McKusick v. City of Melbourne, FL

United States Court of Appeals,

Eleventh Circuit.

No. 95-2331.

Linda McKUSICK, Plaintiff-Appellant,

v.

CITY OF MELBOURNE, FLORIDA, Defendant-Appellee.

Sept. 27, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-1161-CIV-ORL-22), Anne C. Conway,

Judge.

Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit

Judge.

CARNES, Circuit Judge:

Linda McKusick brought this 42 U.S.C. § 1983 suit against the

City of Melbourne, Florida, to challenge a permanent injunction

entered by the Florida Circuit Court of Seminole County. The

injunction prohibits named parties, and those acting "in concert"

with named parties, from engaging in certain expressive activities

within a 36-foot buffer zone around an abortion clinic. McKusick

sought a declaratory judgment that certain parts of the injunction

are unconstitutionally overbroad, and requested that the district

court enjoin the City from enforcing the injunction against her and

other parties not named in the injunction nor shown by probable

cause to be acting in concert with named parties.

The district court denied McKusick's request for a preliminary

injunction, relying on the principles of federalism and comity

articulated in the Seventh Circuit case of Hoover v. Wagner, 47

F.3d 845 (7th Cir.1995). Thereafter, the district court dismissed

McKusick's complaint, holding that it failed to state a claim under

§ 1983 because the City's actions in enforcing the injunction do

not amount to a cognizable "policy" or "custom" subject to

challenge under that provision. We hold that the district court

erred by dismissing McKusick's complaint for failure to state a

claim under § 1983. However, we also hold that the district court

did not abuse its discretion in denying, on federalism and comity

grounds, the preliminary injunction sought by McKusick; we affirm

the district court's denial of that relief.

I. BACKGROUND

On April 8, 1993, the Circuit Court of Seminole County entered

the injunction in question. One of its provisions imposes a 36-

foot buffer zone around a clinic operated by the Aware Woman Center

for Choice, Inc. Named parties and those acting "in concert or

participation with them, or on their behalf" are prohibited from

"congregating, picketing, patrolling, demonstrating or entering

that portion of public right-of-way or private property within

thirty-six (36) feet of the property line of the Clinic." The

injunction also contains an enforcement provision which provides,

in part, that "[l]aw enforcement authorities ... are authorized to

arrest those persons who appear to be in willful and intentional

disobedience of this injunction."

This injunction has already been the subject of considerable

litigation. See Operation Rescue v. Women's Health Ctr., 626 So.2d

664 (Fla.1993), aff'd in part, rev'd in part, sub nom. Madsen v.

Women's Health Ctr., --- U.S. ----, 114 S.Ct. 2516, 129 L.Ed.2d 593

(1994); Cheffer v. McGregor, 6 F.3d 705 (11th Cir.1993), vacated,

41 F.3d 1421 (1994) (en banc) (subsequently remanded in view of

Madsen ). The portions of the injunction that are relevant to this

case are reproduced in Madsen, --- U.S. at ---- - ----, 114 S.Ct.

at 2521-22 (does not include the enforcement provision) and

Cheffer, 6 F.3d at 706-07 (includes the enforcement provision).

On September 24, 1994, McKusick entered the buffer zone, and

began to read her Bible and pray. 1 McKusick had not been a named

party in the underlying state court lawsuit concerning the

injunction, and she was "acting independently of any organization

or individual named in the Injunction." She was on public property

and neither blocked access to the clinic nor spoke to anyone.

Nevertheless, a law enforcement officer employed by the City

approached McKusick and warned her that she was in violation of a

court order by demonstrating in the buffer zone. The officer

requested that McKusick leave the buffer zone, and advised her that

he would arrest her if she did not comply. McKusick left the

buffer zone because she did not want to be arrested. She would

like to return to the buffer zone to read her Bible and pray, but

has not done so because she fears arrest.

After being threatened with arrest, McKusick brought this §

1983 civil action against the City seeking declaratory and

injunctive relief. She alleges that the City unconstitutionally

"enforce[s] the Injunction against [McKusick] and other third

parties who are neither named parties to the Injunction nor acting

in concert with named parties." McKusick further alleges that the

1

Because this appeal arises following the grant of a motion

to dismiss, we assume the truth of the facts alleged in

McKusick's complaint from which this statement of facts is taken.

injunction, by its terms and as enforced by the City, impermissibly

extends to any individual having notice of it. In summary,

McKusick claims that the injunction, on its face and as enforced by

the City, violates her rights, and the rights of other nonparties,

under the First, Fourth, Fifth, and Fourteenth Amendments to the

United States Constitution.

