United States Servicemen's Fund v

Turco v. Allen, 334 F.Supp. 209 (D.C.Md., 1971)

United States District Court,

D. Maryland.

Arthur TURCO, Jr., and the Black Panther Party, Plaintiffs,

Milton B. ALLEN, State's Attorney, Baltimore City, et al., Defendants.

Civ. No. 71-859.

Nov. 19, 1971.

Action brought by state defendant and Black Panther Party for declaratory

and injunctive relief and for damages. The District Court, Herbert F.

Murray, J., held, inter alia, that state defendant, against whom

prosecution was pending following a mistrial after jury in first trial

could not agree, had adequate state remedies by which he could present to

judge, who was to try case, all of his claims about invalidity of

prosecution including claim that the same was brought in bad faith, and

federal court could not interfere with such prosecution.

Prayers for relief denied in accordance with opinion.

*209

Harold Buchman, Baltimore, Md., Charles R. Garry, San Francisco, Cal.,

William M. Kunstler, New York City, Arthur Turco, Jr., Leonard Weinglass,

Newark, N. J., and Gerald B. Lefcourt, New York City, for plaintiffs.

Francis B. Burch, Atty. Gen. of Maryland; Henry R. Lord, Edward F.

Borgerding, Bernard L. Silbert, Baltimore, Md., for defendants.

John Henry Lewin, Jr., Baltimore, Md., for defendant Hilary D. Caplan,

individually.

Frank Carrington, Richard Wright, Chicago, Ill., and James R. White,

Baltimore, Md., for Americans for Effective Law Enforcement as amicus

curiae.

*210

HERBERT F. MURRAY, District Judge.

MEMORANDUM AND ORDER

On May 1, 1970 Arthur Turco, Jr., one of the plaintiffs, was indicted by

the Grand Jury of Baltimore City, Maryland and charged with participating

in the torture and murder of one Eugene Leroy Anderson whose skeleton had

been discovered in Leakin Park in Baltimore on October 27, 1969.

Specifically, Turco was charged with conspiracy to murder, assault with

intent to murder, solicitation to murder, solicitation to kidnap and

accessory to murder.

A warrant was issued for Turco's arrest on April 29, 1970. Subsequently,

on October 16, 1970, Plaintiff Turco was arrested in Montreal, Canada,

waived extradition and agreed to voluntary deportation from Canada and

returned to Baltimore City on or about December 8, 1970.

Following his return he was held without bail in the Baltimore City Jail

and on December 29, 1970 he filed in this Court a petition for habeas

corpus relief under 28 U.S.C.A. Section 2254 and in the alternative, for

removal of his pending criminal prosecution from the Criminal Court of

Baltimore to this Court under the provisions of 28 U.S.C.A. Section 1443.

Thereafter, Judge James R. Miller, Jr. of this Court, held hearings on the

petition on January 5, 1971 and February 5, 1971. On March 3, 1971 Judge

Miller filed an opinion denying habeas corpus relief under 28 U.S.C.A.

Section 2254. He also denied removal under 28 U.S.C.A. Section 1443. Turco

v. State of Maryland, 324 F.Supp. 61 (D.Md., 1971); aff'd, 444 F.2d 56,

4th Cir., 1971.

The criminal case against Plaintiff Turco was tried in the Criminal Court

of Baltimore City from June 16, 1971 to July 3, 1971, before Judge James

W. Murphy and a jury. The jury, after receiving the case, deliberated for

some thirty hours and Judge Murphy then declared a mis-trial because of

their failure to agree. Counsel for defendants in the present case have

advised the Court that at the time the jury was discharged, it stood 10-2

for a conviction. This is disputed by counsel for the Plaintiff Turco who

stated he would stipulate that the jury stood 9-3 for conviction.

Re-trial of the charges against Mr. Turco is presently scheduled for

November 29, 1971. Since the discharge of the first jury on July 3, 1971,

the Plaintiff Turco has been at large following the posting of a surety

bond in the sum of $10,000.00.

On August 12, 1971 Mr. Turco and the Black Panther Party filed the present

action in this Court against Milton B. Allen, State's Attorney for

Baltimore City, Hilary D. Caplan, Assistant State's Attorney, Donald E.

