Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981). · Go Syfert
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Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981). Cases Citing This Book View Copy Cite
“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.”
105 citation events (24 in the last 25 years) across 26 distinct courts.
Strongest positive: Netflix v. Babin (ca5, 2023-12-18)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 39 distinct citers.
discussed Cited as authority (quoted) Netflix v. Babin (2×) also: Cited "see"
5th Cir. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (rule) Lisa Hill Leonard v. The Alabama State Board of Pharmacy (2×) also: Cited "see"
11th Cir. · 2023 · confidence medium
See Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. Jan. 1981) (per curiam). 3 Our predecessor court did once remark, “[n]or is it necessary for [a] plaintiff to prove that the prosecution 3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
discussed Cited as authority (rule) Pettway v. Marshall
N.D. Ala. · 2019 · confidence medium
See, e.g., Cameron v. Johnson, 390 U.S. 611, 619 (1968); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. Jan. 14, 1981)2; Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979); see also Younger, 410 U.S. at 56 (Brennan, J., concurring) (“He has not alleged that the prosecution was brought in bad faith to harass him.”) (emphasis added).
discussed Cited as authority (rule) Sixth Angel Shepherd Rescue, I v. James Schilero
3rd Cir. · 2015 · confidence medium
But the case’s extreme facts sap its persuasive power: the District Court in that case had concluded that the appellees’ prosecution “was brought in bad faith for purposes of harassment” and "would not have been brought but for the improper influence exerted on the prosecutor by certain DeKalb judges to seek the indictments.” Fitzgerald v. Peek, 636 F.2d 943, 944-45 (5th Cir.1981).
discussed Cited as authority (rule) Aydiner v. Giusto
D. Or. · 2005 · confidence medium
However, if prosecutions are brought for the purpose of chilling or preventing a defendant from exercising his or her constitutional rights, this may constitute a harassing and/or bad faith prosecution, even though the charges are predicated on probable cause. 59 F.3d 1058 , 1065 n. 12 (10th Cir.1995); see also Cullen v. Fliegner, 18 F.3d 96, 104 (2nd Cir.), cert. denied, 513 U.S. 985 , 115 S.Ct. 480 , 130 L.Ed.2d 393 (1994) (upon showing of retaliatory or bad faith prosecution, expectations for success of the party bringing the action need not be relevant); Fitzgerald v. Peek, 636 F.2d 943, 9…
discussed Cited as authority (rule) Kinney v. Weaver
5th Cir. · 2002 · confidence medium
Communications, Inc. v. Jones, 792 F.2d 1330, 1337 (5th Cir. 1986); Sisk v. Tex. Parks & Wildlife Dep’t, 644 F.2d 1056, 1059 (5th Cir. Unit A May 1981); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. Jan. 1981). exemptions,” 518 U.S. at 680 , (citing Speiser v. Randall, 357 U.S. 513 (1958)), “users of public facilities,” id. (citing Lamb’s Chapel v. Ctr.
discussed Cited as authority (rule) Kinney v. Weaver
unknown court · 2002 · confidence medium
Communications, Inc. v. Jones, 792 F.2d 1330, 1337 (5th Cir.1986); Sisk v. Tex. Parks & Wildlife Dep't, 644 F.2d 1056, 1059 (5th Cir. Unit A May 1981); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. Jan.1981). 54 The Supreme Court recognized the need for interest-balancing in the public employment context and "indicate[d] some of the general lines along which an analysis of the controlling interests should run" in Pickering v. Board of Education, 391 U.S. 563, 569 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968).
discussed Cited as authority (rule) Kinney v. Weaver
unknown court · 2002 · confidence medium
Communications, Inc. v. Jones, 792 F.2d 1330, 1337 (5th Cir.1986); Sisk v. Tex. Parks & Wildlife Dep’t, 644 F.2d 1056, 1059 (5th Cir. Unit A May 1981); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. Jan.1981).
discussed Cited as authority (rule) Flowers v. Seki
9th Cir. · 1996 · confidence medium
See, e.g., Perez v. Ledesma, 401 U.S. 82 , 118 n. 11 (1971) (Brennan, J. concurring in part and dissenting in part); Cullen v. Fliegner, 18 F.3d 96, 103-104 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 480 (1994); United States v. P.H.E., Inc., 965 F.2d 848, 853 (10th Cir.1992); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.), cert. denied, 452 U.S. 916 (1981).
discussed Cited as authority (rule) In Re McMullen
Bankr. E.D. Mich. · 1995 · confidence medium
