Jones v. Wade

• Decision Date: 06 August 1973
• Docket Number: No. 72-1481.,72-1481.
• Citation: 479 F.2d 1176
• Parties: Robert Alan JONES, Individually, Etc., Plaintiff-Appellant, v. Henry WADE, Individually, Etc., and Frank Dyson, Individually, Etc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

479 F.2d 1176 (1973)

Robert Alan JONES, Individually, Etc., Plaintiff-Appellant, v. Henry WADE, Individually, Etc., and Frank Dyson, Individually, Etc., Defendants-Appellees.

No. 72-1481.

United States Court of Appeals, Fifth Circuit.

May 30, 1973.

Rehearing Granted August 6, 1973.

Bill Barbisch, Austin, Tex., for plaintiff-appellant.

N. Alex Bickley, Joseph G. Werner, Dallas, Tex., for Dyson.

Edgar A. Mason, Asst. Dist. Atty., Dallas, Tex., for Wade.

John L. Hill, Atty. Gen. of Texas, Jay Floyd, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for State of Texas.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

Rehearing En Banc Granted August 6, 1973.

WISDOM, Circuit Judge:

The question before us is whether a three-judge court should have been convened to decide this case, involving alleged desecration of the American flag in violation of Texas law. This is a jurisdictional matter for the Court of Appeals to decide. We hold that a three-judge court, not a single judge, had jurisdiction to decide the case.

Robert Jones, defendant-appellant, was arrested for violation of the Texas flag desecration statute. Vernon's Ann. Tex.Pen.Code Art. 152. He sued in the federal district court seeking a declaratory judgment that the statute was unconstitutional on its face and requesting an injunction to prevent the state from prosecuting him under the statute. Jones requested that the district court convene a three-judge court to hear the case. The district court dismissed his suit without an evidentiary hearing and without findings. This Court remanded for an evidentiary hearing. Jones v. Wade, 5 Cir. 1971, 436 F.2d 1382. After a hearing, the district court issued a written opinion again dismissing the suit. Jones v. Wade, 1972, N.D.Tex., 338 F.Supp. 441. Jones brought this appeal. We hold that Jones's complaint presented a substantial federal question both as to the constitutionality of the statute and the propriety of federal intervention, and that the district court therefore erred in refusing to convene a three-judge court. We reverse and remand with directions to convene a three-judge court. This holding should not be construed as a decision on the merits.

On the afternoon of May 18, 1970, Jones went to the Dallas Police Department to file a complaint against a Dallas police dispatcher. He was wearing an army surplus green fatigue shirt with a small American flag sewn over the right breast pocket, and a pair of army surplus green fatigue pants with slits in the cuffs into which he had sewn small American flags. While Jones was in the process of filing his complaint, he was arrested for investigation of a possible violation of Article 152 and jailed. His attorney filed an application for habeas corpus in state court, which was scheduled for a hearing the morning of the following day, May 19. Later that afternoon Jones was released without charges. Unaware that his client had been released, Jones's attorney brought this action in federal court on the morning of May 19, before the hearing on the application for state habeas.

Subsequent to the filing of this suit, on the afternoon of May 19, Jones went to the office of the Dallas County District Attorney wearing the same attire. There he was again arrested. The parties have stipulated that the persons who arrested Jones on May 19 were not acting in concert with the officers who arrested him on May 18. Jones has been indicted for this second violation, but the state has withheld prosecution pending the outcome of the present case.

In its opinion dismissing the case the district court stated that Jones had been arrested not for expression within the protection of the First Amendment, but for unprotected conduct. Further, the district court held that federal injunctive or declaratory relief was inappropriate under Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases absent a showing of bad faith. Finally, the district court held that the Texas flag desecration statute was a constitutional exercise of the state's police power.

Our jurisdiction on this appeal is limited to considering whether the district court erred in refusing to convene a three-judge court on the ground that Jones failed to present a substantial federal question. Schackman v. Arnebergh, 1967, 387 U.S. 427, 87 S.Ct. 1622, 18 L. Ed.2d 865; Idlewild Bon Voyage Liquor Corp. v. Epstein, 1962, 370 U.S. 713, 716, 82 S.Ct. 1294, 8 L.Ed.2d 794; Stratton v. St. Louis Southwestern Ry., 1930, 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135. Our inquiry is three-fold: (1) Does Jones present a justiciable controversy and have standing to bring this suit? (2) Is there a substantial question as to the constitutionality of the statute? (3) Would a three-judge court be precluded from exercising its discretion to grant injunctive or declaratory relief? See Ex Parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 4 Cir. 1970, 429 F.2d 606, 611; Reed Enterprises v. Corcoran, 1965, 122 U.S.App.D.C. 387, 354 F.2d 519, 521; Frontiero v. Laird, 1971, M. D.Ala., 327 F.Supp. 580 (three-judge court). We consider these questions in order.

