Allee v. Medrano
416 U.S. 802 (1974)

Annotate this Case

U.S. Supreme Court

Allee v. Medrano, 416 U.S. 802 (1974)

Allee v. Medrano

No. 72-1125

Argued November 13, 1973

Decided May 20, 1974

416 U.S. 802




Appellee union and the individual appellees, who attempted from June, 1966, to June, 1967, to unionize farmworkers and persuade them to support or join a strike, were subjected to persistent harassment and violence by appellants and other law enforcement officers. In July, 1967, a state court issued a temporary injunction against appellees proscribing picketing on or near property of one of the major employers in the area. Appellees brought this federal civil rights action, 42 U.S.C. §§ 1983, 1985, attacking the constitutionality of certain Texas statutes and alleging that appellants and the other officers conspired to deprive appellees of their First and Fourteenth Amendment rights. A three-judge District Court declared five of the statutes unconstitutional and enjoined their enforcement, and in addition permanently enjoined appellants and the other officers from intimidating appellees in their organizational efforts.


1. The state court injunction did not moot the controversy, since it was the appellants' and the other officers' conduct, not the injunction, that ended the strike. Nor has the case become moot because appellees abandoned their unionization efforts as a result of the harassment, for appellee union still is a live organization with a continuing goal of unionizing farmworkers. Pp. 416 U. S. 809-811.

2. The portion of the District Court's decree enjoining police intimidation of the appellees was an appropriate exercise of the court's equitable powers. Pp. 416 U. S. 811-816.

(a) The three-judge court could properly consider the question of police harassment under concededly constitutional statutes and grant relief in the exercise of jurisdiction ancillary to that conferred by the constitutional attack on the statutes that plainly required a three-judge court. Pp. 416 U. S. 811-812.

(b) This portion of the decree did not interfere with pending state prosecutions, so that special considerations relevant to cases like Younger v. Harris,401 U. S. 37, do not apply, nor was there any requirement that appellees first exhaust state remedies before bringing their federal suit. P. 416 U. S. 814.

(c) Irreparable injury was shown as evidenced by the District Court's unchallenged findings of police intimidation, and no remedy at law would adequately protect appellees from such intimidation in their lawful effort to unionize the farmworkers. Pp. 416 U. S. 814-815.

(d) Where there is a persistent pattern of police misconduct, as opposed to isolated incidents, injunctive relief is appropriate. Hague v. CIO,307 U. S. 496. Pp. 416 U. S. 815-816.

3. The portion of the District Court's decree holding five of the state statutes unconstitutional with accompanying injunctive relief must be vacated. Pp. 416 U. S. 816-820.

(a) Where three of the statutes have been repealed and replaced by more narrowly drawn provisions since the District Court's decision, and there are no pending prosecutions under them, the judgment relating to these statutes will have become moot. Since it cannot be definitely determined from the District Court's opinion or the record whether there are pending prosecutions, or even whether the District Court intended to enjoin them if there were, the case is remanded for further findings. If there are no pending prosecutions, the court should vacate the judgment as to the superseded statutes. If some are pending, the court should make findings as to whether they were brought in bad faith, and, if so, enter an appropriate decree subject to review both as to the propriety of federal court intervention and as to the merits of any holding striking down the statutes. Pp. 416 U. S. 818-820.

(b) The case is remanded for a determination as to whether there are pending prosecutions under the two remaining statutes, and for further findings and reconsideration in light of Steffel v. Thompson,415 U. S. 452. If there are pending prosecutions, the court should determine whether they were brought in bad faith. If there are only threatened prosecutions and only declaratory relief is sought, then Steffel controls and no Younger showing need be made. P. 416 U. S. 820.

347 F.Supp. 605, affirmed in part, vacated in part, and remanded.

DOUGLAS, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ., joined. BURGER, C.J., filed an opinion concurring in the result in part and dissenting in part, in which WHITE and REHNQUIST, JJ., joined, post, p. 416 U. S. 821. POWELL, J., took no part in the decision of the case.

