723 F.2d 1348 (7th Cir. 1983), 83-1358, Waldron v. McAtee

Docket Nº:83-1358.
Citation:723 F.2d 1348
Party Name:Gary WALDRON, Plaintiff-Appellant, v. Joseph McATEE, in his capacity as Chief of Police of the Indianapolis Police Department, William Hudnut, in his capacity as Mayor of the City of Indianapolis, and the Marion County City-County Council, Defendants-Appellees.
Case Date:December 22, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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723 F.2d 1348 (7th Cir. 1983)

Gary WALDRON, Plaintiff-Appellant,


Joseph McATEE, in his capacity as Chief of Police of the

Indianapolis Police Department, William Hudnut, in his

capacity as Mayor of the City of Indianapolis, and the

Marion County City-County Council, Defendants-Appellees.

No. 83-1358.

United States Court of Appeals, Seventh Circuit

December 22, 1983

Argued Sept. 21, 1983.

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[Copyrighted Material Omitted]

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Richard L. Zweig, Indianapolis, Ind., for plaintiff-appellant.

Stephen E. Schrumpf, Indianapolis, Ind., for defendants-appellees.

Before ESCHBACH and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

We are asked to hold Indianapolis's loitering ordinance unconstitutionally vague, but must first decide whether this is a suitable case for abstention.

Shortly before midnight on November 1, 1980, the plaintiff, Waldron, a law student, was driving his new Cadillac in downtown Indianapolis. While stopped at a traffic light he noticed a friend of his in an automobile in the next lane. They agreed to meet in a few minutes in front of the Marion County Public Library. They drove there, parked their cars, got out, and were chatting on the sidewalk (apparently with a third person, who had been a passenger in Waldron's car), when several policemen approached and told them to move along. When Waldron asked why, he was told that he and his friends were violating the city's loitering ordinance, that "There are only faggots, thieves and police out here at this time of night," and that they would be arrested for loitering if they were ever again found late at night in the vicinity of either the library or Monument Circle. Waldron and company left; they were not arrested.

Section 20-9(a) ("Loitering") of the Code of Indianapolis and Marion County, adopted in 1979, provides:

No person shall loiter or prowl in a place, at a time or in a manner not usual for law abiding citizens, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity, in any public way, street, highway, place, or alley and refuse to obey the lawful command of a police officer to move on or provide to said police officer a lawful reason for remaining on said public way, street, highway, place or alley if the alleged loitering by said person would create or cause to be created any of the following:

(1) Danger of a breach of the peace;

(2) The unreasonable danger of a disturbance to the comfort and repose of any person acting lawfully on or in a public way, street, highway, place, or alley reserved for pedestrians;

(3) The obstruction or attempted obstruction of the free normal flow of vehicular traffic or the normal passage of pedestrian traffic upon any public way, street, highway, place, or alley;

(4) The obstruction, molestation or interference or attempt to obstruct, molest or interfere with any person lawfully on or in a public way, street, highway, place, or alley to fear for his or her safety.

Violation is punishable by a fine of up to $500. See section 20-9(f).

Waldron brought this suit on July 13, 1981, against the mayor, police chief, and council of Indianapolis. The complaint is based on section 1 of the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, and seeks a declaration that the loitering ordinance, both as applied to Waldron's conduct on the night

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of November 1, 1980, and on its face (i.e., as it might be applied to other conduct), is void for vagueness under the First Amendment (made applicable to the states by the due process clause of the Fourteenth Amendment). The complaint also seeks a permanent injunction against enforcing the ordinance. Waldron submitted an affidavit, not contradicted, which states that he is afraid to congregate with his friends at night on the sidewalks of downtown Indianapolis for fear of being arrested for violating the ordinance. The district court, 556 F.Supp. 101, on motion for summary judgment held that the ordinance was not unconstitutionally vague and so dismissed the complaint on the merits, and Waldron appeals.

