Sandra Lee Becker, Etc., Richard Guy Steffel v. John R. Thompson, Etc.
459 F.2d 919
5th Cir.
1972
Check Treatment

*1 correctly of the distinction will The determination Appellant that observes depend and will procedure prescribed un be elusive oftentimes upon an unsafe given particular of the loading cargo may the facts result a condition Here, found, as the District Court Steve case. A. G. See & unseaworthiness. of securely cargo ship’s Lines, was stowed the Ellerman dores v. operator (1962). aware of the fact hilo the 7 L.Ed.2d 798 higher be removed crates should when that occur And unseaworthiness only temporary that he did There evidence first. condition unsafe would have been do because he transitory. Rac not this v. Trawler or Mitchell however, required the truck clear, climb down from er, supra,. nowis adjust negligence fork-lift blades order personal of an isolated act smaller dimen- the crates of to remove unseaworthiness. constitute does not top level. From Corp., were on the sions which Overseas Luckenbach Usner v. evidence it was reasonable L.Ed.2d this opera- single hilo finding to find that the (1971). court below that a negligently no negligence and that condi- cre tor acted act of and unforeseeable unseaworthiness, or of was created unseaworthiness tion of ated condition play. recently called into stated: The Court’s determination District A of unseaworthi- vessel’s condition longshoreman’s any death resulted might from number ness arise isolated, unforeseeable act might gear de- from an negligence be circumstances. Her from condition and not appurtenances in disre- fective, her supported is further of unseaworthiness The number pair, her crew unfit. injury the fatal occurred perform shipboard assigned the fact men falling thirty might seconds after within insufficient. meth- be task loading cargo, or crate. the manner her od stowage, might improper. be of its Accordingly, the Dis- reasons, others, a For these is affirmed. trict might reasonably fit not be vessel her intended service. inju- petitioner’s What caused however, present ries in the ap- ship, her condition not the crew, cargo,

purtenances, or her her isolated, negligent personal act but the longshore- BECKER, petitioner’s fellow etc., al., Sandra Lee et Plaintiffs, individual act man. To hold this Guy Steffel, Plaintiff-Appellant, ship negligence unsea- rendered Richard funda- worthy tobe subvert the between unsea- distinction mental THOMPSON, etc., al., John R. negligence that we worthiness and Defendants-Appellees. repeatedly painstakingly and have so No. 71-1856. Id., emphasized in our decisions. Appeals, United States Court of 91 S.Ct. at Fifth Circuit. necessary deter Thus to' May 3, 1972. death of result mine whether the Smith Rehearing Rehearing En Banc negligence or a condi from an act of ed July 20, Denied Very likely a tion of unseaworthiness. problem will often in resolution of this judgment. metaphysics volve well conceivably pro negligent A act might itor a hazardous condition duce causing completed without result. *2 shopping

tail partially area located in a residential, partially small business area unincorporated County, North DeKalb Georgia. large parking contains a lot totally and a covered air conditioned building complex housing more than six- ty retail by tenants surrounded a wide exterior sidewalk. opening Since its Center 1965 the regulations against

