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978). Although plaintiff was not incarcerated, having been released on his own recognizance after booking, **he has incurred damage by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication. Younger v. Harris, supra, 401 U.S. at 56, 91 S.Ct. at 757 (concurring opinion of Stewart and Harlan, JJ). Plaintiff testified that the charges, though trivial, have been a constant source of concern to him and his family. This concern is rooted in his fear that, in Plaquemines Parish, he could be convicted and sentenced to a substantial jail term. Indeed, the first judge to whom plaintiff's state court case was assigned recused himself as a result of public statements he had made relative to the vote fraud incident. Plaintiff also testified to the serious chilling effect that these charges have had on his political activity: As an opponent of (the Perez) organization, I have been, I think by this action that they have brought against methat some of the people in the Parish have looked upon me as some kind of wrongdoer and it has tainted me to them to the degree that my political future or my political position is strained, and I personally will have to go through a bit of soul-searching to ever serve in a poll again, or to ask any of my friends to serve in a poll again, for fear the same thing may happen to them. Tr. 32-33. ... I fear that if ever I would make another honest error, that I could never make anyone believe that I had made two honest errors. I am having a hard enough time making people believe I made one honest error. Consequently, I don't dare serve as an election commissioner again. Tr. 76. Plaintiff stated that he declined to work as an election official for a friend when that individual ran for a School Board seat. Plaintiff stated that he feared his taint might rub off on that individual, thereby hurting his chances of success. [21] Accordingly, this Court finds that compensatory damages are owing to plaintiff from defendants Jurjevich and Petrovich in the amount of $10,000.00. [22][23] Punitive damages are also available for violations of those rights secured by 42 U.S.C. s 1983. Palmer v. Hall, 517 F.2d 705, 707 (5th Cir. 1975); Mansell v. Saunders, 372 F.2d 573, 576 (5th Cir. 1967). Such an award is appropriate where the violation is willful and in gross disregard for the rights of the complaining party. Lee v. Southern Home Sites Corp., 429 F.2d 290, 294 (5th Cir. 1970); see generally Adickes v. S. H. Kress & Co., supra at 233-234, 90 S.Ct. at 1642-1643. This Court finds direct as well as circumstantial evidence that the defendants' actions in maintaining and pursuing the criminal prosecution of plaintiff were done willfully and in callous disregard for the rights of plaintiff. The amount of punitive damages which this Court finds to be owing is within the range of awards granted for *927 comparable violations. See Palmer v. Hall, supra (Section 1983 case; $15,000 punitive damage award); Zarcone v. Perry, supra (wrongful arrest; $60,000 punitive damage award). Accordingly, plaintiff is awarded punitive damages from defendants Petrovich and Jurjevich in the amount of $10,000.00. Defendant Perez is, for the reasons set forth above, enjoined from prosecution of the criminal charges now pending against plaintiff. Judgment shall be entered accordingly.

Yellow flag Phelps v. Hamilton, 59 F.3d 1058, 23 Media L. Rep. 2121 (10th Cir.(Kan.),Jul 11, 1995)
Wichert v. Walter, 606 F.Supp. 1516, 24 Ed. Law Rep. 917 (D.N.J.,Apr 22, 1985)

expansive instruction on all the cases that meet the finding of bad faith prosecution. Kelly v. Gilbert 437 F.Supp.201
Kelly v. Gilbert, 437 F.Supp. 201, 24 Fed.R.Serv.2d 700 (D.Mont.,Oct 04, 1976) 20 The terms bad faith and harassment connote purposeful actions and conduct motivated by a malicious or discriminatory purpose. Maney v. Ratcliff, 399 F.Supp. 760, 772 (E.D.Wis.1975). Bad faith generally means a prosecution brought without a reasonable expectation of obtaining a valid conviction, harassment having much the same meaning. **But they can also mean the exercise of authority in such a manner as to be unnecessarily oppressive. Timmerman v. Brown, 528 F.2d 811, 815 (4th Cir. 1975). 21 My review of the evidence adduced in this action establishes a basis to believe, among other things, the following. Witnesses were intimidated by the special prosecutors conduct in investigating alleged violations of criminal law and in the way witnesses were examined in the presence of the grand jury. This is succinctly expressed by William A. Pellegrini, when he responded to a question with the following answer: A Well, they started asking me the same questions all over again that Id answered the year before. But this time, though, there was an underlying-I dont know exactly how to put this, really-but as the conversation went along-lets put it like this-I felt I was being threatened, and I didnt know why. You know, to be threatened, you dont have to have somebody come right out and say Im going to do this to you or Im not going to do this to you, or Youre going to do this or Youre going to do that. You know, people can threaten you just by the way they act, the tone of their voice or a look in their eye. You know, I grew up in a place-well, in Anaconda-and Ive never been exactly the docile type, so Ive been in fights with different people in town, and I know when a guy is after my butt, so to speak. And thats just the definite impression I got from Mr. Gilbert. Tr. of Deposition of Pellegrini, of Sept. 14, 1976, p. 5, l. 19, to p. 6, l. 3. The special prosecutor approached Kelly, without the knowledge or consent of Kellys attorney, and discussed Kellys grand jury testimony. The states prosecutors presented argument and evidence to the grand jury without the presence of a court reporter. The questioning of Kelly was far beyond the scope of legitimate grand jury inquiry in Montana. The questions asked after immunity have all the trappings of laying the groundwork for perjury. Kelly has been denied a factual hearing on his claims in state court. Individually or together, these facts amount to an unnecessarily oppressive exercise of authority denying the plaintiff his constitutional right to the due process of law. At times, the due process clause of *222 the Fourteenth Amendment acts as a constitutional stop sign, controlling the traffic of the interaction between a state and her citizens, designed to impart caution and ensure fairness at significant junctures of that relationship. In extraordinary circumstances, the federal courts are called upon to stop the activities of the state. This case is one such instance. Timmerman v. Brown, 528 F.2d 811 (4th Cir.(S.C.) Dec 15, 1975) State prisoners brought Civil Rights Acts suit against various state and county officials seeking money damages as well as equitable and declaratory relief. The United States District Court for the District of South Carolina, Robert S. Chapman, J., dismissed county magistrate and solicitor and certified dismissal as a final judgment, and plaintiff appealed. The Court of Appeals, Winter, Circuit Judge, held that although solicitor and magistrate were immune

from suit for money damages they were not immune from equitable and declaratory relief and that plaintiffs, seeking to enjoin their pending state prosecution, had alleged a case of bad faith or harassment by state officials. Reversed and remanded. 2 Criminal Law Nature and Necessity Criminal Law Grounds and Considerations
110 Criminal Law 110XII Pretrial Proceedings 110k215 Preliminary Warrant or Other Process 110k216 Nature and Necessity 110 Criminal Law 110XVI Nolle Prosequi or Discontinuance 110k303.5 Dismissal, Nolle Prosequi, or Discontinuance 110k303.30 Grounds and Considerations 110k303.30(1) In General (Formerly 110k302(1))

Under South Carolina law, a prosecutor lacks authority to interfere with the magistrates issuance of an arrest warrant once the magistrate has found probable cause; however, the prosecutor may thereafter nol pros the prosecution, in open court, if he concludes that the state cannot prove a case. Cases that cite this headnote 3 Federal Courts Particular Proceedings

170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(A) In General 170Bk20 Ancillary and Incidental Jurisdiction 170Bk21 Particular Proceedings (Formerly 106k264(2))

Where a federal court is justified in enjoining a pending state criminal prosecution, the federal court may also entertain ancillary claims for declaratory and injunctive relief. 28 U.S.C.A. 2283; 42 U.S.C.A. 1983. Cases that cite this headnote

Courts

Criminal Proceedings

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) Criminal Proceedings

State prisoners Civil Rights Act complaint alleging that various state and county officials were acting under color of state law to deprive plaintiffs of First and Fourteenth Amendment rights by abusing plaintiffs without provocation, by maliciously and in bad faith causing issuance of warrant for arrest and prosecution of plaintiffs and **by refusing to allow issuance of criminal warrants against the plaintiffs attackers even though magistrates had found probable cause for their issuance alleged a case within the bad faith or harassment exception to the Younger rules, i. e., that federal courts are not to enjoin a pending state criminal prosecution. U.S.C.A.Const. Amends. 1, 14; 28 U.S.C.A. 2283; 42 U.S.C.A. 1983, 1985.

