UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: August 4, 1971.
GEORGE W. LEWIS ET AL., APPELLANTS,
GEORGE F. KUGLER, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, ET AL.
Van Dusen and Rosenn, Circuit Judges, and Kraft, District Judge.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
Plaintiffs appeal from a March 11, 1971, order of the United States District Court for the District of New Jersey, 324 F. Supp. 1220, denying plaintiffs' motion for a preliminary injunction and dismissing plaintiffs' complaint.*fn1
Plaintiffs, thirty-seven named individuals, filed a complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1964), on behalf of themselves and all others similarly situated seeking declaratory and injunctive relief against the defendants. Plaintiffs allege that they "have travelled in private vehicles upon the public toll roads and public highways of the State of New Jersey and * * * have been subjected to arbitrary stops and unreasonable searches of their persons and their vehicles by [defendants]." Plaintiffs seek pursuant to Fed.R.Civ.P. 23 to represent a class consisting of "persons who travel in private vehicles upon the public toll roads and public highways of the State of New Jersey and who are subject to [a] pattern and practice of halting and unreasonably searching vehicles and travellers." Plaintiffs also seek pursuant to Fed.R.Civ.P. 23(c) (4) (B) to represent a subclass 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 [a] pattern and practice of selective halting and unreasonable searching of vehicles and travellers." Plaintiffs characterize members of this subclass as "long-haired highway travelers." Defendants are the Attorney General of the State of New Jersey, the Superintendent of State Police, fourteen named individual New Jersey State Troopers, and all other members of the New Jersey State Police "who have participated in carrying out against the named plaintiffs the pattern and practice of halting and unreasonably searching vehicles and travellers."
The complaint charges that the defendants engage in a "pattern and practice of unreasonable searches of vehicles and travellers carried on without probable cause," resulting in a denial to plaintiffs, the plaintiff class consisting of all travellers, and the plaintiff subclass consisting of all long-haired travelers of their rights to travel and to be free from unreasonable searches. The complaint also charges that this "pattern and practice," which the complaint charges is directed selectively at "long-haired travellers" on the basis of their "highly individualized personal appearance," works a denial of due process, equal protection, freedom of association, and freedom of expression. The plaintiffs find protection for the rights denied in the first, fourth, ninth and fourteenth amendments to the Constitution, as well as in the commerce clause of article I, section 8. The plaintiffs support these allegations with 17 pages in the complaint of detailed factual recitations relating to 25 separate incidents involving contact between plaintiffs and defendants, as well as with 25 affidavits in support of their motion for a preliminary injunction. The complaint seeks, in addition to a declaration that the alleged pattern and practice of selective searches is unconstitutional and an injunction against its continuance, broad equitable relief in the nature of district court approval of a plan to be formulated by certain defendants to cure the alleged deprivations of constitutional rights and to prevent their recurrence. The complaint asks that the plan include published notices that the pattern and practice of unlawful searches is being terminated, official handbills to be given to motorists stopped by the State Police advising them of the injunctive relief and describing how they may report violations of the court's decree, and signs on the rear of State Police vehicles advising that "unreasonable searches are illegal." The complaint also seeks an injunction prohibiting the prosecution of 10 of the named plaintiffs by state officials as a result of the searches of the named plaintiffs and their vehicles described in the complaint.
The district court ordered a hearing on plaintiffs' motion for a preliminary injunction. After hearing the testimony of three of plaintiffs' witnesses regarding incidents of allegedly unlawful searches to which they had been personally subjected, the court ordered a recess, indicating that a decision on defendants' motion to dismiss would be announced after the recess. Following the recess, counsel for plaintiffs made an offer of proof to show what the plaintiffs were prepared to prove further in support of their motions for a preliminary injunction.*fn2 The court then granted defendants' motion to dismiss the complaint, giving an oral opinion on the legal issues involved, which was supplemented by a written opinion filed March 16, 1971. This appeal followed. It is not disputed on this appeal that the complaint states a federally cognizable cause of action. The issues here are limited to whether the district court should grant relief in the event that the plaintiffs prove the allegations in their complaint.
THE ABSTENTION DOCTRINE
In dismissing the complaint, the district court invoked the abstention doctrine, holding that principles of comity required that plaintiffs' claim first be presented to the New Jersey state courts. This is an action brought under the federal Civil Rights Act, raising federal constitutional claims and prior resort to the state courts is not required.*fn3 Federal courts faced with federal constitutional claims should abstain only when there is an unresolved question of state law which only the state courts can authoritatively construe.*fn4 Abstention in such cases permits state court decisions which may render unnecessary the resolution of constitutional issues, and thereby avoid any possible strain on our system of federalism.*fn5 There is no uncertain state law issue in this case.
The Supreme Court considered the availability of state remedies in the context of actions brought under 42 U.S.C. § 1983 in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and stated:
It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court.
365 U.S. at 183, 81 S. Ct. at 482.
In discussing the expansion of federal judicial power resulting from the enactment of § 1983 in the Civil Rights Act of 1871, the Court stated in Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967):
Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility equally with the federal courts, "* * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * * *," Robb v. Connolly, 111 U.S. 624, 637, 4 S. Ct. 544, 28 L. Ed. 542. "We yet like to believe that whereever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum." [Citations omitted.]