has enforced its handbilling desired to main- place tain an attractive for its customers shop without interference or irrita- Boy garden tion. The Scouts and local permitted clubs are to use the booths give the for and side Mall bake sales concerning information their activities. Steffel, 8, 1970, plaintiffs On October Becker on the exterior and others stood sidewalk of the Center and distributed informing passersby hand bills of a meeting protesting the war Indo- plaintiffs china. The soon in- were security private structed a Center guard they could not distribute hand and were bills to leave. ordered they County When refused the DeKalb Tray- Moore, Jr., H. William Howard police Police were called. When the ar- Atlanta, Ga., lor, Myer, R. John that, plaintiffs informed if rived were plaintiff-appellant. they stop hand did not distribution of George Dillard, Mozley, P. Robert E. bills, they plain- be arrested. Atlanta, Ga., Davis, Decatur, Dock H. left and made. tiffs no arrests were Ga., defendants-appellees. attorney On October TUTTLE, DYER, Before and GEWIN manager plaintiffs asked the Judges. Circuit permit Center to them to distribute anti-war re- handbills. Permission was DYER, Judge: Circuit Nevertheless, fused. Steffel Becker and In this meet the issue must we returned to again, in an Center and explicitly reserved Samuels v. orderly fashion, distributed handbills L. from the exterior sidewalk other while Ed.2d group photo- members of made granting declaratory relief when no graphs. again and Steffel Becker were proceeding security guard advised begun. time the federal suit manager they not Center’s Finding no bad faith enforcement or that, they distribute handbills state, harassment the district persisted doing they so, would be ar- court denied relief and en Ultimately County rested. DeKalb tered in favor of the defend police arrived told Becker Stef- ants, F.Supp. affirm. We activity fel to discontinue their undisputed. The facts are The action would be left to Steffel arrested. avoid place Shop- takes at the North DeKalb arrest. Becker continued distribute ping large, modern, Center. It is a the handbills and was arrested on a charge trespass, pursuant of criminal future provisions prose- of Ga.Code 26-1503.1 court criminal § example, cutions. Harris, Becker was released on See for bond. Subse- quently hearing preliminary was held 44-45 [91 arraigned.2 where the stated 746] she “These made clear in the Steffel testified the court below Boykin, Fenner case [Fenner *3 had not returned to Center he the 240, 492, L.Ed. 927] of ar- since time Becker’s handbill the [great irreparable and immediate loss rest he ar- because did not “want to be required justify enjoining a badly.” rested that prosecution] repeatedly have been fol- civil filed this and Steffel Becker lowed and in other reaffirmed cases injunc- declaratory for and class action involving prosecutions, Hudgins, against the owner tive relief (citing including cases Center, Reynolds, agent, Solic- of his the Jeannette, 157, of [63 Thompson of Police Hand itor and Chief (1943). 1324] attacking County the constitu- DeKalb erred, however, The District Court Georgia tionality tres- the criminal of stringent applying this same test to pass applied as to them and their statute Appellants’ request declaratory re- for of hand bills class in the distribution * * * lief. different balance [A] Amalgamated Center, relying on the concerning questions is to be struck Valley Logan Employees Food Union comity federal-state federal de- where Inc., 1968, Plaza, claratory sought relief is and no state v. Ala- and Marsh L.Ed.2d 603 prosecution against pending bama, plaintiff. 90 L.Ed. 265. way, propriety Stated another Becker’s The district denied court granting declaratory judgment con- prayer injunctive relief on the basis cerning pros- threatened future criminal Younger Harris, 1971, ecution determined test as same for de- 27 L.Ed.2d and granting injunctive propriety the lief, relief, claratory of Samuels the basis e., i. faith harassment? bad supra, Mackell, because Harris, supra. May we against prosecution her. state criminal transpose to this no state where by Becker. appeal been taken No has prosecution pending, said what was also The district court denied both declaratory in Samuels v. about relief sought injunctive declaratory relief prosecu- a state where against Steffel, crimi- whom state pending: tion was pending. nal equitable rele- same [T]he argument up points Steffel’s on brief an vant to the presented the narrow issue as into consideration must be taken follows: determining federal district courts declaratory judg- The District was correct whether to issue * * * applying injunc- ment, this “bad where faith/harassment” appellant request impermissible test to under Steffel’s tion would be provides person (c) § Ga.Code tres- 26-1503 : A convicted of * * * trespass pass punished Criminal a mis- as shall be (b) 1285; person (Acts 1968, pp. trespass A commits criminal demeanor. 859.) knowingly 1969, pp. when lie and without author- ity: (3) upon argument informed premis- Remains the Court was 2. At land or oral * * * indefinitely person, es of another had been trial that Becker’s awaiting receiving continued, presumably the dis- after notice from the owner or rightful occupant depart. appeal. position practical impact principles, declaratory formal these reliel same Again ordinarily junction Id. should denied well. would.” question concerning reserved threat- Id. 401 U.S. at opposed prose- ened as empha- it was note that In limine we cutions. February “Supreme Court’s in the sized prob- the resolution sextet” practical If effects federal court involved when a declaratory lems remedies are declaratory give injunctive or asked to identical result dis- prose- relief from future state criminal ruption aof state’s enforcement of its day. cution was left to a later Thus prose- criminal statutes when a criminal clearly pro- did not determine pending, therefore bad cution is priety before must be shown faith harassment prosecution. threatened criminal if, may issue, remedy as we either reserved, question seen, faith test of bad the same have While *4 injunctive peradven prerequisite beyond to Younger it clear harassment made prosecu- irreparable injury criminal must be relief in a threatened ture that showing tion, by and follows that a like must it measured bad faith harassment4 request declaratory applied relief in to a for a such test must be made be Although injunctive prosecution. “The for threatened relief holdings Younger prosecution. are of In Samuels criminal fact, propriety out, pointed narrow limited to the of [and] we concedes Steffel declaratory injunctive principle or