Nature of the Case
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Facts
P and others were distributing handbills protesting American involvement in Vietnam on an exterior sidewalk of the North DeKalb Shopping Center. Employees asked them to stop and to leave. They declined to do so, and police officers were summoned. The officers told them that they would be arrested if they did not stop hand billing. The group then left to avoid arrest. Two days later P and a companion returned to the shopping center and again began hand billing. The manager of the center called the police, and P and his companion were once again told that failure to stop their hand billing would result in their arrests. P left to avoid arrest. His companion stayed, however, continued hand billing, and was arrested and subsequently arraigned on a charge of criminal trespass in violation of § 26-1503. P and others filed a complaint in the District Court invoking the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343. P requested a declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202, that Ga. Code Ann. § 26-1503 (1972) was being applied in violation of P's First and Fourteenth Amendment rights, and an injunction restraining Thompson (Ds) - the solicitor of the Civil and Criminal Court of DeKalb County, the chief of the DeKalb County Police, the owner of the North DeKalb Shopping Center, and the manager of that shopping center - from enforcing the statute so as to interfere with petitioner's constitutionally protected activities. P has alleged that, although he desired to return to the shopping center to distribute handbills, he had not done so because of his concern that he, too, would be arrested for violation of § 26-1503. The action was dismissed in that 'no meaningful contention can be made that the state has [acted] or will in the future act in bad faith,' and therefore 'the rudiments of an active controversy between the parties . . . [are] lacking.' The Court of Appeals for the Fifth Circuit, affirmed the District Court's judgment refusing declaratory relief. The court recognized that the holdings of Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971), were expressly limited to situations where state prosecutions were pending when the federal action commenced, but was of the view that Younger v. Harris 'made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment and such test must be applied to a request for injunctive relief against threatened state court criminal prosecution' as well as against a pending prosecution.
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