The United States Supreme Court has previously upheld this

injunction, in substantial part, as a permissible content-neutral

restriction on speech. See Madsen, --- U.S. at ----, 114 S.Ct. at

2530. Prior to the Supreme Court's decision in Madsen, a panel of

this Court had held that the injunction was a viewpoint-based

restriction on speech, see Cheffer, 6 F.3d at 710. The panel's

decision was subsequently vacated by the en banc Court, and the

case was remanded to the district court in view of the Madsen

decision, see Cheffer, 41 F.3d at 1421-22. As a result of the

Supreme Court's decision in Madsen, this Court is, of course,

obligated to accept that the injunction is content-neutral.

In Madsen, the named parties to the injunction attempted to

mount an overbreadth challenge to it by attacking the portion of

the injunction that is directed at unnamed parties who might later

be found to be acting "in concert" with the named parties. See

Madsen, --- U.S. at ----, 114 S.Ct. at 2530. The Supreme Court

held that the named parties lacked standing to bring an overbreadth

challenge to the part of the injunction applying to nonparties.

Id. However, because McKusick is a nonparty to the underlying

litigation, she does have standing to raise the overbreadth

question not reached in Madsen.

Nonetheless, the district court denied McKusick's motion for

a preliminary injunction, and granted the City's motion to dismiss

her complaint for failure to state a claim upon which relief could

be granted.2 This appeal followed, and it requires us to address

four major issues. First, we consider whether we have subject

matter jurisdiction to hear this case. Second, we consider whether

the district court erred by dismissing McKusick's complaint for

failure to state a claim. Third, we consider whether the

injunction is facially overbroad. Finally, we consider whether the

district court abused its discretion by relying on principles of

federalism and comity to deny McKusick's application for a

preliminary injunction.

II. STANDARDS OF REVIEW

This Court reviews a district court's denial of preliminary

injunctive relief for abuse of discretion, but reviews

jurisdictional issues and other questions of law de novo. See,

e.g., Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th

2

When it dismissed her complaint in March of 1995, the

district court did so without prejudice, granting McKusick leave

to file an amended complaint within twenty days of that order of

dismissal. As she was entitled to do, McKusick elected to treat

the order of dismissal as a final order by appealing it

immediately to this Court, thereby waiving her right to amend the

complaint. See Schuurman v. Motor Vessel "Betty K V", 798 F.2d

442, 445 (11th Cir.1986).

Fifteen months after McKusick filed her appeal, the

district court entered yet another order, which purported to

dismiss the entire case. However, that order is of no

effect for purposes of this appeal, or otherwise, because

McKusick's decision to treat the order of dismissal as a

final appealable order, and to waive her right to amend her

complaint, already had had the effect of terminating the

case in the district court. See Schuurman, 798 F.2d at 445.

Cir.1992). De novo review applies to grants of motions to dismiss

under Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim upon which relief can be granted. E.g., Duke v. Cleland,

5 F.3d 1399, 1402 (11th Cir.1993).

III. SUBJECT MATTER JURISDICTION

The City contends that this Court lacks subject matter

jurisdiction over this appeal because it does not present a

justiciable case or controversy. The following statement is

included in the City's brief:

The City was not a party to [the] injunction that Ms. McKusick

challenges in this appeal. The City has no interest in

defending the Injunction. The City maintains that the only

appropriate position for it to take is to maintain neutrality

and to fulfill its duty to enforce the Injunction unless and

until this Court or any other court instructs otherwise.

Therefore, the City is not a proper party to defend the

Injunction in an adversarial proceeding before this Court.

The City contends that its interests are not truly adverse to

McKusick's and that this lawsuit therefore requests the Court to

render an impermissible advisory opinion. The City relies on

United States National Bank v. Independent Insurance Agents, 508

U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993), Princeton

University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855

(1982), and Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d

947 (1968), in support of that contention. McKusick contends that

the City's role as enforcer of the injunction renders it the only

proper defendant in this lawsuit, because the City is the only

party that can be enjoined from enforcing the injunction against

McKusick and other similarly situated nonparties.

Federal courts lack the power to issue advisory opinions.

The City's citations to United States National Bank, 508 U.S. at

445, 113 S.Ct. at 2178, and Flast, 392 U.S. at 100, 88 S.Ct. at

1952-53, support that basic proposition, as do countless other

cases. However, the specific question that basic proposition

brings into focus in this case is whether these parties before this

Court are sufficiently opposed to prevent any decision that is

rendered from being impermissibly "advisory." The City argues that

the Princeton case answers that question.

