Opinion
Case No. 00-4209-RDR.
February 12, 2001.
MEMORANDUM AND ORDER
This order follows a hearing at which the court heard arguments and received some documentary evidence with regard to plaintiff's motion for a preliminary injunction. At the conclusion of the hearing, the court orally ruled against plaintiff's motion. This order elaborates upon the court's reasons for denying the motion.
Plaintiff seeks a preliminary injunction against a sentencing hearing in the State District Court in Douglas County, Kansas in Case No. 00-CR-604. The sentencing hearing is set for Friday, February 9, 2001.
The primary legal issue which has been raised so far in this matter is whether the court should abstain from issuing injunctive relief against state court proceedings under theYounger doctrine. See Younger v. Harris, 401 U.S. 37 (1971). Previously, the court denied a temporary restraining order against the retrial of Case No. 00-CR-604 on Younger grounds. The retrial went forward and plaintiff was convicted of possession of marijuana and obstructing the legal process.
Plaintiff's motion raises many arguments in an attempt to persuade the court that Younger does not apply to this case. The court will not attempt to detail each contention. Many of the arguments relate to the issues which have been litigated and may continue to be litigated in state court. These are issues relating to the quality of the evidence, the constitutionality of certain state statutes, and the actions and rulings of the state district court judge. None of these contentions by plaintiff are so clearly correct that they raise an inference in the mind of this court that the state court prosecution of plaintiff has been in bad faith. Most of the arguments are better reserved for a state court appeal. Plaintiff asserts that he is being prosecuted for standing upon what he perceives to be his constitutional right to refuse an illegal search and, therefore, the prosecution is in bad faith. However, this begs the question of whether the police officer's actions were unconstitutional, which is another issue properly litigated in the ongoing state court proceeding without federal court interference.
The court believes the only genuine issue requiring examination is whether the prosecution was motivated to retaliate against plaintiff for filing a civil lawsuit. The following factual background is relevant to this issue. On January 22, 2000 (a Saturday), plaintiff was stopped for speeding in Lawrence, Kansas. He was driving his brother's car. Police Officer Farrar, who made the stop, asked for identification. Plaintiff correctly identified himself but said he had no identification card or papers. Officer Farrar asked plaintiff to exit the car. Plaintiff refused. Plaintiff contends he was asked to exit the car so that Officer Farrar could conduct an unconstitutional search for identification. SeeState v. Schmitter, 933 P.2d 762 (Kan.App. 1997) (police cannot conduct a Terry search for identification during a traffic stop when the driver claims he has no identification). Defendants contend that Officer Farrar was entitled to ask plaintiff to exit his car during a traffic stop. SeePennsylvania v. Mimms, 434 U.S. 106 (1977) (establishing that officers may make such orders during traffic stops). Officer Farrar testified that he ordered plaintiff out of the car to look for weapons and identification.
When plaintiff refused to exit the car, a struggle ensued between plaintiff, Officer Farrar and Officer Randell, who assisted officer Farrar. Plaintiff was arrested and booked into jail by defendant police officer Farrar on charges of: battery against a law enforcement officer; obstruction of legal process; no driver's license; and possession of marijuana. This was Case No. 00-CR-90. Defendant was held in jail until January 24, 2000 (the next Monday) because persons in Douglas County cannot post a bond for battery on a law enforcement officer until they see a judge. However, the battery charge and the driver's license charge were quickly dismissed.
On April 11, 2000, the State dismissed Case No. 00-CR-90 after plaintiff refused to accept a plea bargain which would have required plaintiff to plead guilty to a misdemeanor. The dismissal papers filed that day indicate that the State intended to refile the matter to allege a felony marijuana possession charge.
On April 28, 2000, a Friday, plaintiff filed a civil action in Douglas County District Court against police officers Farrar and Randell, against Police Chief Ron Olin, and against the City of Lawrence.
On May 1, 2000, the following Monday, Case No. 00-CR-604 was filed by the State against plaintiff. This case reinstigated and intensified the criminal charges against plaintiff. The possession of marijuana charge was changed to a felony. Two charges in the case — driving an uninsured motor vehicle and driving without a license — were later dropped.
Plaintiff was tried once. A hung jury resulted. As mentioned, the retrial of the case produced convictions on the marijuana charge and the obstruction of legal process charge.
Because plaintiff is asking for a preliminary injunction, we believe plaintiff must establish that there is a substantial likelihood he can prove he is the victim of a bad faith prosecution, i.e., that he is being prosecuted in retaliation for filing his civil action. See Sprint Spectrum v. State Corporation Commission, 149 F.3d 1058, 1060 (10th Cir. 1998) (listing substantial likelihood of success on the merits as one requirement for receiving a preliminary injunction). Plaintiff's arguments in this regard rely upon making inferences from the timing of events. For example, Case No. 00-CR-604 was filed the next business day after plaintiff filed his civil action. However, plaintiff has not demonstrated that defendants knew of the civil action when the criminal case was reinstigated. Moreover, defendants have demonstrated that the State intended to refile charges well before the civil action was filed. Plaintiff asks the court to infer a bad motive from the delay in refiling the charges. But, this is asking the court to speculate as to motive when any number of circumstances could contribute to the delay.
Plaintiff has failed to prove a substantial likelihood of overcoming the bar of Younger abstention. As noted in our previous order, this is a "heavy burden" which cannot be satisfied by mere allegations of bad faith or suspicious circumstances. See Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) quoting, Phelps v. Hamilton, 59 F.3d 1058, 1066 (10th Cir. 1995). Nor do citations to cases like State v. Bowen, 234 P. 46, 118 Kan. 31 (1925) satisfy plaintiff's burden. While Bowen may sanction resistance to unlawful arrest, one of the issues in the state prosecution is whether there was an unlawful seizure or arrest. So far, the state court and jury have not found in plaintiff's favor. This is a matter for the state court to decide without this court's interference.
Finally, plaintiff asks for an injunction at least to allow him the chance to conduct discovery. This would grant plaintiff the relief he seeks, at least temporarily, without requiring plaintiff to establish a likelihood of proving the elements of the bad faith exception to the Younger doctrine. In other words, it would grant plaintiff a preliminary injunction without requiring him to satisfy the proof standards for a preliminary injunction. The court shall not do this.
The state court prosecution does not appear frivolous; indeed, plaintiff has been convicted. Plaintiff has not shown a likelihood of proving that the prosecution was conducted in a harassing fashion or that it was filed to retaliate against plaintiff for filing a civil action. These are factors which the Tenth Circuit has stated should be considered in determining whether a bad faith prosecution has been proven. Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th Cir. 1995).
After an analysis of these factors and other matters discussed above, the court has denied plaintiff's motion for a preliminary injunction.