Page 416 U. S. 804

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This is a civil rights action, [Footnote 1] 42 U.S.C. §§ 1983, 1985, attacking the constitutionality of certain Texas statutes, brought by appellees. It alleges that the defendants, members of the Texas Rangers and the Starr County, Texas, Sheriff's Department, and a Justice of the Peace in Starr County, conspired to deprive appellees of their rights under the First and Fourteenth Amendments, by unlawfully arresting, detaining, and confining them without due process and without legal justification, and by unlawfully threatening, harassing, coercing, and physically assaulting them to prevent their exercise of the rights of free speech and assembly. A three-judge court was convened which declared five Texas statutes unconstitutional and enjoined their enforcement. 347 F.Supp. 605, 634. In addition, the court permanently enjoined the defendants from a variety of unlawful practices which formed the core of the alleged conspiracy. Five defendants, all members of the Texas Rangers, have perfected this appeal. 28 U.S.C. § 1253. The appellees

Page 416 U. S. 805

consist of the United Farm Workers Organizing Committee, certain named plaintiffs, [Footnote 2] and the class they represented in the District Court, on whose behalf the judgment was also rendered. [Footnote 3]

From June, 1966, until June, 1967, the appellees were engaged in an effort to organize into the union the predominantly Mexican-American farmworkers of the lower Rio Grande Valley. This effort led to considerable local controversy, which brought appellees into conflict with the state and local authorities, and the District Court found that, as a result of the unlawful practices enjoined below, the organizing efforts were crushed. This lawsuit followed.

The factual findings of the District Court are not challenged here. In early June, 1966, at the beginning of the organizing effort, Eugene Nelson, one of the strikers' principal leaders, stationed himself at the International Bridge in Roma, Texas, attempting to persuade laborers from Mexico to support the strike. He was taken into custody by the Starr County Sheriff, detained for four hours, questioned about the strike, and was told he was under investigation by the Federal Bureau of

Page 416 U. S. 806

Investigation. No charges were ever filed against him. 347 F.Supp. at 612.

In October, 1966, about 25 union members and sympathizers picketed alongside the Rancho Grande Farms exhorting the laborers to join the strike; they were ordered to disperse by the sheriffs, although their picketing was peaceful. When Raymond Chandler, one of the union leaders, engaged an officer in conversation contesting the validity of the order, he was arrested under Art. 474 of the Texas Penal Code for breach of the peace. Although the maximum punishment for this offense is a $200 fine, bond was set for Chandler at $500. When two of Chandler's friends came to the courthouse to make bond, they were verbally abused, told they had no business there, and that, if they did not leave, they would be placed in Jail themselves. 347 F.Supp. at 612-613. They left. [Footnote 4]

Later that month, when the president of the local union and others were in the courthouse under arrest, they shouted "viva la huelga" in support of the strike. A deputy sheriff struck the union official and held a gun at his forehead, ordering him not to repeat those words in the courthouse because it was a "respectful place." Id. at 613. As the strike continued through the year and the Texas Rangers were called into the local area, there were more serious incidents of violence. In May, 1967, some union pickets gathered in Mission, Texas, to protest the carrying of produce from the valley on the Missouri-Pacific Railroad. They were initially charged with trespass on private property; this was changed to unlawful assembly, and finally was superseded by complaints of secondary picketing. The Reverend Edgar

Page 416 U. S. 807

Krueger and Magdaleno Dimas were taken into custody by the Rangers. As a train passed, the Rangers held these two prisoners' bodies so that their faces were only inches from the train. Id. at 615.