Pomerleau, Police Commissioner of Baltimore City and Lt. Colonel Maurice

D. DuBois, Chief of Criminal Investigation of the Baltimore City Police

Department. The action is denominated as a class action, the Plaintiff

Turco alleging that he sues on behalf of himself "and all other attorneys

similarly situated" and the Black Panther Party alleging that it sues on

behalf of itself, its chapters, affiliates and branches, and all the

members thereof, as well as other organizations similarly situated.

The jurisdiction of the Court is invoked under the federal question,

diversity of citizenship, civil rights and decclaratory judgment sections

of Title 28 U.S.C. (Sections 1331, 1332, 1343, 2201 and 2202).

Specifically, federal question jurisdiction is based on the Civil Rights

Act of 1964, 42 U.S.C. Section 1981 et seq. and the First, Second, Third,

Fourth, Fifth, Eighth, Ninth, Tenth, Fourteenth and Fifteenth Amendments

to the Constitution of the United States. The basic allegation of

deprivation of the civil rights of the Plaintiff Turco is that the

criminal proceeding against him was brought "in bad faith and without

reasonable expectation of eventual success in order to have a chilling

effect on the exercise by him and his clients, including plaintiff Party,

its chapters, affiliates and branches, and/or *211

the members, supporters or associates thereof, of their fundamental rights

of expression as guaranteed by the First and Fourteenth Amendments to the

Constitution of the United States." It is also alleged in the Complaint

that the defendants Pomerleau and DuBois, in order to "harass, intimidate,

deter and destroy the Baltimore Chapter of Plaintiff Party" conspired

together to fabricate criminal charges that members of the said Baltimore

Chapter and the Plaintiff Turco had first tortured and then executed

Eugene Leroy Anderson under the impression that he was either a law

enforcement officer or a police informer. It is further alleged that

defendants Pomerleau and DuBois "secured by terrorization, intimidation,

coercion, grants of immunity and payments of money, inter alia, the

agreement of three former members of the Black Panther Party, viz. Mahoney

Kebe, Arnold Loney and Donald Vaughan, to serve as false witnesses before

a Grand Jury of Baltimore City, Maryland and at the subsequent criminal

trial of those persons indicted thereby for allegedly participating in the

said torture and murder of Anderson, including Plaintiff Turco herein."

By way of more specific factual allegation, Plaintiffs, in paragraph 22 of

the Complaint, alleged that at the criminal trial of the Plaintiff Turco

in June and July, 1971 the whole testimony of state witness Mahoney Kebe

was ordered stricken by Judge Murphy "after it was shown by irrefutable

documentary evidence that the witness had willfully and deliberately

perjured himself as to a material fact", that another witness, one Sam

Walters, was induced or encouraged to testify falsely to procure the

conviction of Plaintiff Turco and that a third witness, Donald Vaughan who

allegedly refreshed his recollection from a statement he had read and

initialed, was shown to be illiterate and unable to read, a fact which was

allegedly known to some or all of the defendants but "which they

willfully, deliberately and maliciously withheld from both Judge Murphy

and Plaintiff Turco ***".

The plaintiffs allege in paragraph 29 of the Complaint that they have no

adequate remedy at law. The relief they seek is:

(1) A permanent injunction

(a) restraining the defendants from interfering with the Constitutional

rights of the Plaintiffs;

(b) restraining the defendants from infiltrating, surveilling or otherwise

interfering with the activities of the Black Panther Party in exercising

the rights allegedly granted to the Party and its members by the

Constitution of the United States;

proceedings against the Plaintiff Turco;

(d) ordering defendants to discontinue forthwith the criminal proceedings

against the Plaintiff Turco;

(2) An interlocutory injunction restraining the defendants from

instituting or continuing the criminal proceedings against Plaintiff Turco

or from infiltrating, surveilling or otherwise interfering with the

activities of the Black Panther Party;

(3) A declaratory judgment that the conduct of the defendants in

presenting the testimony of the witnesses Kebe, Walters and Vaughan at the

criminal trial of Turco and in infiltrating, surveilling or otherwise

interfering with the activities of the Black Panther Party is

unconstitutional;

(4) That the Plaintiff Turco be granted a judgment and damages against

some or all of the defendants in the sum of one million dollars.

