United States Court of Appeals,
Eleventh Circuit.
No. 95-2331.
Linda McKUSICK, Plaintiff-Appellant,
v.
CITY OF MELBOURNE, FLORIDA, Defendant-Appellee.
Sept. 27, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-1161-CIV-ORL-22), Anne C. Conway,
Judge.
Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit
Judge.
CARNES, Circuit Judge:
Linda McKusick brought this 42 U.S.C. § 1983 suit against the
City of Melbourne, Florida, to challenge a permanent injunction
entered by the Florida Circuit Court of Seminole County. The
injunction prohibits named parties, and those acting "in concert"
with named parties, from engaging in certain expressive activities
within a 36-foot buffer zone around an abortion clinic. McKusick
sought a declaratory judgment that certain parts of the injunction
are unconstitutionally overbroad, and requested that the district
court enjoin the City from enforcing the injunction against her and
other parties not named in the injunction nor shown by probable
cause to be acting in concert with named parties.
The district court denied McKusick's request for a preliminary
injunction, relying on the principles of federalism and comity
articulated in the Seventh Circuit case of Hoover v. Wagner, 47
F.3d 845 (7th Cir.1995). Thereafter, the district court dismissed
McKusick's complaint, holding that it failed to state a claim under
§ 1983 because the City's actions in enforcing the injunction do
not amount to a cognizable "policy" or "custom" subject to
challenge under that provision. We hold that the district court
erred by dismissing McKusick's complaint for failure to state a
claim under § 1983. However, we also hold that the district court
did not abuse its discretion in denying, on federalism and comity
grounds, the preliminary injunction sought by McKusick; we affirm
the district court's denial of that relief.
I. BACKGROUND
On April 8, 1993, the Circuit Court of Seminole County entered
the injunction in question. One of its provisions imposes a 36-
foot buffer zone around a clinic operated by the Aware Woman Center
for Choice, Inc. Named parties and those acting "in concert or
participation with them, or on their behalf" are prohibited from
"congregating, picketing, patrolling, demonstrating or entering
that portion of public right-of-way or private property within
thirty-six (36) feet of the property line of the Clinic." The
injunction also contains an enforcement provision which provides,
in part, that "[l]aw enforcement authorities ... are authorized to
arrest those persons who appear to be in willful and intentional
disobedience of this injunction."
This injunction has already been the subject of considerable
litigation. See Operation Rescue v. Women's Health Ctr., 626 So.2d
664 (Fla.1993), aff'd in part, rev'd in part, sub nom. Madsen v.
Women's Health Ctr., --- U.S. ----, 114 S.Ct. 2516, 129 L.Ed.2d 593
(1994); Cheffer v. McGregor, 6 F.3d 705 (11th Cir.1993), vacated,
41 F.3d 1421 (1994) (en banc) (subsequently remanded in view of
Madsen ). The portions of the injunction that are relevant to this
case are reproduced in Madsen, --- U.S. at ---- - ----, 114 S.Ct.
at 2521-22 (does not include the enforcement provision) and
Cheffer, 6 F.3d at 706-07 (includes the enforcement provision).
On September 24, 1994, McKusick entered the buffer zone, and
began to read her Bible and pray. 1 McKusick had not been a named
party in the underlying state court lawsuit concerning the
injunction, and she was "acting independently of any organization
or individual named in the Injunction." She was on public property
and neither blocked access to the clinic nor spoke to anyone.
Nevertheless, a law enforcement officer employed by the City
approached McKusick and warned her that she was in violation of a
court order by demonstrating in the buffer zone. The officer
requested that McKusick leave the buffer zone, and advised her that
he would arrest her if she did not comply. McKusick left the
buffer zone because she did not want to be arrested. She would
like to return to the buffer zone to read her Bible and pray, but
has not done so because she fears arrest.
After being threatened with arrest, McKusick brought this §
1983 civil action against the City seeking declaratory and
injunctive relief. She alleges that the City unconstitutionally
"enforce[s] the Injunction against [McKusick] and other third
parties who are neither named parties to the Injunction nor acting
in concert with named parties." McKusick further alleges that the
1
Because this appeal arises following the grant of a motion
to dismiss, we assume the truth of the facts alleged in
McKusick's complaint from which this statement of facts is taken.
injunction, by its terms and as enforced by the City, impermissibly
extends to any individual having notice of it. In summary,
McKusick claims that the injunction, on its face and as enforced by
the City, violates her rights, and the rights of other nonparties,
under the First, Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution.
