Ellis v. Dyson, Civ. A. No. CA-3-5702.

• Citation: 358 F. Supp. 262
• Decision Date: 13 December 1973
• Docket Number: Civ. A. No. CA-3-5702.
• Parties: Tom E. ELLIS and Robert Love, Plaintiffs, v. Frank M. DYSON et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

358 F. Supp. 262

Tom E. ELLIS and Robert Love, Plaintiffs, v. Frank M. DYSON et al., Defendants.

Civ. A. No. CA-3-5702.

United States District Court, N. D. Texas, Dallas Division.

December 13, 1973.

Walter W. Steele, Dallas, Tex., for plaintiffs.

Thomas B. Thorpe and Douglas H. Conner, III, for the City of Dallas, Dallas, Tex., for defendants.

OPINION AND ORDER OF DISMISSAL

ROBERT M. HILL, District Judge.

Tom E. Ellis and Robert D. Love, plaintiffs, filed this suit for redress of rights secured to them by the First and Fourteenth Amendments to the Constitution of the United States. This suit was instituted against certain officials of the City of Dallas, Texas, under 42 U.S.C. § 1983.¹ Plaintiffs attack the constitutionality of an ordinance of the City of Dallas which prohibits loitering. They seek declaratory and injunctive relief.

The defendants moved the court to dismiss the case for lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted. Alternatively they moved the court in its discretion not take jurisdiction of this case by reason of the doctrine of abstention. The court overruled the defendants' motion to dismiss and carried the motion for abstention. In their answer defendants reurged that the complaint be dismissed. Subsequently, plaintiffs filed a motion for summary judgment.

The court has heard the arguments and considered the briefs of the parties in connection with the motion for summary judgment filed by plaintiffs and the motion for abstention filed by defendants. The court has also reconsidered the defendants' motion to dismiss which was previously denied. The court concludes that in the light of recent decisions of the Fifth Circuit hereinafter discussed the motion to dismiss should be granted.

In dismissing this case the court does not reach plaintiffs' motion for summary judgment or defendants' motion for abstention.

The complaint states that plaintiffs were arrested in the City of Dallas on January 18, 1972, and charged with violating an ordinance against loitering.² Plaintiffs applied to the Texas Court of Criminal Appeals for a writ of prohibition to prevent their prosecution under this ordinance. The gravaman of the application was the constitutionality of the ordinance under which plaintiffs were charged. This application was denied and the charges pending against the plaintiffs were set for trial in the corporation court of the City of Dallas. Plaintiffs moved to dismiss the charges on the ground that the ordinance was unconstitutional. This motion was denied and plaintiffs entered pleas of nolo contendere and were convicted.

In their complaint plaintiffs contend that this anti-loitering ordinance is unconstitutional "on its face" because it (1) is vague and overly broad, providing no discernible standards of conduct, and is violative of the due process clause; (2) is violative of the equal protection clause in that it depends upon the alarm or concern of a police officer as to whether the ordinance is being violated and this may vary from person to person; (3) prohibits conduct which is beyond the power of a governmental authority to make illegal; and, (4) has a "chilling effect" upon the free exercise of the rights of freedom of association and assembly and freedom of speech guaranteed by the First Amendment and has a "chilling effect" upon the fundamental right of freedom of movement. Plaintiffs do not allege any bad faith prosecutions, harassment or other unusual conduct, or threat of such in the future, by any of the defendants that has caused or will cause them to suffer irreparable injury and harm unless the relief prayed for is granted.³

For the purpose of ruling on defendants' motion to dismiss this court has assumed as true every factual allegation in plaintiffs' complaint and also assumes that the City of Dallas will continue to enforce the ordinance and this may subject plaintiffs to future arrest and prosecution under the ordinance.

Since plaintiffs do not allege that there are pending criminal proceedings against them, this court is faced with the issue as to the propriety of granting federal declaratory and injunctive relief against possible future criminal prosecutions under an ordinance alleged to be unconstitutional on its face when there are no allegations in the complaint of bad faith prosecutions, harassment or other unusual circumstances which would cause plaintiffs to suffer irreparable injury and harm through the enforcement of the ordinance.

In Younger v. Harris, 401 U.S. 1, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court laid to rest any question as to what was required for federal judicial relief in those instances where there was pending criminal prosecution by holding that such relief could not be granted except under extraordinary circumstances where the danger of irreparable injury was great and immediate. 401 U.S. at 45, 91 S.Ct. 746. The Court went on to hold that the existence of a "chilling effect" on First Amendment rights would not alone constitute a sufficient basis for prohibiting pending state action. However, the propriety of granting federal relief when no state criminal proceedings are pending was expressly reserved by the Supreme Court when it decided Younger's sibling Samuels v. Mackle, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). However, the Fifth Circuit in recent decisions has responded to this very issue.

In Becker v. Thompson, 459 F.2d 919 (5th Cir. 1972) the court held that the Younger principles applicable to pending state criminal prosecutions are also applicable in cases seeking federal equitable relief from threatened state criminal prosecution. Later decisions of the Circuit have followed this holding. Reed v. Giarrusso, 462 F.2d...