Sheridan v. Garrison

• Decision Date: 16 September 1969
• Docket Number: No. 25516.,25516.
• Citation: 415 F.2d 699
• Parties: Walter SHERIDAN and Richard Townley, Appellants, v. Jim GARRISON, Individually and as a District Attorney for the Parish of Orleans, Etc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 699 (1969)

Walter SHERIDAN and Richard Townley, Appellants, v. Jim GARRISON, Individually and as a District Attorney for the Parish of Orleans, Etc., Appellee.

No. 25516.

United States Court of Appeals Fifth Circuit.

August 13, 1969.

Rehearing Denied September 16, 1969.

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Milton E. Brener, Harry McCall, Jr., Edward M. Baldwin, New Orleans, La., Herbert J. Miller, Jr., Washington, D. C., H. Richard Schumacher, New York City, for appellants.

James L. Alcock, Mrs. Louise Korns, Numa Bertel, Jr., James J. O'Connor, Asst. Dist. Attys., New Orleans, La., for appellee.

Before THORNBERRY and DYER, Circuit Judges, and FISHER, District Judge.

THORNBERRY, Circuit Judge:

This appeal concerns first amendment rights. Appellants are asking for an injunction under the Civil Rights Statute, Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983 (1964), to protect their right of free speech, which they claim is being abridged by a pending criminal prosecution brought against them by appellee in Orleans Parish, Louisiana. The district court entered summary judgment for appellee because it found that the Anti-Injunction Statute, 28 U.S.C. § 2283 (1964), barred the relief prayed for and that appellants had not in any event alleged such extreme circumstances as to justify federal intervention under Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. In light of the recent decisions of this Court in Machesky v. Bizzell, 5th Cir. 1969, 414 F.2d 283, and Dawkins v. Green, 5th Cir. 1969, 412 F.2d 644, we reverse and remand the case for an evidentiary hearing.¹

The facts that form the background of this case are well known. Appellee is the District Attorney for Orleans Parish. Both before and after the commencement of this litigation, he was conducting an investigation into the assassination of President Kennedy. Appellants, who are both television newsmen, covered the investigation as news reporters and participated in the broadcast of a television program critical of the District Attorney's conduct of the investigation. NBC broadcast this program on June 19, 1967. Shortly thereafter, on July 7, 1967, the District Attorney filed an information that charged appellant Walter Sheridan with bribing a witness in the investigation, and on July 11 he filed three informations that charged appellant Richard Townley with bribing and intimidating witnesses. On August 10, 1967, after these informations had been filed to begin the prosecutions but before any trial or hearing on either case had begun, appellants filed their complaint in federal district court.

The complaint alleged that the charges against the appellants were totally lacking in substance and that the District Attorney knew them to be so lacking. It further alleged that the charges were filed not for "legitimate purposes of good-faith prosecution, but rather in furtherance of the District Attorney's scheme of harassment and intimidation of the appellants," and that this prosecution was part of a broad plan to intimidate those who disagree with the District Attorney's conduct as a public official. Read most favorably to the appellants, the complaint, record, and appellants' affidavits would indicate that the District Attorney has subpoenaed and by use of subpoenas attempted to intimidate many of those who executed affidavits on appellants' behalf, that he has threatened to "get" appellant Sheridan, that he has attempted to have appellants physically beaten, that he has suppressed evidence tending to show the charges false, and that he has not prosecuted others for bribery when convincing evidence against them was presented to him because they were favorable to him or at least not critical of him. In addition, affidavits of other newsmen, including reporters for NBC, Life Magazine, and Newsweek Magazine, indicate that prosecution of the criminal suits against appellants would have a "marked inhibiting effect" on news coverage of the District Attorney's investigation.

There are two major issues in this appeal. First, there is the question whether § 2283, the Anti-Injunction Statute, is a bar to the relief here prayed for. The second issue is whether the case, on the facts as pleaded and as shown by appellants' affidavits, was a proper one for summary judgment. We take up the issues in this order.