Following the filing of the Complaint, several motions to dismiss were

filed on *212 behalf of the defendants based on the following main contentions:

(1) Under general principles of comity this Court should decline to

interfere with the already pending state court criminal prosecution

because no emergency or irreparable injury has been shown to justify

federal interference by injunction;

(2) Issuance of any injunction would be contrary to the so-called

anti-injunction statute, Title 28 U.S.C. Section 2283, and the equitable

remedy of injunction afforded by Title 42 U.S.C. Section 1983 does not

come within any of the exceptions set out in Title 28 U.S.C. Section 2283;

(3) The Federal Court should not interfere with the information-gathering

or surveillance activities of state law enforcement agencies;

(4) The defendants Milton B. Allen and Hilary D. Caplan are entitled to

immunity from suit for acts undertaken in their official capacities as

public prosecutors;

(5) The defendants Pomerleau and DuBois cannot be held liable in damages

for alleged bad faith actions of their subordinates in the Police

Department; and

(6) The plaintiffs have not complied with the requirements for a valid

class action.

The Court held an all-day hearing on all of the pending motions on

November 4, 1971. At the hearing counsel for the plaintiffs urged the

Court to grant an evidentiary hearing at which plaintiffs could offer

testimony on the issue of whether the State prosecution was brought in bad

faith with the knowledge and direct participation of the defendants. The

defendants met this request with the contention that plaintiffs could make

their Constitutional point by utilizing available procedures under State

criminal law and by pursuing their remedies through the State Courts.

Counsel for the plaintiffs indicated that if an evidentiary hearing were

granted, the testimony of witnesses would be produced to show that the

defendant police officials knowingly developed and the defendant

prosecutors knowingly later utilized false and perjured testimony in an

effort to convict Mr. Turco.

No reason appears why the point the plaintiffs wish to raise at an

evidentiary hearing in this Court could not be made in the Criminal Court

of Baltimore City where the case against Mr. Turco is presently pending.

If there is validity to his claim that the prosecution knowingly sought

and used perjured testimony, there is no reason for this Court to assume

that the Criminal Court of Baltimore City will not be fully as zealous in

protecting the rights of the Plaintiff Turco as this Court trusts it would

be if confronted with the same question. Under Rule 725 of the Maryland

Rules of Procedure, provision is made for motions before trial to raise

defenses and objections based on defects in the institution of the

prosecution. The rule contemplates either a motion to dismiss or a motion

"to grant appropriate relief". Such a motion may be supported by affidavit

and shall be determined before trial unless the court orders that it be

deferred for determination at the trial of the general issue. The rule

further provides (Rule 725d) that "all issues of fact raised by such

motion may be determined by the court without a jury on affidavit or in

such other manner as the court may direct." A virtually identical

provision may be found in Rule 12 (b) (4) of the Federal Rules of Criminal

Procedure. This rule certainly appears broad enough in its terms to give

counsel for Mr. Turco full scope to present to the judge who is to try the

case all of his contentions about the invalidity of the prosecution and to

make a full record to preserve the point on appeal if he is aggrieved by

the ruling of the trial judge.

The Court feels, based on the stipulation by plaintiffs' counsel that the

jury which tried Mr. Turco stood 9 to 3 for conviction at the time of

their discharge that there is no substance to the contention *213

that the state prosecution was brought "without reasonable expectation of

eventual success" as alleged in the Complaint. If there is any merit to

plaintiffs' contention of a bad faith prosecution, that determination

should be made by the courts of Maryland which have supervisory power

over the prosecution and which are fully capable of judging the bona fides

of prosecuting officers who appear before them.

Any evidentiary hearing which this Court might hold, even if there were a

legal basis for it, could serve only to disturb the delicate balance

between federal and state relations. The notoriety and publicity attendant

upon such a hearing could serve only to hamper and perhaps seriously delay

the state prosecution, whatever the outcome of the hearing. A collateral

inquiry of this nature by a federal court might well result in what

Justice Black of the Supreme Court had in mind when he stated in Cameron

v. Johnson, 381 U.S. 741 at 743 (Footnote 2) 85 S.Ct. 1751 at 1753, 14

L.Ed.2d 715:

"Today's decision appears to add more devices to the collection of

delaying tactics by which state criminal defendants may use collateral

litigation in the federal courts to prevent their prosecutions in state

courts from coming to trial for many years, if ever."