The United States Supreme Court has previously upheld this
injunction, in substantial part, as a permissible content-neutral
restriction on speech. See Madsen, --- U.S. at ----, 114 S.Ct. at
2530. Prior to the Supreme Court's decision in Madsen, a panel of
this Court had held that the injunction was a viewpoint-based
restriction on speech, see Cheffer, 6 F.3d at 710. The panel's
decision was subsequently vacated by the en banc Court, and the
case was remanded to the district court in view of the Madsen
decision, see Cheffer, 41 F.3d at 1421-22. As a result of the
Supreme Court's decision in Madsen, this Court is, of course,
obligated to accept that the injunction is content-neutral.
In Madsen, the named parties to the injunction attempted to
mount an overbreadth challenge to it by attacking the portion of
the injunction that is directed at unnamed parties who might later
be found to be acting "in concert" with the named parties. See
Madsen, --- U.S. at ----, 114 S.Ct. at 2530. The Supreme Court
held that the named parties lacked standing to bring an overbreadth
challenge to the part of the injunction applying to nonparties.
Id. However, because McKusick is a nonparty to the underlying
litigation, she does have standing to raise the overbreadth
question not reached in Madsen.
Nonetheless, the district court denied McKusick's motion for
a preliminary injunction, and granted the City's motion to dismiss
her complaint for failure to state a claim upon which relief could
be granted.2 This appeal followed, and it requires us to address
four major issues. First, we consider whether we have subject
matter jurisdiction to hear this case. Second, we consider whether
the district court erred by dismissing McKusick's complaint for
failure to state a claim. Third, we consider whether the
injunction is facially overbroad. Finally, we consider whether the
district court abused its discretion by relying on principles of
federalism and comity to deny McKusick's application for a
preliminary injunction.
II. STANDARDS OF REVIEW
This Court reviews a district court's denial of preliminary
injunctive relief for abuse of discretion, but reviews
jurisdictional issues and other questions of law de novo. See,
e.g., Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th
2
When it dismissed her complaint in March of 1995, the
district court did so without prejudice, granting McKusick leave
to file an amended complaint within twenty days of that order of
dismissal. As she was entitled to do, McKusick elected to treat
the order of dismissal as a final order by appealing it
immediately to this Court, thereby waiving her right to amend the
complaint. See Schuurman v. Motor Vessel "Betty K V", 798 F.2d
442, 445 (11th Cir.1986).
Fifteen months after McKusick filed her appeal, the
district court entered yet another order, which purported to
dismiss the entire case. However, that order is of no
effect for purposes of this appeal, or otherwise, because
McKusick's decision to treat the order of dismissal as a
final appealable order, and to waive her right to amend her
complaint, already had had the effect of terminating the
case in the district court. See Schuurman, 798 F.2d at 445.
Cir.1992). De novo review applies to grants of motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted. E.g., Duke v. Cleland,
5 F.3d 1399, 1402 (11th Cir.1993).
III. SUBJECT MATTER JURISDICTION
The City contends that this Court lacks subject matter
jurisdiction over this appeal because it does not present a
justiciable case or controversy. The following statement is
included in the City's brief:
The City was not a party to [the] injunction that Ms. McKusick
challenges in this appeal. The City has no interest in
defending the Injunction. The City maintains that the only
appropriate position for it to take is to maintain neutrality
and to fulfill its duty to enforce the Injunction unless and
until this Court or any other court instructs otherwise.
Therefore, the City is not a proper party to defend the
Injunction in an adversarial proceeding before this Court.
The City contends that its interests are not truly adverse to
McKusick's and that this lawsuit therefore requests the Court to
render an impermissible advisory opinion. The City relies on
United States National Bank v. Independent Insurance Agents, 508
U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993), Princeton
University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855
(1982), and Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d
947 (1968), in support of that contention. McKusick contends that
the City's role as enforcer of the injunction renders it the only
proper defendant in this lawsuit, because the City is the only
party that can be enjoined from enforcing the injunction against
McKusick and other similarly situated nonparties.
Federal courts lack the power to issue advisory opinions.
The City's citations to United States National Bank, 508 U.S. at
445, 113 S.Ct. at 2178, and Flast, 392 U.S. at 100, 88 S.Ct. at
1952-53, support that basic proposition, as do countless other
cases. However, the specific question that basic proposition
brings into focus in this case is whether these parties before this
Court are sufficiently opposed to prevent any decision that is
rendered from being impermissibly "advisory." The City argues that
the Princeton case answers that question.
