44 274 Ellis v. Dyson 8212 130

• Decision Date: 19 May 1975
• Docket Number: No. 73,73
• Parties: . 44 L.Ed.2d 274 Tom E. ELLIS and Robert D. Love, Petitioners, v. Frank M. DYSON et al. —130
• Court: U.S. Supreme Court

421 U.S. 426

95 S.Ct. 1691.

44 L.Ed.2d 274

Tom E. ELLIS and Robert D. Love, Petitioners,

v Frank M. DYSON et al.

No. 73—130.

Argued Nov. 12, 1974.

Decided May 19, 1975.

Syllabus

After being convicted and fined by the Municipal Court, on pleas of nolo contendere, for violating the Dallas loitering ordinance, petitioners, rather than seeking a trial de novo in County Court and thus subjecting themselves to the possibility of a larger fine, brought action in Federal District Court challenging the constitutionality of the ordinance and seeking declaratory and other relief. The District Court dismissed the action, holding that federal declaratory and injunctive relief against future state criminal prosecutions was not available absent allegations of bad-faith prosecution, harassment, or other unusual circumstances presenting a likelihood of irreparable injury to petitioners if the ordinance were enforced, a result felt to be mandated by the decision in Becker v. Thompson, 459 F.2d 919 (CA5), wherein it was held that the principles of Younger v. Harris, 401 U.S. 37, applied not only where a state criminal prosecution was actually pending, but also where a prosecution was merely threatened. The Court of Appeals affirmed. Held: Since the Becker decision was subsequently reversed in Staffel v. Thompson, 415 U.S. 452, wherein it was held that federal declaratory relief is not precluded when a state prosecution based upon an assertedly unconstitutional state statute has been threatened, but is not pending, even if a showing of bad-faith enforcement or other special circumstances has not been made, the Court of Appeals' judgment is reversed and the case is remanded to the District Court for reconsideration in light of Steffel as to whether there is a genuine threat of prosecution and as to the relationship between the past prosecution and the alleged threat of future prosecutions. Pp. 433-434.

475 F.2d 1402, reversed and remanded.

Burt Neuborne, New York City, for petitioners.

Douglas H. Conner, III, Dallas, Tex., for respondents.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This action instituted in the United States District Court for the Northern District of Texas, challenges the constitutionality of the loitering ordinance of the city of Dallas. We do not reach the merits, for the District Court dismissed the case under the compulsion of a procedural precedent of the United States Court of Appeals for the Fifth Circuit which we have since reversed.

I

Petitioners Tom E. Ellis and Robert D. Love, while in an automobile, were arrested in Dllas at 2 a.m. on January 18, 1972, and were charged with violating the city's loitering ordinance. That ordinance, § 31—60 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, Texas, as amended by Ordinance No. 12991, adopted July 20, 1970, provides:

'It shall be unlawful for any person to loiter, as hereinafter defined, in, on or about any place, public or private, when such loitering is accompanied by acitivity or is under circumstances that afford probable cause for alarm or concern for the safety and well-being of persons or for the security of property, in the surrounding area.'

The term 'loiter' is defined to

'include the following activities: The walking about aimlessly without apparent purpose; lingering; hanging around; lagging behind; the idle spending of time; delaying; sauntering and moving slowly about, where such conduct is not due to physical defects or conditions.'

A violation of the ordinance is classified as a misdemeanor and is punishable by a fine of not more than $200.

Before their trial in the Dallas Municipal Court¹ petitioners sought a writ of prohibition from the Texas Court of Criminal Appeals to preclude their prosecution on the ground that the ordinance was unconstitutional on its face. App. 29. The petitioners contended, in particular, that § 31—60 is vague and overbroad, that it 'permits arrest on the basis of alarm or concern only,' and that it allows the offense to be defined 'upon the moment-by-moment opinions and suspicions of a police officer on patrol.' App. 31. The Court of Criminal Appeals, however, denied the application without opinion on February 21, 1972. ² The following day the Municipal Court proceeded to try the case. After overruling petitioners' motion to dismiss the charges on the grounds of the ordinance's unconstitutionality, the court accepted their pleas of nolo contendere³ and fined each petitioner $10 plus $2.50 costs.