Cases that cite this headnote WINTER, Circuit Judge:

In plaintiffs suit for equitable relief, declaratory relief and money damages because defendants allegedly were violating plaintiffs first and fourteenth amendment rights by prosecuting them and **by suppressing the prosecution of others, the district court granted motions to dismiss in favor of Franchot A. Brown and John Foard, Magistrate and Solicitor, respectively, for the County of Richland, South Carolina. The district court ruled that both defendants were immune from suit since the actions complained of concerned the exercise of their respective judicial and quasi-judicial immunity. After entry of an order certifying the dismissal as a final judgment, Rule 54(b), F.R.Civ.P., this appeal followed. 1 Although Brown and Foard are immune from suit for money damages, we hold that they are not immune from equitable and declaratory relief. Contrary to the arguments of these defendants, **we also conclude that plaintiffs have alleged a cause of action which survives the restrictive rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Accordingly, we conclude that dismissal as to Brown and Foard was erroneously granted. We reverse and remand for further proceedings. I. For purposes of this appeal, we accept, as we must, the facts as alleged in the complaint. It sets forth that plaintiffs are prisoners incarcerated at the Central Correctional Institution at Columbia, South Carolina. 1 On August 11, 1973, plaintiff Timmerman, falsely accused of being under the influence of alcohol, was brutally assaulted and then handcuffed by certain of the defendant correctional officers of Central. While helpless to defend himself, he was further brutally and maliciously battered by these defendans. Plaintiff Thomas and several other inmates attempted to protect Timmerman from further injury, and as a result of their efforts the beating was discontinued and both plaintiffs were returned to their cells. Although Timmerman suffered multiple physical injuries apparent to anyone observing him, he was denied medical treatment. Although it is not alleged that Brown and Foard participated in the beating or denial of medical treatment, they were fully informed of the facts. **Nonetheless, they conspired to deprive plaintiffs of their right to have access to criminal process to effect punishment on those who committed wrongs on them and their right to speak and write about the *813 wrongs perpetrated upon them. Knowing that plaintiffs wished to bring criminal charges against their attackers, Brown, Foard, their co-conspirators and their agents, transferred plaintiffs to solitary confinement where they are still held. Plaintiffs, nevertheless, caused to be delivered to Magistrate Brown proposed criminal warrants against Timmermans attackers, charging them with assault and battery, and Magistrate Brown determined that probable cause existed for the issuance of the warrants. 2 Foard, his co-conspirators and their agents, prevented the issuance of the warrants, however, by notifying Magistrate Brown that inmates could not cause warrants to be brought against correctional officials unless Solicitor Foard determined, on the basis of an independent investigation by the South Carolina Law Enforcement Division (S.L.E.D.), that probable cause existed for their issuance. As a result, Brown refused to issue the arrest warrants. Foard did not cause a S.L.E.D. investigation to be made.2 Plaintiffs also allege that they have been maliciously subjected to threats to their lives and safety, denial of parole to Timerman, and to bad faith criminal charges. They allege that, even though Magistrate Brown dismissed some of the criminal charges against them, they have been indicted, at the instance of Foard, by the grand jury of Richland County for the same, or substantially the same, offenses which Magistrate Brown dismissed. By affidavits which were supplied us in motions relating to this appeal, we were advised that by error these indictments have been nol prossed. This aspect of the case is not moot, however, because we are further advised that the state does not intend to give up prosecution of plaintiffs for their part in the incident occurring August 11, 1973. New indictments will be prepared and these indictments will be presented to the grand jury for Richland County which will convene on August 25, 1975. In summary, plaintiffs allege that defendants, collectively, in violation of 42 U.S.C. ss 1983 and 1985, are acting in

concert, under color of state law, to deprive plaintiffs individually and as a class of their first and fourteenth amendment rights by **abusing plaintiffs without provocation, **denying plaintiff Timmerman necessary medical treatment, **maliciously and in bad faith causing the issuance of warrants for the arrest and prosecution of plaintiffs, and **refusing to allow the issuance of criminal warrants against Timmermans attackers even though probable cause for their issuance has been found.3 Plaintiffs therefore sought (a) money damages, (b) a declaration that **the espoused policy of Foard to suppress criminal warrants based on probable cause and issued at the instance of inmates of a correctional institution violates the fourteenth amendment, (c) an injunction against defendants, except Magistrate Brown, to restrain them from interfering with the issuance or nonissuance of criminal warrants, (d) an injunction to restrain the pending criminal prosecutions against Timmerman and Thomas, and (e) a writ of mandamus requiring Magistrate Brown to issue the criminal warrants against Timmermans attackers. We agree with the district court that, on the basis of judicial immunity, the *814 complaint against Brown and Foard shoud be dismissed to the extent, but only to the extent, that it seeks the recovery of money damages. Brown, as a judicial officer, and Foard, as a prosecutor, enjoyed judicial and quasi-judicial immunity, respectively. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); McCray v. Maryland, 456 F.2d 1 (4 Cir. 1972). This immunity, however, protects qualified defendants only from claims for money damages. It does not extend to plaintiffs action for injunctive and declaratory relief under Section 1983, 42 U.S.C. Fowler v. Alexander, 478 F.2d 694, 696 (4 Cir. 1973). See Littleton v. Berbling, 468 F.2d 389 (7 Cir. 1972), cert. den., 414 U.S. 1143, 94 S.Ct. 894, 38 L.Ed.2d 674 (1974), revd on other grounds sub nom. OShea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), vacated sub nom., Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). See also Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), where, as here, in a suit against a state prosecuting attorney and circuit judge, the Supreme Court concluded that 42 U.S.C. s 1983 is an expressly authorized exception to the federal anti-injunction statute, 28 U.S.C. s 2283. We conclude, then, that the district court overextended the doctrine of judicial immunity insofar as it applied it to warrant dismissing Brown and Foard from those aspects of the complaint which sought declaratory and injunctive relief. Unless there is some jurisdictional bar, Brown and Foard should be retained as parties defendant in the action and the case decided on the merits. Nevertheless, in Younger, the Court significantly qualified the anti-in-junction rule announced in that case by suggesting possible exceptions: It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute on its face does not in itself justify an injunction against goodfaith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. 401 U.S. at 54, 91 S.Ct. at 755. The holding in Younger has been extended and refined in a number of subsequent cases. For our purposes, it is unnecessary to analyze subsequent holdings *815 except to note that the exceptions to federal nonintervention suggested in Younger have continued to be recognized. In the recent decision in Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975), Younger was approvingly described: (T)he Court in Younger left room for federal equitable intervention in a state criminal trial where there is a showing of bad faith or harassment by state officials responsible for the prosecution . . ., where the state law to be applied in the criminal proceeding is flagrantly and patently violative of express constitutional prohibitions, . . . or where there exist other extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of had faith and harassment. Accord: Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). We think that in the instant case plaintiffs have allged a case of bad faith or harassment by state officials for the

prosecution. As pointed out in Kugler, 421 U.S. at 126, n.6, 95 S.Ct. at 1531, bad faith in this context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction. **Harassment means much the same, although it also connotes a legal exercise of authority in such a manner as to be unnecessarily oppressive. **Plaintiffs have alleged that Magistrate Brown dismissed charges against them but, nevertheless, they have been, or will be indicted by the grand jury and prosecuted on the same or substantially similar charges . While that allegation alone may not reasonably give rise to the inference that there is little likelihood that they will be convicted, plaintiffs have alleged that Magistrate Brown found that there was probable cause to prosecute some of the defendants for their part in the same incident which purportedly gave rise to the charges against plaintiffs. Of course, it is theoretically possible for two participants in an affray between them both to be guilty of assault. But unless we are to assume the incompetence of Brown or a strong bias in favor of plaintiffs-assumptions for which there is no basis in the record-it is less likely that there is a good case against plaintiffs when a disinterested judicial officer has determined that there is no basis on which to prosecute them but there is a basis on which to prosecute their antagonists. Whatever lingering doubt may exist about the substance of any case against plaintiffs is removed, at this stage of the case, by the further allegation that **Foard took steps, concededly illegal if in fact taken, to suppress any prosecution of plaintiffs antagonists notwithstanding that the Magistrate found probable cause for these prosecutions to go forward. We have no doubt that plaintiffs, even though they are inmates, have some first and fourteenth amendment rights to air their grievances and to have access to judicial procedures to redress them. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Dowd v. United States ex rel. Cook, 340 U.S. 206, 91 S.Ct. 262, 95 L.Ed. 215 (1951); Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942); Lane v. Correll, 434 F.2d 598, 600 (5 Cir. 1970). We think that plaintiffs have alleged bad faith and intentionally harassing efforts to deny these rights, including but not limited to bad faith and harassing efforts to prosecute them. We think that plaintiffs have alleged a case within an exception to the restrictive Younger rule and that the district court not only had jurisdiction to adjudicate their claims for equitable and declaratory relief on the merits, but also should exercise it. Of course, we reach these conclusions solely on the basis of plaintiffs allegations. *816 In the present posture of the case, those allegations are uncontroverted and we think that they require an evidentiary hearing. Until an evidentiary hearing has been held and the facts found, we cannot know them. It follows that the judgment dismissing Foard and Brown must be reversed and the case remanded for further proceedings not inconsistent with this opinion. We append two additional comments for the guidance of the district court on remand: First, it appears from statements contained in affidavits in support of, and in opposition to, a motion for summary reversal that defendant Foard has been succeeded in office by a certain James C. Anders, Esquire. In oral argument, counsel confirmed that Foard is no longer Solicitor for Richland County. A formal substitution of parties has not been requested, and no party has raised any question of the effect, if any, of defendant Foards leaving office. See Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). We do not address the question. It may, however, be raised and decided in the district court on remand. Second, we would suppose that, if after trial, an injunction to prevent further unlawful interference by the Solicitor of the County of Richland (if such be proved) is granted, Magistrate Brown, freed from interference from the Solicitors office, would issue any warrants sought by plaintiffs, which he determined were grounded on probable cause, on his own motion without the necessity of an order by the district court. Because of this likelihood we do not consider the authority of a federal court in order to redress a violation of s 1983 to compel performance of a ministerial act by a state judicial officer. Compare Peek v. Mitchell, 419 F.2d 575 (6 Cir. 1970), with McIntire v. Wood, 7 Cranch. 504, 3 L.Ed. 420 (1813); Stern v. South Chester Tube Co., 390 U.S. 606, 88 S.Ct. 1332, 20 L.Ed.2d 177 (1968); Haggard v. State of Tennessee, 421 F.2d 1384 (6 Cir. 1970); Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586 (4 Cir. 1969). See also Note, Mandatory Injunctions as Substituted for Writs of

Mandamus in the Federal District Courts: a Study in Procedural Manipulation, 38 Colum.L.Rev. 903, 904-05 (1938). We do not dismiss Magistrate Brown now, however, because if plaintiffs prove the case they have alleged and our supposition with regard to Brown is unfounded, the district court will be brought to the question we reserve. Reversed and remanded.