In Princeton, the Supreme Court dismissed an appeal for want
of jurisdiction because the State of New Jersey (the only party
with standing) took no position whatsoever on the merits of the
case. 455 U.S. at 102-03, 102 S.Ct. at 868-69. In contrast, the
City in this case has taken, albeit reluctantly, a position on the
merits. Indeed, the City's position on the merits, which is
contrary to McKusick's position, is spelled out in detail in
twenty-one pages of its brief to this Court. In view of that fact,
we cannot accept the City's argument that it is "neutral," no
matter how much it might wish to be. Moreover, the City—and only
the City—is the entity enforcing the injunction in a manner
McKusick finds objectionable.3 Though the City might sincerely
wish to be relieved of the burden of enforcing the injunction, it
is the City that has been enforcing it and continues to do so;
moreover, the City's brief defends the injunction against
McKusick's attack. Therefore, this is not an "ill-defined,"
3
The City did move to dismiss McKusick's lawsuit for failure
to join the Aware Woman Center for Choice as a necessary party
under Federal Rule of Civil Procedure 19(a). However, the
district court never ruled on the motion, because it dismissed
the case for failure to state a claim upon which relief can be
granted. On appeal, the City does not press the merits of that
motion, and we do not either.
"hypothetical or abstract," "friendly," "feigned," or "collusive"
lawsuit of the variety condemned by Flast, 392 U.S. at 100, 88
S.Ct. at 1952-53 (citations omitted), and other cases. We do have
jurisdiction to determine this appeal.
IV. WHETHER McKUSICK STATED A COGNIZABLE § 1983 CLAIM
A private party may obtain relief against a municipality
under § 1983 when the allegedly unconstitutional municipal action
"implements or executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by that body's
officers," or when the alleged constitutional violation results
from municipal "custom." Monell v. Department of Social Servs.,
436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611
(1978). The presence of a municipal policy or custom is essential,
because municipal liability under § 1983 can attach only when "a
deliberate choice to follow a course of action is made from among
various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in
question," Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106
S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (citing Oklahoma City v.
Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791
(1985)).
The district court held that the City's enforcement of the
injunction is not an actionable policy or custom under § 1983 and
dismissed the complaint for failure to state a claim upon which
relief can be granted. The district court reasoned that "[w]here
a court enjoins local law enforcement to do something or refrain
from doing something, compliance with the injunction is not a
matter of choice. The local authorities so act because the court
orders it to be done."
McKusick argues that the district court erred in holding that
her complaint failed to allege a cognizable policy or custom with
respect to enforcement of the injunction. She contends that the
injunction, by its terms, does not run against the City.
Therefore, she reasons, the injunction does not "enjoin local law
enforcement to do something or refrain from doing something," and
the district court was mistaken in thinking otherwise. The
pertinent part of the enforcement mechanism of the injunction reads
as follows:
Law enforcement authorities, pursuant to the protective
provisions of the court's order, are authorized to arrest
those persons who appear to be in willful and intentional
disobedience of this injunction. Upon such arrest the person
so arrested shall be admitted to bail upon the posting of a
$500 cash or surety bond.... In the event of arrest and no
bond being posted, the person arrested shall be promptly
transferred to the Seminole County jail.... Such arrested
person shall be brought before the undersigned judge no later
than 8:30 a.m. of the day following his confinement in the
Seminole County jail.
As McKusick correctly points out, the injunction authorizes, but
does not command, local law enforcement to arrest those persons who
appear to be in violation of the injunction.
Reasonably construed, McKusick's complaint alleges that the
City has developed an administrative construction of the injunction
that causes it to arrest all antiabortion protestors found within
the 36-foot buffer zone, not just parties named in the injunction
or who are shown by probable cause to be acting in concert with
those named parties. The City has as much as admitted placing such
a construction on the injunction. At the district court hearing on
the injunction, the City Attorney made the following statement
about the City's enforcement procedure:
We can only enforce the injunction by bringing before the
court those persons who by their objective behavior, do
certain things that we believe are violative of the
injunction. The City of Melbourne cannot decide whether or
not they intended to support them or whether or not they were
members of Operation Rescue. These people do not wear badges
saying, "I'm with Operation Rescue" when they're picketing and
protesting out there.
Under the terms of the injunction itself, the City could elect
not to arrest anyone at all. It could choose only to arrest those
persons who, based upon prior experience, it knows to be acting in
concert with named parties. It could, prior to making an arrest,
question anyone found within the buffer zone or nearby in order to
make a determination about whether the person is acting in concert
with named parties to the injunction. McKusick's complaint alleges
that the City has made a deliberate policy choice not to follow any
of those alternatives. We agree with McKusick that the development
and implementation of an administrative enforcement procedure,
going beyond the terms of the injunction itself, leading to the
arrest of all antiabortion protestors found within the buffer zone,
including persons not named in the injunction nor shown by probable
cause to be acting in concert with named parties, would amount to
a cognizable policy choice.4 Therefore, the district court erred
4
We are not persuaded that the existence of the policy
choice that McKusick alleges would be vitiated by the fact that,
in an order denying a motion by the City to intervene and to
clarify the injunction, the state court "directed" the City "to
continue to enforce the injunction to the best of its ability in
good faith and with good motive." In that order, the state court
explained that "any effort to provide clarification as sought by
the motion could be construed as a modification or as another
substantive order subject to appeal, and hence would be
inappropriate." In the course of denying the City's motion, the
in dismissing the complaint for failure to state a claim under §
1983. We turn now to McKusick's claim that the injunction is
facially overbroad, and thereafter to her claim that she is
entitled to a federal injunction to prohibit its enforcement
against her.
