David Greco v. Andrew Bruck

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-1035

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DAVID M. GRECO,

Appellant

v.

ANDREW J. BRUCK, New Jersey Attorney General; JARED M. MAPLES, Director,

New Jersey Office of Homeland Security and Preparedness; NEW JERSEY OFFICE OF

HOMELAND SECURITY AND PREPAREDNESS, a Cabinet Level Department of the

State of New Jersey; CAMDEN COUNTY PROSECUTOR’S OFFICE, a municipal

entity of the State of New Jersey; JILL S. MAYER, Acting Camden County Prosecutor;

NEVAN SOUMAILS, Assistant Camden County Prosecutor; GLOUCESTER

TOWNSHIP POLICE DEPARTMENT, a municipal entity of the State of New Jersey;

BERNARD JOHN DOUGHERTY, Detective, Gloucester Township Police Department;

NICHOLAS C. AUMENDO, Patrolman, Gloucester Township Police Department;

DONALD B. GANSKY, Detective Sergeant, Gloucester Township Police Department;

WILLIAM DANIEL RAPP, Detective, Gloucester Township Police Department; BRIAN

ANTHONY TURCHI, Patrolman, Gloucester Township Police Department; JOHN DOE

#1, (a fictitious name); and JOHN DOE 2-10 (fictitious names)

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 3-19-cv-19145)

District Judge: Honorable Brian R. Martinotti

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

October 29, 2021

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Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges.

(Filed: May 13, 2022)

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OPINION*

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PHIPPS, Circuit Judge.

This case involves an instance when, under Younger v. Harris, 401 U.S. 37

(1971), a federal court must refrain from hearing a case properly within its limited

jurisdiction. David Greco filed this suit in federal court during the pendency of a

concurrent state-court civil enforcement action initiated by a New Jersey law

enforcement agency. The District Court determined that the state-court proceedings

satisfied the criteria for Younger abstention and dismissed this federal case on that basis.

We will affirm that order for the reasons below.

I.

The state-court proceedings relevant to this case arose under New Jersey’s red-flag

law, the Extreme Risk Protective Order Act of 2018. That law, the ERPO Act, took

effect on September 1, 2019, and it authorizes certain persons, including law enforcement

officers, to seek a court order and a search warrant to temporarily remove lawfully owned

firearms from persons who pose an immediate and present danger to others. See N.J.

Stat. Ann. §§ 2C:58-23, 26; see also 2018 N.J. Sess. Law Serv. Ch. 35 § 17 (West)

(setting the effective date for the Act and permitting “the Attorney General and the

Administrative Director of the Courts [to] take any anticipatory action as shall be

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

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necessary to effectuate the purposes of this act”). After investigating David Greco for

several months beforehand, on September 5, 2019, the New Jersey Office of Homeland

Security and Preparedness, known as ‘OHSP,’ sought a temporary order against Greco

under the ERPO Act. In its petition to a state court in Camden County, OHSP provided

several reasons for its request. Greco had displayed a pattern of antisemitic social media

activity; he contacted the Pittsburgh synagogue shooter before the mass shooting in

October 2018; he believed that “force or violence is necessary to realign society”; and he

“frequently mentioned his disdain[] for the Jewish Talmud” as well as his belief “that

Jews are raping our women and children.” Petition for Temp. Extreme Risk Protective

Ord. (App. 114). On those facts, OHSP argued that Greco posed “an immediate and

present danger” to others by owning or possessing firearms. Id.

The next day, the New Jersey state court held an ex parte hearing and granted the

petition. The court determined that Greco posed an immediate and present danger, and it

then issued the temporary order and a ‘no knock’ search warrant for a handgun, a rifle,

and “any other unregistered weapons, ammunition, and/or shotguns” at Greco’s

residence. Temp. Extreme Risk Protective Ord. (App. 120). Later that day, local law

enforcement officers executed the search warrant and temporarily seized Greco’s New

Jersey Firearms Purchaser ID Card, rifle, and ammunition for that rifle.

That seizure has not exactly been temporary – OHSP still has possession of

Greco’s rifle and ammunition. But through a series of uncontested state-court procedural

rulings, Greco has contributed to the continued operation of the temporary order. The

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ERPO Act provides an expedited process for converting a temporary order into a final

order: the state court must hold a hearing that a respondent has a right to attend, and the

court must find that the respondent poses a significant danger to others by owning or

possessing firearms. See N.J. Stat. Ann. § 2C:58-24. In Greco’s case, the state court

scheduled such a hearing five days later, but it was rescheduled multiple times, and it

remains pending. Thus, without being formally converted to a final order, that temporary

order has remained in effect until the present.

On October 21, 2019, while those state-court proceedings were pending, Greco

filed this suit to challenge the constitutionality of the ERPO Act. He argued that the

ERPO Act violated the First, Second, Fourth, and Fourteenth Amendments, and he

sought a preliminary injunction to prevent its enforcement – not just as applied to him,

but to a putative class of persons. As a civil action arising under the Constitution,

Greco’s suit presented a federal question within the District Court’s subject matter

jurisdiction. See 28 U.S.C. § 1331. The District Court denied Greco’s motions for a

preliminary injunction and class certification, and it later dismissed the entire action

without prejudice on Younger abstention grounds.

