Giaimo v. MacKinnon, et al. CV-00-389-JD 10/20/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Victor Giaimo, Michael Kalil, and Rockingham Trading Post, LP

v. Civil No. 00-389-JD Opinion

Stephen MacKinnon, Mark Sambataro, and the Town of Salem, New Hampshire

O R D E R

Plaintiffs Victor Giaimo and Michael Kalil are principals of

the Rockingham Trading Post, LP, a licensed pawnbroker located in

the town of Salem, New Hampshire. Theplaintiffs bring a civil

rights action pursuant to

, along with pendent

state law claims, arising from the defendants' practice of

seizing items from the Trading Post without a warrant and related

procedures. In response to the plaintiffs' motion for a

preliminary injunction, the magistrate judge recommended that the

court abstain from considering an injunction against a pending

misdemeanor proceeding in the Salem District Court, but

recommended that the defendants be preliminarily enjoined from

removing from the Trading Post, without a search warrant, any

articles of personal property pledged, pawned, hypothecated, or

sold to the plaintiffs. The defendants object to the magistrate

judge's recommendation. Discussion

The magistrate issued a report and recommendation following

a hearing held on September 8, 2000. The court makes a de novo

determination of any objections raised concerning the

magistrate's report. See

(b)(1); Fed. R. Civ.

P. 72(b). The court "may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate."

The parties do not object to the magistrate's background

facts, as distinct from the recommended conclusions. Since the

undisputed background facts as summarized by the magistrate

appear to be accurate, based on the record presented, the court

accepts the magistrate's summary for purposes of considering the

objections to the recommendation for preliminary injunctive

relief. See Elmendorf Grafica, Inc. v. D.S. America (East),

Inc.,

(1st Cir. 1995). The background facts will

not be repeated in this order except as may be necessary for the

discussion.

The plaintiffs are being prosecuted in two state criminal

proceedings that involve property taken from the Trading Post.

In May of 2000, plaintiffs Giaimo and Kalil refused to relinquish

pawned property to defendant Salem Police Officer Sambataro, who

2 did not have a warrant to search for or seize the property. The

plaintiffs were charged in Salem District Court with violations

of N.H. Revised Statutes Annotated ("RSA") § 398:13. Previously,

in March of 2000, Giaimo and Kalil had been indicted in

Rockingham County on charges of theft by receiving stolen

property based on articles seized from the Trading Post by the

Salem police also without a warrant. Both the Salem District

Court and Rockingham County proceedings remain pending at this

time.

Both the town ordinance and the state statute pertaining to

pawnshops are referenced in this case. In their complaint, the

plaintiffs challenge a section of the "Second Hand

Dealer/Pawnbroker Ordinance" of the town of Salem, titled

"Removal of Articles by Police Officers," and the conduct of the

defendants pursuant to the ordinance.1 See Salem, N.H. Mun. Code

1The challenged ordinance directs the Salem police department to seize, "pursuant to applicable criminal procedures," evidence from pawn shops that the police have determined is needed for evidence in a criminal investigation. Salem, N.H. Mun. Code § 2 5 1 - 7 (A). The police are required to issue a receipt for the seized item. See i d . The ordinance also requires the police to keep seized articles "under the court's direction as long as necessary to permit the article to be used as evidence" and to notify the original owner, the dealer or pawnbroker, and any other person with a legal interest in the property " [a]t the conclusion of all court proceedings or closure of the police investigation," that the property will be released

3 § 251-7. In particular, the plaintiffs allege that the practices

of the Salem police, pursuant to the ordinance, of seizing

property from the Trading Post without a warrant, failing to keep

required records, and failing to return seized property violate

the Fourth and Fourteenth Amendments.

The state also regulates the activities of pawnbrokers. See

RSA ch. 398. RSA § 398:13 requires pawnbrokers to permit the

police to enter pawnshops and to examine pawned property.2 The

plaintiffs do not challenge the constitutionality of RSA §

398:13.

in thirty days to the original owner if no other claim is made for the property. I d . § 2 5 1 - 7 (B). Section 251-8 provides penalties for violations of chapter 251.