while was viable even be Younger pending proceedings by fore state criminal are and was reiterated in it * * * Boy discussion of Court’s Black’s Fenner v. Justice reliance kin, Pfister, 1926, 240, 492, v. 271 Dombrowski U.S. 46 [Dombrowski S.Ct. 70 927, 479, 1116, Douglas L.Ed. 380 U.S. 85 14 L.Ed.2d S.Ct. v. of Jean nette, 1943, sug- implications, 157, 877, 319 U.S. has much broader 22] gesting 87 L.Ed. proceed- 1324. when state These cases that even underscore ings yet begun, injunctive questions that “the have not re- determination of of liability by criminal lief —as under authorized Dombrowski —or state law a declaratory equity, sup federal court of relief —as authorized are to be ported only Koota, 241, showing danger Zwickler on a v. 88 S. [389 of irreparable 391, injury.” Ct. 19 L.Ed.2d a 163, 1967 case 444] at relying heavily 164, may at 881. be Dombrowski — conditioned on the same bad faith Mackell, supra, In it was Samuels * * * short, quirements. In the rea- unequivocally made clear that “ordinari- soning Younger ig- appear in to ly declaratory judgment a result will any nore distinction between precisely the same interference with and proceedings, and threatened and make disruption proceedings of state obligatory denial of federal relief in both long standing limiting policy injunctions situations unless bad faith enforcement designed Id. avoid.” 401 U.S. to (footnotes omitted) can be shown.” 85 so, 72, This 91 S.Ct. at 767. 304, November, Harv.L.Rev. declaratory judg- course, Wulp Corcoran, 1972, as the for ment serve basis subse- In 1 454 Cir. 826, Court, quent and “even the declar- F.2d in a threatened atory judgment prosecution as a basis is not used state criminal held that actually injunction, declaratory issuing relief was available without virtually declaratory showing relief alone has bad faith harassment. Cir, al., reparable injury al. Robinson can be shown even 3. LeFlore et. Goldberg;’ (Judge prerequisites 1971, of bad F.2d of the usual absence opinion). Younger concurring specially v. Har- and harassment.” faith ris, supra, extraordinary extraordinary any may, course, be do not find We 4. “There necessary present ir-’ which circumstances here. circumstances significant community reasoned that there were dif- prosecu- is immune from appropriateness good faith, alleged ferences tion, his junctive declaratory relief between The imminence of such acts. preprosecution alleged In though contests. prosecution words,' Wulp other cannot be read in unlawful unauthorized and hence way but ground construed equity not alone for relief sextet to mean that extraordinary bad faith harass- powers Which exerts its ment injunctive had to be shown for only prevent irreparable injury declaratory pending prosecu- relief in plaintiff aid.” who seeks Beal tions, required but is not Corp., be shown Missouri Pacific Railroad remedy either when [61 is threatened pending. but not L.Ed. 577]. course, suggestion There effectively our only view this not in Buck enunciated parte Young, 1908, overrules Ex 209 U. not still viable. 714; S. 52 L.Ed. Fen- declaratory Boykin, 1926, ner If “the S. judged 927; Ct. es- Spielman relief should be L.Ed. Motor Dodge, sentially standards”, Sales Co. v. then in the same 1322; preprosecution there must be a cases Beal v. Mis- showing Co., 1941, for the souri R. bad faith harassment Pa. granting 577; well as in- S.Ct. Buck, 1941, 85 L.Ed. Watson v. *5 Cooley junctive Endictor, 387, 962, relief. 313 U.S. S.Ct. 1972, 1416; 1942, Cir. 458 F.2d 513. Miller, Williams v. 599, 258, 489; 63 S.Ct. 87 L.Ed. We conclude that under the circum- Douglas City 1943, of Jeannette, though case, stances this even no state 157, 319 U.S. 87 L.Ed. 1324 prosecution against pending Steffel, was but also revives misconception con- showing since there was no of bad faith cerning sweep the broad of Dombrowski harassment, he not entitled to a de- Younger pains took point to out and claratory judgment. disapprove. The of the district court is course, It Affirmed. self-evident prosecutions where state were Judge (concurring TUTTLE, Circuit Younger and Samuels established limi- a result). in tation Declaratory on the use I concur in the result reached Judgment Act, 28 U.S.C.A. to § majority. However, on the of this facts those cases where bad faith harassment nearly case, I feel that all of what the was shown. same limitation on the majority unnecessary said is to a de- has necessarily pre- applies use of Act in case, cision this thus obiter prosecution cases. is here that we Harris, Younger dictum. Unlike part Wulp, company with Mr. 27 L.Ed.2d 669 S.Ct. Justice Brennan’s views in Perez v. Le- (1971), companion cases, the and its desma, seq., we have us not involve case before does (the majority 27 L.Ed.2d 701 prosecution. a Nor state having issue). Court not considered this facially involve which it a statute does great Buck, upon laid stress any way; nor the com- defective does supra, that: any plaint allegation contain of “bad injunctions Federal faith harassment.” Under these facts it en- statutes, in their simply unnecessary either speculate to on sepa- respect their tirety “February to or with effect what Sextet” had prohibitions, Pfister, not distinct rate and on Dombrowski v. course, granted a matter of (1965), be progeny, effect, guess are unconstitu- such statutes or in how Supreme “No citizen or member tional. Court would rule an is- explicitly sue it stated that not Zwickler re- Both Dombrowski and deciding.1 quire that we do not intervene dealing ease not with a at bar. We are short, In I feel under the since any facially statute that is defective case, facts of Dombrowski itself this way. Moreover, nothing there is in this justify intervention, I not finding support record that would decline the invitation to unnec- broaden application this threatened of an other- my speculating essarily decision purpose wise valid statute was “for the may Supreme or what the discouraging protected activities.” ultimately not do. (Another saying way of “for bad faith Pfister, supra, the In Dombrowski Thus, harassment.”) this case seems to allegation of bad court held that directly fall ruling under the Court’s under stated claim faith Johnson, in Cameron v. allega- 1983 and that if this U.S.C. § 20 L.Ed.2d 182 proven true, tion be (1968). In that held granted. addition, must the court challenged that where a state law was stated that the Louisiana statutes in- facially any way not defective and the vague volved that case were so record faith, did not establish bad highly susceptible and overbroad as to be this was therefore: application. Thus, to unconstitutional “. . . not a case in which very their existence tended to have ‘. . equity .a