See, e.g., Davis, 691 F.2d at 179-80 (prosecution relating to a debt discharged in bankruptcy); In re Scott, 166 B.R. 779, 783-85 (D.Mass.1994) (same); see also, e.g., Younger, 401 U.S. at 54 , 91 S.Ct. at 755 (state statute prohibiting “syndicalism” claimed to be contrary to the First and Fourteenth Amendments); United States v. Mullins, 22 F.3d 1365, 1373 (6th Cir.1994) (allegation of selective prosecution based on political association); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981) (per curiam) (prosecution alleged…
discussed Cited as authority (rule) Murphy v. Com. of Virginia
E.D. Va. · 1995 · confidence medium
See Doran v. Salem Inn, Inc., 422 U.S. 922, 930-31 , 95 S.Ct. 2561, 2567-68 , 45 L.Ed.2d 648 (1975) (preliminary injunctive relief); Steffel v. Thompson, 415 U.S. 452, 462 , 94 S.Ct. 1209, 1217 , 39 L.Ed.2d 505 (1974) (declaratory relief). [4] Younger, 401 U.S. at 53-54 , 91 S.Ct. at 754-55 ; Fitzgerald v. Peek, 636 F.2d 943, 944-45 (5th Cir.1981), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981) (enjoining bad faith prosecution as exception to Younger doctrine); Krahm v. Graham, 461 F.2d 703, 706-07 (9th Cir.1972) (finding Younger not to apply in case of both bad faith and …
discussed Cited as authority (rule) Fred W. Phelps, Sr. And Edward F. Engel v. Joan Hamilton, in Her Official Capacity as District Attorney (2×)
10th Cir. · 1995 · confidence medium
See, e.g., Perez v. Ledesma, 401 U.S. 82 , 118 n. 11, 91 S.Ct. 674 , 693 n. 11, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dissenting in part) ("Bad-faith harassment can, of course, take many forms, including arrests and prosecutions under valid statutes where there is no reasonable hope of obtaining a conviction, and a pattern of discriminatory enforcement designed to inhibit the exercise of federal rights.”) (citations omitted); Cullen v. Fliegner, 18 F.3d 96, 103-04 (2d Cir.) ("a refusal to abstain is also justified [even when there is a reasonable expectation of a success…
discussed Cited as authority (rule) Phelps v. Hamilton
D. Kan. · 1993 · confidence medium
See, e.g., Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.), reh’g denied, 851 F.2d 1108 (1988), cert. denied, 489 U.S. 1033 , 109 S.Ct. 1171 , 103 L.Ed.2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d at 1382-83 .
cited Cited as authority (rule) Ruscavage v. Zuratt
E.D. Pa. · 1993 · confidence medium
Fitzgerald v. Peek, 636 F.2d at 944.
discussed Cited as authority (rule) Feerick v. Sudolnik
S.D.N.Y. · 1993 · confidence medium
See, e.g., Dombrowski, 380 U.S. at 497 , 85 S.Ct. at 1126-27 (prosecution brought to deter plaintiffs’ civil rights efforts); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.) (per curiam), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981) (prosecution brought to deter filing of civil suit against state officers); Wilson v. Thompson, 593 F.2d 1375, 1388 (5th Cir.1979) (prosecution brought to harass and punish plaintiffs for exercising first amendment rights against state officials); Shaw v. Garrison, 467 F.2d 113, 122 (5th Cir.), cert. denied, 409 U.S. 1024 , 93 S.Ct. 467 , …
discussed Cited as authority (rule) United States v. Inc.
10th Cir. · 1992 · confidence medium
See also Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988), cert. denied, 489 U.S. 1033 , 109 S.Ct. 1171 , 103 L.Ed.2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981). 30 The appellants contend before us, as they did before the district court, that the First Amendment affords scant protection unless it is understood to include "a right not to be tried." United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 267 , 102 S.Ct. 3081 , 73 L.Ed.2d 754 (1982) (per curiam) (citing United States v. MacDonald, …
discussed Cited as authority (rule) United States v. P.H.E., Inc.
10th Cir. · 1992 · confidence medium
See also Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988), cert. denied, 489 U.S. 1033 , 109 S.Ct. 1171 , 103 L.Ed.2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981).
discussed Cited as authority (rule) Westin v. McDaniel (2×) also: Cited "see, e.g."
M.D. Ga. · 1991 · confidence medium
Id. at 944-45.
discussed Cited as authority (rule) Privitera v. California Board of Medical Quality Assurance
9th Cir. · 1991 · confidence medium
While the Ninth Circuit has not addressed this issue, the Fifth Circuit has held that "[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.” Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981).
discussed Cited as authority (rule) PHE, Inc. v. United States Department of Justice
D.D.C. · 1990 · confidence medium
“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.’ ” Id. at 1109-10 (quoting Fitzgerald, 636 F.2d at 945) (emphasis added by Lewellen).
examined Cited as authority (rule) ca1 1988 (3×)
1st Cir. · 1988 · confidence medium
