Ellis v. Dyson , 95 S. Ct. 1691 ( 1975 )

Mr. Justice Blackmun

delivered the opinion of the Court.

This action, instituted in the United States District Court for the Northern District of Texas, challenges the constitutionality of the loitering ordinance of the city of Dallas. We do not reach the merits, for the District Court dismissed the case under the compulsion of a procedural precedent of the United States Court of Appeals for the Fifth Circuit which we have since reversed.

I

Petitioners Tom E. Ellis and Robert D. Love, while in an automobile, were arrested in Dallas at 2 a. m. on January 18, 1972, and were charged with violating the city’s loitering ordinance. That ordinance, § 31-60 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, Texas, as amended by Ordinance No. 12991, adopted July 20,1970, provides:

“It shall be unlawful for any person to loiter, as hereinafter defined, in, on or about any place, public or private, when such loitering is accompanied by activity or is under circumstances that afford probable cause for alarm or concern for the safety and well-being of persons or for the security of property, in the surrounding area.”

The term “loiter” is defined to

“include the following activities: The walking about aimlessly without apparent purpose; lingering; hanging around; lagging behind; the idle spending of time; delaying; sauntering and moving slowly about, where such conduct is not due to physical defects or conditions.”

A violation of the ordinance is classified as a misdemeanor and is punishable by a fine of not more than $200.

Before their trial in the Dallas Municipal Court¹ petitioners sought a writ of prohibition from the Texas Court of Criminal Appeals to preclude their prosecution on the ground that the ordinance was unconstitutional on its face. App. 29. The petitioners contended, in particular, that § 31-60 is vague and overbroad, that it “permits arrest on the basis of alarm or concern only,” and that it allows the offense to be defined “upon the moment-by-moment opinions and suspicions of a police officer on patrol.” App. 31. The Court of Criminal Appeals, however, denied the application without opinion on February 21, 1972.² The following day the Municipal Court proceeded to try the case. After overruling petitioners’ motion to dismiss the charges on the grounds of the ordinance’s unconstitutionality, the court accepted their pleas of nolo contendere ³ and fined each petitioner $10 plus $2.50 costs.

Under Texas’ two-tier criminal justice system, petitioners could not directly appeal the judgment of the Municipal Court, but were entitled to seek a trial de novo in the County Court;⁴ Tex. Code Crim. Proc., Art. 44.17 (1966), by filing at least a $50 bond within the 10 days following the Municipal Court’s judgment. Arts. 44.13 and 44.16. At the de novo trial petitioners would have been subject to the same maximum fine of $200. Appellate review of the County Court judgment would be available in the Texas Court of Criminal Appeals if the fine imposed exceeded $100. Art. 4.03.

Electing to avoid the possibility of the imposition of a larger fine by the County Court than was imposed by the Municipal Court, petitioners brought the present federal action ⁵ under the civil rights statutes, 42 U. S. C. § 1983 ⁶ and 28 U. S. C. §§ 1343 (3) and (4), and under the Declaratory Judgment Act, 28 U. S. C. §§ 2201-2202. Named as defendants, in both their individual and official capacities, were the then chief of police, the city attorney, the then city manager, the then clerk of the Municipal Courts, and the mayor. Petitioners sought a declaratory judgment that the loitering ordinance is unconstitutional. They complained that the statute is vague and overbroad, places too much discretion in arresting officers, proscribes conduct that may not constitutionally be limited, and impermissibly chills the rights of free speech, association, assembly, and movement. Petitioners also sought equitable relief in the form of expunction of their records of arrests and convictions for violating the ordinance, and of some counteraction to any distribution to other law enforcement agencies of information as to their arrests and convictions. No injunctive relief against any future application of the statute to them was requested. Cf. Reed v. Giarrusso, 462 F. 2d 706 (CA5 1972). .

