(concurring).
I concur in the opinion and proposed order of Judge Celebrezze that this cause must be remanded for an evidentiary hearing and that “Upon remand, if the Appellants can bear the ‘heavy burden’ of showing that the State instituted the proceedings in bad faith and with no ¡real hope of ultimate success, in order to chill the free expression of unpopular ideas, Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), then the District Court must grant federal injunctive relief.” But I do so for reasons which differ somewhat from those stated in the opinion of Judge Celebrezze.
Whereas great reliance is placed upon the Supreme Court’s decision in Dombrowski, et al. v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, I believe the result reached rests more firmly upon the decisions of the Supreme Court in Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715, and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182. Dombrowski recognized the continuing validity of the maxim that a federal district court should be slow to act “where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.” Upon a reading of Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 87 L.Ed. 1324 (cited in Cameron v. Johnson, 390 U.S. 611, 618, 88 S.Ct. 1335, 20 L.Ed.2d 182), it is obvious that the decision in Dombrowski, supra, is premised upon the following sentence, at page 485, 85 S.Ct. at page 1120:
“But the allegations in this complaint depict a situtation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights.”
On June 7, 1965, forty-two days after the decision in Dombrowski, supra, the Supreme Court in Cameron et al. v. Johnson, Governor of Mississippi, et al., 381 U.S. 741, 85 S.Ct. 1751, in a per curiam decision, stated:
“The judgment is vacated and the cause remanded for reconsideration in light of Dombrowski v. Pfister, 380 U.S. 479, [85 S.Ct. 1116, 14 L.Ed.2d 22]. On remand, the District Court should first consider whether 28 U.S.C. § 2283 (1958 ed.) bars a federal injunction in this case, see 380 U.S., at 484, n. 2, 85 S.Ct. 1116. If § 2283 is not a bar, the court should then determine whether relief is proper in light of the criteria set forth in Dombrowski.” (p. 741, 85 S.Ct. at p. 1752).
This per curiam decision is of greater significance because the District Court, unlike the District Court in the case before us, held a full evidentiary hearing upon the appellants’ complaint, wherein they sought injunctive relief. In compliance with the remand, the District Court again heard and determined the issues presented by the appellants’ complaint; and as regards the first specific direction in the Supreme Court’s per curiam decision, the District Court decided that 28 U.S.C. § 2283 does deny the Court the power to enjoin the criminal prosecutions involved, and further decided that 42 U.S.C. § 1983 creates no exception to the anti-injunction statute, 28 U.S.C. § 2283.
The District Court paraphrased the second part of the specific directions stated in the Supreme Court’s remand as follows:
“Applying the principles of Dombrowski, did State conduct in this case *345justify declaratory or injunctive relief against further enforcement of the statute ?”
and the Court answered this question in the negative. Cameron v. Johnson, 262 F.Supp. 873, 878 (Dec. 24, 1966.)
Upon appeal of the District Court’s response on the remand (262 F.Supp. 873), the Supreme Court affirmed the judgment of the District Court (390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182). However, the Supreme Court failed to recognize or comment upon the following findings and conclusions of the District Court:
“Does 28 U.S.C.A. § 2283 deny this Court the power to enjoin these criminal prosecutions? We think it does.” (Cameron, supra, 262 F.Supp. at p. 877.)
and, at page 878:
“We are of the further opinion, following the decision in Baines, [Baines v. City of Danville, 337 F.2d 579] that § 1983, 42 U.S.C., creates no exception to this anti-injunction statute.”
Of further significance, the reports reveal that the Supreme Court recently heard reargument in the following four cases: Fernandez v. Mackell, 288 F.Supp. 348 (S.D.N.Y.1968), Probable Jurisdiction noted, 393 U.S. 975, 89 S.Ct. 453, 21 L.Ed.2d 437 (1968) (No. 813, 1968 Term, renumbered No. 20, 1969 Term); Samuels v. Mackell, 288 F.Supp. 348 (S.D.N.Y.1968), Probable Jurisdiction noted, 393 U.S. 975, 89 S.Ct. 453, 21 L.Ed.2d 437 (1968) (No. 580, 1968 Term, renumbered No. 11, 1969 Term); Harris v. Younger, 281 F.Supp. 507 (C.D.Cal.1968), Probable Jurisdiction noted, 393 U.S. 1013, 89 S.Ct. 611, 21 L.Ed.2d 558 (1969) (No. 163, 1968 Term, renumbered No. 4, 1969 Term); and Landry v. Daley, 280 F.Supp. 938 (related cases include 288 F.Supp. 200) (N.D.Ill. 1968), Probable Jurisdiction noted, 393 U.S. 974, 89 S.Ct. 442, 21 L.Ed.2d 436 (1968) (No. 244, 1968 Term, renumbered No. 6, 1969 Term). The question as to whether 42 U.S.C. § 1983 is an “exception” to 28 U.S.C. § 2283 may well be decided in one or more of the above referred to cases. Although the complete answer may require congressional action to clarify the relationship between §§ 1983 and 2283, the Supreme Court can definitively decide the question in the cases now before it.
Since we agree that the Kentucky common law crime of embracery is constitutional, the only remaining issue to be determined by the District Court is whether relief is proper in light of the criteria set forth in Dombrowski. The question for the District Court is not the guilt or innocence of the persons charged; the question is whether the statute is being enforced against them with no expectation of convictions but only to discourage the exercise of protected rights. “The mere possibility of erroneous application of the statute does not amount ‘to the irreparable injury necessary to justify a disruption of orderly state proceedings.’ The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions.” Cameron v. Johnson, 390 U.S. 611, 621, 88 S.Ct. at 1341.
As to appellants’ allegation of selective enforcement, the evidence must be limited to conduct of others, which would have brought the offense of embracery into play, and evidence that the authorities allowed such conduct without enforcing the statute. Newspaper, radio or televised accounts of the. impending trial of the Black Six in Hart County must be shown to contain the elements of the offense of embracery before a claim of selective enforcement can be sustained.
Until the law as enunciated in Dombrowski supra, and in the two Cameron cases, supra, is modified by the Supreme Court, or until Congress acts to clarify the relationship between § 1983 and § *3462283, I must concur in the order to remand.