Feerick v. Sudolnik 816 F.Supp. 879 , S.D.N.Y. , Feb. 17, 1993

yellow flag Feerick v. Sudolnik 816 F.Supp. 879 (S.D.N.Y., Feb 17, 1993)
City police officers who were indicted by grand jury on various counts arising out of search of public housing project sued New York Police Department (NYPD), its commissioners, employees, and Internal Affairs Division as well as state court judge handling case, county district attorneys office (DAO), head of office, and two assistant district attorneys alleging that indictment was improperly derived from immunized testimony and requested injunctive, declaratory, and monetary relief. Defendants moved to dismiss under the Younger abstention doctrine or for failure to state claim. The District Court, Keenan, J., held that: (1) bad faith prosecution and extraordinary circumstances exceptions to Younger abstention doctrine did not apply to declaratory and injunctive relief claims; (2) state court justice named only as nominal defendant could not be held liable under 1983 for monetary damages; (3) assistant district attorneys and district attorney were absolutely immune from personal liability for actions taken in initiating prosecution; (4) Eleventh Amendment protected district attorneys office from 1983 liability while it acted as state representative in making decision to prosecute; and (5) allegations stated claim under 1983 against NYPD, its commissioner, and Internal Affairs Division. Motions granted in part; denied in part. 4 Federal CourtsDeclaratory Judgment in General Federal CourtsInjunctions in General Neither prosecutorial bad faith nor extraordinary circumstances exception to doctrine of Younger abstention applied so as to require equitable intervention by federal court in city police officers suit seeking injunctive and declaratory relief on ground that state criminal indictment against them was improperly derived from immunized testimony; even if immunized testimony was used to acquire indictment, police officers had not been prevented from asserting their constitutional claims in state proceeding and had failed to prove what it would be more appropriate for federal court, instead of state court, to conduct Kastigar hearing. Cases that cite this headnote

Federal CourtsProcedure as to Abstention; Reserving or Retaining Jurisdiction

County district attorneys office (DAO) had heavy burden to prove that criminal indictment was not obtained against city police officers from immunized testimony so as to render Younger abstention doctrine applicable to bar officers claims for injunctive and declaratory relief; DAO had to show that its evidence was derived from legitimate source wholly independent of the compelled testimony.

Cases that cite this headnote

6 Federal CourtsDeclaratory Judgment in General Federal CourtsInjunctions in General Exception to doctrine of Younger abstention based upon prosecutors bringing criminal indictment without reasonable expectation of obtaining valid conviction was not applicable to city police officers claims seeking injunctive and declaratory relief on ground that state criminal indictment against them was improperly derived from immunized testimony, **where police officers did not plead that prosecutors brought case without reasonable expectation of obtaining conviction or to retaliate against them for, or discourage exercise of constitutional rights, but, at most, that defendants had deliberately violated officers civil rights to bring their alleged criminal conduct to light. Cases that cite this headnote 17 Civil RightsEmployment Practices

Allegation that official policy or custom of New York Police Department deprived city police officers of their constitutional rights and that police department as municipal policymaker should have known that inadequate training or supervision was so likely to result in violation of constitutional rights that policymakers could reasonably be said to have been deliberately indifferent stated claim under 1983 for violation of police officers constitutional rights as result of criminal indictment against them. 42 U.S.C.A. 1983. Cases that cite this headnote Before the Court are the defendants motions to dismiss the complaint under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) , or, in the alternative, for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP). Plaintiffs, who were all police officers in the New York City Police Department (NYPD), commenced this action pursuant to Sections 1983 and 1985 of Title 42 of the United States Code (U.S.C.), alleging violations of their rights protected under the Fifth and Fourteenth Amendments to the United States Constitution. For the reasons set forth below, defendants motions are granted in part and denied in part.

BACKGROUND On September 26, 1990, the plaintiffs conducted a search in a low-income housing project in New York City, looking for a police radio allegedly stolen by drug dealers. The officers claim to have been acting on a tip from a confidential informant that a certain drug-selling gang located in the housing project possessed the radio. After the police probe, which failed to find the radio, the tenants whose apartments had been searched filed a complaint against the plaintiffs with the Civilian Complaint Review Board (CCRB).1 Later that day, a security officer working at the housing project found the radio and returned it to the plaintiffs precinct. *883 Several days after the search, the Manhattan North Field Internal Affairs Unit (MNFIAU) began an investigation, which included the confiscation of the plaintiffs memorandum books. The New York County District Attorneys Office (the DAO) also commenced an investigation, but it revealed little as the plaintiffs all asserted their Fifth Amendment right. In an official memorandum sent to the NYPD on January 11, 1991, the DAO announced that it would not criminally prosecute the plaintiffs and that the NYPD should proceed administratively against the plaintiffs. On January 18, 1991, plaintiff Feerick was interrogated pursuant to Patrol Guide 118-9 (P.G. 118-9) at the MNFIAU. P.G. 118-9 confers a form of testimonial or use immunity resulting from any statements, evidence, or

leads derived from that interrogation. Defendant Foley of the NYPD, allegedly monitored the interrogation, while defendants Laine of the Internal Affairs Division of the NYPD (IAD) and DiMartini of the MNFIAU were also present. Defendant Foley monitored P.G. 118-9 interrogations of plaintiffs Rosario, Schultz, and DeVito at the MNFIAU later that week. Plaintiff Feerick was interrogated again in March of 1991. In mid-April, 1991, all plaintiffs were served with Departmental Charges and Specifications. On March 20, 1992, the DAO empaneled a grand jury, which indicted the plaintiffs on 30 counts arising out of the September 26, 1990 search. These counts included second degree burglary, second degree unlawful imprisonment, second degree coercion, and second degree grand larceny. Plaintiffs sought to enjoin the prosecution by filing a petition pursuant to Article 78 of the New York Civil Practice Laws and Rules 78 in the First Department of New Yorks Appellate Division. In their Article 78 petition, plaintiffs requested the Appellate Division to consider only the relevant provisions of the New York State Constitution, citing their desire to preserve their federal claims for a Section 1983 action. The petition was denied.2 Plaintiffs also brought this civil rights action against the judge currently handling the state criminal case; the DAO, the head of its office, and two members thereof; and the NYPD, its commissioner, certain employees, and the IAD. The gravamen of the plaintiffs complaint is that the state criminal indictment filed against them is improperly derived from the immunized testimony, and therefore violates their constitutional privilege against selfincrimination. They request that this Court: (1) enjoin the criminal prosecution brought against them in the Supreme Court of New York; (2) declare them immune from state criminal prosecution; (3) reinstate them in the New York City Police Department with back pay; (4) order the NYPD to appoint plaintiff Feerick to the rank of Captain; (5) enjoin future attempts at securing indictments via immunized testimony under P.G. 118-9; and (6) direct defendants to train and supervise their employees concerning the proper use of the P.G. interrogation provisions. *884 2 Exceptions to the doctrine of Younger abstention are quite narrow. Even irreparable injury, unless both great and immediate, is insufficient to warrant an exception to this policy. See Younger, 401 U.S. at 46, 91 S.Ct. at 751. For instance, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution does not establish the sort of irreparable injury that would permit federal interference in the state proceedings. Id. The Younger Court set forth an exception in its distinguishing of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), in which it had approved federal intervention in an ongoing state prosecution. The Younger Court noted that in Dombrowski, prosecutors had harassed the appellants and had attempted to discourage them and their supporters from vindicating the constitutional rights of African-American citizens in Louisiana. See Younger, 401 U.S. at 48, 91 S.Ct. at 752. Such harassment sufficiently establish[ed] the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered to justify federal intervention. Id. The Court has since defined a finding of prosecutorial bad faith as requiring a showing that the charges against the plaintiffs were instituted with no genuine expectation of their eventual success, but only to discourage the exercise of the plaintiffs constitutional rights. See id.; Allee v. Medrano, 416 U.S. 802, 819, 94 S.Ct. 2191, 2202, 40 L.Ed.2d 566 (1974). 3 In addition to this exception for prosecutorial bad faith, the Younger Court also left room for an exception where extraordinary circumstances exist such that the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. Id. at 54, 91 S.Ct. at 755. An example of such extraordinary circumstances that would warrant federal equitable relief would be when state officials seek to enforce a law that is flagrantly and patently violative of express constitutional prohibitions. Younger, 401 U.S. at 54-55, 91 S.Ct. at 755. 4 Despite the expansive reach of Younger abstention, plaintiffs assert that their circumstances warrant an exception to Younger. First, they maintain that prosecutorial bad faith exists in this case. In particular, they claim that the DAO used their immunized testimony to procure the indictment against them. They point to the DAOs determination in January of 1991 not to prosecute them and its suggestion that the NYPD proceed administratively. Plaintiffs claim that the DAO made this suggestion knowing that there were no policies or procedures in place that would protect and shield the plaintiffs immunized testimony from the future examination by the DAO. They also assert that the DAO knew that it would have access to MNFIAU and IAD case folders, investigatory materials, and copies of the work sheets and investigative reports following the P.G. 118-9 interrogations. In the alternative, plaintiffs maintain that these same facts constitute the extraordinary circumstances envisioned by the Younger