A few weeks later, the Rangers sought to arrest Dimas for allegedly brandishing a gun in a threatening manner, and found him by "tailing" Chandler and Moreno, also union members. Chandler was arrested with no explanation, as was Moreno, who was also assaulted by Captain Allee at the time. These two men were later charged with assisting Dimas to evade arrest, although, by Allee's own testimony, they were never told Dimas was sought by the Rangers. Indeed, because the officers had no arrest warrant or formal complaint against Dimas, they could not then arrest him, so they put in a call to a justice of the peace who arrived on the scene and filled out a warrant on forms he carried with him. The Rangers then broke into a house and arrested Dimas and Rodriguez, another union member, in a violent and brutal fashion. Dimas was hospitalized four days with a brain concussion, and X-rays revealed that he had been struck so hard on the back that his spine was curved out of shape. Rodriguez had cuts and bruises on his ear, elbow, upper arm, back, and jaw; one of his fingers was broken, and the nail torn off. Id. at 616-617.

Earlier, in May, Nelson had gone down to the Sheriff's office, according to appellees, to complain that the Rangers were acting as a private police force for one of the farms in the area. The three-judge District Court found that Nelson was then arrested and charged with threatening the life of certain Texas Rangers, despite the fact that Captain Allee conceded there was no serious threat. Allee had directed that the charges be filed to protect the Rangers from censure if something happened to Nelson. Id. at 615.

Page 416 U. S. 808

During this entire period, the Starr County Sheriff's office regularly distributed an aggressive anti-union newspaper. A deputy driving an official car would pick up the papers each week and bring them back to the Sheriff's office; they would then be distributed by various deputies. Id. at 617. The District Court included copies of the paper in an appendix to its opinion; a typical headline was "Only Mexican Subversive Group Could Sympathize with Valley Farm Workers." The views of the Texas Rangers were similarly explicit. On a number of occasions, they offered farm jobs to the union leaders, at the union demand wage, in return for an end to the strike. Id. at 613, 614. The Rangers told one union member that they had been called into the area to break the strike, and would not leave until they had done so. Id. at 613.

Among other findings of the three-judge District Court were that the defendants selectively enforced the unlawful assembly law, Art. 439 of the Texas Penal Code, treating as criminal an inoffensive union gathering, 347 F.Supp. at 613; solicited criminal complaints against appellees from persons with no knowledge of the alleged offense, id. at 615; and filed baseless charges against one appellee for impersonating an officer. [Footnote 5]

The three-judge District Court found that the law enforcement officials "took sides in what was essentially a labor-management controversy." Id. at 618. Although there was virtually no evidence of assault upon

Page 416 U. S. 809

anyone by union people during the strike, the officials "concluded that the maintenance of law and order was inextricably bound to preventing the success of the strike." Ibid. Thus, these were not a series of isolated incidents, but a prevailing pattern throughout the controversy.


It is argued that a state injunction [Footnote 6] against the appellees, issued on July 11, 1967, ended the strike, and thus rendered the controversy moot. That is not the case.

After summarizing the defendants' unlawful practices, the District Court concluded that "[t]he union's efforts collapsed under this pressure in June of 1967, and this suit was filed in an effort to seek relief." Ibid. Thus, it was the defendants' conduct, which is the subject of this suit, that ended the strike, not the state court injunction, which came afterward. With the protection of the federal court decree, appellees could again begin their efforts.

Moreover, the state court injunction is quite limited. It proscribes picketing by the appellees and those acting in concert with them only on or near property owned by La Casita Farms, Inc., the plaintiff in the state case. But the appellants agreed at oral argument that La Casita is only one of the major employers in the area, and some of the incidents involved occurred at other locations. Moreover the state court injunction was only temporary, and, on appeal the Texas Court of Civil Appeals, after finding that most of the trial court findings were unsupported, affirmed only because of the limited nature of review, under Texas law, of a temporary injunction. The appellate court concluded that "nothing in this

Page 416 U. S. 810

opinion is to be taken as a ruling that the evidence before us would support the issuance of a permanent injunction. . . ." United Farm Workers Organizing Comm. v. La Casita Farms, Inc., 439 S.W.2d 398, 403. We were advised at oral argument that no permanent injunction against picketing has ever been issued, and we cannot assume that one will be.