V. FACIAL VALIDITY OF THE INJUNCTION
McKusick argues that the injunction is unconstitutionally
overbroad because: (1) the injunction attempts to bind the world
at large, impermissibly regulating the expressive activities of
persons over whom the court lacks jurisdiction; and (2) the
injunction authorizes the police to arrest persons based on less
than probable cause. The City argues that McKusick has misread the
injunction, and that the injunction does not attempt to bind the
world at large or authorize any arrest based on less than probable
cause. We address each of these issues in turn.
A. Does the Injunction Purport to Bind the World at Large?
McKusick argues that no court can issue an injunction that
binds the world at large, and that a speech-based injunction that
attempts to bind nonparties creates an unconstitutional restraint
state court specifically declined either to make the City a party
to the injunction or to narrow the range of enforcement
alternatives made available to the City by the terms of the
injunction itself. It would be anomalous if the very order
through which the state court declined to make the City a party
to the injunction and declined to modify the injunction in any
way were construed as a judicial adoption of the City's own
enforcement policy choice, regardless of whether that choice is
constitutional, supported by the terms of the injunction, or was
even before the state court. We decline to give the state
court's order such an anomalous construction.
5
on speech. That may or may not be true. However, it is
irrelevant in this case, because the injunction at issue does not
attempt to bind the world at large. McKusick's argument that it
does is based primarily on the following language:
ORDERED AND ADJUDGED that any City of Melbourne police officer
or other person authorized to serve process may serve a copy
of this order on any individual who may not have otherwise
received notice of the order. Such officer may read the
operative prohibitory language of this order to any individual
who is without notice of this order, and such service or oral
notice shall subject the person so served or noticed to the
sanctions provided for herein for failure to comply herewith.
McKusick argues that "Judge McGregor's transcursion of
judicial authority was at once complete when he extended the scope
5
There is substantial case law to the effect that a court
lacks equitable power to issue an injunction that binds the world
at large. See, e.g., Regal Knitwear Co. v. National Labor
Relations Bd., 324 U.S. 9, 13, 65 S.Ct. 478, 481, 89 L.Ed. 661
(1944) ("The courts ... may not grant an enforcement order or
injunction so broad as to make punishable the conduct of persons
who act independently and whose rights have not been adjudged
according to law."); Alemite Mfg. Corp. v. Staff, 42 F.2d 832,
833 (2nd Cir.1930) (Hand, J.) ("[A court] cannot lawfully enjoin
the world at large, no matter how broadly it words its decree.").
It is not completely clear, however, whether this is a
constitutional rule, or simply a basic equitable principle. See
Chase Nat. Bank v. City of Norwalk, Ohio, 291 U.S. 431, 437, 54
S.Ct. 475, 477, 78 L.Ed. 894 (1934) (stating that an injunction
against independent nonparties "violates established principles
of equity jurisdiction and procedure").
While separation of powers principles might well
prevent a federal court from issuing an injunction against
the world, it is a state court injunction that is at issue
in this case. Because the federal courts are not the
guardians of the separation of powers within the states,
e.g., Sweezy v. State of New Hampshire, 354 U.S. 234, 255,
77 S.Ct. 1203, 1214, 1 L.Ed.2d 1311 (1957), McKusick cannot
properly rely on those principles in making her overbreadth
argument. There may be other constitutional principles,
such as due process, that would prevent a state court from
issuing an injunction that purported to bind nonparties who
have no notice or opportunity to be heard prior to the
issuance of the injunction. This Court does not have to get
to that, however, unless McKusick is reading the injunction
correctly, which she is not.
of the injunction to "any individual.' " The City responds that
"McKusick errs in attempting to isolate the challenged provision
from the rest of the injunction" because "fundamental rules of
construction ... require that a legal instrument be examined in its
entirety." The City argues that, although the injunction
authorizes police officers to read the injunction's prohibitory
language to any individual, that prohibitory language, by its own
terms, only applies to named parties and those acting in concert
with them.