Court to require equitable intervention by the federal courts. 5 The Court disagrees. There is no dispute that the plaintiffs were entitled to use immunity for the statements made in connection with the P.G. 118-9 interrogations. See Kastigar v. United States, 406 U.S. 441, 460-61, 92 S.Ct. 1653, 1664-65, 32 L.Ed.2d 212 (1972). Defendants concede this. Nevertheless, even if immunized testimony was used to acquire the indictment against plaintiffs-an accusation the defendants steadfastly deny-plaintiffs claims for injunctive and declaratory relief still would fail under the Younger abstention doctrine. Plaintiffs cannot allege that they have been prevented from asserting their constitutional claims pursuant to Kastigar: in the state proceeding, the DAO has already consented to a Kastigar hearing, in which the DAO will have to show that the evidence used to obtain the indictment was obtained from sources independent of the immunized testimony. See Kastigar, 406 U.S. at 460-61, 92 S.Ct. at 1664-65.3 The burden upon the DAO to *885 prove that the indictment was not obtained from immunized testimony is heavy, see id. at 461, 92 S.Ct. at 1665, as the DAO must show that its evidence is derived from a legitimate source wholly independent of the compelled testimony. Id. at 460, 92 S.Ct. at 1664-65. Furthermore, plaintiffs have failed to prove why it would be more appropriate for this federal court, instead of the state court, to conduct such a hearing. They have not alleged that Justice Sudolnik, who is presiding over the state proceeding and who is named only as a nominal defendant, see Amended Complaint 6, is somehow biased, as was the state optometry board that the Supreme Court enjoined in Gibson v. Berryhill, 411 U.S. 564, 580-81, 93 S.Ct. 1689, 1698-99, 36 L.Ed.2d 488 (1973). In Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975) , the Supreme Court held that abstention was appropriate where plaintiff, a municipal court judge, sought to enjoin a state prosecution against him for obstruction of justice that allegedly arose from his coerced testimony before a grand jury. See Kugler, 421 U.S. at 130-31, 95 S.Ct. at 1533-34. The Kugler Court found that since plaintiff had an opportunity to raise his constitutional claims in the underlying state criminal prosecution and since he failed to allege that no trial judge in the prosecuting state could impartially decide his case, the policy of equitable restraint required abstention. See id. at 124, 95 S.Ct. at 1530-31. As in Kugler, plaintiffs here fail to rebut the presumption that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights. Id. 6 In addition, the courts that have held that an exception to Younger was warranted have found that the prosecutors brought the cases without a reasonable expectation of obtaining a valid conviction, see, e.g., Allee, 416 U.S. at 819, 94 S.Ct. at 2202; Kugler, 421 U.S. at 126 n. 6, 95 S.Ct. at 1531 n. 6, or initiated them to retaliate for or discourage the exercise of constitutional rights. See, e.g., Dombrowski, 380 U.S. at 497, 85 S.Ct. at 1126-27 (prosecution brought to deter plaintiffs civil rights efforts); **Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.) (per curiam), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981) (prosecution brought to deter filing of civil suit against state officers); Wilson v. Thompson, 593 F.2d 1375, 1388 (5th Cir.1979) (prosecution brought to harass and punish plaintiffs for exercising first amendment rights against state officials); Shaw v. Garrison, 467 F.2d 113, 122 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). Plaintiffs have not pled the former, and, as for the latter, they have at most pled that defendants have deliberately violated their civil rights to bring their alleged criminal conduct to light. 7 Finally, plaintiffs reliance upon Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982), in making their assertion that the defendants alleged conduct is per se a bad faith prosecution is unfounded. Even though Rowe held that an indictment that violated a prior immunity agreement constituted a bad faith prosecution, Rowe is distinguishable from the present case. Rowe involved transactional, not use, immunity. 4 Because transactional immunity contemplates complete protection from prosecution for the offense to which the compelled testimony relates, see Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661, the prosecution of the Rowe plaintiff was in bad faith per se. In the case at bar, however, plaintiffs received only use immunity for their P.G. 118-9 statements, 5 and thus prosecuting them could not be bad faith per se. Instead, plaintiffs have presented a factual question of whether the DAO used their immunized statements to secure the indictment. Pursuant to Kastigar, 406 U.S. at 460-61, 92 S.Ct. at 1664-65, they have asserted their constitutional *886 right to have such a determination made by the presiding state court judge. She is the proper arbiter to decide this dispute. 8 Plaintiffs claims for injunctive and declaratory relief fail to fit within either of Younger s narrow exceptions and therefore are dismissed pursuant to the doctrine of Younger abstention. Given that the application of this doctrine to claims for money damages is unwarranted, see Deakins, 484 U.S. at 202, 108 S.Ct. at 529, the Court will now address plaintiffs remaining claims for monetary damages.

B. Defendants FRCP 12(b)(6) Motions 1. The Applicable Legal Standard In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir.1985). Moreover, the Court must accept the factual allegations set forth in plaintiffs complaint as true. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). Accordingly, a motion to dismiss for failure to state a claim should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) 2. Plaintiffs Section 1983 Claims 9 To sustain a cause of action pursuant to 42 U.S.C. 1983,6 plaintiff must show that the conduct complained of was committed by a person under the color of state law and that this conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In this case, plaintiffs have pled a direct violation of their constitutional rights and a conspiracy to violate these rights, and they may seek money damages for both causes of action. 10 Addressing each defendant, all claims against Justice Sudolnik have been dismissed, as plaintiffs named her only as a nominal defendant. See Amended Complaint 6. As such, Justice Sudolnik cannot be held liable for monetary damages. 111213 Defendants Stevens and Strauss, both Assistant District Attorneys with the DAO, and defendant District Attorney Robert Morgenthau are absolutely immune from personal liability for actions taken in initiating a prosecution. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976) . Plaintiffs brief does not take issue with this proposition. Therefore, plaintiffs claims against these defendants in their individual capacities are dismissed. As for claims against defendants Stevens and Strauss in their official capacities, they are also dismissed. Plaintiffs assert that defendants Stevens and Strauss were municipal policymakers. Nevertheless, only actions by officials relatively high up in the municipal hierarchy will produce municipal liability. Walker v. City of New York, 974 F.2d 293, 296-97 (2d Cir.1992). The Amended Complaint itself refers to the defendants as defendant Morgenthaus subordinates. See Amended Complaint 30(e). The assistants decisions to seek an indictment against the plaintiffs, and to proceed with the grand jury presentation in a particular fashion were individual exercises of judgment and did not reflect municipal policy. Furthermore, as subordinates, they could not be responsible for any failure to train and supervise, such *887 as plaintiffs repeatedly proclaim was the cause for the alleged violations herein. 14 Monetary claims against defendant Morgenthau in his official capacity and defendant DAO are also dismissed. The causes of action against defendants Morgenthau and the DAO arise from alleged decisions that were inextricably tied to the specific decision to prosecute. When the DAO makes such decisions, it is acting in a quasijudicial capacity and thus is representing the state, not the county. Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir.1988) , cert. denied, 488 U.S. 1014, 109 S.Ct. 805, 102 L.Ed.2d 796 (1989); Gentile v. County of Suffolk, 926 F.2d 142, 152 n. 5 (2d Cir.1991); Walker, 974 F.2d at 301. Thus, the 11th Amendment protects the DAO from Section 1983 liability while it acts as a state representative. 15 Plaintiffs argue that the Second Circuits Walker decision precludes dismissal of their claims against defendants Morgenthau and DAO. The Court disagrees for two reasons. First, as mentioned above, Walker recognizes that the DAO acts as a state body when making its specific decisions to prosecute. See Walker, 974 F.2d at 301. Second, the facts in Walker, which found viable a Section 1983 claim for municipal liability arising from a DAOs alleged failure to train or supervise, are far different from the circumstances before this Court. **Walker involved an assistant district attorney in Kings County whose perjury and withholding of Brady evidence resulted in the plaintiffs spending 19 years of his life in prison for a murder that he did not commit. See 974 F.2d at 294. The present case, however, involves the alleged use of P.G. 118-9 testimony that is entitled to use immunity. Unlike

Brady and perjury issues, which may arise in every state criminal case, use-immunity concerns arising from P.G. 118-9 testimony are rarely at issue in criminal proceedings. Cf. East Coast Novelty Co. v. City of New York, 809 F.Supp. 285, 299 (S.D.N.Y.1992) (distinguishing Walker and dismissing claims for municipal liability based upon DAO misconduct due to relative infrequency of possible prosecutorial misconduct involving Section 270.00 of the New York Penal Law in comparison with Brady obligations). This Courts failure to distinguish between the alleged misuse of P.G. 118-9 testimony and an assistant district attorneys failure to comply with Brady obligations would substantially undercut the DAOs traditional prosecutorial and state immunities, as most challenges to prosecutorial conduct would then be transformed into failure-to-supervise-or-train claims. Therefore, the Court dismisses the causes of action for monetary damages against defendants Morgenthau and the DAO. 1617 Plaintiffs pleading, however, is sufficient to sustain a claim for monetary damages against the police department defendants. Plaintiffs have pled sufficient facts to confer liability upon defendant police officers, who lack the absolute immunity conferred upon defendants Stevens and Strauss. Furthermore, plaintiffs claims against defendants Brown, NYPD, and IAD also survive defendants motions to dismiss. Unlike defendants Morgenthau and the DAO, defendants Brown, NYPD, and IAD are undoubtedly municipal policymakers. In the amended complaint, plaintiffs allege that an official policy or custom of the NYPD deprived them of their constitutional rights, satisfying Monell v. Dept of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978) . The plaintiffs also allege, in accordance with City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989), that the NYPD, as a municipal policymaker, should have known that such inadequate training or supervision was so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In particular, plaintiffs have pled that the NYPD failed to train or supervise its officers regarding the handling of P.G. 118-9 interrogations and the need to separate the investigative and interrogative agencies within the NYPD and the DAO. 18 Finally, plaintiffs also claim that the NYPD and DAO defendants conspired to violate plaintiffs constitutional rights, also in violation of Section 1983. Because one may conspire with another who is immune from prosecution, see *888 Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980) , and plaintiffs have adequately pled a cause of action for conspiracy, the Section 1983 conspiracy claim survives as to the NYPD defendants. C. Plaintiffs Section 1985 Claim 19 For plaintiffs 1985(3) claim to be sustained, plaintiffs must allege with sufficient specificity the existence both of a conspiracy to prevent or to hinder the state authorities from giving or securing to all persons within the state or territory equal protection of the laws and of a racial or other class-based discriminatory animus behind the conspirators actions. See Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, ----, 113 S.Ct. 753, 756, 122 L.Ed.2d 34, 61 U.S.L.W. 4080, 4081 (1993); United Brotherhood of Carpenters & Jones, Local 610 v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983); Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.), cert. denied, 464 U.S. 857, 104 S.Ct. 177, 78 L.Ed.2d 158 (1983); see also Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987). 20 Plaintiffs Section 1985 claims must be dismissed for failure to state a claim upon which relief may be granted. Plaintiffs fail to establish the existence of any class-based discriminatory animus towards them. Furthermore, their allegations of a conspiracy are an example of the sort of conclusory charges that have been held to be fatal to a Section 1985 claim.

