MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendant United States of America to dismiss. Plaintiff Everett Jer-nigan has responded to the motion and the court, having considered the memoranda of authorities submitted by the parties, is of the opinion that the government’s motion is well taken and should be granted.
Plaintiff, Everett Jernigan, a resident of Clinton, Mississippi, is the owner of two video poker machines. In June 1992, federal and Mississippi law enforcement officials
issued a joint press release announcing their intention to enforce state and federal gambling statutes and to begin seizing video poker machines and similar electronic gambling devices effective July 1, 1992. Anticipating the possible seizure of his machines and prosecution under state and/or federal law for owning, possessing and operating his video poker machines as illegal gambling devices, Jernigan filed in this court a complaint for declaratory and in-junctive relief against the State of Mississippi and the United States.
Specifically, plaintiff sought a declaratory judgment that his machines are not illegal gambling devices under state or federal gaming laws and an injunction prohibiting law enforcement officials from seizing his machines and from arresting and/or prosecuting him under the guise of enforcing such gaming laws. Contemporaneously with the filing of his complaint, Jernigan moved for entry of a temporary restraining order, and the court, following a July 20, 1992 evidentiary hearing on that motion, denied the requested relief, finding that Jernigan had failed to demonstrate “a potential irremediable constitutional violation of sufficient magnitude to warrant the interference of this court in either state or federal law enforcement.”
Under Mississippi law, it is unlawful to possess, own or control certain types of machines which are declared to be “gambling devices.” Machines classified as such are subject to seizure and destruction by law enforcement officers.
See
Miss.Code Ann. § 97-33-7; Miss.Code Ann. §§ 97-43-1
et seq.
Federal statutes further make unlawful the interstate transportation of “gambling devices” and provide for the forfeiture of such devices.
See
15 U.S.C. §§ 1171-1177.
In this action, plaintiff
does not directly challenge the constitutionality of any of these statutes. Rather, he alleges that his video poker machines are not gambling devices and that as such, his ownership and use of the machines are protected by the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Consequently, seizure of the machines by defendants would deprive him of his property without due process of law.
As an initial matter, the State of Mississippi contends that this case must be dismissed inasmuch as plaintiff has failed to establish the existence of an actual case or controversy so as to invoke this court’s jurisdiction. According to the State, this court is thus without power to grant plaintiff either injunctive or declaratory relief.
In the court’s opinion, however, plaintiff has demonstrated that the threat of seizure and prosecution “is real and imminent rather than imaginary or speculative.”
Pennsylvania Video Operators v. United States,
731 F.Supp. 717, 718 (W.D.Pa.),
aff'd,
919 F.2d 136 (3d Cir.1990) (citing
Steffel v. Thompson,
415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The defendants’ joint press announcement amounted to an
unequivocal statement[] of [their] intention to enforce [applicable gambling laws] and to institute forfeiture actions and criminal proceedings in the near future. These statements were neither vague nor illusory and therefore plaintiff
satisfies the actual controversy requirement.
Id.
at 718-19.
The State next argues that this action is barred by the doctrine of non-intervention articulated in
Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), in which the Supreme Court refused to enjoin a state criminal prosecution based on “the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.”
Id.
at 41, 91 S.Ct. at 749.
See also Samuels v. Mackell,
401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (holding that principles of
Younger
applied to declaratory relief, as well as to injunctive relief). And, citing the “strong policy” in this country against judicial intervention in criminal investigations and proceedings, the United States similarly seeks dismissal of Jernigan’s complaint, arguing that Jernigan may challenge the constitutionality of any seizure which may occur or of any criminal proceedings which may be instituted against him in the course of any such forfeiture and/or criminal proceedings, but that he should not be permitted to do so in this action.
See Confiscation Cases,
74 U.S. (7 Wall) 454, 457, 19 L.Ed. 196 (1869) (“Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the [United States] attorney.”);
United States v. Cox,
342 F.2d 167, 171 (5th Cir.),
cert. denied,
381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965) (“[C]ourts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal proceedings.”);
North v. Walsh,
656 F.Supp. 414, 420 (D.D.C.1987),
cert. denied,
484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988) (“Courts have almost never found that an ongoing investigation imposes a sufficient hardship on the person investigated to warrant judicial review prior to his or her indictment.”).
The
Younger
doctrine of non-intervention in state criminal proceedings would not prevent this court from granting declaratory or injunctive relief if the plaintiff could establish the criteria for such relief. In
Steffel v. Thompson,
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendant United States of America to dismiss. Plaintiff Everett Jer-nigan has responded to the motion and the court, having considered the memoranda of authorities submitted by the parties, is of the opinion that the government’s motion is well taken and should be granted.
Plaintiff, Everett Jernigan, a resident of Clinton, Mississippi, is the owner of two video poker machines. In June 1992, federal and Mississippi law enforcement officials
issued a joint press release announcing their intention to enforce state and federal gambling statutes and to begin seizing video poker machines and similar electronic gambling devices effective July 1, 1992. Anticipating the possible seizure of his machines and prosecution under state and/or federal law for owning, possessing and operating his video poker machines as illegal gambling devices, Jernigan filed in this court a complaint for declaratory and in-junctive relief against the State of Mississippi and the United States.