In our view, McKusick's interpretation of the injunction is
foreclosed by the Supreme Court's interpretation of this same
injunction in Madsen. In that decision, the Supreme Court based
its holding that the injunction is content-neutral on the fact that
the injunction is targeted at a particular group—the named parties
and those acting in concert with them—whose activities had become
disruptive. In explaining its holding on content-neutrality, the
Supreme Court stated:
We begin by addressing petitioners' contention that the
state court's order, because it is an injunction that
restricts only the speech of antiabortion protesters, is
necessarily content or viewpoint based.... To accept
petitioners' claim would be to classify virtually every
injunction as content or viewpoint based. An injunction, by
its very nature, applies only to a particular group (or
individuals) and regulates the activities, and perhaps the
speech, of that group. It does so, however, because of the
group's past actions in the context of a specific dispute
between real parties.... [T]he court hearing the action is
charged with fashioning a remedy for a specific deprivation,
not with the drafting of a statute addressed to the general
public.
Madsen, --- U.S. at ----, 114 S.Ct. at 2523 (emphasis added). That
explanation makes it clear that the Supreme Court did not give the
injunction the interpretation that McKusick now urges. If it had
done so, the Court could not have reached the conclusion that the
injunction is content-neutral. Stated somewhat differently, if the
Supreme Court had interpreted the injunction as an order against
the world to refrain from speech activities expressing a particular
viewpoint—specifically, an antiabortion viewpoint—within the 36-
foot buffer zone, it almost certainly would not have concluded that
the injunction is content-neutral.
That the majority in Madsen viewed the injunction as being
targeted at a narrowly defined group of persons, instead of at the
world at large, is underscored by the separate concurring opinions
of Justices Souter and Stevens. Justice Souter emphasized that the
trial judge who issued the injunction "made reasonably clear that
the issue of who was acting "in concert' with the named defendants
was a matter to be taken up in individual cases, and not to be
decided on the basis of protesters' viewpoints." Id. at ----, 114
S.Ct. at 2530 (Souter, J., concurring). Similarly, Justice Stevens
stressed:
[While] legislation is imposed on an entire community, ...
injunctions apply solely to an individual or a limited group
of individuals.... Given this distinction, a statute
prohibiting demonstrations within 36 feet of an abortion
clinic would probably violate the First Amendment, but an
injunction directed at a limited group of persons who have
engaged in unlawful conduct in a similar zone might well be
constitutional.
Id. at ----, 114 S.Ct. at 2531 (Stevens, J., concurring).
McKusick asks this Court to reinterpret the injunction,
contrary to the way the Supreme Court has interpreted it, and then
to declare the injunction, as reinterpreted, unconstitutional. Of
course, we cannot do that. Because the injunction, as construed by
the Supreme Court, does not bind the world at large, the injunction
cannot be unconstitutional on grounds that it does. Questions
about the constitutionality of an injunction against the world at
large are academic insofar as this injunction is concerned.
B. Does the Injunction Authorize Arrest Without Probable Cause?
McKusick argues that the injunction authorizes arrests without
probable cause because it states that "[l]aw enforcement
authorities, pursuant to the protective provisions of the court's
order, are authorized to arrest those persons who appear to be in
willful and intentional disobedience of the injunction." McKusick
reasons that this language authorizes arrest on less than a
reasonable ground to believe that a person is a named party or
acting in concert with a named party. The City argues that
McKusick has again misinterpreted the injunction because the
"enforcement provision," like every other part of the injunction,
is subject to the injunction's limiting language that applies its
proscriptions only to named parties and those acting in concert
with named parties.
As we have already held, the injunction applies only to named
parties and those acting in concert with them. By its plain words,
the injunction only authorizes arrest for those who appear to be in
willful disobedience of it. It follows that the injunction only
authorizes the arrest of named parties, or those acting in concert
with them, who appear to be acting in willful disobedience of the
injunction. McKusick seizes upon the word "appear" in the
injunction's enforcement provision, and contends that "appear" is
less than probable cause to believe. We do not know why it should
be interpreted in such a fashion, even in the abstract. Moreover,
the word "appear" is but one word in the phrase "appear to be in
willful and intentional disobedience of the injunction." In
context, the enforcement provision authorizes arrest of persons
who, because of their own objective manifestations and because of
other factors that may be relevant to a particular factual
scenario, reasonably appear to be—i.e., give the police probable
cause to believe that they are—named parties to the injunction or
acting in concert with named parties, and engaged in actions in
violation of the injunction. True enough, the injunction does not
use the words "probable cause" or attempt to describe what factors
will suffice for a showing of probable cause. However, no
principle of law requires that injunctions use magic words or
provide hornbook expositions on probable cause. Nor does any
principle of law mandate that we interpret an injunction in a way
that would undermine its validity. McKusick's facial challenge to
the injunction is without merit. We turn now to her as-applied
challenge, and to her claim that she is entitled to federal
injunctive relief on that basis.
