From Casetext: Smarter Legal Research

Fitzgerald v. Peek

United States Court of Appeals, Fifth Circuit
Jan 14, 1981
636 F.2d 943 (5th Cir. 1981)

Summary

holding that bad faith is established when the prosecution was motivated by retaliation or deterrence

Summary of this case from Arkebauer v. Kiley

Opinion

No. 78-2705.

January 14, 1981.

Hardaway Young, III, Atty., Terry T. Coles, Decatur, Ga., for defendant-appellant.

Frank P. Samford, III, Judith M. Moore, Decatur, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before INGRAHAM, RONEY and THOMAS A. CLARK, Circuit Judges.


Plaintiffs, Ernest Billy and Marilyn Fitzgerald, brought suit in federal district court to enjoin state court prosecution allegedly brought in bad faith for purposes of harassing and punishing plaintiffs for having exercised their first amendment rights in criticizing certain public officials in DeKalb County. The district court entered a temporary restraining order and, following a two-day hearing, entered a final order permanently enjoining prosecution of the Fitzgeralds on pending indictments charging embracery and terroristic threats. We affirm.

Jurisdiction over this suit is properly predicated on 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). See Duncan v. Perez, 445 F.2d 557, 560 (5th Cir.), cert. denied, 404 U.S. 940, 92 S.Ct. 282, 30 L.Ed.2d 254 (1971). Section 1983 is within the "expressly authorized" exception of the federal anti-injunction statute, 28 U.S.C.A. § 2283. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

The facts of this case are presented in detail in the district court's opinion and need not be repeated here. It is sufficient to note that a thorough examination of the record requires the conclusion that the district court's finding that the prosecution was brought in bad faith for purposes of harassment was not clearly erroneous.

It is well established that a showing of bad faith prosecution presents a narrow exception to the doctrine of abstention which will justify federal interference in a pending state court criminal proceeding. See Moore v. Sims, 442 U.S. 415, 424, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979); Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 753, 27 L.Ed.2d 669 (1971); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979); Shaw v. Garrison, 467 F.2d 113, 119-22 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); Duncan v. Perez, 445 F.2d at 560. A showing of bad faith or harassment is equivalent to a showing of irreparable injury under Younger, and irreparable injury independent of the bad faith prosecution need not be established. Wilson v. Thompson, 593 F.2d at 1381-82; Shaw v. Garrison, 467 F.2d at 120. Moreover, although multiple prosecutions of at least Mr. Fitzgerald were pending, the threat of multiple or repeated prosecutions is not necessary to establish bad faith prosecution. Wilson v. Thompson, 593 F.2d at 1381.

Nor is it necessary for plaintiff to prove that the prosecution could not possibly result in a valid conviction. In Wilson v. Thompson, decided after the injunction involved herein was entered, this court enunciated a test which permits a state criminal proceeding to be enjoined if the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred is constitutionally protected and that the state's bringing of the criminal prosecution is motivated at least in part by a purpose to retaliate against or deter that conduct, and the state fails to show that it would have decided to prosecute even had the impermissible purpose not been considered. 593 F.2d at 1387. In this case, the evidence supports the finding that the prosecution was brought for the purposes of harassment and retaliation and would not have been brought but for the improper influence exerted on the prosecutor by certain DeKalb judges to seek the indictments. A bad faith showing of this type will justify an injunction regardless of whether valid convictions conceivably could be obtained.

The handling of this case by the district court did not deprive defendant of any due process rights. The temporary restraining order issued by the district judge notified defendant of the preliminary hearing in accordance with Fed.R.Civ.P. 6(d). Defendant did not object to the timing of the hearing and in fact rejected the court's offer of more time to prepare his case. Defendant was not unfairly prejudiced by the fact that he was represented at the hearing by an attorney who also testified as a witness, since defendant knew at the time he selected his attorney that the attorney, who also was the assistant district attorney handling the state court prosecution of the Fitzgeralds, was likely to be called as a witness.

The district court's injunction of the prosecution of the Fitzgeralds came only after a thoughtful and well-reasoned opinion finding facts supported by the record and correctly analyzing the law.

AFFIRMED.


Summaries of

Fitzgerald v. Peek

United States Court of Appeals, Fifth Circuit
Jan 14, 1981
636 F.2d 943 (5th Cir. 1981)

holding that bad faith is established when the prosecution was motivated by retaliation or deterrence

Summary of this case from Arkebauer v. Kiley

holding that a state criminal proceeding may be enjoined "if the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred is constitutionally protected and that the state's bringing of the criminal prosecution is motivated at least in part by a purpose to retaliate against or deter that conduct"

Summary of this case from All Am. Check Cashing, Inc. v. Corley

holding that "it is well established that a showing of bad faith prosecution presents a narrow exception to the doctrine of abstention which will justify federal interference in a pending state court criminal proceeding."

Summary of this case from City of Jackson, v. Lakeland Lounge

upholding district court's injunction under bad faith exception to Younger which “enjoin[ed] state court prosecution allegedly brought in bad faith for purposes of harassing and punishing plaintiffs for having exercised their first amendment rights in criticizing certain public officials in DeKalb County.”

Summary of this case from Frampton v. City of Baton Rouge

upholding permanent injunction against prosecution of plaintiffs for having exercised First Amendment rights and holding that "the threat of multiple or repeated prosecutions is not necessary to establish bad faith prosecution"

Summary of this case from Nobby Lobby, Inc. v. City of Dallas

In Fitzgerald, the plaintiffs made critical comments about local public officials, and local judges exerted pressure on the district attorney to bring charges in retaliation for these comments.

Summary of this case from Leonard v. The Ala. State Bd. of Pharm.

explaining that a showing that a prosecution was brought in retaliation for, or to discourage, the exercise of constitutional rights "will justify an injunction regardless of whether valid convictions conceivably could be obtained"

Summary of this case from Phelps v. Hamilton

enjoining prosecutions brought to harass individuals for exercising their First Amendment rights

Summary of this case from Smith v. Meese

In Fitzgerald, the Court stated that it is not necessary "for the plaintiff to show that the prosecution could not possibly result in a valid conviction."

Summary of this case from Smith v. Hightower

In Fitzgerald, the district court found that a state court "prosecution was brought for the purposes of harassment and retaliation and would not have been brought but for the improper influence exerted on the prosecutor by certain [ ] judges to seek the indictments."

Summary of this case from Gibson v. Schmidt

In Fitzgerald, a non-binding decision, the district court found that a state prosecution against the plaintiffs had been "brought for the purposes of harassment and retaliation and would not have been brought but for the improper influence exerted on the prosecutor by certain [county] judges to seek the indictments" after the plaintiffs exercised their First Amendment rights by criticizing certain county officials. 636 F.2d at 944-45.

Summary of this case from Clevenger v. Dresser
Case details for

Fitzgerald v. Peek

Case Details

Full title:ERNEST BILLY FITZGERALD AND MARILYN FITZGERALD, PLAINTIFFS-APPELLEES, v…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jan 14, 1981

Citations

636 F.2d 943 (5th Cir. 1981)

Citing Cases

Torries v. Hebert

As an Act of Congress, § 1983 expressly authorizes the enjoining of state criminal proceedings. Mitchum v.…

Lewellen v. Raff

The federal courts have consistently and repeatedly affirmed that their abhorrence of enjoining a pending…