federal court of “chilling upon effect” the exercise of withdrawing the determination rights first amendment involved in that guilt right- from the state could courts case. The court therefore issued anoth- ly [appellants] any afford protection injunction restraining er state officials by prompt which secure not enforcing threatening from to enforce pursued trial against anyone the statute involved until Court.” Cameron at narrowing it received a in a construction citing of Jean- declaratory judgment proceeding. nette, Regarding of such Federal *6 intervention, the court stated: precisely This is situation I, therefore, feel case at bar. that we “We hold the abstention doctrine is Younger. The do not need to extend is- inappropriate present for cases as the sue, it, fully cognizable Ias frame is where, one Jeannette, unlike parameters within the of what the Su- justifiably statutes are at- preme already state, said. To Court has tacked abridging on their face free majority, ap- as does the that “in this expression, applied pur- or as peal explicitly we must meet the issue pose discouraging protected activi- reserved in Samuels v. 401 U.S. 489-490, ties.” 380 U.S. at 85 S.Ct. [, 66 27 L.Ed.2d 688 at 1122. (1971)]” is, deference, my opin- with ion, simply not the case. These same were reiterated 241, Koota, Zwickler v. 391, Since, however, majority has made (1967), case, 19 L.Ed.2d 444 a pronouncement such a broad on the bar, which like the one at meaning involved the Younger, albeit in a case propriety of Federal Court intervention justify where the facts do not so a broad only declaratory judgment when (cid:127)decision, a help I cannot but note that the sought. seems, my mind, conclusion reached to Harlan, concurring, addition, Brennan, Justices Stewart and Justices White and explicitly Marshall, stated concurring, distinguish Younger that: “Finally, today Koota, does not from Zwickler v. problems solve the involved (1967), when a fed- 19 L.Ed.2d 444 give injunctive stating eral court is asked pro- “in Zwickler no state declaratory ceeding jurisdic- relief from state at the time future prosecutions.” Younger, court,” 401 tion attached in the federal 401 at 91 at (footnote). S.Ct. U.S. at S.Ct. wrong. prior pending prosecution, entirely Attempting to hold prose- 86, n.2, no state can- even when there is we Congressional litigant pending, history must show bad not dismiss the cution a give juris- by him, federal reviewed faith harassment invalidity expressly contemplating diction the case facial regardless involved, intrusive, milder, to the the statute resort less rights timely remedy Amendment the fact that First and more of a declara- chilled, represents tory judgment laws, more indeed to test criminal great g., deference we must and than the both state and federal. See e. Kugler, should to our state court brethren. show Lewis 446 F.2d duty represents (3d 1971); of our abdication 1347-1348 Anderson Cir. judges (D. de- Vaughn, F.Supp. called as federal where solely question. Conn.1971) (three-judge court). cide what is a federal Were Closing yet plaintiff door in the another federal the law to be that a raising litigant only declaratory judgment face of a not obtain a questions my mind, federalism local unconstitutional ordinance prosecution turned head.2 its when no state allege prove cir- unless he could Indeed, point- Brennan has as Justice justifying a federal cumstances concurring opinion in Per- ed out his existing junction prose- of an Ledesma, ez v. Judg- cution, Declaratory the Federal (1971): pro tanto ment Act have been considerations “. . . repealed.” Wulp Corcoran, F. of federal- controlling no state are not when (1st 1972). ism 2d Cir. only pending and the opinion majority attempts in this declaratory question relief is whether repeal as to at least to effectuate such appropriate. the con- In such prosecutions. state criminal gressional fed- scheme that makes the companion cas- It reads guardians primary eral courts the injunc- declaratory equating with es as express rights, constitutional and the settings. entirely different relief in tive congressional authorization of declara- practical effects say the is to That tory relief, is a afforded because it supposedly the relief remedy than less harsh and abrasive injunction, those of same as become the factors pending, and prosecution is in one case primary significance.” (emphasis quite dif- not. Because in another it is added.) of federalism are ferent considerations Moreover, stated as the First Circuit *7 pending, prosecution is involved when no Young- limiting application a case majority’s equa- agree I cannot with the prosecutions were er to situations where tion of two these situations. actually pending: Again, has noted: the First Circuit Brennan’s views in “While Mr. Justice Ledesma, significant dif- Perez at 91 401 “There is a clear and U.S. prevail seq., appropriateness in of fed- did not S.Ct. 674 ference in the pre- recognition majority’s of the of a view eral between extraordinary petitioners interesting in to note that in vidual narrow they ing allege in their re the number of cases in removal circumstances which prosecu granted petitions. If the state to the Federal moval Courts would be obstructing charge Rights cases, spe tion or trial on the Civil Justice Stewart charge cifically pointed remedy public other street to one this court rights clearly deny today. their seeks to off Greenwood v. would itself cut In Amendment, Peacock, protected the First 384 at U.S. 1800, 1813, may obtain under some circumstances the Court L.Ed.2d See federal court. stated : Pfister, many there remedies Dombrowski v. “But other [, 22].” available in the federal courts wrongs the indi- dress the claimed policies contexts. The adjudication, and that we have not the militating against intervention, can- right ju- to decline the exercise [supra, vassed v. Harris simply rights risdiction 43-44, 746], do adjudicated asserted some ” apply apply greatly not at all or with Koota, other Zwickler v. forum.’ strength diminished latter con- eq- The traditional restraint of citing Mitchell, text. uity, Stapleton D.C., present erosion of calculated to F.Supp. 51, 55. jury dupli- role and avoid a involving Since this not a case a fa- legal proceedings cation of is not here cially statute, void there must be bad present. And considerations comi- provide ju- faith harassment to federal ty push nearly strongly do not so risdiction. Here none there was shown. ongoing pro- where there is I say, think that is all we need in af- ceeding Wulp, be aborted.” firming court.3 the trial at 832. addition, being when a statute is challenged unconstitutional on its (I again emphasize face that this is not

