Lewis v. Kugler

Decision Date04 August 1971
Docket NumberNo. 71-1227.,71-1227.
Citation446 F.2d 1343
PartiesGeorge W. LEWIS et al., Appellants, v. George F. KUGLER, Jr., individually and in his official capacity as Attorney General of the State of New Jersey, et al.
CourtU.S. Court of Appeals — Third Circuit

Frank Askin, Richard H. Chused, Newark, N. J., for appellants.

Fred H. Kumpf, Deputy Atty. Gen. of N. J., Div. of Crim. Justice (George F. Kugler, Jr., Atty. Gen. of N. J., Trenton, on the brief), for appellees.

Before VAN DUSEN and ROSENN, Circuit Judges, and KRAFT, District Judge.


VAN DUSEN, Circuit Judge.

Plaintiffs appeal from a March 11, 1971, order of the United States District Court for the District of New Jersey, 324 F.Supp. 1220, denying plaintiffs' motion for a preliminary injunction and dismissing plaintiffs' complaint.1

Plaintiffs, thirty-seven named individuals, filed a complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1964), on behalf of themselves and all others similarly situated seeking declaratory and injunctive relief against the defendants. Plaintiffs allege that they "have travelled in private vehicles upon the public toll roads and public highways of the State of New Jersey and * * * have been subjected to arbitrary stops and unreasonable searches of their persons and their vehicles by defendants." Plaintiffs seek pursuant to Fed.R.Civ.P. 23 to represent a class consisting of "persons who travel in private vehicles upon the public toll roads and public highways of the State of New Jersey and who are subject to a pattern and practice of halting and unreasonably searching vehicles and travellers." Plaintiffs also seek pursuant to Fed.R.Civ.P. 23(c) (4) (B) to represent a subclass consisting of "persons of highly individualized personal appearance who travel in private vehicles upon the public toll roads and public highways of the State of New Jersey and who are subject, solely because of said highly individualized personal appearance, to a pattern and practice of selective halting and unreasonable searching of vehicles and travellers." Plaintiffs characterize members of this subclass as "long-haired highway travelers." Defendants are the Attorney General of the State of New Jersey, the Superintendent of State Police, fourteen named individual New Jersey State Troopers, and all other members of the New Jersey State Police "who have participated in carrying out against the named plaintiffs the pattern and practice of halting and unreasonably searching vehicles and travellers."

The complaint charges that the defendants engage in a "pattern and practice of unreasonable searches of vehicles and travellers carried on without probable cause," resulting in a denial to plaintiffs, the plaintiff class consisting of all travellers, and the plaintiff subclass consisting of all long-haired travelers of their rights to travel and to be free from unreasonable searches. The complaint also charges that this "pattern and practice," which the complaint charges is directed selectively at "long-haired travellers" on the basis of their "highly individualized personal appearance," works a denial of due process, equal protection, freedom of association, and freedom of expression. The plaintiffs find protection for the rights denied in the first, fourth, ninth and fourteenth amendments to the Constitution, as well as in the commerce clause of article I, section 8. The plaintiffs support these allegations with 17 pages in the complaint of detailed factual recitations relating to 25 separate incidents involving contact between plaintiffs and defendants, as well as with 25 affidavits in support of their motion for a preliminary injunction. The complaint seeks, in addition to a declaration that the alleged pattern and practice of selective searches is unconstitutional and an injunction against its continuance, broad equitable relief in the nature of district court approval of a plan to be formulated by certain defendants to cure the alleged deprivations of constitutional rights and to prevent their recurrence. The complaint asks that the plan include published notices that the pattern and practice of unlawful searches is being terminated, official handbills to be given to motorists stopped by the State Police advising them of the injunctive relief and describing how they may report violations of the court's decree, and signs on the rear of State Police vehicles advising that "unreasonable searches are illegal." The complaint also seeks an injunction prohibiting the prosecution of 10 of the named plaintiffs by state officials as a result of the searches of the named plaintiffs and their vehicles described in the complaint.

The district court ordered a hearing on plaintiffs' motion for a preliminary injunction. After hearing the testimony of three of plaintiffs' witnesses regarding incidents of allegedly unlawful searches to which they had been personally subjected, the court ordered a recess, indicating that a decision on defendants' motion to dismiss would be announced after the recess. Following the recess, counsel for plaintiffs made an offer of proof to show what the plaintiffs were prepared to prove further in support of their motions for a preliminary injunction.2 The court then granted defendants' motion to dismiss the complaint, giving an oral opinion on the legal issues involved, which was supplemented by a written opinion filed March 16, 1971. This appeal followed. It is not disputed on this appeal that the complaint states a federally cognizable cause of action. The issues here are limited to whether the district court should grant relief in the event that the plaintiffs prove the allegations in their complaint.


In dismissing the complaint, the district court invoked the abstention doctrine, holding that principles of comity required that plaintiffs' claim first be presented to the New Jersey state courts. This is an action brought under the federal Civil Rights Act, raising federal constitutional claims and prior resort to the state courts is not required.3 Federal courts faced with federal constitutional claims should abstain only when there is an unresolved question of state law which only the state courts can authoritatively construe.4 Abstention in such cases permits state court decisions which may render unnecessary the resolution of constitutional issues, and thereby avoid any possible strain on our system of federalism.5 There is no uncertain state law issue in this case.

The Supreme Court considered the availability of state remedies in the context of actions brought under 42 U. S.C. § 1983 in Monroe v. Pape, 365 U. S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and stated:

It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court.
365 U.S. at 183, 81 S.Ct. at 482.

In discussing the expansion of federal judicial power resulting from the enactment of § 1983 in the Civil Rights Act of 1871, the Court stated in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L. Ed.2d 444 (1967):

Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor\'s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility equally with the federal courts, "* * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * * *," Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542. "We yet like to believe that whereever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum." Citations omitted.
389 U.S. at 248, 88 S.Ct. at 395.

This principle has not been altered by the recent decisions of the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971), and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971). These cases deal with the circumstances under which federal courts may appropriately intervene in pending state criminal prosecutions,6 and are pertinent to this case only insofar as the complaint seeks relief in the nature of an injunction against state criminal proceedings or declaratory relief which would interfere with state criminal proceedings. They are not applicable to situations where no prosecution is pending in state courts at the time a federal proceeding is begun,7 and they do not alter the abstention doctrine insofar as it relates to federal Civil Rights Act claims which do not seek relief that entails intervention in state criminal proceedings. We therefore hold that it was improper for the district court to invoke the abstention doctrine to dismiss any portions of the complaint other than those seeking an injunction against pending state criminal prosecutions and declaratory relief involving pending state criminal prosecutions.


In view of Younger v. Harris, supra, and Samuels v. Mackell, supra, insofar as the complaint sought an injunction against the state criminal proceedings pending against 10 of the named p...

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