Further, this Court is fully satisfied that under general principles of

comity and in view of the express statutory prohibition in 28 U.S.C.A.

Section 2283 against federal courts enjoining state proceedings, it should

not assert its equity jurisdiction to interfere in any way in the pending

state court criminal prosecution of Plaintiff Turco.

There is ample authority supporting the policy of abstention from

interference in state criminal proceedings. In Stefanelli v. Minard, 342

U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the plaintiff Stefanelli had

been indicted by the State of New Jersey for bookmaking. He sued in the

federal court under the Civil Rights Act (R.S. Section 1979, 8 U.S.C.

Section 43) seeking an injunction against the use in the then pending

state proceeding of bookmaking materials claimed to have been seized in a

search of his home by police officers without legal authority. The

district court refused to grant an injunction and dismissed the complaint.

This action was affirmed in the Court of Appeals (Stefanelli v. Malanga,

184 F.2d 575, 3rd Cir. 1950). The Supreme Court also approved this

disposition and Mr. Justice Frankfurter, in the course of his majority

opinion, took occasion to say (at page 123 of 342 U.S., at page 121 of 72

S.Ct.):

"The consequences of exercising the equitable power here invoked are not

the concern of a merely doctrinaire alertness to protect the proper sphere

of the States in enforcing their criminal law. If we were to sanction this

intervention, we would expose every State criminal prosecution to

insupportable disruption. Every question of procedural due process of

law-with its far-flung and undefined range-would invite a flanking

movement against the system of State courts by resort to the federal

forum, with review if need be to this Court, to determine the issue.

Asserted unconstitutionality in the impaneling and selection of the grand

and petit juries, in the failure to appoint counsel, in the admission of a

confession, in the creation of an unfair trial atmosphere, in the

misconduct of the trial court-all would provide ready opportunities, which

conscientious counsel might be bound to employ, to subvert the orderly,

effective prosecution of local crime in local courts. To suggest these

difficulties is to recognize their solution.

"Mr. Justice Holmes dealt with this problem in a situation especially

appealing: 'The relation of the United States and the Courts of the United

States to the States and the Courts of the States is a very delicate

matter that has occupied the thoughts of statesmen and judges for a

hundred years and can not be disposed of by a summary statement that

justice requires me to cut red tape and to intervene.' *214

Memorandum of Mr. Justice Holmes in 5 The Sacco-Vanzetti Case, Transcript

of the Record (Henry Holt & Co., 1929) 5516. A proper respect for those

relations requires that the judgment below be affirmed."

Later in the case of Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9

L.Ed.2d 390 (1963), the plaintiff brought action in a federal district

court for an injunction against a state officer to prevent him from

testifying in a state criminal proceeding to incriminating statements

which the state officer had heard the plaintiff make while being illegally

detained and questioned by federal officers. Mr. Justice Harlan, speaking

for the Supreme Court, relied on Mr. Justice Frankfurter's opinion in

Stefanelli in affirming the denial of the injunction and observed: (at

page 400 of 371 U.S., at page 390 of 83 S.Ct.):

"The withholding of injunctive relief against this state official does not

deprive respondent of the opportunity for federal correction of any denial

of federal constitutional rights in the state proceedings. To the extent

that such rights have been violated, cf., e. g., Mapp v. Ohio [367 U.S.

643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081], supra, he may raise the objection in

the state courts and then seek review in this Court of an adverse

determination by the New York Court of Appeals. To permit such claims to

be litigated collaterally, as is sought here, would in effect frustrate

the deep-seated federal policy against piecemeal review."

While Stefanelli and Cleary are persuasive authority in resolving the

matter presently before the Court, counsel for the Plaintiff Turco contend

that such precedents lose much of their force in view of the Supreme

Court's decision in the important case of Dombrowski v. Pfister, 380 U.S.

479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1964). In Dombrowski, the plaintiffs

invoked relief under the Civil Rights Act, 42 U.S.C. Section 1983, to

prevent by injunction their threatened prosecution under Louisiana's

Subversive Activities and Communist Control law and Communist Propaganda

Control law which the complaint alleged were so broad and vague on their

face that they interfered with First Amendment guaranties of freedom of

expression.

