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March 16, 1971

George W. LEWIS et al., Plaintiffs,
George F. KUGLER, Jr., individually and in his official capacity as Attorney General of the State of New Jersey, et al., Defendants

Shaw, District Judge.

The opinion of the court was delivered by: SHAW

The Court has determined that it should edit and supplement oral opinion dictated on the record at the conclusion of hearing in this matter and does so as follows:

 Plaintiffs seek a declaratory judgment and injunctive relief alleging deprivation of civil rights secured by the First, Fourth and Fourteenth Amendments to the United States Constitution. There is also a reference to the Ninth Amendment and the Commerce Clause, Article I, Section 8.

 The matter came on for hearing on an order to show cause why a preliminary injunction should not issue and on motion of defendants to dismiss the action. It was also argued in defendants' brief that a three-judge court should be convened pursuant to the provisions of 28 U.S.C. § 2281. The Court heard arguments of counsel on the application for injunctive relief and on the motion to dismiss but, before reaching a decision, permitted plaintiffs to present testimony of three witnesses who, plaintiffs' counsel stated, represented a fair sampling of the testimony of a large number of witnesses that plaintiffs had available.

 The constitutionality of a state statute is not challenged and the facts presented by the allegations of plaintiffs do not present a situation that requires decision by a three-judge statutory court pursuant to 28 U.S.C. § 2281.

 Plaintiffs seek to enjoin what they consider to be enforcement of an official police policy of state-wide application which is alleged to violate constitutional rights. The complaint must be dismissed for reasons hereinafter stated.

 It is alleged in the complaint that this is a class action by plaintiffs consisting

"* * * of persons of highly individualized personal appearance who travel in private vehicles upon the public toll roads and public highways of the State of New Jersey and who are subject, solely because of said highly individualized personal appearance, to the pattern and practice of selective halting and unreasonable searching of vehicles and travellers.
* * * The said sub-class of persons of highly individualized personal appearance includes, but is not limited to, persons wearing beards, unusual hair styles, or unorthodox clothing or who in some other way are visually distinguishable from the average user of the said roads (said sub-class hereinafter referred to as 'longhaired travellers')."

 The principal thrust of the action is that individuals such as plaintiffs and others of like appearance are stopped frequently by New Jersey State Police while traveling on public highways in the State of New Jersey. N.J.S.A. 39:3-29 authorizes police officers of the state to stop vehicles and demand that the operator exhibit his drivers license and registration. The constitutionality of this statute is not challenged. It is contended, however, that the New Jersey State Police singled out persons such as plaintiffs and other persons of like appearance for more frequent surveillance than that directed to other travelers and that illegal searches of the vehicles operated were routinely conducted. Some of the searches were unproductive, but it was conceded that nine produced contraband mostly of marijuana and that nine of the plaintiffs are presently subjects of criminal prosecution in the state courts.

 As to the remaining plaintiffs, it does not appear that they have been subjected to criminal prosecution or even threatened with it. But they deplore the inhibiting or "chilling effect" upon their future activities. The Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), observed, "But this sort of 'chilling effect' * * * should not by itself justify federal intervention." If others in the alleged class who have not been prosecuted or threatened with prosecution are inhibited in their activities by fear of apprehension for violations of law, the result seems to be consistent with effective observance of the law. Valid criminal statutes would serve little purpose unless they had some inhibiting effect. "* * * [Persons] having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs. * * *" Younger v. Harris, supra, for federal court interference with state law enforcement policy pursuant to valid criminal statutes.

 Those plaintiffs who are the subjects of pending prosecution in state courts have an adequate forum for the protection of their constitutional rights and those who have not been subjected to prosecution or threatened with it have no valid claim to federal court relief which will calm their inhibitions.

 The increasing prevalence of the mistaken notion that constitutional rights in cases where state courts have jurisdiction will receive more just and competent consideration in a federal district court than could be expected in a state court should be discouraged. If we ignore the principle of comity and the role of federalism, the burden of the volume of litigation that will be thrust upon the federal court in bypassing the state court will become increasingly great. Of course, where it has been demonstrated that a state court will not protect and enforce federally secured constitutional rights, relief is then and should be available in the federal court. But such is not the situation in this case where counsel for plaintiffs conceded in oral argument that ...

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