That dismissal constitutes a final appealable order. See Lui v. Comm’n on Adult

Ent. Establishments, 369 F.3d 319, 325 (3d Cir. 2004) (holding that “a district court’s

Younger abstention order constitutes a final appealable order under 28 U.S.C. § 1291

because . . . the effect of such an order is to surrender jurisdiction of the federal action to

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a state court”). By timely appealing that order, Greco invoked this Court’s appellate

jurisdiction. See 28 U.S.C. § 1291.

In reviewing de novo the District Court’s analysis of the legal elements of Younger

abstention, see PDX N., Inc. v. Comm’r N.J. Dep’t of Lab. & Workforce Dev., 978 F.3d

871, 881 n.11 (3d Cir. 2020), we will affirm, and that obviates the need to evaluate

Greco’s challenges to the orders denying his preliminary injunction and class certification

motions.

II.

Younger abstention presents one of the limited exceptions to a federal court’s

“virtually unflagging obligation” to hear and decide cases within the scope of its

jurisdiction. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817

(1976); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans (NOPSI),

491 U.S. 350, 368 (1989). The doctrine prevents federal courts from hearing cases

related to certain ongoing state-court proceedings. See Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69, 72 (2013) (“Younger exemplifies one class of cases in which federal-court

abstention is required . . . .” (emphasis added)); PDX, 978 F.3d at 881 n.11. But in so

doing, Younger abstention effectuates principles of federalism and comity by respecting

concurrent state-court proceedings. See Huffman v. Pursue, Ltd., 420 U.S. 592, 606

(1975) (“Younger turned on considerations of comity and federalism peculiar to the fact

that state proceedings were pending[.]” (alteration added)); Younger, 401 U.S. at 44

(justifying the doctrine based on “sensitivity to the legitimate interests of both State and

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National Governments”); PDX, 978 F.3d at 882 (explaining that Younger abstention

serves a dual purpose: (i) it promotes comity by restricting federal court interference with

ongoing state judicial proceedings, and (ii) it restrains equity jurisdiction “when state

courts provide adequate legal remedies for constitutional claims and there is no risk of

irreparable harm”).

The Younger abstention analysis proceeds in two sequential stages. The first

examines whether the underlying state-court litigation falls within one of three specific

categories of cases. See Sprint, 571 U.S. at 78 (identifying three categories of cases that

may qualify for Younger abstention); ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127,

138 (3d Cir. 2014). The second examines three additional factors – often referred to as

the Middlesex factors. See Sprint, 571 U.S. at 81–82 (discussing the factors from

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).

A. Quasi-Criminal Civil Enforcement Proceedings

One category of cases that may justify Younger abstention consists of quasi-

criminal state civil enforcement proceedings. See Sprint, 571 U.S. at 79; PDX, 978 F.3d

at 882. To determine whether a civil enforcement proceeding is quasi-criminal, this

Circuit makes three inquiries: (i) whether the action was commenced by a state in its

sovereign capacity; (ii) whether the action sought to sanction the federal plaintiff for a

wrongful act; and (iii) whether the state-court action has other similarities with criminal

actions, including whether the state could have pursued enforcement through a parallel

criminal statute. See PDX, 978 F.3d at 882–83 (citing ACRA, 748 F.3d at 138).

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Under that analysis, the state-court proceeding here is quasi-criminal. For the first

inquiry, the state-court proceeding was initiated by a state law enforcement agency,

OHSP. The second inquiry similarly indicates that the state-court proceeding was quasi-

criminal because, through that litigation, OHSP sought to temporarily seize Greco’s

firearms as a sanction for posing an immediate and present danger to others. See ACRA,

748 F.3d at 140 (citing Sprint, 571 U.S. at 79). Finally, under the third inquiry, although

New Jersey does not identify an alternative criminal enforcement mechanism, the state-

court civil action has two other similarities with criminal proceedings: it resulted from a

law-enforcement investigation, and it issued a ‘no knock’ search warrant rather than a

subpoena or some other traditional means of civil discovery.

B. The Middlesex Factors

The second stage of the Younger abstention analysis examines the three Middlesex

factors. Those factors ask whether (i) there is an ongoing state judicial proceeding

(ii) that implicates important state interests and (iii) provides an adequate opportunity to

raise constitutional challenges. Sprint, 571 U.S. at 81–82 (discussing the Middlesex

factors). Each is satisfied here.

First, the state-court proceeding is ongoing and judicial in nature. To be ongoing

for purposes of Younger abstention, a state proceeding must have been pending – even if

it were stayed – when the federal complaint was filed. See PDX, 978 F.3d at 885. Here,

the state-court action began with the temporary-order petition on September 5, 2019, and,

through a series of stays, has been ongoing ever since. Greco filed his federal complaint

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on October 21, 2019, during the pendency of the state-court proceeding, which is

indisputably “judicial in nature.” NOPSI, 491 U.S. at 370; see also Gonzalez v.

Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 183 (3d Cir. 2014).

Second, the state-court proceedings “implicate an important state interest.” PDX,

978 F.3d at 885. The ERPO Act seeks to protect New Jersey residents from persons

posing “an immediate and present danger.” N.J. Stat. Ann. § 2C:58-23(e). That is an

important state interest. See Drake v. Filko, 724 F.3d 426, 437 (3d Cir. 2013) (“New

Jersey has, undoubtedly, a significant, substantial and important interest in protecting its

citizens’ safety.”).

Third, the state-court proceedings offer Greco an “adequate opportunity . . . to

raise constitutional challenges.” Middlesex, 457 U.S. at 432. Greco bears the burden of

showing “that state procedural law barred presentation of [his] claims.” Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 14 (1987) (quoting Moore v. Sims, 442 U.S. 415, 432 (1979)).

Although an indefinite stay of proceedings after a ‘temporary’ seizure of firearms could –

under other circumstances – operate as a procedural bar to the presentation of

constitutional claims, Greco does not make that showing here. Nor does anything in the

ERPO Act prevent Greco from raising constitutional challenges. To the contrary, the

ERPO Act provides for a hearing before the issuance of a final order, see N.J. Stat. Ann.

§§ 2C:58-24(a), a right to petition to terminate a final order at any time, see id.

§ 2C:58-25, and a right to appeal a final order within 45 days, see N.J. Ct. R. 2:2-3(a)(1),

2:4-1(a).

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C. The Necessity of Abstention Is Not Overcome Here

For these reasons, the state-court proceeding is a quasi-criminal civil enforcement

action that meets the Middlesex factors. That satisfies both stages of the Younger

abstention analysis, and therefore the District Court correctly dismissed this case on that

basis. See Sprint, 571 U.S. at 72; PDX, 978 F.3d at 882–83.

Nothing about this ruling prevents Greco from pursuing his constitutional

challenges in state court. To the contrary, if he could not bring his claims in state court,

then Younger abstention would be inappropriate.1 See Moore, 442 U.S. at 425–26

(explaining that abstention is inappropriate if “state law clearly bars the interposition of

the constitutional claims”); Gibson v. Berryhill, 411 U.S. 564, 577–79 (1973) (affirming

district court’s decision not to abstain because the state tribunal was constitutionally

disqualified to adjudicate the dispute due to bias). Rather than dispute his ability to

1

The state-court proceedings offer Greco an “adequate opportunity . . . to raise

constitutional challenges.” Middlesex, 457 U.S. at 432. Greco bears the burden of

showing “‘that state procedural law barred presentation of [his] claims.’” Pennzoil,

481 U.S. at 14 (quoting Moore, 442 U.S. at 432). Although an indefinite stay of

proceedings after a ‘temporary’ seizure of firearms could – under other circumstances –

operate as a procedural bar to the presentation of constitutional claims, Greco does not

make that showing here. Cf. Gibson v. Berryhill, 411 U.S. 564, 577-79 (1973) (affirming

district court’s decision not to abstain because the state tribunal was constitutionally

disqualified to adjudicate the dispute due to bias). Nor does anything in the ERPO Act

prevent Greco from raising constitutional challenges. To the contrary, the ERPO Act

provides for a hearing before the issuance of a final order, see N.J. Stat. Ann. §§ 2C:58-

24(a), a right to petition to terminate a final order at any time, see id. § 2C:58-25, and a

right to appeal a final order within 45 days, see N.J. Ct. R. 2:2-3(a)(1), 2:4-1(a). Greco

therefore does not dispute that he has the ability to pursue his constitutional challenges in

state court.

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pursue his constitutional challenges in state court, Greco raises two other challenges to

Younger abstention. Neither succeeds.

Greco first contends that the District Court violated law-of-the-case principles by

abstaining under Younger after it had ruled on his preliminary injunction and class

certification motions. But law-of-the-case principles apply only “when a court decides

upon a rule of law.” ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2008) (emphasis

added) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).

And in denying Greco’s preliminary injunction and class certification motions, the

District Court did not address Younger. Such silence was not a decision that the District

Court was later bound to follow.

Greco next argues that Younger abstention was improper because he brings a

facial challenge to the ERPO Act under the Fourth Amendment. Although some

“extraordinary circumstances” may permit a federal court to enjoin an ongoing state

proceeding, that limited exception to Younger abstention does not include facial

challenges to the constitutionality of a state law. Younger, 401 U.S. at 53–54. A facial

constitutional challenge requires establishing “that no set of circumstances exists under

which the [law] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

Such a challenge does not present an extraordinary circumstance in the context of

Younger abstention: state courts can identify and enjoin state laws that have no lawful

application under the federal constitution. See Huffman, 420 U.S. at 610–11 (rejecting an

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argument in effect “urging [the Court] to base a rule on the assumption that state judges

will not be faithful to their constitutional responsibilities”).

***

Because the concurrent state-court proceedings satisfy the requirements for

Younger abstention, we will affirm the order of the District Court.

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