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December 28, 1973


The opinion of the court was delivered by: Will, District Judge.


Plaintiffs, International Society for Krishna Consciousness, Inc. (Krishna), William Bowes, Robert H. Lindberg and Chris Allen, have brought this action for injunctive and declaratory relief alleging the deprivation of their constitutional rights under color of state law in contravention of 42 U.S.C. § 1983. They invoke the jurisdiction of this court under 28 U.S.C. § 1343, 2201 and 2202. Defendants have moved to dismiss the complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. Should the court find it has jurisdiction and that a claim has been stated, the parties have stipulated to certain uncontested facts and have submitted briefs on the question of the constitutionality of certain ordinances of the City of Chicago as they have been applied to plaintiffs' activities.*fn1 For the reasons set out below, defendants' motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim will be denied, four of the challenged ordinances will be declared unconstitutional as applied, and the resolution of the issue of the constitutional applicability of the remaining two ordinances will be deferred to the state courts.


The International Society for Krishna Consciousness, Inc. (Krishna) is an international religious society, espousing the religious and missionary views of Krishna Consciousness. It is duly organized as a not-for-profit religious corporation under the laws of the State of New York and maintains a local center in Evanston, Illinois. The Krishna organization imposes on its members the duty to perform a religious ritual known as Sankirtan, which consists of religious chants, dancing, playing of sacred instruments, shuffling to the beat of the chanting, and soliciting and accepting donations and contributions while disseminating religious literature, all on public ways and in public places. The parties have stipulated to the religious nature of these activities, which are a part of Krishna's effort to spread its beliefs, attract new members and support its activities. Krishna's members wear distinctive garments and hairstyles. Their conduct, appearance and manner is unconventional.

The complaint alleges that, while engaged in the practice of Sankirtan on the public streets of Chicago, many of the society's members have been subjected to unlawful and unconstitutional actions by defendants and their agents, all policemen or other officials of the City of Chicago. These actions, it is alleged, evidence a pattern of harassment which has resulted in preventing plaintiffs from exercising their constitutionally protected First Amendment rights to freedom of religion, association, assembly and expression; and, under the Fourth Amendment, to be free from arrests and searches made without probable cause. They contend that they are now suffering and will continue to suffer irreparable injury and that they have no adequate remedy at law to redress these deprivations of their constitutional rights.

They seek an injunction against further proceedings in state court criminal prosecutions which are currently pending against members of the organization, a declaration that the six challenged ordinances under which these prosecutions have been brought are unconstitutional as applied to plaintiffs' conduct, an order expunging all police records made on plaintiffs and an award of damages in the amount of $25,000.


Defendants' motion to dismiss the complaint for lack of jurisdiction over the subject matter is unfounded. This court has jurisdiction over actions brought under § 1983 of the Civil Rights Act by virtue of 28 U.S.C. § 1343. And, in light of the Supreme Court's decision in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), which held that § 1983 was one of the "expressly authorized" exceptions to the anti-injunction statute, 28 U.S.C. § 2283, the pendency of criminal proceedings in state court cannot be raised as a bar to the existence of federal jurisdiction.

The real issue is whether the court should decline to exercise that jurisdiction in light of the historic policy of refusing to interfere with pending criminal proceedings absent extraordinary circumstances. Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926), Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Defendants contend we must abstain, arguing that the complaint falls short of the standards set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), where the Supreme Court delineated the types of extraordinary situations which warrant federal injunctive and declaratory relief. We disagree, finding that the stipulation of uncontested facts and the allegations of the complaint are sufficient to warrant our intervention into most of the criminal prosecutions pending against plaintiffs.

The standard set out in the Younger v. Harris sextet of cases declares abstention to be proper unless there is a showing: 1) that there is irreparable injury both "great and immediate," 401 U.S. at 46; 2) that the state law being challenged is "flagrantly and patently violative of express constitutional prohibitions" on its face, 401 U.S. at 53; or 3) that there is and has been "bad faith, harassment, or . . . other unusual circumstances that would call for equitable relief." 401 U.S. at 82. In the companion case of Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), the Court elaborated on the requisites of the third ground, which is particularly appropriate here, explaining that situations involving "prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction" would justify federal injunctive relief. The facts of this case fall well within this standard.

Because of the concededly religious character of many of the activities for which plaintiffs have been arrested, the prosecutions being pursued under four of the six challenged ordinances cannot, in good faith, have been brought with any hope of obtaining valid convictions.*fn2 There are longstanding and unambiguous principles of constitutional law which preclude the applicability of these ordinances to plaintiffs' actions. Yet, a full twenty-five of the twenty-seven prosecutions currently pending in the Circuit Court of Cook County charge violations under these four ordinances. They involve arrests made on ten separate occasions against eighteen different individual members of the local Krishna chapter.*fn3 (At the height of its membership this chapter only had a total number of 35). Particular individual members have been arrested on as many as four separate occasions, and the majority of arrests involve charges brought under two or more ordinances. In light of the number and pattern of prosecutions brought under these constitutionally inapplicable ordinances, we are unable to avoid a finding of bad faith and harassment. Defendants' protestations that there have been relatively few arrests when one considers the amount of time members of the plaintiff society have been present on Chicago streets misses the point entirely. Since plaintiffs had a right to be on Chicago streets, engaged in the activities they were pursuing without fear of arrest under these four ordinances, the prosecutions brought are far too numerous to be dismissed as innocent, casual or insignificant.

We also find that these facts refute defendants' contention that the as-yet unproved allegations of the complaint regarding other forms of harassment are without any underlying basis of support. Plaintiffs claim they have been subjected to numerous verbal threats of arrest, commands to cease the lawful and orderly practice of their religion, and the forfeiture of their religious instruments. They also allege they have been the victims of invidiously selective enforcement. As a result of being faced with these actual and threatened arrests and other forms of harassment, plaintiffs contend they have been forced to curtail their activities and that, as a result, the recruitment of new adherents and the level of donations have fallen off substantially. Finally, given the multiplicity of actions, individuals and charges involved in the pending state court actions, they are burdened with significantly more than the mere "cost, anxiety, and inconvenience of having to defend against a single criminal prosecution." Younger, 401 U.S. at 46.

In light of all these factors, we find the exercise of jurisdiction appropriate in this case, and will proceed with a consideration of the merits of plaintiffs' challenge to six of the municipal ...

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