Karp v. Collins, Civ. A. No. 756-69.

• Citation: 333 F. Supp. 15
• Decision Date: 14 September 1971
• Docket Number: Civ. A. No. 756-69.
• Parties: Samuel M. KARP et al., Plaintiffs, v. Major General Kenneth COLLINS, individually and as Commanding General of Headquarters, U. S. Army Training, Infantry and Fort Dix, New Jersey, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

333 F. Supp. 15

Samuel M. KARP et al., Plaintiffs, v. Major General Kenneth COLLINS, individually and as Commanding General of Headquarters, U. S. Army Training, Infantry and Fort Dix, New Jersey, et al., Defendants.

Civ. A. No. 756-69.

United States District Court, D. New Jersey.

September 14, 1971.

Steven H. Gifis, Newark, N. J., for plaintiffs.

John A. Brogan, Deputy Atty. Gen., Trenton, N. J., for defendants.

Before HASTIE, Circuit Judge, and SHAW and WHIPPLE, District Judges.

OPINION OF THE COURT

PER CURIAM:

On original hearing of this suit to enjoin the enforcement of a New Jersey statute, N.J.S. 2A:170-1, which has been authoritatively interpreted as making it criminal to go to or be in a place for an unlawful purpose, this court ruled that the statute violates the Fourteenth Amendment, and we enjoined its enforcement. 1970, 310 F.Supp. 627. However, the Supreme Court vacated our judgment and remanded the case to us for reconsideration in the light of decisions by that Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 and related cases, all decided February 13, 1971. Kugler v. Karp, 1971, 401 U.S. 930, 91 S.Ct. 933, 28 L.Ed.2d 210. The case has now been reargued to us on a motion of the defendants to dismiss the complaint.

Younger v. Harris, supra, explicitly holds that "the possible unconstitutionality of a state criminal statute `on its face' does not in itself justify an injunction against good faith attempts to enforce it * * *" 401 U.S. at 54, 91 S.Ct. at 755. The same day, in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688, the Court held that the same principles restrict the granting of relief from pending state prosecution by way of a federal declaratory judgment.

In the Younger case some of the plaintiffs were persons who had not been prosecuted or personally threatened with prosecution. Rather, they alleged that the prosecution of their co-plaintiff and the existence of the challenged statute caused them to "feel inhibited" in the exercise of their rights of free speech. The Court concluded that this allegation was not "sufficient to bring the equitable jurisdiction of the federal courts into play to enjoin a pending state prosecution." 401 U.S. at 42, 91 S.Ct. at 749. And in Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L. Ed.2d 696, the Court held that speculative apprehension that a number of criminal statutes might be used for bad faith harassment and prosecution of the plaintiff provided an insufficient basis for federal consideration of the constitutionality of the statutes.

First and most clearly, these recent Supreme Court decisions establish that neither any inherent inhibiting effect of a state criminal statute upon the exercise of First Amendment rights, nor the fact that a complainant is being prosecuted thereunder, nor both, will suffice to justify federal interference, by way of injunction or declaratory judgment, with a pending prosecution under that statute. A federal plaintiff must also show that his claim is supported by special equitable considerations that outweigh the strong policy against substituting federal intervention for the normal course of testing the constitutionality of a criminal statute in the course of defending a prosecution under it. The Court suggested bad faith in prosecuting under the statute or in its misuse as a cover for...