I.

Jones has presented a justiciable controversy and has standing to maintain this action. Jones had been arrested once at the time he brought this suit. He was facing the possibility of future arrests under a statute which at least arguably made his actions illegal. We conclude that Jones has asserted "a sufficiently direct threat of personal detriment." Doe v. Bolton, 1973, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, 210. His standing to challenge this statute on its face is not affected by whether his apparel is characterized as protected symbolic speech (see Tinker v. Des Moines Indep. School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731) or as mere "conduct." Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 847 (1970).

II.

As originally enacted, Article 152 reads:

Any person who shall within this State, publicly or privately, mutilate, deface, defile, defy, tramp upon, or cast contempt upon, either by word or act any flag, standard, color, or ensign of the United States, or that of any of its officers, or on any imitation of either of them, shall be confined in the penitentiary not less than two nor more than twenty-five years.

The Texas state courts have substantially narrowed the scope of this statute to remove constitutional defects. In Deeds v. State, Tex.Cr.App.1971, 474 S.W.2d 718, the Texas Court of Criminal Appeals removed the statute's prohibition of speech. More recently the Court of Criminal Appeals has excised the statutory prohibition of private acts. Delorme v. State, Tex.Cr.App.1973, 488 S. W.2d 808. See also Van Slyke v. State, Tex.Cr.App.1973, 489 S.W.2d 590; Case v. State, Tex.Cr.App.1973, 489 S.W.2d 593; Holland v. State, Tex.Cr.App.1973, 489 S.W.2d 594.

Even given these limiting constructions, we cannot agree with the district court that the statute is clearly constitutional. The state undoubtedly has a legitimate interest in preventing breaches of the peace which might follow certain acts of flag desecration.¹ Street v. New York, 1969, 394 U.S. 576, 590-593, 89 S.Ct. 1354, 22 L.Ed.2d 572. But Article 152 is not focused narrowly on the furtherance of this interest. Instead, the statute broadly proscribes all acts which "cast contempt" upon the flag.² Nowhere does the statute offer any guidance to potential defendants or arresting officers as to the meaning of the words "cast contempt." Conceivably included within the sweep of this language is a wide variety of activity: "black power" salutes by militant athletes, a refusal to remove one's hat during the playing of the Star Spangled Banner,³ the flying of tattered flags, the display of mud-spattered bumper stickers, or the wearing of small flags sewn on the shirts of police officers. See Crosson v. Silver, 1970, D.Ariz., 319 F. Supp. 1084 (three-judge court); Hodsdon v. Buckson, 1970, D.Del., 310 F. Supp. 528 (three-judge court).

The circumstances of Jones's arrests demonstrate the difficulty of giving content to this statutory language. His attire at least arguably fell within the statute's prohibition. Yet though it is not disputed that he wore this apparel in full view of law enforcement officers on several occasions, he was arrested only twice. And those arrests took place while Jones was trying to file a complaint against a Dallas police officer. There is no indication that his actions ever provoked violence or public disorder.

The statute contains other broad language. Article 152 punishes conduct directed not only against a "flag," but also against any "standard, color, or ensign of the United States, or that of any of its officers, or . . . any imitation of either of them." The statute does not define what constitutes an "imitation." And it is questionable whether mutilation of any and all such symbols, or imitations thereof, would be so likely to provoke public disorder or outrage as to furnish legitimate grounds for state regulation. See Crosson v. Silver, supra, 319 F.Supp. at 1089 & n.6.

III.

In a case otherwise within the jurisdiction of a three-judge court, the question whether the Younger doctrine requires abstention is generally a matter for the exercise of equitable discretion, and thus ordinarily a determination to be made by a three-judge court rather than by a single district judge. Abele v. Markle, 2 Cir. 1971, 452 F.2d 1121, 1125; see Note, The Three-Judge District court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 309 (1973). A single district judge may dismiss only where it is plain that Younger leaves no room for a three-judge court to exercise equitable discretion. In the present case the district court found that Younger was controlling, and that Jones had failed to demonstrate a pattern of bad faith...