The Court did not feel inhibited by the anti-injunction statute (28

U.S.C.A. Section 2283), as it observed that this statute does not preclude

injunctions against the commencement of state court proceedings, but only

bars stays of suits already instituted. The Court felt that the factual

situation merited an exception to the abstention doctrine because, as Mr.

Justice Brennan stated (at pages 486 and 487, 85 S.Ct. at page 1120):

"A criminal prosecution under a statute regulating expression usually

involves imponderables and contingencies that themselves may inhibit the

full exercise of First Amendment freedoms. *** 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."

Mr. Kuntsler, counsel for Plaintiff Turco who also represented the

plaintiffs in Dombrowski, seeks to analogize the present case to

Drombrowski in one respect by asserting that the state court prosecution

denies "to Plaintiff Turco his fundamental right of free speech, assembly

and association as well as his right to petition for redress of

grievances, all in violation of the First and Fourteenth Amendments to the

Constitution of the United States (Complaint, paragraph 24(c))." The Court

is unable to perceive how Mr. Turco is deprived of freedom of speech to

any greater extent than would be any person who is charged as accessory to

the fact of murder, conspiracy to murder, assault with intent to murder,

assault, solicitation to murder and soliciation to kidnapping. The unique

factual setting present in Dombrowski certainly does not appear to exist

here and Mr. Turco's prosecution in the Criminal Court of Baltimore City

is no where alleged to be brought under a *215 statute void for vagueness

or over-breadth.

Mr. Justice Black, in his dissent in Cameron v. Johnson, 381 U.S. 741, at

pages 752-753, 85 S.Ct. 1751, at page 1757, 14 L.Ed.2d 715

foreshadowed a limitation on the thrust of this decision when he said:

"I cannot believe for one moment that this Court in Dombrowski intended to

authorize federal injunctions completely suspending all enforcement of a

constitutionally valid state criminal law merely because state defendants

allege that state officials are about to harass them by doing no more than

enforcing that valid law against them in the state courts. If Dombrowski

held any such thing, I think the quicker that case is reconsidered in

order to give it a 'limiting construction' the better it will be for the

courts, the States, the United States and the people in this country who

want to live in an atmosphere of peace and quiet. Creating new hurdles to

the conviction of people who violate valid laws cannot be ranked as one of

the most pressing and exigent needs of the times, to say the least. ***

"The record in this case tells us that there are probably hundreds of

cases like these in one State alone. It is not difficult to foresee that

reversal of the District Court's denial of injunction here will be a

signal and invitation for many, many more efforts to tie the hands of

state officials in many more States on charges that threatened

prosecutions under valid laws are prompted by a desire to harass. Much has

been said of late about the threat to prompt and efficient administration

of justice from the increasing workload of our United States courts. If

that is a valid argument in deciding cases, it is not amiss to point out

that the rule which the Court implicitly adopts here is bound to bring an

ever-increasing number of cases into federal courts, where state

prosecutions will be enjoined until a federal court can first weigh the

motives of state officials in instituting prosecutions. This of course

means more and more delays between the arrests of people accused of

violating state laws and their trials. The law's delays-which many believe

are really a guilty man's most effective defense-are bound to be

multiplied beyond measure. Moreover it should not be forgotten that this

is a big country-too big to expect the Federal Government to take over the

creation and enforcement of local criminal laws throughout the country.

The Nation was not formed with any such purpose in mind. It is wise and

right and in conformity with the national governmental plan for federal

courts to be vigilant and alert to protect federally guaranteed rights.

But we put too much strain on the federal courts if we bodily transfer

from state- to federal-court jurisdiction what is, in effect, the initial

step in the trial of persons charged with violating state or local

criminal laws which are far from being unconstitutional on their face. The

Federal Constitution certainly does not require us to do it and, in my

judgment, forbids it." (Emphasis supplied).

Professor Charles Alan Wright of the University of Texas, in his work "Law

of Federal Courts" (2d Edition, 1970), seemed to be thinking along the

same lines as Mr. Justice Black when he stated at page 208, "In 1969 the

Court ordered reargument in four Dombrowski-type cases it had once heard.

