defenses in the course of the State criminal proceeding, for the State Courts as well as the federal courts are beholden to apply the Constitution as the supreme law of the land. Only exceptional circumstances will "warrant cutting short the normal adjudication of constitutional defenses in the course of a criminal prosecution." Dombrowski v. Pfister, supra, at 485, 85 S. Ct. at 1120.
In the limited circumstances of the Dombrowski case, the Supreme Court of the United States found that a federal district court possessed authority to enjoin planned multiple prosecutions under a sweeping State subversive activities law, the mere threat of prosecution under which was regarded as having a chilling effect upon the exercise of freedom of expression under the First Amendment. The alleged plan of further multiple prosecutions was there deemed sufficient to demonstrate a threat of irreparable harm requisite for federal equity jurisdiction.
Here, however, the prosecutions are not merely threatened but rather are currently pending. The allegations of the Complaint do not substantiate a threat of harm or injury in the future, beyond that injury incidental to the pending criminal prosecutions, wherein plaintiffs may obtain a prompt trial and ultimate appeal to the Supreme Court of the United States. That inconvenience or injury incidental to the pending criminal prosecutions is not such as to justify the interference of a federal district court sitting in equity. Stefanelli v. Minard, 342 U.S. 117, 122-123, 72 S. Ct. 118, 96 L. Ed. 138 (1951); Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S. Ct. 877, 87 L. Ed. 1324 (1942). The want of proper equity jurisdiction may be raised by the Court sua sponte. Douglas v. Jeannette, supra.
Nor is it appropriate for the Court to take cognizance of the claim for declaratory relief during the pending of the State criminal proceedings. Richardson v. Dudley, 295 F. Supp. 181, 186 (S.D.N.Y. 1969). To entertain a request for declaratory relief at this time would be no less an interference with the pending proceedings than would consideration of injunctive relief.
While a federal district court may abstain from the adjudication of constitutional issues only in narrow circumstances, the Court finds that such circumstances exist here. Relevant considerations are whether a decision upon a federal constitutional question may be avoided by affording the State courts an opportunity to construe a heretofore uninterpreted provision of State law; whether a premature decision of State law would be an unnecessary interference with the State Courts, straining relations between the two sovereigns; whether a plain, speedy and efficient remedy may be had in the courts of the State; and whether the claimed constitutional rights of the plaintiffs can be adequately protected by review of the State Court's determination on appeal to the Supreme Court of the United States. See Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247 (3d Cir. 1969).
The Court has found no instance to date in which the Supreme Court of Pennsylvania has been afforded the opportunity to interpret or construe Ordinance 580 of 1968 of the City of Pittsburgh, and a decision upon the constitutionality of the same may possibly be avoided by virtue of the interpretation or construction placed upon the ordinance by the State Courts. The pending State criminal actions will provide a forum for a plain, speedy and efficient remedy.
Plaintiffs' particular challenge to the constitutionality of Ordinance 580 of 1968 may be raised in the State criminal actions and, on appeal, in the Pennsylvania appellate courts, and, if necessary, in the Supreme Court of the United States. The claim that plaintiffs were arrested for engaging in constitutionally protected activity may be asserted as a defense in the State criminal actions. If proven, acquittal would be required. With respect to the challenged actions of the police officers of the City of Pittsburgh, should it appear in the criminal actions not only that plaintiffs were innocent of the charges brought against them but also that various officers, acting in bad faith, intentionally deprived them of rights under the Constitution and laws of the United States, civil suits for damages under 42 U.S.C. § 1983 may later be deemed warranted.
The Court is of the opinion that abstention is appropriate. Upon abstaining, the Court may dismiss the action. Urbano v. Board of Managers of New Jersey State Prison, supra, at 255-256.
Now, this 25 day of June, 1970, it is hereby ordered that plaintiffs' request for the convening of a three-judge district court be and the same is hereby denied and, acting upon its own motion, the Court further orders that the Complaint be dismissed.