Stewart v. Abraham

Decision Date09 November 2000
Docket NumberNo. 00-2358,00-2358
Citation275 F.3d 220
CourtU.S. Court of Appeals — Third Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Ronald Eisenberg, Esq. (Argued) Emily B. Zimmerman, Esq. Fern Kletter, Esq. District Attorney's Office 1421 Arch Street Philadelphia, PA 19102 Attorneys for Appellants.

David Rudovsky, Esq. (Argued) Jules Epstein, Esq. Kairys, Rudovsky, Epstein, Messing & Rau 924 Cherry Street, Suite 500 Philadelphia, PA 19107. Charles Cunningham, Esq. Bradley S. Bridge, Esq. Defender Association of Philadelphia 70 North 17th Street Philadelphia, PA 19103. Seth Kreimer, Esq. 3400 Chestnut Street Philadelphia, PA 19104 Attorneys for Appellees.

D. Michael Fisher, Esq. William H. Ryan, Jr., Esq. Robert A. Graci, Esq. Stuart Suss, Esq. Office of Attorney General of Pennsylvania Appeals and Legal Services Section 2490 Boulevard of the Generals Norristown, PA 19403 Attorneys for Amicus-appellant Attorney General of Pennsylvania.

Nancy Winkelman, Esq. Stephen J. Shapiro, Esq. Schnader, Harrison, Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Attorneys for Amicus-appellee American Civil Liberties Union of Pennsylvania.

Before: Roth, McKEE and Stapleton, Circuit Judges


Stapleton, Circuit Judge.

This civil rights action mounts a Fourth Amendment challenge to a practice of the Philadelphia District Attorney's Office which the parties have labeled"the rearrest policy."


Rule 5021 of the Pennsylvania Rules of Criminal Procedure provides that a criminal proceeding may "be instituted by . . . an arrest without a warrant" if there is probable cause to believe that the subject has committed a felony. Pa. R. Crim. P. 502. In the case of a warrantless arrest, a complaint is filed and a "preliminary arraignment" is held "without unnecessary delay." Pa. R. Crim. P. 518(a). A reference in the commentary of the Rules to County of Riverside v. McLaughlin, 500 U.S. 44 (1991), makes clear that under ordinary circumstances the preliminary arraignment must be held within 48 hours. See Pa. R. Crim. P. 540(C). At the preliminary arraignment, a neutral magistrate "makes a determination of probable cause." Pa. R. Crim. P. 540(C), 42 Pa. Cons. Stat. S 540(C). If he determines that probable cause does not exist, the subject is discharged. Id. Otherwise, bail is set and a date for a preliminary hearing is fixed no "less than 3 nor more than 10 days after the preliminary arraignment." Pa. R. Crim. P. 540(E)(1). If the Commonwealth presents a "prima facie case" at the preliminary hearing, the subject is held over for trial. Pa. R. Crim. P. 543. If "a prima facie case of the defendant's guilt is not established at the preliminary hearing, and no . . . continuance" is granted the charge is dismissed and the subject is discharged. Pa. R. Crim. P. 542(D). Under Rule 544(a), "[w]hen charges are dismissed . . . at . . . a preliminary hearing, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the refiling of a complaint." Pa. R. Crim. P. 544(a).

Under the challenged rearrest policy, the District Attorney, from time to time when she concludes she has probable cause, reinitiates criminal charges that have been dismissed at a preliminary hearing by rearresting the subject and refiling a complaint pursuant to the authority of Rules 518 and 544. The person arrested is then held to await a new preliminary arraignment within 48 hours. Cash or property posted on the initial arrest is applied against the bail set at that arraignment.2 This reinitiation of a criminal proceeding occurs without a judicial determination that the District Attorney has probable cause to believe that the subject has committed a felony. Because no prima facie case has been presented at the preliminary hearing in such cases and because there has been no judicial finding of probable cause prior to the rearrest, rearrests pursuant to the District Attorney's policy are here challenged as unreasonable seizures under the Fourth Amendment. 3

Plaintiff/Appellee Robert Stewart brought this S 1983 action on behalf of himself and others similarly situated. The District Court granted class certification and enjoined the District Attorney from employing the rearrest policy. The certified class was defined as follows:

All persons who have been or will in the future be subjected to the practice and policy of the . . . [Philadelphia] District Attorney of re-arresting, without judicial authorization, persons whose criminal charges have been dismissed by a Philadelphia Municipal Court Judge based on a determination that the Commonwealth had not established, by reason of lack of evidence or lack of prosecution, probable cause to hold the criminal case for trial.