VI. McKUSICK'S AS-APPLIED CHALLENGE AND THE PROPRIETY OF FEDERAL
INJUNCTIVE RELIEF
Because the injunction neither purports to bind the world at
large nor authorizes arrests without probable cause, McKusick's
arguments that the injunction is unconstitutional on its face must
fail. However, because McKusick also makes an as-applied challenge
to the injunction, the question remains as to whether she is
entitled to federal court injunctive relief against application of
the state court injunction to her. The crux of McKusick's
as-applied challenge is that, regardless of how the injunction
should be interpreted, the City has adopted an administrative
construction of the injunction that applies it against the world
and authorizes arrests without probable cause. She further alleges
that she has been threatened with such an arrest.
McKusick is not a named party to the injunction and claims not
to be acting in concert with any named party. Taking the
allegations in her complaint as true, she did nothing but enter the
36-foot buffer zone to read her Bible and pray. Shortly after
doing so, she was asked to leave the buffer zone on pain of arrest.
So far as the complaint's averments go, the officer did nothing to
determine whether McKusick was a named party or acting in concert
with a named party; the officer simply stated to McKusick, "You
are in violation of a court-ordered injunction signed by Judge
Robert McGregor by demonstrating within the thirty-six foot buffer
zone. Please return to the area outside the thirty-six foot zone."
The officer then told McKusick he would arrest her if she did not
leave the zone.
McKusick fears that, unless she obtains an injunction, she
will be arrested and prosecuted if she attempts to read her Bible
and pray within the buffer zone. This fear appears to have some
foundation, as the City's self-described methodology for enforcing
the injunction evidences, see supra Part IV. Moreover, the
Appendix to Justice Scalia's dissenting opinion in Madsen indicates
that others have been arrested who vigorously disclaim any
association with the named parties. See Madsen, --- U.S. at ---- -
----, 114 S.Ct. at 2550-52 (Scalia, J., dissenting). At oral
argument in this Court, counsel for the City indicated that more
than 150 people have been arrested for violating the buffer zone.
However, counsel further stated that none of those people were
later found to be acting independently from the named parties to
the injunction.
Taking as true the allegations in McKusick's complaint, the
City of Melbourne police have arrested or threatened to arrest at
least some antiabortion protestors who violate the buffer zone
without making much, if any, inquiry into whether the protestors
are named parties to the injunction, or acting in concert with
named parties, other than examining the content of the protestors'
speech. McKusick seeks an order from the federal district court
telling the Melbourne police that they must not merely look to the
content of a person's buffer zone speech when determining whether
probable cause exists to support an arrest. She wants a federal
court to instruct the City that its inquiry must, on pain of
federal contempt, be more probing than that. In other words,
McKusick wants a federal judge to order the City to do its job
properly, and to refrain from over-enforcing the injunction against
her or anyone else.
There are important principles that counsel against issuance
of the sort of injunction McKusick seeks. Recently, these
principles were ably discussed by the Seventh Circuit in Hoover v.
Wagner, 47 F.3d 845 (7th Cir.1995), which involved facts remarkably
similar to those in this case. In Hoover, antiabortion activists
who were not named parties to a state court injunction brought a
federal § 1983 action against a state court judge and a chief of
police to challenge the injunction. Like McKusick, the Hoover
plaintiffs sought a declaration that the injunction was overbroad.
Also like McKusick, the Hoover plaintiffs wanted to enjoin the
police from over-enforcing the injunction. Relying on principles
of federalism and comity, the Seventh Circuit held that the
district court properly refused to issue an injunction and
dismissed the case. Writing for the Court, Chief Judge Posner
explained:
Equitable remedies are powerful, and with power comes
responsibility for its careful exercise. These remedies can
affect nonparties to the litigation in which they are sought;
and when, as in this case, they are sought to be applied to
officials of one sovereign by the courts of another, they can
impair comity, the mutual respect of sovereigns—a legitimate
interest even of such constrained sovereigns as the states and
the federal government.... [T]here is not an absolute right
to an injunction in a case in which it would impair or affront
the sovereign powers or dignity of a state or a foreign
nation.
... The relief that the plaintiffs seek is at once an
insult to the judicial and law enforcement officials of
Wisconsin ... and an empty but potentially mischievous command
to these officials to avoid committing any errors in the
enforcement of the injunction—and if a plaintiff were
erroneously convicted for violating the state court
injunction, would that put the prosecutor, the judge, and, if
there were a jury, the jury in contempt of the federal
injunction?