In Princeton, the Supreme Court dismissed an appeal for want

of jurisdiction because the State of New Jersey (the only party

with standing) took no position whatsoever on the merits of the

case. 455 U.S. at 102-03, 102 S.Ct. at 868-69. In contrast, the

City in this case has taken, albeit reluctantly, a position on the

merits. Indeed, the City's position on the merits, which is

contrary to McKusick's position, is spelled out in detail in

twenty-one pages of its brief to this Court. In view of that fact,

we cannot accept the City's argument that it is "neutral," no

matter how much it might wish to be. Moreover, the City—and only

the City—is the entity enforcing the injunction in a manner

McKusick finds objectionable.3 Though the City might sincerely

wish to be relieved of the burden of enforcing the injunction, it

is the City that has been enforcing it and continues to do so;

moreover, the City's brief defends the injunction against

McKusick's attack. Therefore, this is not an "ill-defined,"

3

The City did move to dismiss McKusick's lawsuit for failure

to join the Aware Woman Center for Choice as a necessary party

under Federal Rule of Civil Procedure 19(a). However, the

district court never ruled on the motion, because it dismissed

the case for failure to state a claim upon which relief can be

granted. On appeal, the City does not press the merits of that

motion, and we do not either.

"hypothetical or abstract," "friendly," "feigned," or "collusive"

lawsuit of the variety condemned by Flast, 392 U.S. at 100, 88

S.Ct. at 1952-53 (citations omitted), and other cases. We do have

jurisdiction to determine this appeal.

IV. WHETHER McKUSICK STATED A COGNIZABLE § 1983 CLAIM

A private party may obtain relief against a municipality

under § 1983 when the allegedly unconstitutional municipal action

"implements or executes a policy statement, ordinance, regulation,

or decision officially adopted and promulgated by that body's

officers," or when the alleged constitutional violation results

from municipal "custom." Monell v. Department of Social Servs.,

436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611

(1978). The presence of a municipal policy or custom is essential,

because municipal liability under § 1983 can attach only when "a

deliberate choice to follow a course of action is made from among

various alternatives by the official or officials responsible for

establishing final policy with respect to the subject matter in

question," Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106

S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (citing Oklahoma City v.

Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791

(1985)).

The district court held that the City's enforcement of the

injunction is not an actionable policy or custom under § 1983 and

dismissed the complaint for failure to state a claim upon which

relief can be granted. The district court reasoned that "[w]here

a court enjoins local law enforcement to do something or refrain

from doing something, compliance with the injunction is not a

matter of choice. The local authorities so act because the court

orders it to be done."

McKusick argues that the district court erred in holding that

her complaint failed to allege a cognizable policy or custom with

respect to enforcement of the injunction. She contends that the

injunction, by its terms, does not run against the City.

Therefore, she reasons, the injunction does not "enjoin local law

enforcement to do something or refrain from doing something," and

the district court was mistaken in thinking otherwise. The

pertinent part of the enforcement mechanism of the injunction reads

as follows:

Law enforcement authorities, pursuant to the protective

provisions of the court's order, are authorized to arrest

those persons who appear to be in willful and intentional

disobedience of this injunction. Upon such arrest the person

so arrested shall be admitted to bail upon the posting of a

$500 cash or surety bond.... In the event of arrest and no

bond being posted, the person arrested shall be promptly

transferred to the Seminole County jail.... Such arrested

person shall be brought before the undersigned judge no later

than 8:30 a.m. of the day following his confinement in the

Seminole County jail.

As McKusick correctly points out, the injunction authorizes, but

does not command, local law enforcement to arrest those persons who

appear to be in violation of the injunction.

Reasonably construed, McKusick's complaint alleges that the

City has developed an administrative construction of the injunction

that causes it to arrest all antiabortion protestors found within

the 36-foot buffer zone, not just parties named in the injunction

or who are shown by probable cause to be acting in concert with

those named parties. The City has as much as admitted placing such

a construction on the injunction. At the district court hearing on

the injunction, the City Attorney made the following statement

about the City's enforcement procedure:

We can only enforce the injunction by bringing before the

court those persons who by their objective behavior, do

certain things that we believe are violative of the

injunction. The City of Melbourne cannot decide whether or

not they intended to support them or whether or not they were

members of Operation Rescue. These people do not wear badges

saying, "I'm with Operation Rescue" when they're picketing and

protesting out there.