The federal courts have consistently and repeatedly affirmed that their abhorrence of enjoining a pending state prosecution must yield when the state prosecution threatens a party with "great and immediate irreparable injury." See, e.g., Younger, 401 U.S. at 56 , 91 S.Ct. at 757 ; Dombrowski v. Pfister, 380 U.S. 479, 485-87 , 85 S.Ct. 1116, 1120-21 , 14 L.Ed.2d 22 (1965); Collins v. County of Kendall, 807 F.2d 95, 98 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3228 , 97 L.Ed.2d 734 (1987); Rowe v. Griffin, 676 F.2d 524, 525 (11th Cir.1982); Fitzgerald v. Peek, 636 F.2d 943, 944 (5th…
examined Cited as authority (rule) Lewellen v. Raff (3×)
8th Cir. · 1988 · confidence medium
The federal courts have consistently and repeatedly affirmed that their abhorrence of enjoining a pending state prosecution must yield when the state prosecution threatens a party with “great and immediate irreparable injury.” See, e.g., Younger, 401 U.S. at 56 , 91 S.Ct. at 757 ; Dombrowski v. Pfister, 380 U.S. 479, 485-87 , 85 S.Ct. 1116, 1120-21 , 14 L.Ed.2d 22 (1965); Collins v. County of Kendall, 807 F.2d 95, 98 (7th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 3228 , 97 L.Ed.2d 734 (1987); Rowe v. Griffin, 676 F.2d 524, 525 (11th Cir.1982); Fitzgerald v. Peek, 636 F.2d 943, 944 (…
discussed Cited as authority (rule) Schiavone Construction Co. v. New York City Transit Authority
S.D.N.Y. · 1984 · confidence medium
Cf. Rowe v. Griffin, 676 F.2d 524, 525-26 (11th Cir.1982) (applying bad faith exception to pending state criminal prosecution of plaintiff); Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.) (same), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981).
discussed Cited as authority (rule) Gary Thomas Rowe v. Carl Griffin, Etc., Hon. Jesse O. Bryan (2×)
11th Cir. · 1982 · confidence medium
Younger, 401 U.S. at 49-54 , 91 S.Ct. at 753 ; Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981); cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979), aff'd after remand, 638 F.2d 801 (5th Cir. 1981); 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). 2 Such a situation is present in this case.
discussed Cited as authority (rule) Pizzolato v. Perez (2×)
E.D. La. · 1981 · confidence medium
Jarvis v. Knowlton, 459 F.Supp. 687, 691 (N.D.Tex.1978); Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. 1981).
discussed Cited "see" Thomas v. State (2×) also: Cited "see, e.g."
N.D. Tex. · 2018 · signal: see · confidence high
See id. at 662 ; Wightman-Cervantes , 2004 WL 2512208 , at *3-4 (declining to apply the bad faith exception where the plaintiff failed to plead facts in support of his conclusory allegations regarding the actions of a judge and prosecutor); compare Jordan , 169 F.Supp.2d at 669 (finding that the defendant was motivated to retaliate against the plaintiff's constitutionally protected right where (1) the defendant relied on testimony of two felony inmates to procure an indictment, and (2) the county attorneys offered to dismiss the plaintiff's criminal case if he would drop his civil case against…
discussed Cited "see" Nobby Lobby, Inc. v. City of Dallas
N.D. Tex. · 1991 · signal: see · confidence high
See Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.) (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”), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981); Shaw v. Garrison, 467 F.2d 113, 122 (5th Cir.) (Wisdom, J.) (holding that a finding of bad faith prosecution is subject to “clearly erroneous” standard on review and that such a finding “establishes irreparable injury both great and imme…
discussed Cited "see" Privitera v. California Board Of Medical Quality Assurance
9th Cir. · 1991 · signal: see · confidence high
See supra, 894 7 While the Ninth Circuit has not addressed this issue, the Fifth Circuit has held that "[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." Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981).
discussed Cited "see" Madalyn Murray O'Hair and Society of Separationists, Inc. v. Mark White (2×)
5th Cir. · 1982 · signal: accord · confidence high
Id. at 44, 53-54 , 91 S.Ct. at 750, 754-755; accord, Fitzgerald v. Peek, 636 F.2d 943 , 944 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981); Henry v. First National Bank of Clarksdale, 595 F.2d 291, 300 (5th Cir. 1979), cert. denied, 444 U.S. 1074 , 100 S.Ct. 1020 , 62 L.Ed.2d 756 (1980).
discussed Cited "see, e.g." Blakely v. Andrade
N.D. Tex. · 2019 · signal: see also · confidence low
Check Cashing, Inc. , 191 F.Supp.3d at 660 (emphasis in original); see also Fitzgerald v. Peek , 636 F.2d 943 , 945 (5th Cir. 1981) (per curiam) (the bad faith exception applies "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").
discussed Cited "see, e.g." All American Check Cashing, Inc. v. Corley
S.D. Miss. · 2016 · signal: see also · confidence medium