It is to be hoped that the decision in these cases will clarify the

meaning of Dombrowski and will establish that every person prosecuted

under state law for conduct arguably protected by the First Amendment

cannot, by murmuring the words 'chilling effect', halt the state

prosecution while a federal court, ordinarily of three judges, passes on

the validity of the statute and the bona fides of the state law

enforcement officers."

The anticipated elucidation of Dombrowski came on February 23, 1971 when *216

the Supreme Court decided six cases which cast a broad light over the

whole field. [ n. 1]

n. 1. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Samuels

v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry,

401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Dyson v. Stein, 401 U.S. 200,

91 S.Ct. 769, 27 L.Ed.2d 781; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674,

27 L.Ed.2d 701; Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d

792.

In all of the cases decided on February 23, 1971, except Boyle v. Landry,

the federal court plaintiff was already a defendant in the state court

criminal prosecution. Perhaps the most often cited of the six cases is

Younger v. Harris. Appropriately enough, the majority opinion is by Mr.

Justice Black who, in Cameron, expressed the hope for a "limiting

construction" on Dombrowski. On a reading of Younger v. Harris, it seems

clear that Dombrowski is now confined within very narrow grounds, and it

is significant that the exponent of the confinement, Mr. Justice Black,

has over a lengthy judicial career been the Supreme Court's foremost

exponent of the protection of First Amendment rights.

Mr. Justice Black in Younger made it perfectly clear that the district

court was in error in reading Dombrowski as substantially broadening the

availability of injunctions against state criminal prosecutions and

investing federal courts with the right to give equitable relief without

regard to any showing of bad faith or harassment whenever a state statute

is found "on its face" to be vague or overly broad, in violation of the

First Amendment. As Justice Black stated, at page 755 of 91 S.Ct.:

"For these reasons, fundamental not only to our federal system but also to

the basic functions of the Judicial Branch of the National Government

under our Constitution, we hold that the Dombrowski decision should not be

regarded as having upset the settled doctrines that have always confined

very narrowly the availability of injunctive relief against state criminal

prosecutions. We do not think that opinion stands for the proposition that

a federal court can properly enjoin enforcement of a statute solely on the

basis of a showing that the statute "on its face" abridges First Amendment

rights."

Counsel for the Plaintiff Turco argues, however, that Younger left in

force the second "wing" of Dombrowski, because of Justice Black's comment

that "Appellee Harris has failed to make any showing of bad faith,

harassment, or any other unusual circumstance that would call for

equitable relief." He urges that they are basing their suit on alleged bad

faith, and this is all that is needed to support federal court

interference with the state prosecution. However, the Court is satisfied

that Justice Black had something much more specific in mind as necessary

to support injunctive relief. After reviewing the history of the

abstention doctrine in the federal courts, he noted (at age 751 of 91

S.Ct.):

"In all of these cases the court stressed the importance of showing

irreparable injury, the traditional prerequisite to obtaining an

injunction. In addition, however, the Court also made clear that in view

of the fundamental policy against federal interference with state criminal

prosecutions, even irreparable injury is insufficient unless it is 'both

great and immediate.' Fenner [v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70

L.Ed. 927], supra. Certain types of injury, in particular, the cost,

anxiety, and inconvenience of having to defend against a single criminal

prosecution, could not by themselves be considered 'irreparable' in the

special legal sense of that term. Instead, the threat to the plaintiff's

federally protected rights must be one that cannot be eliminated by his

defense against a single criminal prosecution."

This Court holds that in the present case there is no reason for it to

inquire into whether or not the state prosecution is brought in bad faith

for two *217 reasons: (1) If there is any threat to the plaintiff's rights by an

alleged bad faith prosecution, he can seek to eliminate it in his defense

in the state court "against a single criminal prosecution." (2) Justice

Black's comment about "bad faith" at the end of the Younger opinion must

be read against the background that he was dealing with a California

syndicalism statute directed against the spoken and the written word, a

statute, the plaintiff contended, whose very existence and use by the

prosecution inhibited Harris' rights of free speech and press. It did not,

as in the case at bar, involve a prosecution under long established state

criminal statutes without First Amendment overtones. Justice Fortas, in

his dissent in Cameron v. Johnson, 390 U.S. 611 at 623, 88 S.Ct. 1335,

1342, 20 L.Ed.2d 182, articulated this distinction as follows:

"Dombrowski's remedy is justified only when First Amendment rights, which

are basic to our freedom, are imperiled by calculated, deliberate state

assault. And those who seek federal intervention bear a heavy burden to

show that the state, in prosecuting them, is not engaged in use of its

police power for legitimate ends, but is deliberately invoking it to

harass or suppress First Amendment rights. Dombrowski should never be

involved when the State is, in substance and truth, engaged in the

enforcement of valid criminal laws."