CONCLUSION For the reasons set forth above, defendants motions are granted in part and denied in part. Pursuant to Deakins, 484 U.S. at 202, 108 S.Ct. at 529, plaintiffs claims pursuant to Section 1983 for monetary damages against defendants Brown, NYPD, IAD, DiMartini, Foley, Harvey, Miller, and Laine are stayed until the completion of the state criminal proceedings. All other claims against all other defendants are dismissed. The Court orders that this case be placed on its suspense docket. The parties are to report in writing to this Court concerning the status of the state

action by July 1, 1993. SO ORDERED. Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.(Ga.) Jan 14, 1981)

bad faith harassment for bringing a criminal action for criticizing public officials
Action was brought to enjoin state court prosecution allegedly brought in bad faith to harass and punish plaintiffs, indicted for embracery and terroristic threats, for having exercised their First Amendment rights in criticizing certain county officials. The United States District Court for the Northern District of Georgia, William C. O'Kelley, J., permanently enjoined prosecution, and defendant appealed. The Court of Appeals held that: (1) evidence supported finding that prosecution was brought for harassment and retaliation and would not have been brought but for improper influence exerted on prosecutor by certain judges, and (2) defendant was not denied any due process rights and was not unfairly prejudiced because he was represented at preliminary hearing by an attorney who also testified as a witness. Affirmed. West Headnotes [1] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases A showing of bad-faith prosecution presents a narrow exception to the doctrine of abstention which will justify federal interference in a pending state court criminal proceeding. 28 U.S.C.A. 1343(3), 2283; 42 U.S.C.A. 1983. [2] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases A showing of bad-faith prosecution or harassment is equivalent to a showing of irreparable injury under Younger, and irreparable injury independent of the bad-faith prosecution need not be established before a federal court may enjoin a pending state court criminal proceeding. 28 U.S.C.A. 2283. [3] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases

Threat of multiple or repeated prosecutions is not necessary to establish bad-faith prosecution sufficient to justify federal interference in a pending state court criminal proceeding. 28 U.S.C.A. 2283. [4] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases It is not necessary to prove that prosecution could possibly result in a valid conviction before a federal court will interfere in a pending state court criminal proceeding brought in bad faith or for purpose of harassment. 28 U.S.C.A. 2283. [5] Courts 106 508(7)

106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(B) State Courts and United States Courts 106k508 Injunction by United States Court Against Proceedings in State Court 106k508(2) Restraining Particular Proceedings 106k508(7) k. Criminal Proceedings. Most Cited Cases Permanently enjoining state prosecution of plaintiffs on pending indictments charging embracery and terroristic threats was proper on showing of bad-faith prosecution, in that prosecution was brought for purpose of harassment and retaliation and would not have been brought but for improper influence exerted on prosecutor by certain judges to seek the indictments allegedly to punish plaintiffs for having exercised their First Amendment rights in criticizing certain public officials. 28 U.S.C.A. 2283; U.S.C.A.Const. Amend. 1. Plaintiffs, Ernest Billy and Marilyn Fitzgerald, brought suit in federal district court to enjoin state court prosecution allegedly brought in bad faith for purposes of harassing and punishing plaintiffs for having exercised their first amendment rights in criticizing certain public officials in DeKalb County. The district court entered a temporary restraining order and, following a two-day hearing, entered a final order permanently enjoining prosecution of the Fitzgeralds on pending indictments charging embracery and terroristic threats. We affirm. Jurisdiction over this suit is properly predicated on 42 U.S.C.A. s 1983 and 28 U.S.C.A. s 1343(3). See Duncan v. Perez, 445 F.2d 557, 560 (5th Cir.), cert. denied, 404 U.S. 940, 92 S.Ct. 282, 30 L.Ed.2d 254 (1971). Section 1983 is within the expressly authorized exception of the federal anti-injunction statute, 28 U.S.C.A. s 2283. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). The facts of this case are presented in detail in the district court's opinion and need not be repeated here. It is sufficient to note that a thorough examination of the record requires the conclusion that the district court's finding that the prosecution was brought in bad faith for purposes of harassment was not clearly erroneous. [1][2][3] It is well established that a showing of bad faith prosecution presents a narrow exception to the doctrine of abstention which will justify federal interference in a pending state court criminal proceeding. See Moore v. Sims, 442 U.S. 415, 424, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 753, 27 L.Ed.2d 669 (1971); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979); Shaw v. Garrison, 467 F.2d 113, 119-22 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); Duncan v. Perez, 445 F.2d at 560. A showing of bad faith or harassment is equivalent to a showing of irreparable injury under Younger, and irreparable injury independent of the bad faith prosecution need not be established. Wilson v. Thompson, 593 F.2d at 1381-82; Shaw v. Garrison, 467 F.2d at 120. Moreover, although multiple prosecutions of at least Mr. Fitzgerald were pending, the threat of multiple or repeated prosecutions is not necessary to establish bad faith prosecution. Wilson v. Thompson, 593 F.2d at 1381.

*945 [4][5] Nor is it necessary for plaintiff to prove that the prosecution could not possibly result in a valid conviction. In Wilson v. Thompson, decided after the injunction involved herein was entered, this court enunciated a test which permits a state criminal proceeding to be enjoined if the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred is constitutionally protected and that the state's bringing of the criminal prosecution is motivated at least in part by a purpose to retaliate against or deter that conduct, and the state fails to show that it would have decided to prosecute even had the impermissible purpose not been considered. 593 F.2d at 1387. In this case, the evidence supports the finding that the prosecution was brought for the purposes of harassment and retaliation and would not have been brought but for the improper influence exerted on the prosecutor by certain DeKalb judges to seek the indictments. A bad faith showing of this type will justify an injunction regardless of whether valid convictions conceivably could be obtained.

Thompson v. Florida Bar, 526 F.Supp.2d 1264 (2007) Westin v. McDaniel, 760 F.Supp. 1563 (1991) Positive outcome. London v. Dorney 2008 WL 313943
*3 A showing that a prosecution was brought in retaliation for or to discourage the exercise of constitutional rights will justify an injunction regardless of whether valid convictions conceivably could be obtained. Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.1981) (emphasis added). The state does not have any legitimate interest in pursuing such a prosecution; [p]erhaps the most important comity rationale of Younger deference-that of respect for the States legitimate pursuit of its substantive interests-is therefore inapplicable. Wilson v. Thompson, 593 F.2d 1375, 1383 (5th Cir.1979) (citations omitted). Plaintiff has alleged his prosecution in the state court was based, at least in part, on false charges and affidavits made by Glenn Reece and Sheriff Dorney. However, Plaintiff has not indicated the state prosecution is an effort to circumvent any constitutional rights he was asserting or was begun with a vindictive motive. In addition to Younger, the Rooker-Feldman doctrine states that district courts do not have subject matter jurisdiction over challenges to state court decisions in judicial proceedings. Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983). The only court with jurisdiction to review decisions of state courts is the United States Supreme Court. A federal district court has jurisdiction over general constitutional challenges if these claims are not inextricably intertwined with the claims asserted in state court. A claim is inextricably intertwined if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. In other words, Rooker-Feldman precludes a federal action if the relief requested in the federal action would effectively reverse the state court decision or void its ruling. Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir.1995) (citations omitted). See also Bechtold v. City of Rosemount, 104 F.3d 1062, 1065-66 (8th Cir.1997).