Under the terms of the injunction itself, the City could elect

not to arrest anyone at all. It could choose only to arrest those

persons who, based upon prior experience, it knows to be acting in

concert with named parties. It could, prior to making an arrest,

question anyone found within the buffer zone or nearby in order to

make a determination about whether the person is acting in concert

with named parties to the injunction. McKusick's complaint alleges

that the City has made a deliberate policy choice not to follow any

of those alternatives. We agree with McKusick that the development

and implementation of an administrative enforcement procedure,

going beyond the terms of the injunction itself, leading to the

arrest of all antiabortion protestors found within the buffer zone,

including persons not named in the injunction nor shown by probable

cause to be acting in concert with named parties, would amount to

a cognizable policy choice.4 Therefore, the district court erred

4

We are not persuaded that the existence of the policy

choice that McKusick alleges would be vitiated by the fact that,

in an order denying a motion by the City to intervene and to

clarify the injunction, the state court "directed" the City "to

continue to enforce the injunction to the best of its ability in

good faith and with good motive." In that order, the state court

explained that "any effort to provide clarification as sought by

the motion could be construed as a modification or as another

substantive order subject to appeal, and hence would be

inappropriate." In the course of denying the City's motion, the

in dismissing the complaint for failure to state a claim under §

1983. We turn now to McKusick's claim that the injunction is

facially overbroad, and thereafter to her claim that she is

entitled to a federal injunction to prohibit its enforcement

against her.

V. FACIAL VALIDITY OF THE INJUNCTION

McKusick argues that the injunction is unconstitutionally

overbroad because: (1) the injunction attempts to bind the world

at large, impermissibly regulating the expressive activities of

persons over whom the court lacks jurisdiction; and (2) the

injunction authorizes the police to arrest persons based on less

than probable cause. The City argues that McKusick has misread the

injunction, and that the injunction does not attempt to bind the

world at large or authorize any arrest based on less than probable

cause. We address each of these issues in turn.

A. Does the Injunction Purport to Bind the World at Large?

McKusick argues that no court can issue an injunction that

binds the world at large, and that a speech-based injunction that

attempts to bind nonparties creates an unconstitutional restraint

state court specifically declined either to make the City a party

to the injunction or to narrow the range of enforcement

alternatives made available to the City by the terms of the

injunction itself. It would be anomalous if the very order

through which the state court declined to make the City a party

to the injunction and declined to modify the injunction in any

way were construed as a judicial adoption of the City's own

enforcement policy choice, regardless of whether that choice is

constitutional, supported by the terms of the injunction, or was

even before the state court. We decline to give the state

court's order such an anomalous construction.

5

on speech. That may or may not be true. However, it is

irrelevant in this case, because the injunction at issue does not

attempt to bind the world at large. McKusick's argument that it

does is based primarily on the following language:

ORDERED AND ADJUDGED that any City of Melbourne police officer

or other person authorized to serve process may serve a copy

of this order on any individual who may not have otherwise

received notice of the order. Such officer may read the

operative prohibitory language of this order to any individual

who is without notice of this order, and such service or oral

notice shall subject the person so served or noticed to the

sanctions provided for herein for failure to comply herewith.

McKusick argues that "Judge McGregor's transcursion of

judicial authority was at once complete when he extended the scope

5

There is substantial case law to the effect that a court

lacks equitable power to issue an injunction that binds the world

at large. See, e.g., Regal Knitwear Co. v. National Labor

Relations Bd., 324 U.S. 9, 13, 65 S.Ct. 478, 481, 89 L.Ed. 661

(1944) ("The courts ... may not grant an enforcement order or

injunction so broad as to make punishable the conduct of persons

who act independently and whose rights have not been adjudged

according to law."); Alemite Mfg. Corp. v. Staff, 42 F.2d 832,

833 (2nd Cir.1930) (Hand, J.) ("[A court] cannot lawfully enjoin

the world at large, no matter how broadly it words its decree.").

It is not completely clear, however, whether this is a

constitutional rule, or simply a basic equitable principle. See

Chase Nat. Bank v. City of Norwalk, Ohio, 291 U.S. 431, 437, 54

S.Ct. 475, 477, 78 L.Ed. 894 (1934) (stating that an injunction

against independent nonparties "violates established principles

of equity jurisdiction and procedure").

While separation of powers principles might well

prevent a federal court from issuing an injunction against

the world, it is a state court injunction that is at issue

in this case. Because the federal courts are not the

guardians of the separation of powers within the states,

e.g., Sweezy v. State of New Hampshire, 354 U.S. 234, 255,

77 S.Ct. 1203, 1214, 1 L.Ed.2d 1311 (1957), McKusick cannot

properly rely on those principles in making her overbreadth

argument. There may be other constitutional principles,

such as due process, that would prevent a state court from

issuing an injunction that purported to bind nonparties who

have no notice or opportunity to be heard prior to the

issuance of the injunction. This Court does not have to get

to that, however, unless McKusick is reading the injunction

correctly, which she is not.

of the injunction to "any individual.' " The City responds that

"McKusick errs in attempting to isolate the challenged provision

from the rest of the injunction" because "fundamental rules of

construction ... require that a legal instrument be examined in its

entirety." The City argues that, although the injunction

authorizes police officers to read the injunction's prohibitory

language to any individual, that prohibitory language, by its own

terms, only applies to named parties and those acting in concert

with them.

