Fitzgerald v. Peek

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before INGRAHAM, RONEY and THOMAS A. CLARK; PER CURIAM
• Citation: Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981)
• Decision Date: 14 January 1981
• Docket Number: No. 78-2705,78-2705
• Parties: Ernest Billy FITZGERALD and Marilyn Fitzgerald, Plaintiffs-Appellees, v. M. Randall PEEK, District Attorney Stone Mountain Judicial Circuit, individually and in his official capacity, Defendant-Appellant.

Page 943

636 F.2d 943

Ernest Billy FITZGERALD and Marilyn Fitzgerald, Plaintiffs-Appellees, v. M. Randall PEEK, District Attorney Stone Mountain Judicial Circuit, individually and in his official capacity, Defendant-Appellant.

No. 78-2705.

United States Court of Appeals Fifth Circuit.

Jan. 14, 1981.

Hardaway Young, III, Atty., Terry T. Coles, Decatur, Ga., for defendant-appellant.

Frank P. Samford, III, Judith M. Moore, Decatur, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before INGRAHAM, RONEY and THOMAS A. CLARK, Circuit Judges.

PER CURIAM:

Plaintiffs, Ernest Billy and Marilyn Fitzgerald, brought suit in federal district court to enjoin state court prosecution allegedly brought in bad faith for purposes of harassing and punishing plaintiffs for having exercised their first amendment rights in criticizing certain public officials in DeKalb County. The district court entered a temporary restraining order and, following a two-day hearing, entered a final order permanently enjoining prosecution of the Fitzgeralds on pending indictments charging embracery and terroristic threats. We affirm.

Jurisdiction over this suit is properly predicated on 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). See Duncan v. Perez, 445 F.2d 557, 560 (5th Cir.), cert. denied, 404 U.S. 940, 92 S.Ct. 282, 30 L.Ed.2d 254 (1971). Section 1983 is within the "expressly authorized" exception of the federal anti-injunction statute, 28 U.S.C.A. § 2283. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

The facts of this case are presented in detail in the district court's opinion and need not be repeated here. It is sufficient to note that a thorough examination of the record requires the conclusion that the district court's finding that the prosecution was brought in bad faith for purposes of harassment was not clearly erroneous.

It is well established that a showing of bad faith prosecution presents a narrow exception to the doctrine of abstention which will justify federal interference in a pending state court criminal proceeding. See Moore v. Sims, 442 U.S. 415, 424, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 753, 27 L.Ed.2d 669 (1971); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979); Shaw v. Garrison, 467 F.2d 113, 119-22 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); Duncan v. Perez, 445 F.2d at 560. A showing of bad faith or harassment is equivalent to a showing of irreparable injury under Younger, and irreparable injury independent of the bad faith prosecution need not be established. Wilson v. Thompson, 593 F.2d at 1381-82; Shaw v. Garrison, 467 F.2d at 120. Moreover, although multiple prosecutions of at least Mr. Fitzgerald were pending, the threat of multiple or repeated prosecutions is not necessary to establish bad faith prosecution. Wilson v. Thompson, 593 F.2d at 1381.

Nor is it necessary for plaintiff to prove that the prosecution could not possibly result in a valid conviction. In Wilson v. Thompson, decided after the injunction involved herein was entered, this court enunciated a test which permits a state criminal proceeding to be enjoined if the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred is constitutionally protected and that the state's bringing of the criminal prosecution is motivated at least in part by a purpose to retaliate against or deter that conduct, and the state fails to show that it would have decided to prosecute even had the impermissible purpose not been considered. 593 F.2d at 1387. In this case, the evidence...