really case), in issue in this a Federal findings Court is not asked make UNION INDUSTRIELLE ET MARI- Rather, place court. fact in of the state TIME, Counter-Plaintiff-Appellant, rule on is asked to the Federal Court only questions. federal In such situa- INTERNATIONAL, INC., NIMPEX tion, point I to what Counter-Defendant-Appellee. has stated Zwickler: UNION INDUSTRIELLE ET MARI- TIME, Counter-Plaintiff-Appellee, “Congress imposed duty upon all judiciary give levels of the federal INTERNATIONAL, INC., NIMPEX respect due to a suitor’s choice of a Counter-Defendant-Cross- hearing federal forum for the and de- Appellant. cision of his constitutional Nos. 71-1098. Plainly, duty escape claims. from that Appeals, United States Court of permissible merely is not because state Seventh Circuit. respon- courts also have the solemn sibility equally April courts, with the federal guard, enforce, protect . ‘. .to

every right granted or secured

constitution of the United States Connolly, .’ Robb [, yet ‘We 542]. like to believe sit,

wherever Federal courts hu- rights

man under the Federal Consti- always proper subject

tution are *8 - original publication rights”. 3. Since the -, of these Amendment opinions judgment Court, Thus, appears, of this it now Supreme clearly my separate Court has announced more than when opinion Lloyd Corporation opinion written, Ltd. v. this Court’s - Tanner, -, open by excursion into the field left 131. The Court there held with Samuels v. respect shopping totally unnecessary. to a center like the North All Shopping necessary De Kalb Center there had this Court to do with Lloyd’s pri- been such “no dedication of is to affirm the vately operated shopping ground owned and dismissal the trial cen- court on the public respondents deprivation ter to use as to entitle no constitutional has alleged. pure to exercise therein been All asserted First else is dictum.