In our view, McKusick's interpretation of the injunction is

foreclosed by the Supreme Court's interpretation of this same

injunction in Madsen. In that decision, the Supreme Court based

its holding that the injunction is content-neutral on the fact that

the injunction is targeted at a particular group—the named parties

and those acting in concert with them—whose activities had become

disruptive. In explaining its holding on content-neutrality, the

Supreme Court stated:

We begin by addressing petitioners' contention that the

state court's order, because it is an injunction that

restricts only the speech of antiabortion protesters, is

necessarily content or viewpoint based.... To accept

petitioners' claim would be to classify virtually every

injunction as content or viewpoint based. An injunction, by

its very nature, applies only to a particular group (or

individuals) and regulates the activities, and perhaps the

speech, of that group. It does so, however, because of the

group's past actions in the context of a specific dispute

between real parties.... [T]he court hearing the action is

charged with fashioning a remedy for a specific deprivation,

not with the drafting of a statute addressed to the general

public.

Madsen, --- U.S. at ----, 114 S.Ct. at 2523 (emphasis added). That

explanation makes it clear that the Supreme Court did not give the

injunction the interpretation that McKusick now urges. If it had

done so, the Court could not have reached the conclusion that the

injunction is content-neutral. Stated somewhat differently, if the

Supreme Court had interpreted the injunction as an order against

the world to refrain from speech activities expressing a particular

viewpoint—specifically, an antiabortion viewpoint—within the 36-

foot buffer zone, it almost certainly would not have concluded that

the injunction is content-neutral.

That the majority in Madsen viewed the injunction as being

targeted at a narrowly defined group of persons, instead of at the

world at large, is underscored by the separate concurring opinions

of Justices Souter and Stevens. Justice Souter emphasized that the

trial judge who issued the injunction "made reasonably clear that

the issue of who was acting "in concert' with the named defendants

was a matter to be taken up in individual cases, and not to be

decided on the basis of protesters' viewpoints." Id. at ----, 114

S.Ct. at 2530 (Souter, J., concurring). Similarly, Justice Stevens

stressed:

[While] legislation is imposed on an entire community, ...

injunctions apply solely to an individual or a limited group

of individuals.... Given this distinction, a statute

prohibiting demonstrations within 36 feet of an abortion

clinic would probably violate the First Amendment, but an

injunction directed at a limited group of persons who have

engaged in unlawful conduct in a similar zone might well be

constitutional.

Id. at ----, 114 S.Ct. at 2531 (Stevens, J., concurring).

McKusick asks this Court to reinterpret the injunction,

contrary to the way the Supreme Court has interpreted it, and then

to declare the injunction, as reinterpreted, unconstitutional. Of

course, we cannot do that. Because the injunction, as construed by

the Supreme Court, does not bind the world at large, the injunction

cannot be unconstitutional on grounds that it does. Questions

about the constitutionality of an injunction against the world at

large are academic insofar as this injunction is concerned.

B. Does the Injunction Authorize Arrest Without Probable Cause?

McKusick argues that the injunction authorizes arrests without

probable cause because it states that "[l]aw enforcement

authorities, pursuant to the protective provisions of the court's

order, are authorized to arrest those persons who appear to be in

willful and intentional disobedience of the injunction." McKusick

reasons that this language authorizes arrest on less than a

reasonable ground to believe that a person is a named party or

acting in concert with a named party. The City argues that

McKusick has again misinterpreted the injunction because the

"enforcement provision," like every other part of the injunction,

is subject to the injunction's limiting language that applies its

proscriptions only to named parties and those acting in concert

with named parties.

As we have already held, the injunction applies only to named

parties and those acting in concert with them. By its plain words,

the injunction only authorizes arrest for those who appear to be in

willful disobedience of it. It follows that the injunction only

authorizes the arrest of named parties, or those acting in concert

with them, who appear to be acting in willful disobedience of the

injunction. McKusick seizes upon the word "appear" in the

injunction's enforcement provision, and contends that "appear" is

less than probable cause to believe. We do not know why it should

be interpreted in such a fashion, even in the abstract. Moreover,

the word "appear" is but one word in the phrase "appear to be in

willful and intentional disobedience of the injunction." In

context, the enforcement provision authorizes arrest of persons

who, because of their own objective manifestations and because of

other factors that may be relevant to a particular factual

scenario, reasonably appear to be—i.e., give the police probable

cause to believe that they are—named parties to the injunction or

acting in concert with named parties, and engaged in actions in

violation of the injunction. True enough, the injunction does not

use the words "probable cause" or attempt to describe what factors

will suffice for a showing of probable cause. However, no

principle of law requires that injunctions use magic words or

provide hornbook expositions on probable cause. Nor does any

principle of law mandate that we interpret an injunction in a way

that would undermine its validity. McKusick's facial challenge to

the injunction is without merit. We turn now to her as-applied

challenge, and to her claim that she is entitled to federal

injunctive relief on that basis.

