courts have the power to enjoin unconstitutional police practices.
In addition to containing the element of a complaint against police officers for their unconstitutional practices, other cases cited by petitioner involve either a request for declaratory judgment to determine the validity of a statute or the background of an unconstitutional statute. Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1947) is an example of the latter situation because the plaintiffs sought a declaration of invalidity of a statute and an injunction against the prosecuting officials where the statute had already been held unconstitutional by a three-judge federal court.
Landry v. Daley, 288 F. Supp. 200 (N.D. Ill. 1968) also involves a situation where the statutes had already been declared unconstitutional and an injunction against prosecuting officials was granted.
Petitioner's complaint is reduced to a bare claim for injunctive relief against the state under Section 1983. The general rule of Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S. Ct. 877, 881, 87 L. Ed. 1324 (1943) that equity courts do not ordinarily restrain criminal prosecutions govern this case. After Monroe v. Pape, supra, it is clear that Douglas v. City of Jeanette, supra, can no longer be read impliedly to mean that a municipality or a state is subject to suit under Section 1983, fn. 50, 365 U.S. 167 at 191, 81 S. Ct. 473 at 486, 5 L. Ed. 2d 492. The petitioner has failed to state a claim for relief against the state whatever his right to recover from or to enjoin the police officers or other state officials. Cf. Note, "The Federal Injunction as a Remedy for Unconstitutional Police Conduct," 78 Yale Law Journal 143 (1968).
A case cited by the petitioner actually provides one illustration as to how the alleged gross misuse of state power might be corrected upon direct appeal by a clear attack on the alleged retaliatory prosecution to prevent the petitioner from complaining against the police officers. If the state were to continue its request for continuances or attempt to nol prosecute the case, any subsequent prosecution is open to attack. Dixon v. District of Columbia, 129 U.S. App. D.C. 341, 394 F.2d 966 (1968). Mention is made of this case only to show that the petitioner is not being sent back to state courts without any hope of remedying the alleged injustices heaped upon him by various state officials.
But the facts necessary to establish such a claim of retaliatory prosecution should be developed in the state tribunals in the first instance. The Motion to Remand will be granted and the requests for injunctive relief will be denied.
These proceedings, long held in abeyance because of the attempt to have the federal courts intervene, should proceed in an orderly and expeditious fashion in the state courts with either a valid prosecution of the petitioner or his release.