This Court, therefore, would deny plaintiffs' application for an

interlocutory and permanent injunction for the same reasons outlined

above. The Court also declines to enter the declaratory judgment prayed

for. As the Supreme Court stated in Samuels v. Mackell, 91 S.Ct. 764 at

768:

"We therefore hold that, in cases where the state criminal prosecution was

begun prior to the federal suit, the same equitable principles relevant to

the propriety of an injunction must be taken into consideration by federal

district courts in determining whether to issue a declaratory judgment,

and that where an injunction would be impermissible under these

principles, declaratory relief should ordinarily be denied as well."

The Anti-Injunction Statute

As Justice Black noted in Younger, in 1793, 1 Stat. 335, the Congress

passed an act which unconditionally provided:

"*** nor shall a writ of injunction be granted to stay proceedings in any

court of any state ***."

In the 177 years since that time the statutory exceptions to the 1793

Congressional Enactment have been only three:

(1) "*** except as expressly authorized by Act of Congress ***";

(2) "*** where necessary in aid of its jurisdiction ***";

(3) "*** to protect or effectuate its judgments ***."

Plaintiffs' counsel in this case urge upon the Court that the injunction

provision of the Civil Rights Act comes within exception (1) above as an

expressed authorization by act of Congress. Although the Supreme Court has

many times referred to the anti-injunction statute in Civil Rights cases

where injunctive relief was denied, the denial of such relief has been

grounded on general equity principles and on at least three separate

occasions the Supreme Court has declined to rule on whether 42 U.S.C.

Section 1983 creates an exception to Section 2283. Dombrowski v. Pfister,

footnote 2 at page 484 of 380 U.S. at page 1119 of 85 S.Ct.; Cameron v.

Johnson, footnote 3 at page 613 of 390 U.S. at page 1337 of 88 S.Ct.;

Younger v. Harris, at page 755 of 91 S.Ct.

[3] The matter, at least in the Fourth Circuit, has been set at rest by

the exhaustive and often-cited opinion of then Circuit Judge, now Chief

Judge Haynsworth in Baines v. City of Danville, 337 F.2d 579 (1964),

holding that the Civil Rights Act does not constitute an exception to the

mandate of Section 2283. Judge Haynsworth pointed out *218

(at page 591 of 337 F.2d) that his finding was supported by the fact that

the Supreme Court had consistently supported the abstention principle on

which Section 2283 is based in determining civil rights cases. Although

the Supreme Court has chosen to rely on general considerations of equity

and comity in requiring or sanctioning federal forbearance, it would be

difficult, as Judge Haynsworth pointed out, to see how "an unqualified

congressional command to the same end can be ignored." [ n. 2]

n. 2. Judge Haynsworth has some support from Professor Wright in his work

"Law of Federal Courts", 2d Edition, page 181: "it is probably not enough

that the other Act merely gives general jurisdiction to issue

injunctions-as is the case most importantly, with the Civil Rights Act-but

this is not yet settled beyond dispute."

For the Supreme Court to reach a result opposite to that enunciated by

Judge Haynsworth in Baines v. City of Danville, it would have to accept

the view of a small minority of lower courts that Civil Rights actions are

in some fashion an exception to Section 2283. On the other hand, there are

a very respectable number of well-reasoned lower court decisions which

reach the same result as did the Fourth Circuit in Baines. Cameron v.

Johnson, 262 F.Supp. 873, 878 (S.D.Miss., 1966); Brock v. Schiro, 264

F.Supp. 330, 336- 337 (E.D.La., 1967); Brooks v. Briley, 274 F.Supp. 538,

552-553 (N.D.Tenn., 1967); Mackay v. Nesbett, 285 F.Supp. 498, 501

(D.Alaska, 1968); Machesky v. Bizzell, 288 F.Supp. 295, 302 (N.D.Miss.,

1968); Nichols v. Vance, 293 F.Supp. 680, 682 (S.D.Texas, 1968); Wilson v.