Hoover, 47 F.3d at 850-51 (citations omitted).
Like the remedy sought by the Hoover plaintiffs, the remedy
McKusick seeks here is "potentially mischievous." It is difficult
to imagine how the injunction McKusick seeks might usefully be
framed. A general injunction against the City to refrain from
arresting without probable cause would add nothing to what the law
already commands, unless the district court improperly indulged in
an advisory opinion instructing the City about what can and cannot
constitute a showing of probable cause in such a circumstance.
Even if the district court were able to frame the injunction
McKusick seeks in a meaningful way, it would be ill-advised to do
so, because the federal injunction would pave the way for virtually
every individual held in contempt of the state court injunction to
argue, on a case-by-case basis in federal court, that the City had
violated the federal injunction by failing to make a sufficient
probable cause determination prior to arrest, or had simply reached
the wrong conclusion about it. This arrangement would thrust the
federal court into an unseemly, repetitive, quasi-systematic,
supervisory role over administration of the state court injunction,
and it "would disrupt the normal course of proceedings in the state
courts via resort to the federal court for determination of the
claim ab initio," O'Shea v. Littleton, 414 U.S. 488, 501, 94 S.Ct.
669, 679, 38 L.Ed.2d 674 (1974). A federal court injunction in
this case would be of the "intrusive and unworkable" variety
condemned by the Supreme Court in O'Shea, 414 U.S. at 500, 94 S.Ct.
at 678. In such a circumstance, principles of federalism and
comity dictate that the federal court stay its hand. See Growe v.
Emison, 507 U.S. 25, 32, 113 S.Ct. 1075, 1080, 122 L.Ed.2d 388
(1993) (noting that, in some circumstances, principles of
federalism and comity dictate abstention). Under these
circumstances, the district court certainly did not abuse its
discretion by declining to arrogate to itself the role of overseer
of the enforcement of a state court injunction.
Although principles of federalism and comity counsel
otherwise, McKusick contends that she was nonetheless entitled to
an injunction. She points to Machesky v. Bizzell, 414 F.2d 283
(5th Cir.1969), in support of that contention. In Machesky,
persons who desired to picket in certain public areas of Greenwood,
Mississippi brought an action in federal court to challenge a state
court injunction that prohibited all such picketing. The
plaintiffs sought declaratory and injunctive relief against
enforcement of the state court injunction. Id. at 284. The
district court denied relief and dismissed the complaint, holding
that the action was barred by the Anti-Injunction Act, 28 U.S.C. §
2283. Id. On appeal, this Court reversed. We held that although
the Anti-Injunction Act is grounded in principles of comity,
"[w]here ... the institutional interests in comity collide[ ] with
the paramount institutional interests protected by the First
Amendment, comity must yield." Id. at 291. Because the state
court injunction at issue was facially overbroad, we remanded for
the district court to consider granting injunctive relief. Id.
Assuming for present purposes that it has survived O'Shea,
the Machesky decision is distinguishable from this case. The
propriety of federal equitable relief in Machesky was premised on
the presence of a facially overbroad injunction. As we explained
in that case:
The right to [demonstrate] is not absolute. It must be
asserted within the limits of not unreasonably interfering
with the rights of others to use the sidewalks and streets, to
have access to store entrances, and where conducted in such
manner as not to deprive the public of police and fire
protection. These interests can, of course, be protected by
state injunctions narrowly drawn. The injunction here,
however, has not struck such a balance. It prohibits all
picketing in the designated business areas of Greenwood, for
whatever purpose and in whatever manner carried out. This
overshoots the mark....
....
We hold that the state court injunction here is
unconstitutionally overbroad in that it lumps the protected
with the unprotected in such a way as to abridge important
public interests in the full dissemination of public
expression on public issues.
Id. at 290-91 (citations and internal quotation marks omitted).
Here, as we have explained in Part V of this opinion, we are not
faced with a facially overbroad injunction. Instead, we are faced
with a facially valid injunction and a plaintiff who seeks a
federal court order prohibiting its over-enforcement. 6 In such a
circumstance, private interests in obtaining a preemptive strike
against overenthusiastic enforcement of a facially valid injunctive
order must yield to the institutional interests of federalism and
comity. We note that if McKusick should ever be wrongfully
arrested or punished for the exercise of her First Amendment
rights, she will have remedies through which to vindicate those
rights. For example, any future claims for damages that McKusick
might bring for an arrest without probable cause would not be
subject to dismissal under the abstention principles governing her
present claim for equitable relief. See, e.g., Quackenbush v.