VI. McKUSICK'S AS-APPLIED CHALLENGE AND THE PROPRIETY OF FEDERAL

INJUNCTIVE RELIEF

Because the injunction neither purports to bind the world at

large nor authorizes arrests without probable cause, McKusick's

arguments that the injunction is unconstitutional on its face must

fail. However, because McKusick also makes an as-applied challenge

to the injunction, the question remains as to whether she is

entitled to federal court injunctive relief against application of

the state court injunction to her. The crux of McKusick's

as-applied challenge is that, regardless of how the injunction

should be interpreted, the City has adopted an administrative

construction of the injunction that applies it against the world

and authorizes arrests without probable cause. She further alleges

that she has been threatened with such an arrest.

McKusick is not a named party to the injunction and claims not

to be acting in concert with any named party. Taking the

allegations in her complaint as true, she did nothing but enter the

36-foot buffer zone to read her Bible and pray. Shortly after

doing so, she was asked to leave the buffer zone on pain of arrest.

So far as the complaint's averments go, the officer did nothing to

determine whether McKusick was a named party or acting in concert

with a named party; the officer simply stated to McKusick, "You

are in violation of a court-ordered injunction signed by Judge

Robert McGregor by demonstrating within the thirty-six foot buffer

zone. Please return to the area outside the thirty-six foot zone."

The officer then told McKusick he would arrest her if she did not

leave the zone.

McKusick fears that, unless she obtains an injunction, she

will be arrested and prosecuted if she attempts to read her Bible

and pray within the buffer zone. This fear appears to have some

foundation, as the City's self-described methodology for enforcing

the injunction evidences, see supra Part IV. Moreover, the

Appendix to Justice Scalia's dissenting opinion in Madsen indicates

that others have been arrested who vigorously disclaim any

association with the named parties. See Madsen, --- U.S. at ---- -

----, 114 S.Ct. at 2550-52 (Scalia, J., dissenting). At oral

argument in this Court, counsel for the City indicated that more

than 150 people have been arrested for violating the buffer zone.

However, counsel further stated that none of those people were

later found to be acting independently from the named parties to

the injunction.

Taking as true the allegations in McKusick's complaint, the

City of Melbourne police have arrested or threatened to arrest at

least some antiabortion protestors who violate the buffer zone

without making much, if any, inquiry into whether the protestors

are named parties to the injunction, or acting in concert with

named parties, other than examining the content of the protestors'

speech. McKusick seeks an order from the federal district court

telling the Melbourne police that they must not merely look to the

content of a person's buffer zone speech when determining whether

probable cause exists to support an arrest. She wants a federal

court to instruct the City that its inquiry must, on pain of

federal contempt, be more probing than that. In other words,

McKusick wants a federal judge to order the City to do its job

properly, and to refrain from over-enforcing the injunction against

her or anyone else.

There are important principles that counsel against issuance

of the sort of injunction McKusick seeks. Recently, these

principles were ably discussed by the Seventh Circuit in Hoover v.

Wagner, 47 F.3d 845 (7th Cir.1995), which involved facts remarkably

similar to those in this case. In Hoover, antiabortion activists

who were not named parties to a state court injunction brought a

federal § 1983 action against a state court judge and a chief of

police to challenge the injunction. Like McKusick, the Hoover

plaintiffs sought a declaration that the injunction was overbroad.

Also like McKusick, the Hoover plaintiffs wanted to enjoin the

police from over-enforcing the injunction. Relying on principles

of federalism and comity, the Seventh Circuit held that the

district court properly refused to issue an injunction and

dismissed the case. Writing for the Court, Chief Judge Posner

explained:

Equitable remedies are powerful, and with power comes

responsibility for its careful exercise. These remedies can

affect nonparties to the litigation in which they are sought;

and when, as in this case, they are sought to be applied to

officials of one sovereign by the courts of another, they can

impair comity, the mutual respect of sovereigns—a legitimate

interest even of such constrained sovereigns as the states and

the federal government.... [T]here is not an absolute right

to an injunction in a case in which it would impair or affront

the sovereign powers or dignity of a state or a foreign

nation.