Simon, 299 F.Supp. 305, 309 (N.D.Ill., 1969); Rage Books, Inc. v. Leary,

301 F.Supp. 546, 551 (S.D.N.Y., 1969); Cole v. Graybeal, 313 F.Supp. 48,

49 (W.D.Va., 1970); Eve Productions, Inc. v. Shannon, 312 F.Supp. 26, 28

(E.D.Mo., 1970); Smith v. Village of Lansing, 241 F.2d 856, 859, 7th Cir.,

1957; Wojcik v. Palmer, 318 F.2d 171, 173, 7th Cir., 1963.

A similar result involving the injunction provisions of the Clayton Act

was reached by then District Judge Winter in Potter v. Carvel Stores of

New York, Inc., 203 F.Supp. 462, 465 (D.Md., 1962), affirmed, 314 F.2d 45,

4th Cir. 1963.

For the reasons above stated, the Court declines to grant any

interlocutory or permanent injunction against the State Court's

prosecution of the Plaintiff Turco because of this Court's view that Title

28, Section 2283 is an absolute prohibition against such action.

[4] With regard to plaintiffs' Prayers for Relief 1(b), 2(b) and 3(2)

insofar as they seek injunctive or declaratory relief against

"infiltrating" or "surveilling" the Black Panther Party, there are no

factual allegations in the Complaint to support these prayers for relief

and counsel for plaintiffs did not press these claims at the argument on

the motions. Since they have no apparent factual or legal basis, these

Prayers for Relief are denied.

In view of the Court's rulings in this opinion, the Court at this time

takes no action with regard to the claim of the Plaintiff Turco for One

Million Dollars in damages pending final resolution of the State Court

proceedings. For the same reason, the Court does not find it necessary to

rule at this time on whether the respective defendants have a valid

defense on the ground of immunity as asserted at the argument on the

motions to dismiss and the Court intimates no opinion thereon. Resolution

of these matters will abide the outcome of the State Court proceeding.

The Court has received on November 5, 1971, after the hearing on the

motions, a petition of the National Lawyers Guild for leave to file as

amicus curiae in support of the plaintiffs. This request comes too late as

far as determination of the issues resolved in this opinion are concerned.

The Court will reconsider the Petition of the Guild if and when it becomes

necessary for the Court to *219 again consider the matters not finally ruled

on in this opinion.

In summary, it is hereby ordered:

(A) That the plaintiffs' request that a permanent injunction issue (Prayer

for Relief paragraphs 1(a), 1(b), 1(c) and 1(d)) be, and the same hereby

is, denied.

(B) That the plaintiffs' request for an interlocutory injunction (Prayer

for Relief paragraph 2) be, and the same hereby is, denied.

Relief paragraph 3 be, and the same hereby is, denied.

(D) That any ruling on the demand of Plaintiff Turco for One Million

Dollars in damages be deferred until further proceedings are had following

the final determination in all courts of the State of Maryland and the

United States Supreme Court of the charges currently pending against the

Plaintiff Turco in the Criminal Court of Baltimore City.

(E) That in view of the Court's rulings in (A), (B) and (C) above, the

Motion of Defendants to Dismiss Plaintiffs' Bill of Complaint as a Class

Action be, and the same hereby is, declared "Moot."

(F) That the Court hereby grants those parts of Defendants' Motion to

Dismiss Plaintiffs' Bill of Complaint which assert that principles of

comity and federalism demand and also that Title 28, U.S.C.A. Section 2283

requires that this Court abstain from granting an interlocutory or

permanent injunction or a declaratory judgment as sought by plaintiffs.

(G) That determination of the Motion of Defendant Hilary D. Caplan to

dismiss that part of the complaint filed against him individually and also

determination of that part of the Motion to Dismiss of the other

defendants based on claims of immunity be deferred until the Court

ascertains what matters in this suit remain for adjudication following

final termination of the criminal proceedings against the Plaintiff Turco

in the State Courts.