The petitioners moved for summary judgment upon the pleadings, admissions, affidavits, and “other matters of record.” App. 42. The respondents, in turn, moved to dismiss and suggested, as well, “that the abstention doctrine is applicable.” Id., at 58. The District Court held that federal declaratory and injunctive relief against future state criminal prosecutions was not available where there was no allegation of bad-faith prosecution, harassment, or other unusual circumstances presenting a likelihood of irreparable injury and harm to the petitioners if the ordinance were enforced. This result, it concluded, was mandated by the decision of its controlling court in Becker v. Thompson, 459 F. 2d 919 (CA5 1972). In Becker, the Fifth Circuit had held that the principles of Younger v. Harris, 401 U. S. 37 (1971), applied not only where a state criminal prosecution was actually pending, but also where a state criminal prosecution was merely threatened. Since the present petitioners’ complaint contained insufficient allegation of irreparable harm, the ease was dismissed. 358 F. Supp. 262 (1973).⁷ The United States Court of Appeals for the Fifth Circuit affirmed without opinion. 475 F. 2d 1402 (1973). After we unanimously reversed the B&cker decision on which the District Court had relied, Steffel v. Thompson, 415 U. S. 452 (1974), we granted the petition for certiorari. 416 U. S. 954 (1974).

II

In Steffel the Court considered the issue whether the Younger doctrine should apply to a case where state prosecution under a challenged ordinance was merely threatened but not pending. In that case, Steffel and his companion, Becker, engaged in protest handbilling at a shopping center. Police informed them that they would be arrested for violating the Georgia criminal trespass statute if they did not desist. Steffel ceased his handbilling activity, but his companion persisted in the endeavor and was arrested and charged.

Steffel then filed suit under 42 U. S. C. § 1983 and 28 U. S. C. § 1343 in Federal District Court, seeking a declaratory judgment⁸ that the ordinance was being applied in violation of his rights under the First and Fourteenth Amendments. It was stipulated that if Steffel returned and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the statute. 415 U. S., at 456. Contrary to the views of the District Court and of the Court of Appeals in the present case, we held that “federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.” Id., at 475.

Thus, in Steffel, we rejected the argument that bad-faith prosecution, harassment, or other unique and extraordinary circumstances must be shown before federal declaratory relief may be invoked against a genuine threat of state prosecution. Unlike the situation where state prosecution is actually pending, cf. Samuels v. Mackell, 401 U. S. 66 (1971), where there is simply a threatened prosecution, considerations of equity, comity, and federalism have less vitality.⁹ Instead, the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount. 415 U. S., at 462-463.

Exhaustion of state judicial or administrative remedies in Stefjel was ruled not to be necessary, for we have long held that an action under § 1983 is free of that requirement. 415 U. S., at 472-473. See, e. g., Monroe v. Pape, 365 U. S. 167, 183 (1961). We did require, however, that it be clearly demonstrated that there was a continuing, actual controversy, as is mandated both by the Declaratory Judgment Act, 28 U. S. C. § 2201, and by Art. Ill of the Constitution itself. Although we noted in Steffel, 415 U. S., at 459, that the threats of prosecution were not “imaginary or speculative,” as those terms were used in Younger, 401 U. S., at 42, we remanded the case to the District Court to determine, among other things, if the controversy was still live and continuing. See 415 U. S., at 460. In particular, we observed that the handbilling had been directed against our Government’s policy in Vietnam and “the recent developments reducing the Nation’s involvement in that part of the world” could not be ignored, so that there was a possibility there no longer existed “ ‘a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,’ ” ibid., quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941).

Ill

The principles and approach of Stejfel are applicable here. The District Court and the Court of Appeals decided this case under the misapprehension that the Younger doctrine applied where there is a threatened state criminal prosecution as well as where there is a state criminal prosecution already pending. Those courts had no reason to reach the merits of the case or to determine the actual existence of a genuine threat of prosecution, or to inquire into the relationship between the past prosecution and the threat of prosecutions for similar activity in the future. Now that Stejfel has been decided, these issues may properly be investigated.

We therefore reverse the judgment of the Court of Appeals and remand the case to the District Court for reconsideration in the light of our opinion in Steffel v. Thompson, reversing Becker v. Thompson. It is appropriate to observe in passing, however, that we possess greater reservations here than we did in Steffel as to whether a case or controversy exists today. First, at oral argument counsel for petitioners acknowledged that they had not been in touch with their clients for approximately a year and were unaware of their clients’ whereabouts. Tr. of Oral Arg. 5-7, 18-22, 25-26. Petitioners, apparently, are not even apprised of the progress of this litigation. Unless petitioners have been found by the time the District Court considers this case on remand, it is highly doubtful that a case or controversy could be held to exist; it is elemental that there must be parties before there is a case or controversy. Further, if petitioners no longer frequent Dallas, it is most unlikely that a sufficiently genuine threat of prosecution for possible future violations of the Dallas ordinance could be established.