6
Judge Barkett's concurring opinion proposes that we dismiss
McKusick's case "without reaching an analysis of the facial
validity of the injunction." However, our Machesky precedent
forecloses her proposal. Machesky holds that where an injunction
is attacked on First Amendment grounds and is facially overbroad,
abstention for comity and federalism reasons is inappropriate.
Otherwise, the result in Machesky would have been different. See
414 F.2d at 290-91. Moreover, Machesky's holding is consistent
with the abstention principles announced by the Supreme Court.
See City of Houston, Tex. v. Hill, 482 U.S. 451, 467, 107 S.Ct.
2502, 2513, 96 L.Ed.2d 398 (1987) ("We have held that "abstention
... is inappropriate for cases [where] ... statutes are
justifiably attacked on their face as abridging free expression.'
")) (quoting Dombrowski v. Pfister, 380 U.S. 479, 489-90, 85
S.Ct. 1116, 1122, 14 L.Ed.2d 22 (1965)) (alterations in City of
Houston ).
Allstate Ins. Co., --- U.S. ----, ---- - ----, 116 S.Ct. 1712,
1720-23, 135 L.Ed.2d 1 (1996).
VII. CONCLUSION
For the foregoing reasons, we VACATE the portion of the
district court's order that dismissed McKusick's complaint for
failure to state a claim upon which relief can be granted. We
AFFIRM the denial of preliminary injunctive relief, and we REMAND
the case for further proceedings consistent with this opinion.7
BARKETT, Circuit Judge, specially concurring:
7
Although the district court did not rely upon them in
dismissing McKusick's case, and instead dismissed the case for
failure to state a claim under § 1983, we note that the same
principles of federalism and comity that govern our analysis of
McKusick's claim for preliminary injunctive relief apply with
equal force to her claim for permanent injunctive relief, and to
her claim for declaratory relief. See Hoover v. Wagner, 47 F.3d
845, 849-52 (7th Cir.1995); see also Green v. Mansour, 474 U.S.
64, 72, 106 S.Ct. 423, 427-28, 88 L.Ed.2d 371 (1985) (discussing
the discretionary nature of declaratory relief). Therefore, just
as the district court did not abuse its discretion in denying
McKusick preliminary injunctive relief, it necessarily follows
that it would not be an abuse of discretion for the district
court to deny McKusick permanent injunctive relief or declaratory
relief on those grounds as well.
In her concurring opinion, Judge Barkett invites us to
take the foregoing analysis one step further and hold that
McKusick's entire case is due to be dismissed on equitable
grounds. Her approach would require us to hold not only
that the district court did not abuse its discretion in
denying McKusick preliminary injunctive relief, but also
that the district court would abuse its discretion if it
granted any sort of equitable relief in this case. That may
well be so. However, we are convinced that the more
appropriate course is for us to allow the district court the
opportunity to address that matter in the first instance.
See Macklin v. Singletary, 24 F.3d 1307, 1311 (11th
Cir.1994) ("Because our scope of review is narrower and a
district court's range of choice broader under the abuse of
discretion standard, we should be more reluctant to address
in the first instance issues to which that standard of
review applies."), cert. denied, --- U.S. ----, 115 S.Ct.
1122, 130 L.Ed.2d 1085 (1995).
Rather than reversing and remanding for the trial court to do
so, I would dismiss the declaratory claim on the same equitable
grounds that the majority employs to dismiss the claim for
injunctive relief without reaching an analysis of the facial
validity of the injunction or the appropriateness of resolving that
issue with only the parties involved here. The declaration
McKusick seeks is a declaration that the City of Melbourne cannot
engage in certain conduct, and such a declaration is the equivalent
of an injunction. Samuels v. Mackell, 401 U.S. 66, 72-73, 91 S.Ct.
764, 767-68, 27 L.Ed.2d 688 (1971); Hoover v. Wagner, 47 F.3d 845,
849 (7th Cir.1995). Therefore, for the same equitable reasons we
dismiss McKusick's claim for injunctive relief, we should dismiss
her claim for declaratory relief. I recognize that the majority
remands the declaratory claim back to the district court
anticipating that the district court will dismiss the remaining
claim. This course, however, seems unnecessary. We routinely
uphold a district court's dismissal of a case when an alternate
grounds for dismissal exists. See, e.g., Rozar v. Mullis, 85 F.3d
556, 558 (11th Cir.1996); Hester v. International Union of
Operating Engineers, et. al., 830 F.2d 172 (11th Cir.1987); see
also Hoover, 47 F.3d 845 (7th Cir.1994). I would do so in this
instance.