Opinion
No. 00-4209-RDR.
January 5, 2001.
MEMORANDUM AND ORDER
Plaintiff has filed this case seeking a permanent injunction against a criminal prosecution in Douglas County Court — Case No. 00-CR-604. This case is now before the court upon plaintiff's motion for a temporary restraining order stopping the prosecution. The court has conducted a hearing upon the motion. At the conclusion of the hearing, the court denied the motion. This order is issued to elaborate upon the reasons for this decision.
The state prosecution arises from a traffic stop of plaintiff on January 22, 2000 by Lawrence Police Officer Kenneth Farrar. Plaintiff was stopped for speeding. Officer Tyson Randell later arrived to assist Officer Farrar. Plaintiff was driving his brother's car. Plaintiff alleges that he gave his name to Officer Farrar but did not produce any identification other than a credit card. Plaintiff further alleges that Officer Farrar then instigated a "search" for identification and that plaintiff refused to submit to the search, noting that Kansas case law does not authorize such a search.
The court notes that in State v. Schmitter, 933 P.2d 762 (Kan.App. 1997), the Kansas Court of Appeals held that an individual's claim that he or she does not have identification is not justification for a law enforcement officer to conduct a Terry search.
Plaintiff alleges that he was in no way loud or threatening to Officer Farrar and that he was ultimately arrested for "obstruction of official duty" and "obstruction of an investigation" only because he refused to submit to the allegedly illegal search for identification.
Plaintiff apparently refused to exit the car when asked to by Officer Farrar. This refusal might have led to the obstruction charge, although plaintiff argues that he was asked to exit only so that a search for identification could be conducted. All sides appear to acknowledge that under Pennsylvania v. Mimms, 434 U.S. 106 (1977), an officer has the right to direct a driver to exit a vehicle stopped for a traffic violation.
There are two charges currently pending against plaintiff in the Douglas County case: obstruction of an officer in the discharge of his duties in violation of K.S.A. 21-3808 and a marijuana possession charge. Apparently, the evidence for the drug charge was developed after plaintiff's arrest on the other charge. The Douglas County case has gone to trial once. The trial ended in a hung jury. A second trial is scheduled for Monday, January 8, 2001. This is the trial plaintiff seeks this court to enjoin.
Whether this court should abstain from exercising jurisdiction in this matter is a question which often arises in cases of this type. In Younger v. Harris, 401 U.S. 37 (1971), the Court held that, absent unusual circumstances, a federal court should not interfere with a pending state criminal prosecution. "Younger abstention dictates that federal courts not interfere with state court proceedings by granting equitable relief — such as injunctions of important state proceedings or declaratory judgments regarding constitutional issues in those proceedings — when such relief could adequately be sought before the state court."Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999). A federal court must abstain from exercising jurisdiction when: (1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings "involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies."Amanatullah v. Colorado Board of Medical Examiners, 187 F.3d 1160, 1163 (10th Cir. 1999) quoting, Taylor v. Jaquez, 126 F.3d 1294, 1296 (10th Cir. 1997).
Younger abstention is non-discretionary; it must be invoked once the three conditions are met, absent extraordinary circumstances. SeeSeneca-Cayuga Tribe of Okla. v. State of Oklahoma ex rel. Thompson, 874 F.2d 709, 711 (10th Cir. 1989). Since this case involves ongoing state criminal proceedings in which the state's interest in enforcing its criminal statutes is at stake and plaintiff has the opportunity to raise constitutional issues and appeal those issues if he believes they are wrongly decided, abstention under Younger would appear proper in this case, unless plaintiff can prove this is a bad faith prosecution.
It is the plaintiff's "heavy burden" to overcome the bar of Younger abstention by setting forth more than mere allegations of bad faith or harassment. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) quoting, Phelps v. Hamilton, 59 F.3d 1058, 1066 (10th Cir. 1995).
Plaintiff contends that this prosecution was initiated to retaliate against plaintiff for his lawful refusal to submit to a search for identification. In order to prove retaliation for purposes of defeatingYounger abstention, plaintiff must prove that retaliation was a major motivating factor and played a dominant role in the decision to prosecute. Phelps, 59 F.3d at 1066. If an initial showing of retaliatory animus is made, then the burden shifts to defendants to articulate a legitimate objective reason for the prosecution. Id. But the ultimate burden of proof is upon plaintiff.
"Three factors that courts have considered in determining whether a prosecution is commenced in bad faith or to harass are: 1) whether it was frivolous or undertaken with no reasonably objective hope of success . . . 2) whether it was motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights . . . and 3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions." Phelps, 59 F.3d at 1065. Of course, we should view the proof in this case remaining mindful that a motion for a temporary restraining order is before the court. Therefore, the issue is whether plaintiff can demonstrate a substantial probability of establishing this burden of proof. See Sprint Spectrum v. State Corporation Commission, 149 F.3d 1058, 1060 (10th Cir. 1998) (detailing standards for injunctive relief). For the purposes of this case, we assume that the other standards for a temporary restraining order can be met by plaintiff.
In this case, we are not convinced that there is a substantial probability that plaintiff can prove that retaliation was a major motivating factor behind the state court prosecution. It appears that the prosecution has a reasonable hope of success. The officer had the right to ask plaintiff to exit the car. There was a right to arrest for failure to have a driver's license. See Fillmore v. Ordonez, 829 F. Supp. 1544, 1556-57 (D.Kan. 1993) aff'd, 17 F.3d 1436 (10th Cir. 1994) (table). It appears that plaintiff refused to exit the car and that there was a minor physical confrontation between plaintiff and the officers. Later, marijuana was found in the car. In sum, in spite of the constitutional right against an ungrounded search for identification, it appears there are objectively reasonable grounds upon which to base this prosecution. There is no direct evidence of retaliation and plaintiff's position in this matter is that no direct or indirect evidence of retaliation is required. Instead, plaintiff contends that all he needs to demonstrate is that he is raising a legitimate constitutional issue. We agree with defendants that this construction of the bad faith exception would turn the exception into the rule. The constitutional issue raised by plaintiff is the kind of issue decided constantly by state courts. If defendant is dissatisfied with the decision, it may be appealed through the state court system and ultimately to the Supreme Court of the United States. But, the Younger rule dictates that, without much stronger evidence of retaliation or harassment, this court must not interfere with an ongoing state criminal prosecution.
Plaintiff's reference to Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979) is not persuasive. In Wilson, the plaintiff had evidence of retaliation. The evidence showed that a criminal misdemeanor case against plaintiff which was not being prosecuted and had been placed on a "dead docket" was quickly resuscitated after two county deputies were served with summonses in a civil suit brought by the plaintiff. Thus, it appeared that plaintiff was being prosecuted because she had filed a civil suit against law enforcement officers. Even so, the Fifth Circuit did not make a finding of bad faith; the court remanded the case for further factual findings by the district court. Ultimately, the district court found no bad faith and this finding was affirmed. 633 F.2d 799.
There is no evidence in this matter that the prosecution has been conducted in a way as to indicate harassment or retaliation. Plaintiff is incorrect in denying that he has a burden to make a showing of bad faith in the form of harassment or retaliation. He may not obtain this court's intervention by simply alleging bad faith on the grounds that he has raised a federal constitutional issue upon which he may prevail.
Therefore, for the above-stated reasons, the plaintiff's motion for a temporary restraining order shall be denied.
IT IS SO ORDERED.