See also Fitzgerald, 636 F.2d at 945 (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”), All American has. failed to demonstrate that this is a case for application of the narrow bad faith exception.
discussed Cited "see, e.g." Roger Arkebauer v. Michael Kiley, Individually and as State's Attorney of Shelby County, Illinois
7th Cir. · 1993 · signal: see also · confidence low
See also Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.) (holding that bad faith is established when the prosecution was motivated by retaliation or deterrence), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981). 10 .
discussed Cited "see, e.g." In Re Fussell
5th Cir. · 1991 · signal: see also · confidence medium
And certainly, violent crimes and crimes that may be of a repetitive nature would be given priority.... 8 For example, our precedent would permit us to enjoin "a state prosecution undertaken in retaliation for or to deter the exercise of constitutionally protected rights," or one "undertaken under a valid statute for constitutionally impermissible reasons." Wilson v. Thompson, 593 F.2d 1375, 1377 , 1382 n. 7 (5th Cir.1979); see also Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.1981) (similar).
discussed Cited "see, e.g." Fussell v. Price
5th Cir. · 1991 · signal: see also · confidence medium
For example, our precedent would permit us to enjoin "a state prosecution undertaken in retaliation for or to deter the exercise of constitutionally protected rights," or one "undertaken under a valid statute for constitutionally impermissible reasons.” Wilson v. Thompson, 593 F.2d 1375, 1377 , 1382 n. 7 (5th Cir.1979); see also Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir.1981) (similar).
cited Cited "see, e.g." Blackwelder v. Safnauer
N.D.N.Y. · 1988 · signal: see, e.g. · confidence medium
See, e.g., Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981).
discussed Cited "see, e.g." Smith v. Meese
11th Cir. · 1987 · signal: see, e.g. · confidence low
See, e.g., Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. Jan. 1981) (enjoining prosecutions brought to harass individuals for exercising their First Amendment rights), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979) (same).
discussed Cited "see, e.g." Smith v. Meese
11th Cir. · 1987 · signal: see, e.g. · confidence low
See, e.g., Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. Jan. 1981) (enjoining prosecutions brought to harass individuals for exercising their First Amendment rights), cert. denied, 452 U.S. 916 , 101 S.Ct. 3051 , 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979) (same).
discussed Cited "see, e.g." Howie Ray Robinson v. Henry Wade, Winfield Scott, Richard Mays and Bill Shaw
5th Cir. · 1982 · signal: compare · confidence medium
Wilson v. Thompson, 593 F.2d 1375, 1384 (5th Cir. 1979) quoting Canal Authority v. Callaway, 489 F.2d 567 , 572 (5th Cir. 1974); compare Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981); Kolski at 766 . 8 Robinson's petition is properly considered to arise under 28 U.S.C. § 2241 (c)(3), allowing the writ of habeas corpus to petitioners "in custody in violation of the Constitution," rather than under 28 U.S.C. § 2254 (a), which requires that custody be "pursuant to the judgment of a state court." Although section 2241 contains no statutory requirement of exhaustion like that found in sec…
discussed Cited "see, e.g." Robinson v. Wade
5th Cir. · 1982 · signal: compare · confidence medium
Wilson v. Thompson, 593 F.2d 1375, 1384 (5th Cir. 1979) quoting Canal Authority v. Callaway, 489 F.2d 567 , 572 (5th Cir. 1974); compare Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981); Kolski at 766 . .
Ernest Billy Fitzgerald and Marilyn Fitzgerald
v.
M. Randall Peek, District Attorney Stone Mountain Judicial Circuit, Individually and in His Official Capacity
78-2705.
Court of Appeals for the Fifth Circuit.
Jan 14, 1981.
636 F.2d 943
Cited by 11 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 64%
Citer courts: Fifth Circuit (1)

636 F.2d 943

Ernest Billy FITZGERALD and Marilyn Fitzgerald, Plaintiffs-Appellees,
v.
M. Randall PEEK, District Attorney Stone Mountain Judicial
Circuit, individually and in his official
capacity, Defendant-Appellant.

No. 78-2705.

United States Court of Appeals,
Fifth Circuit.

Jan. 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.

PER CURIAM:

[*~943]1

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.

2

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).

3

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.

[*943]4

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.

5

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.

6

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.

7

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.

[*~944]8

AFFIRMED.