389 U.S. at 248, 88 S. Ct. at 395.
This principle has not been altered by the recent decisions of the Supreme Court in 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); Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S. Ct. 769, 27 L. Ed. 2d 781 (1971), and Byrne v. Karalexis, 401 U.S. 216, 91 S. Ct. 777, 27 L. Ed. 2d 792 (1971). These cases deal with the circumstances under which federal courts may appropriately intervene in pending state criminal prosecutions,*fn6 and are pertinent to this case only insofar as the complaint seeks relief in the nature of an injunction against state criminal proceedings or declaratory relief which would interfere with state criminal proceedings. They are not applicable to situations where no prosecution is pending in state courts at the time a federal proceeding is begun,*fn7 and they do not alter the abstention doctrine insofar as it relates to federal Civil Rights Act claims which do not seek relief that entails intervention in state criminal proceedings. We therefore hold that it was improper for the district court to invoke the abstention doctrine to dismiss any portions of the complaint other than those seeking an injunction against pending state criminal prosecutions and declaratory relief involving pending state criminal prosecutions.
THE STATE CRIMINAL PROCEEDINGS
In view of Younger v. Harris, supra, and Samuels v. Mackell, supra, insofar as the complaint sought an injunction against the state criminal proceedings pending against 10 of the named plaintiffs, and insofar as it sought a declaratory judgment holding unconstitutional the searches and seizures forming the basis of the state criminal proceedings pending against the ten, dismissal was proper.*fn8
The Court held in Younger that the possible unconstitutionality of a statute "on its face" does not justify an injunction against attempts to enforce it, absent a showing of bad faith, harassment, or other unusual circumstances sufficient to establish irreparable injury and therefore call for equitable relief. While this case does not pose a challenge to the constitutionality of a state statute, the equitable principle of Younger is nonetheless applicable, for the focus of Younger is on intervention in pending state criminal proceedings, and that is precisely what plaintiffs seek in part in this case. Plaintiffs have made no showing, and have not alleged or offered to prove facts which if true would establish, that the pending state criminal proceedings were brought in bad faith, were brought merely to harass plaintiffs, or are being prosecuted under circumstances establishing "the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that ha[s] always been considered sufficient to justify federal intervention." 401 U.S. at 48, 91 S. Ct. at 752. While plaintiffs allege that the searches and seizures forming the basis of the state criminal proceedings were conducted in bad faith, that allegation, if true, would not establish the irreparable injury necessary to justify federal court intervention to protect plaintiffs' rights. The plaintiffs allege police misconduct, but an injunction against pending state criminal proceedings would operate against the prosecutorial authorities, and there is no allegation that they have either fostered or taken part in the alleged misconduct. The facts alleged here are quite different from those alleged in Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), where the plaintiffs offered to prove that the prosecutorial authorities threatened to enforce statutes against the plaintiffs without any expectation of securing valid convictions, that despite a summary vacation of search and arrest warrants by a state judge for lack of probable cause the prosecutorial authorities were continuing to threaten new indictments and prosecutions based on the evidence ordered suppressed by the state judge, and that the prosecutorial authorities were engaging in a plan of arrests, seizures, and threats of prosecution for the sole purpose of harassing plaintiffs in order to discourage them from attempting to vindicate the constitutional rights of black citizens of Louisiana. In this case, as in Younger, there is no allegation that the prosecutions are brought in bad faith, or are only part of a series of repeated prosecutions to which the 10 plaintiffs being prosecuted will be subjected. Here the 10 plaintiffs being prosecuted will have an opportunity to raise their constitutional claims in the state criminal proceedings, and there is no indication that defense of the state criminal prosecution will not assure adequate vindication of their constitutional rights.*fn9 The injury that they face is solely "that incidental to every criminal proceeding brought lawfully and in good faith," and they are therefore not entitled to equitable relief.*fn10
Since the equitable principles of Samuels are applicable to the facts of this case, and since an injunction against the state criminal proceedings pending against the above-mentioned 10 plaintiffs is barred by those same equitable principles, relief by way of a declaratory judgment that the searches and seizures forming the basis of the state criminal proceedings against the 10 are unconstitutional should also be denied. The Court in Samuels held that "relief by way of declaratory judgment should [be] denied without consideration of the merits." 401 U.S. at 66, 91 S. Ct. at 768. This case differs from Samuels, however, in that the 10 plaintiffs being prosecuted, in addition to seeking relief against the prosecutorial authorities, also seek relief against the New Jersey State Troopers. As we have noted, that relief is not barred by the Younger and Samuels line of cases. Accordingly, the district court may consider the merits of the constitutional claims advanced by the 10 plaintiffs being prosecuted, as a part of its consideration of all of the evidence offered by plaintiffs to prove a pattern and practice of unlawful police misconduct, but the district court should not enter a declaratory judgment with respect to the constitutionality of the searches and seizures forming the basis of the state criminal proceedings against the 10. The Younger and Samuels line of cases does not bar relief by way of declaratory judgment with respect to the 17 other named plaintiffs, against whom state criminal prosecutions are not pending. We need express no opinion on the propriety of declaratory judgments with respect to the 17 other named plaintiffs on the present record.