Second, there is some question on this record as it now stands regarding the pattern of the statute’s enforcement. Answers to interrogatories reveal an average of somewhat more than two persons per day were arrested in Dallas during seven specified months in 1972 for the statutory loitering offense. App. 68. Of course, on remand, the District Court will find it desirable to examine the current enforcement scheme in order to determine whether, indeed, there now is a credible threat that petitioners, assuming they are physically present in Dallas, might be arrested and charged with loitering. A genuine threat must be demonstrated if a case or controversy, within the meaning of Art. Ill of the Constitution and of the Declaratory Judgment Act, may be said to exist. See Steffel v. Thompson, 415 U. S., at 458-460. See generally O’Shea v. Littleton, 414 U. S. 488, 493-499 (1974); Boyle v. Landry, 401 U. S. 77, 81 (1971). Further, the credible threat must be shown to be alive at each stage of the litigation. Steffel v. Thompson, 415 U. S., at 459 n. 10, and cases cited therein.

Because of the fact that the District Court has not had the opportunity to consider this case in the light of Steffel, and because of our grave reservations about the existence of an actual case or controversy, we have concluded that it would be inappropriate for us to touch upon any of the other complex and difficult issues that the case otherwise might present. The District Court must determine that , the litigation meets the threshold requirements of a case or controversy before there can be resolution of such questions as the interaction between the past prosecution and the threat of future prosecutions, and of the potential considerations, in the context of this case, of the Younger doctrine, of res judicata, of the plea of nolo contendere, and of the petitioners’ failure to utilize the state appellate remedy available to them. Expunction of the records of the arrests and convictions and the nature of corrective action with respect thereto is another claim we do not reach at this time.

The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. No costs are allowed.

It is so ordered.

1 The Municipal Court was formerly known as the Corporation Court. The name was changed by Tex. Sess. Laws, 61st Leg., p. 1689, c. 547 (1969), now codified as Tex. Rev. Civ. Stat., Art. 1194A (Supp. 1974-1975).

2 The denial may have been based on State ex rel. Bergeron v. Travis County Court, 76 Tex. Cr. R. 147, 153-154, 174 S. W. 365, 367-368 (1915), and State ex rel. Burks v. Stovall, 324 S. W. 2d 874, 877 (Tex. Ct. Crim. App. 1959), requiring that questions concerning the constitutionality of a local ordinance be raised in County Court before a writ of prohibition will issue from the Court of Criminal Appeals.

3 The pertinent Texas statute provides:

“On the part of the defendant, the following are the only pleadings:

“6. A plea of nolo contendere. The legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” Tex. Code Crim. Proc., Art. 27.02 (1966), as amended by Tex. Sess. Laws, 60th Leg., c. 659, § 17, p. 1738 (1967).

Since petitioners’ convictions, the Article has been, further amended but the new amendments are of no significance for this case. See Tex. Sess. Laws, 63d Leg., c. 399, §2 (A), p. 969 (1973).

4 We upheld a similar two-tier system in Colten v. Kentucky, 407 U.S. 104, 112-119 (1972).

5 The federal action was instituted after the 10-day period for posting bond and filing for review de novo in the County Court had expired.

6 Ҥ 1983. Civil action for deprivation of rights.

“Every person who, under color of an}' statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

7 The District Court noted, too, that no showing of exhaustion of the state appellate process had been made. 358 F. Supp., at 265-266.

8 Steffel initially also sought an injunction. After the District Court had denied both declaratory and injunctive relief, Steffel chose to appeal only the denial of declaratory relief. Becker v. Thompson, 459 F. 2d 919, 921 (CA5 1972); Steffel v. Thompson, 415 U. S. 452, 456 n. 6 (1974). We were not presented, therefore, with any dispute concerning the propriety of injunctive relief.

9 The Court stated in Stefjel, id., at 462:

“When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.”