2RSA § 398:13 provides as follows:

The chief of police of a city, the selectmen of a town, or any officer authorized by either of them, may at any time enter upon any premises used by a licensed pawnbroker for the purposes of his business, ascertain how he conducts his business and examine all articles taken in inventories relating thereto. Every such pawnbroker, his clerk, agent, servant or other person in charge of the premises shall exhibit to such officer on demand any or all of such articles, books and inventories.

RSA 398:14 provides that violation of RSA 398:13 constitutes a misdemeanor.

4 5 In their motion for a preliminary injunction, the plaintiffs

seek to enjoin the defendants from removing any articles from the

Trading Post without a search warrant and from prosecuting Kalil

and Giaimo for violations of Salem Municipal Code § 251-7.3 The

magistrate judge concluded that injunctive relief against the

pending prosecution in the Salem District Court was barred by the

Younger abstention doctrine, and counsel for the plaintiffs

concurred in that result at the hearing.4 See Younger v. Harris,

(1971). Given the plaintiffs' acquiescence in the

magistrate's decision that abstention applied to bar their

request for injunctive relief from prosecution, the court accepts

the magistrate's recommendation to abstain. The court therefore

3The plaintiffs inexplicably ask that the defendants be enjoined from prosecuting George Stevenson, who is not a party in this action.

4The pending prosecutions against Giaimo and Kalil in Salem District Court are on charges of violating RSA 398:13. The plaintiffs, however, sought injunctive relief from prosecution for violating Salem Municipal Ordinance § 251-7, and there is apparently no pending prosecution based on violation of § 251-7. It would appear, therefore, that the Younger doctrine does not apply to the plaintiffs' specific request. Nevertheless, at the hearing, plaintiffs' counsel focused on the pending prosecution in Salem District Court for violations of RSA § 398:13 and agreed with the magistrate judge that the Younger abstention doctrine barred the requested relief. See Trans, of Sept. 8, 2000, at 4- 5.

6 abstains from considering the plaintiffs' request for injunctive

relief from the prosecution of the plaintiffs that is pending in

Salem District Court.

The magistrate judge recommended that the court grant the

plaintiffs' request for preliminary injunctive relief to enjoin

the defendants from removing from the Trading Post, without a

search warrant, any articles of personal property pledged,

pawned, hypothecated, or sold to Giaimo, Kalil, or the Trading

Post. The defendants object to the magistrate's recommendation,

contending both that Younger abstention bars the recommended

relief and that the plaintiffs are not entitled to preliminary

injunctive relief. The court concludes that the plaintiffs'

motion for preliminary injunctive relief is barred by the Younger

abstention doctrine.

As noted in the magistrate's report and recommendation,

ordinarily federal courts are obligated to exercise validly

existing jurisdiction. See Colorado River Water Conservation

Dist. v. United States,

(1976). Nevertheless,

in exceptional circumstances, federal courts have the power to

abstain from hearing cases, see Ouackenbush v. Allstate Ins. Co.,

(1996), and when abstention principles

apply, they are mandatory, see Colorado River,

,

n .22 .

7 Under the Younger abstention doctrine, the principles of

comity and federalism require federal courts to avoid

interference with pending state criminal proceedings. See

Younger,

; Rivera-Puig v. Garcia-Rosario,

(1st Cir. 1992). "Except in the most extraordinary

cases, a federal court must presume that state courts, consistent

with the imperatives of the Supremacy Clause, see U.S. Const,

art. VI, are fully competent to adjudicate federal constitutional

and statutory claims properly presented by the parties." Casa

Marie, Inc. v. Superior Court of Puerto Rico,

, 262

(1st Cir. 1993) (discussing abstention doctrine). Younger

abstention is appropriate, however, only if the state proceeding

affords an adequate opportunity to raise constitutional

challenges. See Middlesex Countv Ethics Comm, v. Garden State

Bar Ass'n,

(1982).

In this case, the plaintiffs seek a prospective preliminary

injunction to prevent the defendants from seizing, without a

search warrant, any articles of personal property, which were

pledged, pawned, hypothecated, or sold to the plaintiffs. Stated

in mandatory terms, the plaintiffs ask that the defendants be

required to obtain a search warrant before seizing any of the

described articles from the Trading Post. A necessary element of

the requested injunctive relief is a ruling that the plaintiffs are likely to succeed in showing that a search warrant is

constitutionally required to seize articles from the Trading

Post, meaning that warrantless seizures are likely to be found to

be illegal. See United Books, Inc. v. Conte,

(1st Cir. 1984).

