*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 Ms. Kingston’s complaint incorporated a number of different claims. Only her request for injunctive relief against criminal prosecution is addressed in this order. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ JANAE KINGSTON, d/b/a Movie Buffs, Plaintiff-Appellant,

v. UTAH COUNTY; CARLYLE K. BRYSON, Utah County Attorney; and DAVID BATEMAN, Utah County Sheriff, Defendants-Appellees. No. 97-4000 (D. Utah) (D.Ct. No. 96-CV-937)

____________________________ ORDER AND JUDGMENT *

Before TACHA, BRORBY , and EBEL , Circuit Judges.

Ms. Kingston appeals the district court’s denial of her motion for a preliminary injunction restraining officials of Uta h County, Utah, from initiating any criminal proceedings based on allegedly imprope rly seized evidence. 1 We2The State of Utah terms illegally obscene material “pornographic.” SeeUtah

Code Ann. § 76-10-1203.
-2- exercise jurisdiction over this interlocutory appea l pursuant to 28 U.S.C. § 1292(a)(1). We vacate the district court’s orderand remand for further proceedings consistent with this opinion.

After receiving a citizen’s complaint on October 9, 1996, the County Attorney of Utah County, Utah, Carlyle Bryson, init iated an investigation of two “Movie Buffs” video rental stores for renting porno graphic 2 videos. Mr. Bryson directed police officers to go to the stores and re nt videos that might violate Utah’s pornography law. On October 17, 1996, an of ficer visited the stores, perused the videos in the “Adults Only” sections, a nd rented a video from each location. A member, or members, of the Utah County Attorney’s office viewed the videos and requested additional videos for eval uation. In response to that request, an officer rented two more videos from one of the locations on October 20, 1996.

After watching all four videos, an investigator in the County Attorney’s office decided they violated the state’s pornograph y law. The officers who visited the stores told the County Attorney that ma ny of the videos in the “Adults3 This section is entitled “Distributing pornographic material.” The section does

not define or describe the term “pornographic.”
-3- Only” sections of the stores also appeared to be po rnographic. On October 25, 1996, a police officer requested a search warrant f rom a Utah County Magistrate Judge. The officer presented the judge with an aff idavit which set forth, in some detail, the sexually explicit activities found in t he four videos, along with an observation that other videos in the “Adults Only” sections of the two stores appeared to contain similar material. The magistra te found probable cause of a violation of Utah law and issued a warrant.

The warrant directed the police officers to search for the following, in addition to certain rental information: Evidence of the distribution of or a conspiracy to distribute videos and/or movies in violation of Section 76-10-1204[ 3 ] including but not limited to: a. one copy only of each movie/video upon which th ere are markings such a “M”, “XXX”, “Adult Viewing Only”, “Adults Only”, “Must be 18 years or older to view this Video” or any combination of this or simi lar language conveying the same information; b. one copy only of any movie/video which does not bear a movie rating as granted by the Academy of Motion Picture Sciences of Hollywood. This search was limited to the “Adults Only” rooms, the return drop boxes, and4The number of items seized is unclear. At one point in its order, the district

court provides contradictory numbers, and those numbers differ from the ones cited by appellant.

5The complaint’s third cause of action states “[t]he Defendants should be preliminarily and permanently restrained from filing criminal charges against the Plaintiff based on any of the material unlawfully and [sic] seized in Defendants’ general and unconstitutional search.”
-4- the counter areas of the two locations.

Officers executed the search warrant at both locati ons on October 25, 1996. They seized more than 800 videos and at least 135 e mpty video boxes. 4 Some videos in the “Adults Only” sections were not seize d, and approximately 150 seized videos were returned after it was determined that they should not have been taken. Decisions by the officers varied as to what videos at the two locations should be seized pursuant to the warrant. As a result, a number of videos were seized at one location but not at the o ther.

On November 5, 1996, Ms. Kingston, the owner of “Mo vie Buffs,” filed a Complaint for Declaratory and Injunctive Relief and for Damages for Violation of Civil Rights in the district court alleging a viola tion of her First, Fourth, and Fourteenth Amendment rights and, in part, requestin g an injunction against filing criminal charges against her based on the seized material. 5 She named as6In this order and judgment, we will refer to this group collectively as “the

defendants.”

-5- defendants, Utah County, Mr. Bryson, David Bateman, the Utah County Sheriff, and ten unidentified members of the Utah County gov ernment. 6 The district court held a hearing on the preliminary injunction on Nov ember 27, 1996. Following the hearing, the district court denied Ms. Kingston ’s motion in an order issued on December 6, 1997. Ms. Kingston appeals that decisi on. Following the district court’s decision, state criminal charges (Distribut ing Pornographic Material, Dealing in Harmful Material to a Minor, and Rackete ering) were filed against Ms. Kingston, among others.