I. THE EFFECT OF THE ANTI-INJUNCTION STATUTE

The Anti-Injunction Statute, § 2283, states as follows: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Section 1983, the Civil Rights Statute, provides, on the other hand, that every person who causes a citizen of the United States to be deprived of his rights under the federal Constitution and laws "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." This statute thus authorizes the issuance of an injunction in some cases to protect the exercise of civil rights. Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. Our task here is to resolve the conflicting implications of § 1983 and § 2283 in light of the first amendment freedoms involved.

A. The Comity Nature of Section 2283 in the First Amendment Context

We begin, as did this Court in Machesky v. Bizzell, by eliminating the question whether § 1983 or Dombrowski creates an "express exception" to § 2283, because we reach our decision on the narrower basis of the comity nature of 2283 itself.

The decisions of the Supreme Court, and the decisions of the federal courts in general, provide only a vague guide to our determination. In Dombrowski v. Pfister, the most important of the cases granting relief of the type requested here, the Supreme Court was not faced with the problem of § 2283 because of the peculiar facts of the case. Dombrowski concerned an action brought under § 1983 to enjoin the enforcement of a Louisiana subversive activities statute which plaintiffs alleged was an unconstitutional infringement on their first amendment rights. Section 2283 was eliminated from consideration because Louisiana state officials had explicitly and publicly stated their intention to enforce the subversive activities statute against the plaintiffs, who were consequently apprised of the probability of prosecution in advance. Thus they were able to file their suit and to have the federal district court issue a temporary restraining order prior to the filing of any papers commencing criminal proceedings in the Louisiana courts. The Supreme Court held that, in light of the defendants' bad faith, the presence of the unconstitutionally broad subversive activities statute effectively denied the plaintiffs their right of free speech, because "the threat of sanctions may deter * * * almost as potently as the actual application of sanctions." It went on to develop the now-famous metaphor of the "chilling effect" on free speech that is one of the requirements for the availability of Dombrowski relief: "The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure." Dombrowski v. Pfister, supra, 380 U.S. at 486-487, 85 S.Ct. at 1120-1121.

Because of this chilling effect, which would have constituted irreparable injury to the plaintiffs, the Dombrowski Court concluded, first, that it had jurisdiction to grant the injunction requested and, second, that equitable abstention from deciding the case would be improper. In so holding, the Court deviated from a long line of cases, beginning with R. R. Comm'n of Texas v. Pullman Co., 1941, 312 U.S. 496, 501, 61 S.Ct. 643, 85 L.Ed. 971, and Burford v. Sun Oil Co., 1943, 319 U.S. 315, 318, 324-327, 63 S.Ct. 1098, 87 L.Ed. 1424, in which it had held that the principle of comity between the state and federal sovereignties required a federal court to abstain from deciding difficult or unresolved questions of state law. Before Dombrowski, the abstention doctrine had been applied even to civil rights cases, and for that matter even to those involving first amendment freedoms that might be chilled. See, e. g., Cleary v. Bolger, 1963, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390; Harrison v. N.A.A.C.P., 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Douglas v. City of Jeanette, 1943, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. Thus although Dombrowski did not decide the § 2283 question with which we are faced, it furnishes our starting point because it indicates that the immediate vindication of first amendment rights clearly and actually abridged by illegal state action may supersede the principle of comity between the federal and state judicial systems.

Shortly after its decision in Dombrowski, the Supreme Court considered an appeal in which injunctive relief was requested against a state criminal prosecution that, unlike the prosecution in Dombrowski, had already begun. Cameron v. Johnson, 1965, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715. The Court remanded the case in a brief per curiam opinion with directions as follows: "The District Court should first consider whether 28 U.S.C. § 2283 (1958 ed.) bars a federal injunction in this case, see 380 U.S. at 484, n. 2, 85 S.Ct. at 1119. If § 2283 is not a bar, the court should then determine whether relief is proper in light of the criteria set forth in Dombrowski." The district court held that § 2283 was a bar to the enjoining of a suit that had already been filed, and that since the prosecutions were undertaken for valid purposes under a valid statute no relief could be granted in any event. The Supreme Court affirmed this decision on the basis of the finding that Dombrowski relief could not be granted in light of the facts of the case. Cameron v. Johnson, 1968, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed. 2d 182, ...