McCormick v. Farrar 2001 WL 1456796 Similar facts. traffic stop Williams v. Government 2008 wl 5142181 Special circumstances for inapplicability of Younger Abstention shown when state is incompetent by reason of bias to adjudicate the issues pending before it.
In Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975) , the Supreme Court fleshed out the extraordinary circumstances exception:

Only if extraordinary circumstances render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of extraordinary circumstances, of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be extraordinary in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation. Id. at 124. While Kugler spoke in the context of criminal prosecutions, the same standard applies in the civil context. Diamond D, 282 F.3d at 201 (citing Moore v. Sims, 442 U.S. 415, 433, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979)). The Supreme Court has found extraordinary circumstances to exist on only two occasions: (1) when a state statute is flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it; and (2) when the state administrative agency was incompetent by reason of bias to adjudicate the issues pending before it [.] Id. (quotation marks and citations omitted). Williams does not invoke the first example of an exceptional circumstance articulated in Kugler. Instead, Williams claims that the Board is biased against him.10 Bias exists where a court has prejudged, or reasonably appears to have prejudged, an issue. Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir.1992) (quotation marks and citation omitted). [T]he baseline showing of bias necessary to trigger Youngers escape mechanism requires the plaintiff to offer some evidence that abstention will jeopardize his due process right to an impartial adjudication. Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 640 (1st Cir.1996) (citations omitted). To implicate due process, claims of general institutional bias must be harnessed to a further showing, such as a potential conflict of interest, or a pecuniary stake in the outcome of the litigation[.] Id. (internal citations omitted). Furthermore, a litigant alleging bias *8 must overcome a presumption of honesty and integrity in those serving as adjudicators; and [he] must convince [the court] that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). In support of his bias claim, Williams contends that he is in direct competition with Michelle Dizon (Dizon), another St. Croix medical doctor and a member of the Board during the disciplinary proceedings against him. Williams argues that the Board overlooked or ignored that conflict and improperly permitted Dizon to participate in those proceedings. Williams relies on the Supreme Courts decision in Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). In Gibson, the Alabama Optometric Association (the AOA) filed charges against various optometrists with the Alabama Board of Optometry (the ABO), the statutory body with authority to issue, suspend, and revoke licenses for the practice of optometry. The AOA alleged that the optometrists had engaged in unprofessional conduct, as defined by Alabama statute, and therefore were practicing their profession unlawfully. The AOA noticed a hearing on the allegations. Before the hearing date, the optometrists sued the ABO and the AOA in federal district court, alleging 42 U.S.C. 1983 violations and seeking injunctive relief on the ground that the statutory scheme regulating the practice of optometry was unconstitutional. At bottom, the optometrists alleged that the Board was biased. A three-judge district court panel held that Younger abstention was inappropriate because the administrative process was so defective and inadequate as to deprive the plaintiffs of due process of law. Gibson, 411 U.S. at 570. Specifically, the district court first found that the ABO, which acts as both prosecutor and judge in delicensing proceedings, had previously brought suit against the plaintiffs on virtually identical charges in the state courts. Id. at 571. Second, the district court found that ABO members would receive a windfall in business if the plaintiff optometrists were delicensed. In other words, the district court found that the ABO members personal financial stake disfavored abstention. Finally, the district court regarded the ABO as a suspect adjudicative body ..., because only members of the [AOA] could be members of the [ABO], and because the [AOA] excluded from membership optometrists such as the plaintiffs who were employed by other persons or entities. Id. Thus, in the district courts

view, to require the Plaintiffs to resort to the protection offered by state law in these cases would effectively deprive them of their property, that is, their right to practice their professions, without due process of law and that irreparable injury would follow in the normal course of events. Id. (citation omitted). *9 The Supreme Court affirmed, agreeing with the district court that the ABO was incompetent by reason of bias to adjudicate the issues pending before it. Id. at 577. The Court based its decision on the ABO members personal financial stake, reasoning that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes and noting as well that most of the law concerning disqualification because of interest applies with equal force to ... administrative adjudicators. Id. at 579 (alteration in original; quotation marks and citations omitted). The Gibson Court rooted its conclusion of unconstitutional bias in its finding that the ABO members all had a substantial pecuniary interest in the outcome of proceedings in which they served as adjudicators.

22 USC 2283 Anti Injunction 22_usc_2283_restraining_particular_proceedings_digest.doc

U.S. v. Alpine Land & Reservoir Co., 174 F.3d 1007 C.A.9.Nev.,1999 Exception under Anti-Injunction Act permitting federal court to enjoin state proceedings where necessary in aid of its jurisdiction authorized district court's injunction of state court proceedings in which county sought to challenge state engineer's decision to grant Fish and Wildlife Service's water rights transfer application, inasmuch as district court had previously asserted in rem jurisdiction over water rights at issue in quiet title actions, and had retained continuing and exclusive jurisdiction over water rights adjudicated under decrees entered in those actions. 28 U.S.C.A. 2283 .See publication Words and Phrases for other judicial constructions and definitions. White Mountain Apache Tribe v. Smith Plumbing Co., Inc., 856 F.2d 1301 C.A.9.Ariz.,1988 The Anti-Injunction Act did not bar Indian tribe's request for injunction preventing subcontractor's supplier from proceeding with state court action against insurer, who wrote performance bond for general contractor, which was subsidiary of the tribal government, in connection with Indian reservation low-income housing project financed by the Department of Housing and Urban Development; ?tribe's request fell within exception under the Act for injunction necessary in aid of district court's jurisdiction. 28 U.S.C.A. 1360(b) , 2283 . Lou v. Belzberg, 834 F.2d 730 C.A.9.Cal.,1987 Federal court improperly enjoined second, parallel action filed in state court after removal of first action to federal court, absent evidence second state court suit was fraudulently filed in attempt to subvert removal of first case. 28 U.S.C.A. 1446(e) , 2283 . Shaw v. Delta Air Lines, Inc., 103 S.Ct. 2890 U.S.N.Y.,1983 Federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights.

** Miofsky v. Superior Court of State of Cal., In and For Sacramento County, 703 F.2d 332 C.A.9.Cal.,1983 Civil rights action in which plaintiff sought to restrain state judiciary from conducting private tort litigation in way that allegedly threatened to violate his constitutional rights was not subject to Younger abstention doctrine where plaintiff did not seek to enjoin state criminal proceedings, quasi-criminal proceedings, proceedings in aid of criminal law, proceedings initiated by state in its sovereign capacity, or proceedings brought to vindicate vital state interests. 42 U.S.C.A. 1983 . Alton Box Bd. Co. v. Esprit de Corp., 682 F.2d 1267 C.A.9.Cal.,1982 Manufacturers of corrugated containers were not entitled to injunction to prevent indirect purchaser from maintaining state law antitrust action where there was no statutory authorization for relief sought by manufacturers,

injunction was not necessary to aid district court's jurisdiction and indirect purchasers were not parties to multidistrict class action brought by direct purchasers in another district. 28 U.S.C.A. 2283 . Flangas v. State Bar of Nevada, 655 F.2d 946 C.A.9.Nev.,1981 Abstention doctrine would normally bar district court from enjoining pending attorney disciplinary proceeding absent showing of exceptional circumstances. Flangas v. State Bar of Nevada, 655 F.2d 946 C.A.9.Nev.,1981 Since attorney had failed to utilize statutory and constitutional measures available under Nevada law to cure alleged bias of Nevada Supreme Court, it could not be determined whether there were exceptional circumstances as would allow district court to enjoin disciplinary proceeding before Nevada Supreme Court, and therefore, district court abused its discretion in granting preliminary injunction against disciplinary proceedings involving attorney. N.R.S. 1.225 ; ?Nev.Const. Art. 6, 4 . L. H. v. Jamieson, 643 F.2d 1351 C.A.9.Ariz.,1981 When plaintiffs seek to enjoin continuation of state proceeding or to enjoin state officials from enforcing state statute, and when basis for federal relief could have been raised as complete or partial defense to pending or ongoing state enforcement action during normal course of state proceeding, equitable restraint is compelled. Imperial County, Cal. v. Munoz, 101 S.Ct. 289 U.S.Cal.,1980 Where complaint seeking order enjoining county from enforcing condition in use permit did not rely on or even so much as mention civil rights statute, case did not fall within exception to Anti-Injunction Act for injunctions expressly authorized by act of Congress. 28 U.S.C.A. 2283 ; ?42 U.S.C.A. 1983 . S.E.C. v. Wencke, 622 F.2d 1363 C.A.9.Cal.,1980 Anti-Injunction Act did not prohibit federal court from enjoining a creditor of a defendant in SEC securities fraud action from enforcing a prior state court judgment. 28 U.S.C.A. 2283 . Moore v. Sims, 99 S.Ct. 2371 U.S.Tex.,1979 Younger doctrine, doctrine of abstention, though articulated first with reference to state criminal proceedings, is also fully applicable to civil proceedings in which important state interests are involved. Moore v. Sims, 99 S.Ct. 2371 U.S.Tex.,1979 In the case of state court civil proceedings to which state is party, as opposed to state court criminal proceeding, existence of conditions of public nuisance or child abuse or presence of such other vital concerns as enforcement of contempt proceedings or vindication of important state policies such as safeguarding fiscal integrity of public assistance programs determines applicability of Younger-Huffman principles as bar to institution of later federal actions. Moore v. Sims, 99 S.Ct. 2371 U.S.Tex.,1979 Where claims were of interrelated nature, it would not have been appropriate that Younger doctrine of abstention be invoked with respect to some claims and others left to federal forum. Moore v. Sims, 99 S.Ct. 2371 U.S.Tex.,1979 Where, when district court barred further state proceedings, allegedly abused child was within custody of his parents