The plaintiffs' request for injunctive relief raises the

issue of abstention under the Younger doctrine in light of the

two pending state criminal proceedings.5 In both cases, the

property in question was seized from the Trading Post by the

Salem police without warrants. A ruling in support of a

preliminary injunction that warrantless seizures from the Trading

Post are likely to be declared unconstitutional would call into

question the police activity in both proceedings, which

constitutes interference in the state proceedings.6 See United

5Although the defendants address only the Rockingham County prosecution in their objection to the magistrate's report and recommendation, neither side has informed the court that the Salem District Court proceeding has terminated.

6The magistrate notes that under RSA § 398:13, the statute charged in the Salem District Court proceeding, the prosecution must prove that the plaintiffs wilfully hindered, obstructed, or prevented the police from entering the shop or examining the pawned article. The magistrate concluded that the charged statute does not implicate the question of the legality of the seizure since it pertains only to entering the shop and examining pawned articles. Despite the apparently limited scope of the statute, the plaintiffs were charged with failing to relinquish

9 Books,

. That the plaintiffs seek a prospective

injunction does not remove the likely influence a ruling on the

constitutionality of the police seizures would have on the

pending proceedings. See i d . at 33 n.2; see also Ballard v.

Wilson,

(5th Cir. 1988); cf. Woolev v.

Maynard,

(1977) (permitting prospective

injunctive relief where no state action was pending); Doran v.

Salem Inn, Inc.,

(1975) (same as to preliminary

injunction); Rivera-Puig,

(same as to party

not involved in state proceedings).

The constitutionality of the seizures can be challenged in

property to the police. Therefore, whether or not the statute authorizes the charges brought against the plaintiffs, the charges directly implicate the legality of the seizure. With respect to the Rockingham County proceedings, the magistrate concluded that suppression of the seized articles would not affect the prosecution because the Trading Post's transaction records, with detailed descriptions of the pawned property, would supply the necessary evidence of the allegedly stolen articles. The defendants object on the ground that the transaction records are insufficient to show evidence of the plaintiffs' knowledge that the items were stolen, such as the original store packaging. Whether or not the prosecution would still be able to make a case against the plaintiffs in the Rockingham County proceeding if the seized articles were suppressed is irrelevant. Since it is likely that this court's ruling on the preliminary injunction will cause substantial interference in that proceeding by influencing the outcome of a motion to suppress abstention is an appropriate action to be considered.

10 each state court proceeding. As the magistrate noted, the

plaintiffs can challenge the evidence seized without a warrant in

the Rockingham County case through a motion to suppress. In the

Salem District Court proceeding, the plaintiffs can defend their

refusal to relinquish the property to the Salem police on the

ground that the demand was illegal in the absence of a warrant.

In sum, the likely interference in the pending state

criminal proceedings that would ensue from issuing a preliminary

injunction as requested by the plaintiffs requires the court to

abstain from the request. See United Books,

.

Abstention is warranted as to both requests for injunctive

relief. The plaintiffs have not argued that any of the narrow

exceptions to Younger abstention should apply in this case, and

therefore, having failed to raise the issue of an exception, they

have waived it. See Bettencourt v. Board of Registration in

Med., 904 F .2d 772, 780 (1st Cir. 1990) .

The report and recommendation of the magistrate to grant the

plaintiffs' request for an injunction to restrain the defendants

from seizing property from the Trading Post without a search

warrant is rejected. The parties have not addressed abstention

11 issues as to the claims in the plaintiffs' complaint, and the

court will not sua sponte consider abstention in that context.7

Conclusion

For the foregoing reasons, the plaintiffs' motion for a

preliminary injunction (document no. 3) is denied.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

October 20, 2000

cc: Ralph Stein, Esquire Donald E. Gardner, Esquire

7The injunctive relief sought in the plaintiffs' motion is broader than the relief requested in their complaint. In the motion, the plaintiffs aim generally at the defendants' conduct, without reference to § 251-7, while the relief requested in the plaintiffs' complaint is limited to enjoining the defendants from enforcing and prosecuting the plaintiffs under § 251-7.

12