Nor can it be argued that the case has become moot because appellees have abandoned their efforts as a result of the very harassment they sought to restrain by this suit. There can be no requirement that appellees continue to subject themselves to physical violence and unlawful restrictions upon their liberties throughout the pendency of the action in order to preserve it as a live controversy. In the face of appellants' conduct, appellees sought to vindicate their rights in the federal court. In June, 1967, they rechanneled their efforts from direct attempts at unionizing the workers to seeking the protection of a federal decree, and hence they brought this suit. In their amended complaint, filed in October 1967, they charged that the defendants' conduct, aimed at all those who make common cause with appellees, "chill[ed] the willingness of people to exercise their First Amendment rights," resulting, as the three-judge District Court found, in the "collapse" of the union drive. Appellees continued to prosecute the suit, and won a judgment in December, 1972. We may not assume that, because, during this period they directed their efforts to the judicial battle, they have abandoned their principal cause. Rather, the very purpose of the suit was to seek protection of the federal court so that the efforts at unionization could be renewed. It is settled that an action for an injunction does not become moot merely because the conduct complained of has terminated, if there is a possibility of recurrence, since otherwise the

Page 416 U. S. 811

defendants "would be free to return to [their] old ways.'" Gray v. Sanders,372 U. S. 368, 372 U. S. 376; Walling v. Helmerich & Payne, Inc.,323 U. S. 37, 323 U. S. 43; United States v. W. T. Grant Co.,345 U. S. 629, 345 U. S. 632; NLRB v. Raytheon Co.,398 U. S. 25, 398 U. S. 27; SEC v. Medical Committee for Human Rights,404 U. S. 403, 404 U. S. 406. The appellee union remains very much a live organization, and its goal continues to be the unionization of farmworkers. The essential controversy is therefore not moot, but very much alive.


We first consider the provisions of the federal court decree enjoining police intimidation of the appellees. [Footnote 7]

Page 416 U. S. 812

This part of the decree complements the other relief, in that it places boundaries on all police conduct, not just that which is based upon state statutes struck down by the federal court. The complaint charged that the enjoined conduct was but one part of a single plan by the defendants, and the District Court found a pervasive pattern of intimidation in which the law enforcement authorities sought to suppress appellees' constitutional rights. In this blunderbuss effort, the police not only relied on statutes the District Court found constitutionally deficient, but concurrently exercised their authority under valid laws in an unconstitutional manner. While it is argued that a three-judge District Court could not properly be convened if police harassment under concededly constitutional statutes were the only question presented to it, it could properly consider the question and grant relief in the exercise of jurisdiction ancillary to that conferred by the constitutional attack on the state statutes which plainly required a three-judge court. [Footnote 8]

Page 416 U. S. 813

That part of the decree in question here prohibits appellants from using their authority as peace officers to arrest, stop, disperse, or imprison appellees, or otherwise interfere with their organizational efforts, without

Page 416 U. S. 814

"adequate cause." "Adequate cause" is defined as (1) actual obstruction of public or private passways causing unreasonable interference, (2) force or violence, or threat thereof, actually committed by any person, or the aiding and abetting of such conduct, or, (3) probable cause to believe in good faith that a criminal law of the State of Texas has been violated, other than the ones struck down in the remainder of the decree. On its face the injunction does no more than require the police to abide by constitutional requirements; and there is no contention that this decree would interfere with law enforcement by restraining the police from engaging in conduct that would be otherwise lawful.

Thus, the only question before us is whether this was an appropriate exercise of the federal court's equitable powers. We first note that this portion of the decree creates no interference with prosecutions pending in the state courts, so that the special considerations relevant to cases like Younger v. Harris,401 U. S. 37, do not apply here. Nor was there any requirement that appellees first exhaust state remedies before bringing their federal claims under the Civil Rights Act of 1871 to federal court. McNeese v. Board of Education,373 U. S. 668; Monroe v. Pape,365 U. S. 167. Nonetheless there remains the necessity of showing irreparable injury, "the traditional prerequisite to obtaining an injunction" in any case. Younger, supra, at 401 U. S. 46.