The District Court's injunction prohibited the District Attorney from "ordering the re-arrest and detention, without judicial authorization, of any persons on any charge which has been dismissed by a Philadelphia Municipal Court judge at a preliminary hearing because of the failure of the Commonwealth . . . to establish probable cause or a prima facie case." This appeal followed. We will reverse.


Stewart was arrested and charged with one count of the felony of aggravated assault, and with misdemeanor counts of simple assault, recklessly endangering another person, and possession of an instrument of crime. One day after his arrest, Stewart was preliminarily arraigned and released on bail. A preliminary hearing was subsequently held in Philadelphia Municipal Court. At the conclusion of that hearing, the presiding judge ruled that the Commonwealth had not presented a prima facie case against Stewart on the felony count. Accordingly, the judge dismissed the felony count of aggravated assault and scheduled Stewart's case for trial on the remaining misdemeanor counts only. The Assistant District Attorney who was prosecuting Stewart in the courtroom immediately reinitiated an identical felony charge of aggravated assault. The allegations of the new complaint were identical to those in the complaint that had just been dismissed. Police re-arrested Stewart on the "dismissed" charge, and detained him for another preliminary hearing. Because Stewart was not able to make the bail set at his second preliminary arraignment, he remained in jail for approximately two weeks until his second preliminary hearing was held. Stewart filed this civil rights action under 42 U.S.C. S 1983 while he was in custody awaiting the second preliminary hearing.


The District Attorney first argues that the District Court should have abstained from exercising its jurisdiction under the doctrine of Younger v. Harris, 401 U.S. 37 (1971). The District Court decided not to abstain, and we conclude that it did not abuse its discretion in doing so.

Younger was arrested under a state criminal statute which allegedly violated his right to free speech under the First and Fourteenth Amendments. While the state charges were still pending, Younger filed an action in federal court to enjoin his prosecution. The District Court agreed that the statute was void for vagueness and overbroad in violation of the First and Fourteenth Amendments and enjoined the District Attorney from enforcing it. See id. at 40. The Supreme Court reversed. It held, based on principles of equity and federalism, that a federal court should not enjoin a state criminal proceeding without a showing that the plaintiff would suffer irreparable injury "both great and immediate." Id. at 46 (quoting Fenner v. Boykin, 271 U.S. 240 (1926)). This standard cannot be met, the Court said, if "the threat to the plaintiff 's federally protected rights . . . [can be addressed] by his defense against a single criminal prosecution." Id. at 46.

In Younger, the federal plaintiff requested that the District Court find unconstitutional the law under which the government was prosecuting him and thereby foreclose his prosecution. In this case, the equitable relief requested is not aimed at state prosecutions, but at the legality of the re-arrest policy and the pretrial detention of a class of criminal defendants. The issues here raised could not have been raised in defense of Stewart's criminal prosecution, and the injunction sought would not bar his prosecution.

We conclude that the Court's application of Younger in Gerstein v. Pugh, 420 U.S. 103 (1975), controls our resolution of the abstention issue here. The defendants in Gerstein were arrested pursuant to a prosecutor's information. Under applicable Florida rules and statutes, prosecutors could charge non-capital offenses by information without a preliminary hearing or leave of court. The Florida courts had previously held that the prosecutor's filing of an information "foreclosed the suspect's right to a preliminary hearing." Id. at 106.

Several arrestees detained under this procedure filed a class action against county officials in federal District Court alleging that they had "a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief." Id. at 107. The State of Florida argued that Younger compelled abstention because federal action would interfere with state proceedings by requiring the state to grant prompt probable cause hearings contrary to the state's own rules and procedures. The Court unanimously rejected that argument. The Court stated:

The District Court correctly held that respondents' claim for relief was not barred by the...

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