and specific date had been set for show cause hearing regarding writ of attachment, at which time parents could press their objections to deprivation of their custody, there were not shown extraordinary circumstances which would render inapplicable the Younger doctrine of abstention in absence of bad faith in state court proceedings. V.T.C.A., Family Code 2.01 et seq., 11.02 , 11.02(b) , 11.04(a) , 11.11 , 11.14 , 11.15 , 17.01 , 17.02 , 17.04 -17.06 , 17.05(b)(2) . Trainor v. Hernandez, 97 S.Ct. 1911 U.S.Ill.,1977 Statute barring a federal court from enjoining state court proceedings except as expressly authorized by act of congress was inapplicable to action by public assistance recipient challenging Illinois Attachment Act since the Civil Rights Act suit was an express statutory exception. S.H.A.Ill. ch. 11, 1 et seq.; ?ch. 23, 11-21; ?28 U.S.C.A. 2283 ; ?42 U.S.C.A. 1983 . Trainor v. Hernandez, 97 S.Ct. 1911 U.S.Ill.,1977 No extraordinary circumstances warranted federal equitable intervention in civil enforcement action brought by state of Illinois to obtain return of welfare payments allegedly wrongfully received, specifically, ordering return of attached property and enjoining utilization of attachment statute, absent suggestion that the enforcement action was brought in bad faith or for purpose of harassing the recipients or any basis for finding that the Attachment Act violated express constitutional provisions in every clause, sentence and paragraph and in whatever manner and against whomever an effort might be made to apply it. S.H.A.Ill. ch. 11, 1 et seq.; ?ch. 23, 11-21; ? U.S.C.A.Const. Amend. 14 . Cadena v. Perasso, 498 F.2d 383 C.A.9.Cal.,1974 Rule that statute governing deprivation of civil rights is an exception to anti-injunction statute does not qualify in any way principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. 42 U.S.C.A. 1983 ; ?28 U.S.C.A. 2283 . Gibson v. Berryhill, 93 S.Ct. 1689 U.S.Ala.,1973 Federal antiinjunction statute did not bar federal district court from issuing injunction in suit which was brought on due process grounds under the Civil Rights Act by licensed optometrists seeking to stop hearings before Alabama Board of Optometry on charges of unprofessional conduct within meaning of state optometry statute because of such optometrists' employment with a corporation. Code of Ala., Tit. 46, 191, 192, 203, 206, 210, 211; ?28 U.S.C.A. 2283 ; ? 42 U.S.C.A. 1983 . . Mitchum v. Foster, 92 S.Ct. 2151 U.S.Fla.,1972 In addition to exceptions to anti-injunction statute found to be embodied in various acts of Congress, other implied exceptions to blanket prohibition of anti-injunction statute are recognized, one being an in rem exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction, another being a relitigation exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation, and a third exception permitting a federal injunction of state court proceedings when plaintiff in federal court is United States itself, or a federal agency asserting superior federal interests. 28 U.S.C.A. 2283 . Mitchum v. Foster, 92 S.Ct. 2151 U.S.Fla.,1972 Provision of Civil Rights Act authorizing a suit in equity to redress deprivation under color of state law or any rights, privileges, or immunities secured by Constitution is within expressly authorized exception of federal antiinjunction statute prohibiting a federal court from enjoining a state court proceeding except as expressly authorized by act of Congress. 28 U.S.C.A. 2283 ; ?42 U.S.C.A. 1983 .See publication Words and Phrases for other judicial constructions and definitions.

Porter v. Dicken, 66 S.Ct. 1094 U.S.Ohio,1946 The provision in Emergency Price Control Act authorizing Price Administrator to bring injunction proceedings to enforce the Act in either state or federal courts is broad enough to justify an injunction to restrain state court evictions. Emergency Price Control Act of 1942, 205, 50 U.S.C.A. App. 925. Porter v. Lee, 66 S.Ct. 1096 U.S.Ky.,1946 The federal District Court had jurisdiction to grant an injunction sought by Price Administrator under Emergency Price Control Act to restrain eviction of a tenant under a state court order where the Administrator alleged that eviction would violate the act and valid rent regulations promulgated pursuant thereto. Emergency Price Control Act of 1942, 205(c), 50 U.S.C.A.Appendix, 925(c); ?Jud.Code, 265, 28 U.S.C.A. 379. Bowles v. Willingham, 64 S.Ct. 641 U.S.Ga.,1944 The federal District Court had power to enjoin action in state court to restrain issuance of rent orders under Emergency Price Control Act for alleged unconstitutionality of such orders and the act and the execution by sheriff of any orders in such state action. Jud.Code, 24(1), 265, 28 U.S.C.A. 1331 et seq., 2283 ; ?Emergency Price Control Act of 1942, 204(c, d), 205(a, c), 50 U.S.C.A.App. 924(c, d), 925(a, c); ?U.S.C.A.Const. art. 3, 2. Noland v. Noland, 111 F.2d 322 C.A.9.Cal.,1940 Amended bill of complaint, praying that United States District Court issue injunction restraining divorced wife and another from conducting any further proceedings in the courts of California pertaining to Nevada divorce decree and to custody of child, and praying for issuance of writ of habeas corpus and other relief, was properly dismissed for want of jurisdiction, in absence of allegation of material matters that were not or could not have been placed before the state court, particularly in view of statute prohibiting issuance of injunction by federal court to stay proceedings in state courts except as authorized in bankruptcy proceedings. 28 U.S.C.A. 1331 et seq., 2283 . Hull v. Burr, 34 S.Ct. 892 U.S.Mass.,1914 A suit by alleged owners of certain property to restrain trustees in bankruptcy from suing them in the state court to establish an interest therein is not in aid of a prior judgment in ejectment in the federal court, and therefore excluded from the prohibition of Rev.St. 720, 28 U.S.C.A. 2283 , against injunctions to stay proceedings in state courts, where ejectment was brought after adjudication of bankruptcy, and the bill declares that any title the bankrupt had at the time of the adjudication remains in him. Pitt v. Rodgers, 104 F. 387 C.A.9.Nev.,1900 Under the statute of Nevada, Cutting's Comp.Laws, par. 3122, which requires the filing of a notice of lis pendens with the county recorder in order to charge subsequent purchasers with constructive notice of the pendency of an action affecting the title or possession of real property, a purchaser of land without knowledge or actual notice of a suit then pending in a state court between his grantor and others involving water rights in connection with such land, and in which no notice of lis pendens was filed, is not affected by such suit, and the institution by him of a suit in a federal court to determine his water rights, and the service of process and an injunction therein upon the defendants, who are also the adverse parties in the action in the state court, vests the federal court with priority of jurisdiction over the subject-matter and the parties, and it may properly protect such jurisdiction by an injunction restraining the defendants from further prosecuting the suit in the state court, to which, subsequent to the service of process upon them, they have made the complainant a party. Ashelman v. Pope, 793 F.2d 1072 (9th Cir.(Ariz.),Jul 08, 1986)

Subject Matter Jurisdiction (Competency), Cal. Prac. Guide Civ. Pro. Before Trial Ch. 3-A
Subject Matter Jurisdiction: Which state courts are competent under California law to adjudicate the type of action involved? (See 3:2 ff.) If the claim is based on federal law, can state courts adjudicate at all, or must the case be heard in federal court? I.e., is federal jurisdiction exclusive or concurrent (see 3:611)? (The same issue arises where federal law preempts a state law claim, so that the only viable claim is a federal claim; see 3:612.) Personal Jurisdiction: Assuming the action is filed in a competent court, can that court exercise jurisdiction over the defendants? Is there a constitutionally-sufficient contact or relationship with the defendant to permit California courts to render a valid judgment? (See 3:130 ff.) CompareExcess of Jurisdiction: The term excess of jurisdiction means that a court that has jurisdiction over the subject matter and parties has no authority or power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural requisites. [People v. American Contractors Indem. Co. (2004) 33 C4th 653, 661, 16 CR3d 76, 81 (internal quotes omitted); see Lee v. An (2008) 168 CA4th 558, 565, 85 CR3d 620, 625 acting in excess of jurisdiction renders courts judgment voidable, not void] Federal vs. State Jurisdiction: Claims subject to exclusive federal jurisdiction must of course be filed in federal court (see 3:611). But many diversity and federal question claims are within the concurrent jurisdiction of federal and state courts (see 3:619). In such cases, are there any advantages to suing in state court vs. federal? (See 3:630 ff.) 1. [3:2.1] BackgroundTrial Court Unification: Until 1998, each county in California had a superior court and at least one municipal court with separate subject matter jurisdiction. The California Constitution was amended in 1998 to permit unification of the municipal and superior courts in each county into a single superior court upon approval by the judges of both courts (Const. Art. VI, 5; Gov.C. 70200 et seq.). Courts in all California counties are now unified; municipal courts have ceased to exist. [See TrafficSchoolOnline, Inc. v. Sup.Ct. (Ohlrich) (2001) 89 CA4th 222, 227, 107 CR2d 412, 415] a. [3:2.2] Limited vs. unlimited civil cases: Civil cases formerly within the jurisdiction of municipal courts are now classified as limited civil cases (CCP 85; see 3:8 ff.). All others are unlimited civil cases (CCP 88). Existence of a statute relating to a courts authority in one type of case (limited or unlimited jurisdiction) does not itself imply that the same authority does or does not exist in the other. [CCP 89] 2. [3:3] Superior Court Subject Matter Jurisdiction: There is one superior court in each county in California. [Cal. Const. Art. VI, 4] Each superior court has general subject matter jurisdiction, meaning that it can adjudicate any and all cases brought before it (subject to various exceptions and limitations discussed at 3:123 ff.). The superior court is divided into departments (probate, family law, etc.) as a matter of convenience; but subject matter jurisdiction of the superior court is vested as a whole. [Estate of Bowles (2008) 169 CA4th 684, 695, 87 CR3d 122, 129] 3. [3:4] Limited vs. Unlimited Civil Cases: Superior courts have subject matter jurisdiction in both limited and unlimited civil cases. [See CCP 32.5limited civil case or unlimited civil case] Cases classified as limited civil cases, however, are subject to special rules and jurisdictional limitations, discussed below. a. [3:5] Actions not subject to classification as limited civil cases: By statute, certain actions are not subject to

