Eric Gordon et al., Plaintiffs-appellants, v. Honorable Moon Landrieu et al., Defendants-appellees, 442 F.2d 926 (5th Cir. 1971)

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U.S. Court of Appeals for the Fifth Circuit - 442 F.2d 926 (5th Cir. 1971) March 17, 1971, Rehearing Denied and Rehearing En BancDenied April 28, 1971

Ronald J. Rakosky, New Orleans, La., for plaintiffs-appellants.

Blake G. Arata, and Joseph J. Laura, Jr., City Attys., Robert Tracy, Asst. City Atty., New Orleans, La., for defendants-appellees.

Before GEWIN, BELL and ALDISERT,1  Circuit Judges.


In this case the district court declared certain ordinances of the City of New Orleans, Louisiana unconstitutional and permanently enjoined their enforcement. The court also declared other ordinances of the city constitutionally valid and denied injunctive relief. In their complaint against the Mayor, City Attorney and Superintendent of Police, individually and in their respective official capacities, the appellants alleged that they had been arrested and charged with violation of the ordinances in question. They sought relief for themselves and all other citizens who had been arrested and charged under the ordinances, or who were threatened with future arrests.

It is sufficient to state that the ordinances in question relate to vagrancy, loitering, and the duty to 'move away' after having been directed to do so by a police officer. On oral argument this court was informed that the prosecutions in question have been dismissed and that no prosecutions are threatened. Moreover, the ordinances have now been repealed.

In our view the district court should not have considered the case on the merits but should have dismissed the complaint. Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (No. 2, Feb. 23, 1971); Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971) (No. 4, Feb. 23, 1971); Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971) (Nos. 7 and 9, Feb. 23, 1971); Dyson v. Stein, 401 U.S. 200, 91 S. Ct. 769, 27 L. Ed. 2d 781 (1971) (No. 41, Feb. 23, 1971); Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971) (No. 60, Feb. 23, 1971); Byrne v. Karalexis, 401 U.S. 216, 91 S. Ct. 777, 27 L. Ed. 2d 792 (1971) (No. 83, Feb. 23, 1971). We vacate the order and judgment of the district court, and remand the case with directions to dismiss the complaint for failure to state an appropriate claim for intervention by the United States District Court.

Vacated and remanded with directions.



The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.


Of the Third Circuit, sitting by designation