Such a showing was clearly made here, as the unchallenged findings of the District Court show. The appellees sought to do no more than organize a lawful union to better the situation of one of the most economically oppressed classes of workers in the country. Because of the intimidation by state authorities, their lawful effort was crushed. The workers, and their leaders and organizers were placed in fear of exercising their

Page 416 U. S. 815

constitutionally protected rights of free expression, assembly, and association. Potential supporters of their cause were placed in fear of lending their support. If they were to be able to regain those rights and continue furthering their cause by constitutional means, they required protection from appellants' concerted conduct. No remedy at law would be adequate to provide such protection. Dombrowski v. Pfister,380 U. S. 479, 380 U. S. 485-489.

Isolated incidents of police misconduct under valid statutes would not, of course, be cause for the exercise of a federal court's equitable powers. But

"[w]e have not hesitated on direct review to strike down applications of constitutional statutes which we have found to be unconstitutionally applied."

Cameron v. Johnson,390 U. S. 611, 390 U. S. 620, citing Cox v. Louisiana,379 U. S. 559; Wright v. Georgia,373 U. S. 284; Edwards v. South Carolina,372 U. S. 229. Where, as here, there is a persistent pattern of police misconduct, injunctive relief is appropriate. In Hague v. Committee for Industrial Organization,307 U. S. 496, we affirmed the granting of such relief under strikingly similar facts. There also, law enforcement officials set out to crush a nascent labor union. The police interfered with the lawful distribution of pamphlets, prevented the holding of public meetings, and ran some labor organizers out of town. The District Court declared some of the municipal ordinances unconstitutional. In addition, it enjoined the police from

"exercising personal restraint over [the plaintiffs] without warrant or confining them without lawful arrest and production of them for prompt judicial hearing . . . or interfering with their free access to the streets, parks, or public places of the city,"

or from

"interfering with the right of the [plaintiffs], their agents and those acting with them, to communicate their views as individuals

Page 416 U. S. 816

to others on the streets in an orderly and peaceable manner."

Id. at 307 U. S. 517. The lower federal courts have also granted such relief in similar cases. [Footnote 9]

For reasons to be stated, that portion of this relief based on holdings that certain state statutes are unconstitutional should be modified. In all other respects, this portion of the District Court decree was quite proper. [Footnote 10]


Finally, we consider the portion of the District Court's judgment declaring five Texas statutes unconstitutional, with the accompanying injunctive relief. We have been pressed with arguments by the appellants that these parts of the decree are inconsistent with the teachings of Younger v. Harris,401 U. S. 37, and Samuels v. Mackell,401 U. S. 66. For reasons explained below, it is unnecessary to reach these contentions at present.

Younger and its companion cases are grounded upon the special considerations which apply when a federal

Page 416 U. S. 817

court is asked to intervene in pending state criminal prosecutions. Steffel v. Thompson,415 U. S. 452. Although both parties here have assumed the relevance of Younger, we have been unable to find any precise indication in the District Court opinion or in the record that there were pending prosecutions at the time of the District Court decision. Indeed, the chronology of events gives rise to the contrary inference. Although the District Court issued its opinion in December, 1972, the union effort which was the source of this contest had been interrupted more than five years earlier. It seems likely that any state prosecutions initiated during the effort would have been concluded by that time unless they had been restrained by a temporary order of the federal court. But there is no indication that such an order was ever issued. Moreover, the injunctive relief granted does not appear to be directed at restraining any state court proceedings. [Footnote 11]

Page 416 U. S. 818

If, in fact, there were no pending prosecutions, the relief could have impact only on future events in which the challenged statutes might be invoked by the appellants. Since this remains a live, continuing controversy, such relief would ordinarily be appropriate if justified by the merits of the case. Gray v. Sanders,372 U. S. 368, 372 U. S. 376. But here we have a special situation, for three of the statutes in question have since been repealed by the Texas Legislature. Article 474 of the Penal Code, the "breach of the peace" provision, has been replaced by §§ 42.01, 42.03, and 42.05 in the new codification; Art. 482, the abusive language statute, has been replaced by § 42.01; and Art. 439, the unlawful assembly provision, has been replaced by § 42.02. These new enactments, which replaced the earlier statutes as of January 1, 1974, are more narrowly drawn than their predecessors. Whatever the merits of the District Court's conclusions on the earlier statutes, any challenge to the new provisions presents a different case.