the special rules governing limited civil cases, regardless of the amount in controversy and regardless of crosscomplaints. These include: Family law cases: All proceedings under the Family Code (including marriage dissolution, legal separation and nullity; child custody/visitation; child, spousal and family support; paternity; and adoptions). [Fam.C. 200] Probate proceedings [Prob.C. 201] Trust administration [Prob.C. 17000; see Saks v. Damon Raike & Co. (1992) 7 CA4th 419, 429430, 8 CR2d 869, 876, fn. 7trial court that first obtains jurisdiction over a trust under petition brought pursuant to Probate Code has exclusive jurisdiction of proceedings concerning that trusts internal affairs] Guardianship and conservatorship proceedings [Prob.C. 2200] Eminent domain proceedings [CCP 1250.010] Corporate dissolution proceedings [Corps.C. 1800(a), 1904] Uninsured motorist arbitration proceedings [CCP 86(a)(10)] Good faith improvements: Actions to recover the value of good faith improvements made on the land of another. [See CCP 871.3(a)] [3:67] Reserved. 4. [3:8] Limited Civil Cases: All cases are classified as unlimited civil cases, except the following actions which are designated as limited civil cases: a. [3:9] Actions at law: Cases at law in which the demand, exclusive of interest, or the value of the property in controversy, is $25,000 or less. [CCP 86(a)(1)] (1) [3:10] Exceptionlegality of taxes, etc.: The only exception is cases involving the legality of any tax, impost, assessment, toll or municipal fine. Such cases are not limited civil cases, even if less than $25,000 is involved. [CCP 86(a)(1); see Cardellini v. Casey (1986) 181 CA3d 389, 398, 226 CR 659, 664] On the other hand, if the taxpayer does not contest the legality of the tax, an action to collect less than $25,000 on state tax liability is a limited civil case. [CCP 688.010] (2) [3:11] Forcible or unlawful detainer: All actions in forcible entry or forcible or unlawful detainer where the total damages claimed is $25,000 or less. (The rental value of the property is immaterial.) [CCP 86(a)(4)] A landlord can sue in superior court for ejectment, but that will not provide the summary remedy available in unlawful detainer. [See Stokus v. Marsh (1990) 217 CA3d 647, 653, 266 CR 90, 93, fn. 2; and detailed discussion in Friedman, Garcia & Hagarty, Cal. Prac. Guide: LandlordTenant (TRG)] g. [3:110] Cross-complaint affecting jurisdictional classification: Classification as a limited or unlimited civil case may also be affected by a cross-complaint filed in the action. (1) [3:111] Cross-complaint for more than $25,000 in action filed as limited civil case: Where a complaint is filed as a limited civil case but the cross-complaint seeks more than $25,000 (or other relief unavailable in a limited civil case), the clerk will reclassify the case as an unlimited civil case upon compliance with the following procedures (CCP 403.030): (a) [3:111.1] Caption of cross-complaint: The caption of the cross-complaint must state words to the following effect: LIMITED CIVIL CASE RECLASSIFIED BY THIS PLEADING AS AN

UNLIMITED CIVIL CASE. [CCP 403.030; CRC 2.111 (11)] (b) [3:111.2] Fees payable by cross-complainant: The reclassification fees (see 3:121) are payable by the party who files the cross-complaint. [CCP 403.030] [3:111.3111.4] Reserved. (2) [3:111.5] Cross-complaint for less than $25,000 in action filed as unlimited civil case: If the action is filed as an unlimited civil case, the court has jurisdiction to render judgment on a cross-complaint in any amount. [See Sullivan v. California Realty Co. (1904) 142 C 201, 206208, 75 P 767, 769770 plaintiff lost on complaint and defendant awarded $180 on cross-complaint] But the actions classification as an unlimited civil case may be affected by dismissal of the complaint. I.e., if the amount demanded in the cross-complaint is less than $25,000, the court may on its own motion or on defendants motion reclassify the action as a limited civil case. [See CCP 403.040, discussed at 3:123] 6. [3:112] Motion to Reclassify Action: Where a case has been misclassified by failure to properly label the pleadings (e.g., plaintiff fails to caption the case as a limited civil case or to check the appropriate box on the civil case cover sheet), any party may file a motion to have the case reclassified, or the court may do so on its own motion. [CCP 403.040(a)] Reclassification, however, is not essential to subject matter jurisdiction. The court is not required to reclassify an action in order to render a valid judgment; i.e., the fact that the judgment to be rendered is one that might have been rendered in a limited civil case does not affect the courts power to render judgment in an unlimited civil case. [See CCP 403.040(e)] g. [3:123.35] Cases lacking justiciable controversy: To invoke a courts jurisdiction, there must be presented to the court a genuine and existing controversy, calling for present adjudication as involving present rights. [Housing Group v. United Natl Ins. Co. (2001) 90 CA4th 1106, 1111, 109 CR2d 497, 501 (internal quotes omitted)] [3:123.36] Thus, a court may not exercise jurisdiction where the parties come to court with a negotiated settlement (no remaining issues to be determined) and ask only that the court appoint a judicial officer of their choosing to ratify it. [Housing Group v. United Natl Ins. Co., supra, 90 CA4th at 1111, 109 CR2d at 501] [3:123.37] Likewise, courts should decline to exercise jurisdiction over a sham or moot action involving no actual controversy. [Housing Group v. United Natl Ins. Co., supra, 90 CA4th at 1111, 109 CR2d at 501] [3:123.38123.39] Reserved. **8. [3:124] Effect of Lack of Subject Matter Jurisdiction: If the court in which the action is filed does not have the power to adjudicate the action, the proceedings are void. [Marlow v. Campbell (1992) 7 CA4th 921, 928, 9 CR2d 516, 520] The parties cannot by stipulation or agreement confer subject matter jurisdiction on a court that otherwise lacks it. [See Crowell v. Downey Comm. Hosp. Found. (2002) 95 CA4th 730, 739, 115 CR2d 810, 817] This issue may arise in those few types of cases in which superior courts lack subject matter jurisdiction: e.g., claims within exclusive federal jurisdiction or within the primary jurisdiction of another tribunal, claims involving religious doctrine or discipline, etc. See discussion at 3:123 ff. a. [3:125] Defect cannot be waived: Lack of subject matter jurisdiction is such a fundamental defect that it is not waived by delay or failure to object. [People v. National Auto. & Cas. Ins. Co. (2000) 82 CA4th 120, 125, 97 CR2d 858, 862subject matter jurisdiction cannot be conferred by consent, waiver or estoppel] The defect can be raised at any time and by any available procedure: A judgment rendered by a court that does not have subject matter jurisdiction is void and unenforceable and may be attacked anywhere, directly or collaterally, by parties or by strangers. [Marlow v. Campbell, supra, 7 CA4th at 928, 9 CR2d at 520 (internal

quotes omitted)] (1) [3:125.1] Comparelack of personal jurisdiction: The requirements as to territorial jurisdiction (minimum contacts, etc.) are for the protection of defendant, and therefore can be waived by him or her ( 3:134). But subject matter jurisdiction requirements go to the very power of the court to act at all, and hence cannot be waived. 9. [3:126] Procedure for Challenging Subject Matter Jurisdiction: Lack of subject matter jurisdiction is such a fundamental defect that it can be raised at any time (even for the first time on appeal). It can be raised: **by demurrer to the complaint where the defect appears on the face of the complaint or from matters judicially noticeable (CCP 430.10(a); see 7:63 ff.); **by motion to strike (CCP 435, 437); **by motion for judgment on the pleadings; **by motion for summary judgment (CCP 437c); or **as an affirmative defense in the answer. [Greener v. Workers Comp. Appeals Bd. (1993) 6 C4th 1028, 10361037, 25 CR2d 539, 543; see Parrott v. Mooring Townhomes Assn, Inc. (2003) 112 CA4th 873, 876, 6 CR3d 116, 118, fn. 1 (citing text)] Compare: The challenge may not, however, be made in a special appearance by a motion to quash service of summons (which lies to challenge the courts personal jurisdiction over the moving party; see 3:376). [Greener v. Workers Comp. Appeals Bd., supra, 6 C4th at 1036, 25 CR2d at 543] a. [3:127] Who may challenge: Lack of subject matter jurisdiction may be raised by either of the parties; or by the court on its own motion. [Chromy v. Lawrance (1991) 233 CA3d 1521, 1527, 285 CR 400, 403 appellate court raised sua sponte] (1) [3:127.1] Losing plaintiff may challenge jurisdiction which it invoked: Plaintiff who has lost on the merits may obtain reversal on appeal by proving the court in which he or she filed the action lacked subject matter jurisdiction. [Chromy v. Lawrance, supra, 233 CA3d at 1528, 285 CR at 403plaintiff filed deathon-high-seas claim in state court; after losing at trial, plaintiff obtained reversal by proving claim was within exclusive federal jurisdiction] b. [3:128] Time for raising defect: Since lack of subject matter jurisdiction renders the proceedings void, the defect can be raised at any time. Failure to raise it in the pleadings does not waive the defect. [CCP 430.80; see Parrott v. Mooring Townhomes Assn, Inc., supra, 112 CA4th at 876, 6 CR3d at 118, fn. 1 (citing text)] (1) [3:128.1] On appeal: Moreover, the policy against courts acting in excess of their power is so strong that lack of subject matter jurisdiction can even be raised for the first time on appeal . [Ash v. Hertz Corp. (1997) 53 CA4th 1107, 1112, 62 CR2d 192, 195immaterial that earlier writ petition had been denied] (2) [3:128.2] After judgment final: Once a judgment becomes final, it is normally res judicata as to any errors or defects in the proceedings. But the policy against courts acting in excess of their subject matter jurisdiction is so strong that later attack may be permitted where: The jurisdictional issue was not actually litigated; and The issue is one of law, rather than of fact; and The courts lack of jurisdiction is clear, and the policy against permitting the court to act beyond its jurisdiction is strong. [See Rest.2d Conflict of Laws 97, comment d] [3:129] Reserved.