The district court stated without amplification that the case was not suitable for abstention, that is, for requiring Waldron to proceed first in the Indiana courts; and the defendants, preferring that we uphold the district court on the merits, have not asked us to abstain. Although not abstaining in a case where abstention would be proper would not deprive a federal court of its subject-matter jurisdiction--abstention presupposes jurisdiction--the court has the power and in an appropriate case the duty to order abstention, if necessary for the first time at the appellate level, even though no party is asking for it. See, e.g., Bellotti v. Baird, 428 U.S. 132, 143 and n. 10, 96 S.Ct. 2857, 2864 and n. 10, 49 L.Ed.2d 844 (1976); Naylor v. Case & McGrath, Inc., 585 F.2d 557, 563 (2d Cir.1978); 17 Wright, Miller & Cooper, Federal Practice and Procedure Sec. 4243 at pp. 471-72 (1978). When a court abstains in order to avoid unnecessary constitutional adjudication ("Pullman" abstention, after Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)), it is not seeking to protect the rights of one of the parties; it is seeking to promote a harmonious federal system by avoiding a collision between the federal courts and state (including local) legislatures.

The doctrine of abstention has its detractors. See, e.g., Currie, The Federal Courts and the American Law Institute: Part II, 36 U.Chi.L.Rev. 268, 311-17 (1969). They point out that nothing in Article III or the Judicial Code authorizes the federal courts to decline to exercise the jurisdiction that has been given them. And they point out that the practical effect of invoking the doctrine is not only to deny the holder of a federal right the opportunity to enforce it in a federal court (other than by seeking review on certiorari in the Supreme Court of an adverse judgment by the state court on his federal claim) but to subject him to long delay; for abstention, which will require him to start over in state court, often is not ordered till the federal court suit is far advanced. Waldron brought this suit more than two years ago, and if he has to start over in an Indiana state court it may be several more years before he can get a judgment.

But the doctrine also has its vigorous defenders, see, e.g., Friendly, Federal Jurisdiction: A General View 92-96 (1973), and after falling into some judicial disfavor in the 1960s is once again solidly established. See Babbitt v. United Farm Workers, 442 U.S. 289, 307-12, 99 S.Ct. 2301, 2313-16, 60 L.Ed.2d 895 (1979); Boehning v. Indiana State Employees Ass'n, 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 (1975) (per curiam); Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 510-12, 92 S.Ct. 1749, 1757-58, 32 L.Ed.2d 257 (1972); City Investing Co. v. Simcox, 633 F.2d 56, 60 (7th Cir.1980); Yesterday's Children v. Kennedy, 569 F.2d 431, 434-36 (7th Cir.1977); Currie, Federal Courts: Cases and Materials 625-27 (3d ed. 1982). The objection that it deprives a federal claimant of a federal forum to which he is statutorily entitled has been met by allowing him to reserve his federal issues for decision by the federal court after the state court has decided the state issues. See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100, 120 n. 4, 102 S.Ct. 177, 181 n. 4, 70 L.Ed.2d 271 (1981).

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Even those judges who are acutely sensitive to the effect of the abstention doctrine in delaying, and by delaying sometimes defeating, the enforcement of federal rights have approved its use where "a state statute is susceptible of a construction that would avoid or significantly alter a constitutional issue ...." Babbitt v. United Farm Workers, supra, 442 U.S. at 314, 99 S.Ct. at 2317 (Brennan, J., concurring and dissenting). See also Justice Brennan's opinion for the Court in the Lake Carriers' case, supra. The good sense of this position is evident. "One type of case almost universally recognized as appropriate for abstention is that of a state statute, not yet construed by the state courts, which is susceptible of one construction that would render it free from federal constitutional objection and another that would not. A federal court should not place itself in the position of holding the statute unconstitutional by giving it the latter construction, only to find that the highest court of the state will render the decision futile and unnecessary by adopting the former. Such a decision not only is a waste of judicial resources but provokes a needless collision between state and federal power." Friendly, supra, at 93.

The prerequisites for abstention are satisfied in this case. Indianapolis's loitering ordinance really is vague, especially the phrases "danger of a breach of the peace" and "unreasonable danger of a disturbance to the comfort and repose of any person ...." If it were so hopelessly vague that no feat of interpretation could save it from being invalidated as an undue burden on freedom of speech and assembly, abstention would be inappropriate. But it is not that vague. The ordinance seems to be modeled, if somewhat loosely, on the Model Penal Code, which (so far as relevant to this case) provides: "A person commits a violation if he loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity." American Law Institute, Model Penal Code and Commentaries: Official Draft and Revised Comments Sec. 250.6 (1980)...

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