Thus, although there was a live controversy as to these statutes at the time of the District Court decree, if there are no pending prosecutions under the old statutes, the portions of the District Court's judgment relating to them has become moot. [Footnote 12] But because we cannot determine with certainty whether there are pending prosecutions, or even whether the District Court intended to enjoin them if there were, the proper disposition is to remand the case to the District Court for further findings.

Page 416 U. S. 819

Cf. Diffenderfer v. Central Baptist Church,404 U. S. 412. If there are no pending prosecutions under these superseded statutes, the District Court should vacate both the declaratory and injunctive relief as to them. If there are pending prosecutions remaining against any of the appellees, [Footnote 13] then the District Court should make findings as to whether these particular prosecutions were brought in bad faith, with no genuine expectation of conviction. [Footnote 14] If it so finds, the court will

Page 416 U. S. 820

enter an appropriate decree which this Court may ultimately review, both as to the propriety of federal court intervention in the circumstances of the case and as to the merits of any holding striking down the state statutes.

As to the two remaining statutes, Tex. Civ.Stat., Arts. 5154d and 5154f, it is not necessary for other reasons for us at this time to reach any Younger questions or the merits of the decision below as to the statutes' constitutionality. As to these also, we must remand for a determination as to whether there are pending prosecutions, although, if there are none, the appellees might still be threatened with prosecutions in the future, since these statutes are still in force. But if there are only threatened prosecutions, and the appellees sought only declaratory relief as to the statutes, then the case would not be governed by Younger at all, but by Steffel v. Thompson,415 U. S. 452, decided this Term. [Footnote 15] The District Court, of course, did not have the benefit of our opinion in Steffel at the time of its decision. We therefore think it appropriate to vacate the judgment of the District Court as to these statutes and remand for further findings and reconsideration in light of Steffel v. Thompson. If there are pending prosecutions, then the District Court should determine whether they were brought in bad faith, for the purpose of harassing appellees and deterring the exercise of First Amendment rights, so that allowing the prosecutions to proceed will result in irreparable injury to the appellees. If there are no pending prosecutions and only declaratory relief is sought, then Steffel clearly controls and no Younger showing need be made.

Page 416 U. S. 821

In summary, we affirm the decree granting injunctive relief against police misconduct, with appropriate modifications to delete reference to the five statutes held unconstitutional by the District Court. We vacate the District Court's judgment as to those five statutes, and remand for further proceedings consistent with this opinion.

It is so ordered.

MR. JUSTICE POWELL took no part in the decision of this case.

[Footnote 1]

Jurisdiction in the District Court was based upon 28 U.S.C. § 1343, and a three-judge court was properly convened under 28 U.S.C. § 2281.

[Footnote 2]

Named in the caption were Francisco Medrano, Kathy Baker, David Lopez, Gilbert Padilla, Magdaleno Dimas, and Benjamin Rodriguez. Other individual plaintiffs were named in the body of the complaint.

[Footnote 3]

The judgment was also rendered for all members of the plaintiff United Farmworkers Organizing Committee, AFL-CIO, and

"all other persons who, because of their sympathy for or voluntary support of the aims of said Plaintiff union, have engaged in, are engaging in, or may hereafter engage in peaceful picketing, peaceful assembly, or other organizational activities of or in support of said Plaintiff union or who may engage in concert of action with one or more of Plaintiffs for the solicitation of agricultural workers or others to join or make common cause with them in matters pertaining to the work and labor of agricultural workers."