At the outset, we must address the question of whet her the district court should have invoked the Younger doctrine and declined to hear this case. See Younger v. Harris , 401 U.S. 37 (1971). Under our system of federali sm, it is essential that states be allowed to try state cases free from interference by federal
courts. See id. at 43. Therefore, a party may obtain federal injun ctive relief against state criminal prosecutions only in certain narrow circumstances. Id. at 53. This case presents a significant problem underthis doctrine because if we send this case back to the district court, that cou rt will be faced with enjoining a well-developed state criminal prosecution (extremel y close to trial if not already-6-

beyond trial).

The defendants raised abstention (presumably invocation of the Younger doctrine) as an affirmative defense in their answerto Ms. Kingston’s complaint. In a brief to the district court, they cited to Younger and argued for its application. Furthermore, during the hearing, they strenuously argued for application of the Younger doctrine. The district court, however, did not ad dress Younger in its order denying Ms. Kingston’s motion for an injunctive relief.

Unfortunately, the defendants did not address the Younger doctrine in their brief to this court. Defendant’s counsel, however, did raise Younger during oral argument. Ordinarily, an issue inadequately briefe d will not be considered even if asserted during oral argument. Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1547 (10th Cir. 1995) (citing Fed. R. App. P. 38). This general rule does not apply here, however, because courts may address app lication of the Younger doctrine sua sponte
. See Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976); Morrow v. Winslow , 94 F.3d 1386, 1390-91 (10th Cir. 1996) (raising Younger doctrine sua sponte and determining abstention required), cert. denied, 117 S. Ct. 1311 (1997). Furthermore, this Circuit has express ly rejected the argument that states must raise the Younger doctrine to preserve its applicability. See Morrow ,7In ACORN , this Circuit declined to invoke the Youngerdoctrine because the city voluntarily stayed criminal proceedings against one of the plaintiffs. ACORN , 744 F.2d at 743 n.2. In that case, the state defendants also never raised Youngerbefore the district court or this court. Id. In this case, the defendants apparently agreed to temporarily delay filing criminal charges only at the request of the district court. Furthermore, the defendants raised or attempted to raise Youngerbefore both the district court and this court, and they moved forward with criminal proceedings as soon as possible, rather than waiting for final resolution in this court.

-7- 94 F.3d at 1391 n.3. Because of the difficulties t hat would arise if we reversed this case on the merits (now that criminal proceedi ng are well advanced), we believe sua sponte consideration of Younger is required.

Although, for the reasons above, the defendants did not waive application of Younger simply by failing to raise it in their brief, we m ust also determine if they waived it in some other manner. Because abste ntion is not jurisdictional, it may be waived by a state. See Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc. , 477 U.S. 619, 626 (1986) (“A State may of course voluntarily submit to federal jurisdiction even though it mighthave had a tenable claim for abstention.”); ACORN v. Municipality of Golden, 744 F.2d 739, 743 n.2 (10th Cir. 1984). However, the only instances of waiver this court has been able to find have been express ( i.e. the state “urged [the court] to proceed to an adju dication of the constitutional merits”). 7 Ohio Civil Rights Comm’n , 477 U.S. at 626 (listing cases); Morrow , 94 F.3d at 1390. We cannot equate the defendants ’8Obviously the failure to brief Youngeritself cannot constitute an express waiver

or courts would not be able to raise the doctrine sua sponte . We believe, however, in some cases, the failure to brief, in conjunction with other facts, might support a finding of an express waiver.
-8- actions in this case to such an express waiver, esp ecially when considered in light of the defendants’ statements made during oral argu ment and before the district
court. 8 Therefore, we must decide whether abstention purs uant to the Younger doctrine is appropriate in this case.

The Supreme Court based the Younger doctrine “on notions of comity and federalism, which require that federal courts respe ct state functions and the independent operation of state legal systems.” Phelps v. Hamilton , 122 F.3d 885, 889 (10th Cir. 1997). In practice, federal courts invoke the doctrine when three conditions are met: (1) there are ongoing state pr oceedings; (2) the state proceedings offer an adequate forum to hear the pla intiff’s federal claims; and (3) the state proceedings implicate important state int erests. See Taylor v. Jaquez , 126 F.3d 1294, 1297 (10th Cir. 1997), cert. denied, 118 S. Ct. 1187 (1998). Younger abstention is non-discretionary; it must be invoke d once the three conditions are met, absent extraordinary circumstan ces. See Seneca-Cayuga Tribe v. Oklahoma , 874 F.2d 709, 711 (10th Cir. 1989). We will addr ess each of these conditions in turn.9The day after she filed her complaint, Ms. Kingston filed a motion for a

temporary restraining order to prevent the defendants from filing criminal charges. Attached to that motion was an affidavit of Ms. Kingston’s counsel confirming he knew the filing of criminal charges was imminent.
-9- Ongoing state proceeding Generally speaking, federal courts invoke the Younger doctrine when a state prosecution is pending at the time the federa l proceeding is initiated. However, the doctrine also may apply even when the state prosecution begins after the federal complaint has been filed. “[W]he re state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits h ave taken place in the federal court, the principles of Younger v. Harris should apply in full force.” Hicks v. Miranda , 422 U.S. 332, 349 (1975).