... The relief that the plaintiffs seek is at once an

insult to the judicial and law enforcement officials of

Wisconsin ... and an empty but potentially mischievous command

to these officials to avoid committing any errors in the

enforcement of the injunction—and if a plaintiff were

erroneously convicted for violating the state court

injunction, would that put the prosecutor, the judge, and, if

there were a jury, the jury in contempt of the federal

injunction?

Hoover, 47 F.3d at 850-51 (citations omitted).

Like the remedy sought by the Hoover plaintiffs, the remedy

McKusick seeks here is "potentially mischievous." It is difficult

to imagine how the injunction McKusick seeks might usefully be

framed. A general injunction against the City to refrain from

arresting without probable cause would add nothing to what the law

already commands, unless the district court improperly indulged in

an advisory opinion instructing the City about what can and cannot

constitute a showing of probable cause in such a circumstance.

Even if the district court were able to frame the injunction

McKusick seeks in a meaningful way, it would be ill-advised to do

so, because the federal injunction would pave the way for virtually

every individual held in contempt of the state court injunction to

argue, on a case-by-case basis in federal court, that the City had

violated the federal injunction by failing to make a sufficient

probable cause determination prior to arrest, or had simply reached

the wrong conclusion about it. This arrangement would thrust the

federal court into an unseemly, repetitive, quasi-systematic,

supervisory role over administration of the state court injunction,

and it "would disrupt the normal course of proceedings in the state

courts via resort to the federal court for determination of the

claim ab initio," O'Shea v. Littleton, 414 U.S. 488, 501, 94 S.Ct.

669, 679, 38 L.Ed.2d 674 (1974). A federal court injunction in

this case would be of the "intrusive and unworkable" variety

condemned by the Supreme Court in O'Shea, 414 U.S. at 500, 94 S.Ct.

at 678. In such a circumstance, principles of federalism and

comity dictate that the federal court stay its hand. See Growe v.

Emison, 507 U.S. 25, 32, 113 S.Ct. 1075, 1080, 122 L.Ed.2d 388

(1993) (noting that, in some circumstances, principles of

federalism and comity dictate abstention). Under these

circumstances, the district court certainly did not abuse its

discretion by declining to arrogate to itself the role of overseer

of the enforcement of a state court injunction.

Although principles of federalism and comity counsel

otherwise, McKusick contends that she was nonetheless entitled to

an injunction. She points to Machesky v. Bizzell, 414 F.2d 283

(5th Cir.1969), in support of that contention. In Machesky,

persons who desired to picket in certain public areas of Greenwood,

Mississippi brought an action in federal court to challenge a state

court injunction that prohibited all such picketing. The

plaintiffs sought declaratory and injunctive relief against

enforcement of the state court injunction. Id. at 284. The

district court denied relief and dismissed the complaint, holding

that the action was barred by the Anti-Injunction Act, 28 U.S.C. §

2283. Id. On appeal, this Court reversed. We held that although

the Anti-Injunction Act is grounded in principles of comity,

"[w]here ... the institutional interests in comity collide[ ] with

the paramount institutional interests protected by the First

Amendment, comity must yield." Id. at 291. Because the state

court injunction at issue was facially overbroad, we remanded for

the district court to consider granting injunctive relief. Id.

Assuming for present purposes that it has survived O'Shea,

the Machesky decision is distinguishable from this case. The

propriety of federal equitable relief in Machesky was premised on

the presence of a facially overbroad injunction. As we explained

in that case:

The right to [demonstrate] is not absolute. It must be

asserted within the limits of not unreasonably interfering

with the rights of others to use the sidewalks and streets, to

have access to store entrances, and where conducted in such

manner as not to deprive the public of police and fire

protection. These interests can, of course, be protected by

state injunctions narrowly drawn. The injunction here,

however, has not struck such a balance. It prohibits all

picketing in the designated business areas of Greenwood, for

whatever purpose and in whatever manner carried out. This

overshoots the mark....

....

We hold that the state court injunction here is

unconstitutionally overbroad in that it lumps the protected

with the unprotected in such a way as to abridge important

public interests in the full dissemination of public

expression on public issues.

Id. at 290-91 (citations and internal quotation marks omitted).

Here, as we have explained in Part V of this opinion, we are not

faced with a facially overbroad injunction. Instead, we are faced

with a facially valid injunction and a plaintiff who seeks a

federal court order prohibiting its over-enforcement. 6 In such a

circumstance, private interests in obtaining a preemptive strike

against overenthusiastic enforcement of a facially valid injunctive

order must yield to the institutional interests of federalism and

comity. We note that if McKusick should ever be wrongfully

arrested or punished for the exercise of her First Amendment

rights, she will have remedies through which to vindicate those

rights. For example, any future claims for damages that McKusick

might bring for an arrest without probable cause would not be

subject to dismissal under the abstention principles governing her

present claim for equitable relief. See, e.g., Quackenbush v.