Specifically, plaintiff sought a declaratory judgment that his machines are not illegal gambling devices under state or federal gaming laws and an injunction prohibiting law enforcement officials from seizing his machines and from arresting and/or prosecuting him under the guise of enforcing such gaming laws. Contemporaneously with the filing of his complaint, Jernigan moved for entry of a temporary restraining order, and the court, following a July 20, 1992 evidentiary hearing on that motion, denied the requested relief, finding that Jernigan had failed to demonstrate “a potential irremediable constitutional violation of sufficient magnitude to warrant the interference of this court in either state or federal law enforcement.”
Under Mississippi law, it is unlawful to possess, own or control certain types of machines which are declared to be “gambling devices.” Machines classified as such are subject to seizure and destruction by law enforcement officers.
See
Miss.Code Ann. § 97-33-7; Miss.Code Ann. §§ 97-43-1
et seq.
Federal statutes further make unlawful the interstate transportation of “gambling devices” and provide for the forfeiture of such devices.
See
15 U.S.C. §§ 1171-1177.
In this action, plaintiff
does not directly challenge the constitutionality of any of these statutes. Rather, he alleges that his video poker machines are not gambling devices and that as such, his ownership and use of the machines are protected by the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Consequently, seizure of the machines by defendants would deprive him of his property without due process of law.
As an initial matter, the State of Mississippi contends that this case must be dismissed inasmuch as plaintiff has failed to establish the existence of an actual case or controversy so as to invoke this court’s jurisdiction. According to the State, this court is thus without power to grant plaintiff either injunctive or declaratory relief.
In the court’s opinion, however, plaintiff has demonstrated that the threat of seizure and prosecution “is real and imminent rather than imaginary or speculative.”
Pennsylvania Video Operators v. United States,
731 F.Supp. 717, 718 (W.D.Pa.),
aff'd,
919 F.2d 136 (3d Cir.1990) (citing
Steffel v. Thompson,
415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The defendants’ joint press announcement amounted to an
unequivocal statement[] of [their] intention to enforce [applicable gambling laws] and to institute forfeiture actions and criminal proceedings in the near future. These statements were neither vague nor illusory and therefore plaintiff
satisfies the actual controversy requirement.
Id.
at 718-19.
The State next argues that this action is barred by the doctrine of non-intervention articulated in
Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), in which the Supreme Court refused to enjoin a state criminal prosecution based on “the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.”
Id.
at 41, 91 S.Ct. at 749.
See also Samuels v. Mackell,
401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (holding that principles of
Younger
applied to declaratory relief, as well as to injunctive relief). And, citing the “strong policy” in this country against judicial intervention in criminal investigations and proceedings, the United States similarly seeks dismissal of Jernigan’s complaint, arguing that Jernigan may challenge the constitutionality of any seizure which may occur or of any criminal proceedings which may be instituted against him in the course of any such forfeiture and/or criminal proceedings, but that he should not be permitted to do so in this action.
See Confiscation Cases,
74 U.S. (7 Wall) 454, 457, 19 L.Ed. 196 (1869) (“Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the [United States] attorney.”);
United States v. Cox,
342 F.2d 167, 171 (5th Cir.),
cert. denied,
381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965) (“[C]ourts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal proceedings.”);
North v. Walsh,
656 F.Supp. 414, 420 (D.D.C.1987),
cert. denied,
484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988) (“Courts have almost never found that an ongoing investigation imposes a sufficient hardship on the person investigated to warrant judicial review prior to his or her indictment.”).
The
Younger
doctrine of non-intervention in state criminal proceedings would not prevent this court from granting declaratory or injunctive relief if the plaintiff could establish the criteria for such relief. In
Steffel v. Thompson,
415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the Supreme Court unanimously held that “federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.”
Id.
at 475, 94 S.Ct. at 1223-24. And in
Doran v. Salem Inn, Inc.,
422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), the Court indicated that where there is no pending state court proceeding, one who is threatened with prosecution may secure injunctive relief, or at least preliminary injunctive relief, since it would not disrupt any state court proceedings and because there is no available forum in which to raise the constitutional claims.
See also Robinson v. Stovall,
646 F.2d 1087, 1909 (5th Cir.1981) (citing
Steffel
and
Doran)
(“A person threatened with, but not yet the subject of, an allegedly illegal arrest and prosecution or other violations of his federal rights may seek appropriate injunctive and declaratory relief without any obstacles from the
Younger
doctrine.”).
Nevertheless, though
Younger
and its progeny do not stand as a bar to this court’s granting relief to plaintiff against potential seizure and prosecution by the State, this court is of the view that the circumstances presented simply do not warrant the granting of such relief. The
Younger
Court observed that as a matter of equity, the federal courts should not act, “and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.”
Id.,
401 U.S. at 43-44, 91 S.Ct. at 750. The Court further observed:
“Ex Parte Young
[209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714] ... and following cases have established the doctrine that, when absolutely necessary for protection of constitutional rights, courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be
done, except under extraordinary circumstances, where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the state, and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this court would not afford adequate protection.”