In this case, the defendants had begun an investigation and executed a search warrant to obtain the evidence they consider ed necessary to support criminal charges. Ms. Kingston then filed her fede ral complaint with the likely knowledge that criminal charges were imminent. 9 She requested a temporary restraining order from the district court to preven t the defendants from filing those criminal charges. Instead of deciding whethe r a temporary restraining order should issue, the district court requested (or orde red, depending on the version of-10-

the events) that the defendants hold off on filing charges until it could hold a hearing and decide whether an injunction would be appropriate. The defendants initiated criminal charges three days after the dis trict court’s decision.

We conclude these facts are sufficient to establish the existence of a pending state criminal proceeding. Although Ms. Ki ngston had not been charged, the allegedly illegal activity had already taken pl ace, the investigation had been conducted, the search warrant had been executed, th e necessary evidence had been obtained, and the charges would have been file d absent the district court’s intercession. It was clear at the time this action was filed that Ms. Kingston would have had an immediate opportunity to challeng e the validity of the warrant in state court. The Supreme Court has stated the Younger doctrine applies to “about-to-be-pending” state criminal proceedings. Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 381 n.1 (1992). Other courts have invoked the Younger doctrine and have abstained from consideration of similar challenges to criminal investigations. See Kaylor v. Fields , 661 F.2d 1177, 1182 (8th Cir. 1981) (concluding issuance of prosecuting attorney’ s subpoena was pending state criminal proceeding); Nick v. Abrams , 717 F. Supp. 1053, 1056 (S.D.N.Y. 1989) (ruling execution of search warrant was pending state proceeding); Law Firm of Daniel P. Foster, P.C. v. Dearie , 613 F. Supp. 278, 280 (E.D.N.Y. 1985)-11-

(deciding grand jury subpoena was pending state cri minal proceeding). We agree with the statement of one of those courts, that [p]ermitting the targets of state criminal investig ations to challenge subpoenas or search warrants in federal court priorto their indictment or arrest ... would do as much damage to principles of equity, comity, and federalism as allowing federal courts to suppress the fruits of subpoenas or search warrants in ongoi ng state criminal trials. Nick, 717 F. Supp. at 1056.

In cases where Younger may be an issue, we believe district courts should grant or deny motions for a temporary restraining o rders, instead of asking state defendants to voluntarily hold off action until a f ull hearing on injunctive relief can be held. Asking for voluntary delay puts state defendants in the awkward position of having to decide between proceeding as they are allowed under Younger or potentially angering the court. This tension c reates situations, like this one, where the state defendants clearly would have proceeded with their criminal proceedings absent the district court’s in tervention.

Adequate forum An adequate forum exists to provide a review of Ms. Kingston’s Fourth Amendment search and seizure challenge. State crim inal charges have been filed and a trial is pending. There is no reason to susp ect this proceeding will not10In addition, of course, Ms. Kingston also will have an opportunity on appeal to

challenge the state court’s resolution of her search warrant challenge, if necessary.
-12- provide a full hearing concerning the validity of t he search warrant. 10 “[T]he admissibility of evidence in state criminal prosecu tions [is] ordinarily [a] matter[] to be resolved by state tribunals.” Perez v. Ledesma , 401 U.S. 82, 84-85 (1971) (citing Stefanelli v. Minard, 342 U.S. 117 (1951)).

Important state interest There can be no question that enforcement of a stat e obscenity statute is an important state interest for Younger doctrine purposes. See Hicks , 422 U.S. at 334-35, 352 (invoking Younger doctrine in case involving prosecution under state obscenity statute). Furthermore, “[i]t is difficul t to imagine a more disruptive interference with the operation of the state crimin al process short of an injunction against all state proceedings [than federal suppres sion of evidence.]” Perez , 401 U.S. at 84 (overruling lower court’s order suppress ing use of seized evidence in criminal obscenity case pursuant to Younger doctrine).

Because each of the three conditions for invoking t he Younger doctrine are met in this case, the district court should have ab stained. Accordingly, we vacate the district court’s decision and remand.-13-

The Younger doctrine does not apply “in cases of proven harass ment or prosecutions undertaken by state officials in bad f aith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown.” Perez , 401 U.S. at 85; see also Younger , 401 U.S. at 54 (creating exception on “showing of bad f aith, harassment, or any other unusual circumstance that would call for equitable relief”); Phelps , 122 F.3d at 889. “[I]t is the plaintiff’s ‘heavy burden’ to ov ercome the bar of Younger abstention by setting forth more than mere allegati ons of bad faith or harassment.” Phelps , 122 F.3d at 889 (quoting Phelps v. Hamilton , 59 F.3d 1058, 1066 (10th Cir. 1995)), On the record before us, t here is no evidence any of these exceptions would apply to this case.

For these reasons, we VACATE the district court’s order and REMAND for dismissal of Ms. Kingston’s claim for injunctiv e relief.

Entered by the Court: WADE BRORBY United States Circuit Judge