Under Texas' two-tier criminal justice system, petitioners could not directly appeal the judgment of the Municipal Court, but were entitled to seek a trial de novo in the County Court,⁴ Vernon's Ann.Tex.Code Crim.Proc., Art. 44.17 (1966), by filing at least a $50 bond within the 10 days following the Municipal Court's judgment. Arts. 44.13 and 44.16. At the de novo trial petitioners would have been subject to the same maximum fine of $200. Appellate review of the County Court judgment would be available in the Texas Court of Criminal Appeals if the fine imposed exceeded $100. Art. 4.03.

Electing to avoid the possibility of the imposition of a larger fine by the County Court than was imposed by the Municipal Court, petitioners brought the present federal action⁵ under the civil rights statutes, 42 U.S.C. § 1983 ⁶ and 28 U.S.C. §§ 1343(3) and (4), and under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 2202. Named as defendants, in both their individual and official capacities, were the then chief of police, the city attorney, and the then city manager, the then clerk of the Municipal Courts, and the mayor. Petitioners sought a declaratory judgment that the loitering ordinance is unconstitutional. They complained that the statute is vague and overbroad, places too much discretion in arresting officers, proscribes conduct that may not constitutionally be limited, and impermissibly chills the rights of free speech, association, assembly, and movement. Petitioners also sought equitable relief in the form of expunction of their records of arrests and convictions for violating the ordinance, and of some counteraction to any distribution to other law enforcement agencies of information as to their arrests and convictions. No injunctive relief against any future application of the statute to them was requested. Cf. Reed v. Giarrusso, 462 F.2d 706 (CA5 1972).

The petitioners moved for summary judgment upon the pleadings, admissions, affidavits, and 'other matters of record.' App. 42. The respondents, in turn, moved to dismiss and suggested, as well, 'that the abstention doctrine is applicable.' Id., at 58. The District Court held that federal declaratory and injunctive relief against future state criminal prosecutions was not available where there was no allegation of bad-faith prosecution, harassment, or other unusual circumstances presenting a likelihood of irreparable injury and harm to the petitioners if the ordinance were enforced. This result, it concluded, was mandated by the decision of its controlling court in Becker v. Thompson, 459 F.2d 919 (CA5 1972). In Becker, the Fifth Circuit had held that the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), applied not only where a state criminal prosecution was actually pending, but also where a state criminal prosecution was merely threatened. Since the present petitioners' complaint contained insufficient allegation of irreparable harm, the case was dismissed. 358 F.Supp. 262 (1973).⁷ The United States Court of Appeals for the Fifth Circuit affirmed without opinion. 475 F.2d 1402 (1973). After we unanimously reversed the Becker decision on which the District Court had relied, Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), we granted the petition for certiorari. 416 U.S. 954, 94 S.Ct. 1967, 40 L.Ed.2d 305 (1974).

II

In Steffel the Court considered the issue whether the Younger doctrine should apply to a case where state prosecution under a challenged ordinance was merely threatened but not pending. In that case, Steffel and his companion, Becker, engaged in protest handbilling at a shopping center. Police informed them that they would be arrested for violating the Georgia criminal trespass statute if they did not desist. Steffel ceased his handbilling activity, but his companion persisted in the endeavor and was arrested and charged.

Steffel then filed suit under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 in Federal District Court, seeking a declaratory judgment⁸ that the ordinance was being applied in violation of his rights under the First and Fourteenth Amendments. It was stipulated that if Steffel returned and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the statute. 415 U.S., at 456, 94 S.Ct. 1209, 1214. Con- trary to the views of the District Court and of the Court of Appeals in the present case, we held that 'federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.' Id., at 475, 94 S.Ct. at 1224.

Thus, in Steffel, we rejected the argument that bad-faith prosecution, harassment, or other unique and extraordinary circumstances must be shown before federal declaratory relief may be invoked against a genuine threat of state prosecution. Unlike the situation where state prosecution is actually pending, cf. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), where there is simply a threatened prosecution, considerations of equity, comity, and federalism have less vitality.⁹ Instead, the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount. 415 U.S.,...