[Footnote 4]

This was not the only abuse of the bonding process. Later, when Eugene Nelson was arrested for threatening the life of a Texas Ranger, see infra at 416 U. S. 807, the deputy sheriff rejected, for no valid reason, a bond he knew was good.

[Footnote 5]

Deputy Paul Pena filed these charges against Reynaldo De La Cruz, although Pena had never seen the offense, which was wearing a badge around the union hall. The badge in question was of the shield type, while those worn by the officers were of the star type, and Pena conceded that he knew that De La Cruz and Dimas had worn similar badges when directing traffic at union functions. 347 F.Supp. at 616.

[Footnote 6]

La Casita Farms, Inc. v. United Farm Workers Organizing Comm., Dist. Ct. of Starr County, Texas, No. 3809, July 11, 1967. Appellants' exhibit D-1 in the District Court.

[Footnote 7]

"It is further ordered, adjudged and decreed by the Court that Defendants, their successors, agents and employees, and persons acting in concert with them, are permanently enjoined and restrained from any of the following acts or conduct directed toward or applied to Plaintiffs and the persons they represent, to-wit:"

"A. Using in any manner Defendants' authority as peace officers for the purpose of preventing or discouraging peaceful organizational activities without adequate cause."

"B. Interfering by stopping, dispersing, arresting, or imprisoning any person, or by any other means, with picketing, assembling, solicitation, or organizational effort without adequate cause."

"C. Arresting any person without warrant or without probable cause which probable cause is accompanied by intention to present appropriate written complaint to a court of competent jurisdiction."

"D. Stopping, dispersing, arresting or imprisoning any person without adequate cause because of the arrest of some other person."

"E. As used in this Paragraph 16, Subparagraphs A, B and D above, the term 'adequate cause' shall mean (1) actual obstruction of a public or private passway, road, street, or entrance which actually causes unreasonable interference with ingress, egress, or flow of traffic; or (2) force or violence, or the threat of force or violence, actually committed by any person by his own conduct or by actually aiding, abetting, or participating in such conduct by another person; or (3) probable cause which may cause a Defendant to believe in good faith that one or more particular persons did violate a criminal law of the State of Texas other than those specific laws herein declared unconstitutional, or a municipal ordinance."

[Footnote 8]

It is argued that Public Service Comm'n v. Brashear Lines,312 U. S. 621, holds that there is no ancillary jurisdiction in three-judge courts. In Brashear, the plaintiffs refused to pay fees assessed under the statute challenged in their suit; when their attack on the statute failed, the defendants sought damages, and the Court held that the damages action should have been heard by a single district judge. This was not a proper exercise of ancillary jurisdiction, because the defendants' claim was completely unrelated to the basis on which the three-judge court was convened, and there was no purpose to be served by having it determined by the same tribunal. But we have held that,

"[o]nce [a three-judge court is] convened, the case can be disposed of below or here on any ground, whether or not it would have justified the calling of a three-judge court."

United States v. Georgia Public Service Comm'n,371 U. S. 285, 371 U. S. 287-288. Indeed, the three-judge court is required to hear the nonconstitutional attack upon the statute, Florida Lime Growers v. Jacobsen,362 U. S. 73, 362 U. S. 85; Rosado v. Wyman,397 U. S. 397, 397 U. S. 402. The instant case is nearly identical to Milky Way v. Leary,397 U. S. 98, in which we considered and summarily affirmed the judgment of a three-judge court regarding the assertedly illegal application of a New York statute which was concededly constitutional; this decision was rendered in the exercise of ancillary jurisdiction acquired as a result of a facial attack on a different but related state statute. 305 F.Supp. 288, 296 (SDNY). The part of the decree enjoining police misconduct is intimately bound up with, and ancillary to, the remainder of the court's judgment, and even Brashear held that the court has jurisdiction to hear every question pertaining to the prayer for the injunction "in order that a single lawsuit may afford final and authoritative decision of the controversy between the parties." 312 U.S. at 312 U. S. 625 n. 5.