6

Judge Barkett's concurring opinion proposes that we dismiss

McKusick's case "without reaching an analysis of the facial

validity of the injunction." However, our Machesky precedent

forecloses her proposal. Machesky holds that where an injunction

is attacked on First Amendment grounds and is facially overbroad,

abstention for comity and federalism reasons is inappropriate.

Otherwise, the result in Machesky would have been different. See

414 F.2d at 290-91. Moreover, Machesky's holding is consistent

with the abstention principles announced by the Supreme Court.

See City of Houston, Tex. v. Hill, 482 U.S. 451, 467, 107 S.Ct.

2502, 2513, 96 L.Ed.2d 398 (1987) ("We have held that "abstention

... is inappropriate for cases [where] ... statutes are

justifiably attacked on their face as abridging free expression.'

")) (quoting Dombrowski v. Pfister, 380 U.S. 479, 489-90, 85

S.Ct. 1116, 1122, 14 L.Ed.2d 22 (1965)) (alterations in City of

Houston ).

Allstate Ins. Co., --- U.S. ----, ---- - ----, 116 S.Ct. 1712,

1720-23, 135 L.Ed.2d 1 (1996).

VII. CONCLUSION

For the foregoing reasons, we VACATE the portion of the

district court's order that dismissed McKusick's complaint for

failure to state a claim upon which relief can be granted. We

AFFIRM the denial of preliminary injunctive relief, and we REMAND

the case for further proceedings consistent with this opinion.7

BARKETT, Circuit Judge, specially concurring:

7

Although the district court did not rely upon them in

dismissing McKusick's case, and instead dismissed the case for

failure to state a claim under § 1983, we note that the same

principles of federalism and comity that govern our analysis of

McKusick's claim for preliminary injunctive relief apply with

equal force to her claim for permanent injunctive relief, and to

her claim for declaratory relief. See Hoover v. Wagner, 47 F.3d

845, 849-52 (7th Cir.1995); see also Green v. Mansour, 474 U.S.

64, 72, 106 S.Ct. 423, 427-28, 88 L.Ed.2d 371 (1985) (discussing

the discretionary nature of declaratory relief). Therefore, just

as the district court did not abuse its discretion in denying

McKusick preliminary injunctive relief, it necessarily follows

that it would not be an abuse of discretion for the district

court to deny McKusick permanent injunctive relief or declaratory

relief on those grounds as well.

In her concurring opinion, Judge Barkett invites us to

take the foregoing analysis one step further and hold that

McKusick's entire case is due to be dismissed on equitable

grounds. Her approach would require us to hold not only

that the district court did not abuse its discretion in

denying McKusick preliminary injunctive relief, but also

that the district court would abuse its discretion if it

granted any sort of equitable relief in this case. That may

well be so. However, we are convinced that the more

appropriate course is for us to allow the district court the

opportunity to address that matter in the first instance.

See Macklin v. Singletary, 24 F.3d 1307, 1311 (11th

Cir.1994) ("Because our scope of review is narrower and a

district court's range of choice broader under the abuse of

discretion standard, we should be more reluctant to address

in the first instance issues to which that standard of

review applies."), cert. denied, --- U.S. ----, 115 S.Ct.

1122, 130 L.Ed.2d 1085 (1995).

Rather than reversing and remanding for the trial court to do

so, I would dismiss the declaratory claim on the same equitable

grounds that the majority employs to dismiss the claim for

injunctive relief without reaching an analysis of the facial

validity of the injunction or the appropriateness of resolving that

issue with only the parties involved here. The declaration

McKusick seeks is a declaration that the City of Melbourne cannot

engage in certain conduct, and such a declaration is the equivalent

of an injunction. Samuels v. Mackell, 401 U.S. 66, 72-73, 91 S.Ct.

764, 767-68, 27 L.Ed.2d 688 (1971); Hoover v. Wagner, 47 F.3d 845,

849 (7th Cir.1995). Therefore, for the same equitable reasons we

dismiss McKusick's claim for injunctive relief, we should dismiss

her claim for declaratory relief. I recognize that the majority

remands the declaratory claim back to the district court

anticipating that the district court will dismiss the remaining

claim. This course, however, seems unnecessary. We routinely

uphold a district court's dismissal of a case when an alternate

grounds for dismissal exists. See, e.g., Rozar v. Mullis, 85 F.3d

556, 558 (11th Cir.1996); Hester v. International Union of

Operating Engineers, et. al., 830 F.2d 172 (11th Cir.1987); see

also Hoover, 47 F.3d 845 (7th Cir.1994). I would do so in this

instance.