THE PROBLEM OF REMEDY
The district court appears to have based its dismissal in part upon the belief that, even if plaintiffs are able to prove that the New Jersey State Troopers are selectively subjecting "longhaired highway travelers" to a pattern and practice of unconstitutional searches and seizures, it would be either improper to grant relief, or impossible to fashion appropriate relief. The district court stated:
As to the class of persons which plaintiffs purport to represent, the injunctive relief sought here which would restrain activity of the New Jersey State Police is not only difficult to conceive but almost impossible to fashion effectively. * * * [Such relief] would be a most unwarranted intrusion by a federal court upon the functions of the executive branch of the state government and the inhibiting effect on law enforcement and police morale would, in the opinion of this Court, be more disastrous to the public interest than the inhibiting effect of which plaintiffs complain.
If the plaintiffs can establish that they are subjected to a deliberate pattern and practice of constitutional violations by the New Jersey State Troopers, we believe that they are entitled to appropriate injunctive relief. Persons who can establish that they are being denied their constitutional rights are enentitled to relief,*fn11 and it can no longer be seriously contended that an action for money damages will serve adequately to remedy unconstitutional searches and seizures.*fn12 The United States Court of Appeals for the Fourth Circuit, in a unanimous en banc decision, has noted that neither the personal assets of police officers nor the nominal bonds they furnish afford a genuine hope of redress, that there is no provision for compensation from public funds, and that the wrongs inflicted by unconstitutional police conduct are not readily measurable in monetary terms. Lankford v. Gelston, 364 F.2d 197, 202 (4th Cir. 1966) (en banc). The Supreme Court has characterized the prospect of pecuniary redress for the harm suffered as a result of unconstitutional searches and seizures as "worthless and futile." Mapp v. Ohio, 367 U.S. 643, 652, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In addition, history has demonstrated that the possibility of a judgment for money damages does not serve as an effective deterrent to future unconstitutional police conduct.*fn13
The Supreme Court approved the use of an injunction as a remedy for unconstitutional police conduct in Hague v. CIO, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939).*fn14 The Fourth Circuit approved the use of an injunction as a remedy for unconstitutional searches and seizures by police in a unanimous, well-reasoned opinion in Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (en banc), a decision which has been cited with approval by the Court of Appeals for the District of Columbia Circuit in Gomez v. Layton, 129 U.S.App.D.C. 289, 394 F.2d 764 (1968), and by the Court of Appeals for the Seventh Circuit in Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969). In addition, the United States District Courts have often used injunctive relief against unconstitutional police conduct,*fn15 and injunctive relief against state officials has frequently been imaginatively fashioned by the federal courts in school desegregation cases.*fn16
The district court's concern about inhibiting lawful law enforcement is of course a proper concern. A federal court should avoid unnecessarily dampening the vigor of a police department by becoming too deeply involved in the department's daily operations, both because of the vital public interests at stake, and because of the danger that the court could become enmeshed in endless time-consuming bickering and controversy. Should the plaintiffs establish that a substantial threat of constitutional violations exists, either directed by or tolerated by officials of the New Jersey State Troopers or the State of New Jersey, one means of remedying the situation available to the district court would be to direct appropriate orders to the responsible officials, with a view to having the situation corrected by them internally, by altering the police disciplinary procedure or otherwise. This is only one of numerous possible alternatives,*fn17 and whether it would be necessary or adequate to protect plaintiffs' rights of course depends upon the facts. Like any court of equity, the district court has very broad power to fashion a remedy appropriate to deal with the factual situation before the court.*fn18 Two considerations must be borne uppermost in mind: first, deprivations of constitutional rights must be stopped promptly; and, second, unnecessary encroachment upon state and local government functions must be avoided.*fn19 We are confident that the district court, which is free to draw upon its wide experience, history, and the recommendations of responsible parties,*fn20 can fashion an appropriate remedy that will protect the constitutional rights of citizens, while preserving the integrity and efficiency of the law enforcement authorities.
If the plaintiffs establish that a substantial threat of directed or tolerated constitutional violations exists, the "inhibiting effect on * * * police morale" (see page 1350 above) is not the sole consideration for the court. As Mr. Justice Brandeis so eloquently observed 43 years ago in his dissenting opinion*fn21 in Olmstead v. United States, 277 U.S. 438, 471, 48 S. Ct. 564, 72 L. Ed. 944 (1928), and as this court recently noted in In re Grand Jury Proceedings, 450 F.2d 199, 217 (3rd Cir. 1971):
In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.
277 U.S. at 485, 48 S. Ct. at 575.
We need not detail here the significance of unconstitutional police conduct or the importance to social stability and police morale of public respect for law enforcement authorities, for these matters have been adequately dealt with elsewhere.*fn22
For the reasons stated above, the order of March 11, 1971, will be vacated, and this case will be remanded to the district court for proceedings consistent with this opinion.*fn23 The plaintiffs should be given a prompt hearing on their motion for a preliminary injunction.*fn24