This view was followed in Perez v. Ledesma,401 U. S. 82, in which a three-judge District Court had sustained a state obscenity statute against the federal constitutional attack that provided the basis for convening it. But the District Court went on to determine that the arrests of the plaintiffs and the seizures incident thereto were unconstitutional because no prior adversary hearing had been held, 304 F.Supp. 662, 667 (ED La.), and therefore issued an order suppressing the evidence in the state court case. We reviewed that order on the merits, assuming it was properly before us as an appeal "from an order granting or denying . . . an interlocutory or permanent injunction in any civil" action required to be heard by a three-judge court. See 401 U.S. at 401 U. S. 89 (STEWART, J., concurring). The basis for ancillary jurisdiction here is at least as compelling.

It is true that we also held in Perez that an order striking down a local parish ordinance was not properly before us. But that was an attack on a wholly different enactment not involving detailed factual inquiries common with and ancillary to the constitutional challenge on the state law supporting the three-judge court's jurisdiction. And central to our determination was the finding that the order regarding the parish ordinance "was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge." Id. at 401 U. S. 87. That is obviously not the case here.

[Footnote 9]

In NAACP v. Thompson, 357 F.2d 831 (CA5), the Court of Appeals reversed the denial of relief by the District Court, concluding that defendants believed that plaintiffs' demonstrations

"must be suppressed, and that, in order to do so, they intend to take advantage of any law or ordinance, however inapplicable or however slight the transgression, and to continue to harass and intimidate [the] plaintiffs."

Id. at 838. The findings here show at least that much. In Lankford v. Gelston, 364 F.2d 197 (CA4) (en banc), the court ordered the police enjoined from making searches without probable cause after concluding that the "raids were not isolated instances undertaken by individual police officers." Id. at 202. See also Wolin v. Port of New York Authority, 392 F.2d 83 (CA2).

[Footnote 10]

There was no challenge here to the District Court's conclusion that this was a proper class action, seen 14, infra. Moreover as to this portion of the decree, directed at police misconduct generally, rather than to any particular state statute, named plaintiffs intimidated by misconduct may represent all others in the class of those similarly abused, without regard to the asserted state statutory basis for the police actions.

[Footnote 11]

The decree is not directed at any state prosecutors or state judges with the exception of one justice of the peace whose involvement apparently consisted of issuing warrants without proper basis. Moreover, it does not, in terms, restrain any prosecutions, but only the "arresting, imprisoning, filing criminal charges, threatening to arrest, or ordering or advising or suggesting that [appellees] disperse under authority of any portion of" the statutes struck down. A reading of the complaint suggests that no injunctive relief against pending prosecutions was ever requested. As to whether there in fact were pending prosecutions, our only guidance from the District Court is a passing reference that "plaintiffs [are] now facing charges in the Texas courts . . . ," 347 F.Supp. at 620, but it is impossible to determine against whom any charges might be pending. Indeed, in light of the District Court's failure to treat the statutes separately in their findings of harassment, we cannot be certain that their reference to pending charges here is a finding that there are charges pending under each of the statutes. And if there are state charges pending, we could do no more than speculate as to why trial never commenced during the five-year pendency of the federal suit. This may be the result of an informal agreement with the federal court, or it may indicate that the State has abandoned any intention to bring these cases to trial. Indeed, it may be that state law would bar prosecutions now after such a delay. See Tex.Const., Art. 1, § 10, and Tex.Code Crim.Proc., Art. 32.01. It is therefore appropriate to remand to the District Court for further findings on this question.

[Footnote 12]

In the federal system an appellate court determines mootness as of the time it considers the case, not as of the time it was filed. Roe v. Wade,410 U. S. 113, 410 U. S. 125.

[Footnote 13]

If there are pending prosecutions against members of the class not named in the action, the District Court must find that the class was properly represented. Appellants stipulated in District Court that "plaintiffs are properly representative of the class they purport to represent." Document 33,

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