[.Fenner v. Boykin,
271 U.S. 240, 243-44, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926).]
These principles ... have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions.... In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is “both great and immediate.”
Fenner, supra.
Younger,
401 U.S. at 45-46, 91 S.Ct. at 751 (some citations omitted).
See also Douglas v. City of Jeannette,
319 U.S. 157, 163, 63 5.Ct. 877, 881, 87 L.Ed. 1324 (1943) (injunc-tive relief is available only “to prevent irreparable injury which is clear and imminent.”);
cf. Dombrowski v. Pfister,
380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The standard is no less exacting where threatened federal criminal proceedings are at issue. This court noted in its prior opinion in this cause:
The non-interference policy [of
Younger]
is applicable to federal criminal prosecutions as well.
See Pennsylvania Video Operators v. United States,
731 F.Supp. 717 (W.D.Pa.),
aff'd,
919 F.2d 136 (3d Cir.1990). However, the principle involved is not respect for the relationship between the federal government and the state, but respect for the actions of separate branches of the federal government.
North v. Walsh,
656 F.Supp. 414 (D.D.C.1987).
In the case at bar, plaintiffs allegations simply do not satisfy the heavy burden of demonstrating that intervention by this court is warranted. As the court indicated in declining to grant a temporary restraining order in this case, Jernigan claims that he will lose money if state or federal law enforcement officials seize his video poker machines. However, the court did not and does not view this as “a potential irremediable constitutional violation of sufficient magnitude to warrant the interference of this court in either state or federal law enforcement.” Injunctive relief would therefore not be appropriate.
In the court’s opinion, neither can declaratory relief properly be granted in this proceeding. As indicated
supra,
plaintiff alleges in this action that his due process right to “a hearing, prior to the seizing of [his] equipment or personal property” is threatened to be violated by criminal proceedings. Defendants argue,
inter alia,
that plaintiff has no property interest in his video poker machines and that as a result, his due process rights could not be implicated by any seizure of those machines. Jernigan does not dispute that the ownership, possession, control or transportation of machines such as his could be declared illegal by the state legislature or by Congress as a valid exercise of government police powers. Nor does he dispute that he would not have a property interest in the machines if they had been declared illegal by these statutes.
His claim appears to be
simply that his machines are not, in fact, “gambling devices” within the meaning of any of the subject statutes. He contends that consequently, he does have a property interest in them such that defendants could not seize his machines without violating his due process rights. In other words, what Jernigan seeks is an adjudication that his video poker machines are not “gambling devices” under federal law or “slot ma-chinéis] ... or similar ... devices” under state law; and, on the basis that his ownership of the machines is not, in fact, illegal under these statutes, he wants an injunction against defendants’ seizing his machines or prosecuting him for his ownership of these machines. It is apparent from the record in this case that the question whether a particular machine is a “gambling device” depends, under either state or federal law, on the various features of the machine. In a case quite similar to that at bar, a Pennsylvania District Court refused to grant declaratory relief, explaining that the vague and conclusory allegations in plaintiffs complaint concerning an alleged constitutional violation were
further compounded by the prospect of extensive factual battles over the various types and models of video poker ma-chines_ [Consideration of the various characteristics of each game and machine is the core of analysis under the statute. A declaratory judgment action to determine criminal liability in anticipation of criminal proceedings is appropriate when the declaration will settle the question presented and terminate the entire controversy. The courts are to avoid using declaratory judgment to make abstract determinations or to try the controversy in piecemeal fashion....
If plaintiffs challenging is to the constitutionality of the Gambling Devices Act
as applied,
we cannot make such a declaration because the answer depends on the characteristics of each machine. Gradations of fact may well make a difference in criminal liability or forfeiture. It is simply impossible for this Court to anticipate all possible combinations of characteristics in video poker machines and to issue a declaratory judgment which will settle this controversy. This matter is better left to individual criminal proceedings where the facts may be developed and the statute applied on a case by case basis.
Pennsylvania Video Operators,
731 F.Supp. at 719. To entertain this action for declaratory relief by Jernigan would be to invite precisely this kind of piecemeal adjudication denounced by the court in
Pennsylvania Video Operators.
This court, as did that court, declines to issue that invitation.
In conclusion, the court is persuaded that the general policy of non-interference with state and federal prosecutions militates against the court’s exercising its jurisdiction in this cause. The court is aware that as there has been no seizure of Jernigan’s property and as there is no prosecution currently pending against him, the court is not entirely foreclosed from entertaining this action. However, the court is not persuaded by the issues and allegations arising in this case that it should exercise its jurisdiction. Injunctive relief is clearly not required in the premises as there is no allegation of “great and immediate” irreparable injury. And the fact that a declaratory judgment by this court could not definitively resolve the issue of what machines are covered under the various statutes at hand counsels against the court’s exercising its jurisdiction. Accordingly, it is ordered that the motion of the United States to dismiss the complaint is granted as is the request for dismissal by the State of Mississippi.
A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure.
ORDERED.