* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 26 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DAVID M. ZAHARIA,

Plaintiff-Appellant,

v. THE HONORABLE CHRISTOPHER CROSS; THE COURTS OF COLORADO’S EIGHTEENTH JUDICIAL DISTRICT; JAMES PETERS, District Attorney for Colorado’s Eighteenth Judicial District; STATE OF COLORADO,

Defendants-Appellees. No. 99-1515 (D.C. No. 99-Z-1342) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case-2-

is therefore ordered submitted without oral argument. Plaintiff David M. Zaharia appeals from the distric t court’s order dismissing this action on the grounds of abstention . We affirm. Mr. Zaharia was charged in county court with theft over $500.00 and unlawful use of a financial transaction device. A restraining order was issued which included the prohibition that he not possess weapons during the pendency of his case. Mr. Zaharia is a professional chef an d objected to the order as “many of the tools of his trade may, in fact, be viewed a s weapons.” App. at 48. The court explained that he could not possess any item “in the manner in which it’s used as a weapon,” but could use tools as required in his profession. Id. Mr. Zaharia thereafter commenced this action in fed eral district court pursuant to 42 U.S.C. § 1983 asking the court to enjoin enforcement of the orde r. Mr. Zaharia alleged he had been unconstitutionally denied his right to liberty as the restraining order was entered without notice an d an opportunity to be heard and without a determination of probable cause, thus violating his rights under the Fourth, Fifth, and Fourteenth Amendments. He also alleged he was denied due process as the order was issued as a result of ex p arte communication between the prosecution and the court. The district court gran ted defendants’ motion to dismiss on the basis that it was required to abstai n under the principles announced in Younger v. Harris , 401 U.S. 37 (1971).1 Because we resolve this issue on abstention grounds , we do not address

Mr. Zaharia’s second argument. See Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 585 (1999) (noting “courts do not overstep Art icle III limits when they . . . abstain under Younger [], without deciding whether the parties present acase or controversy”). -3- On appeal, Mr. Zaharia argues that Gerstein v. Pugh , 420 U.S. 103 (1975), makes Younger inapplicable. He also contends that no enforcemen t of the restraining order is necessary before a case or controversy exists. 1
We review the district court’s decision to abstain de novo. See Taylor v. Jaquez , 126 F.3d 1294, 1296 (10th Cir. 1997). A federal court may not stay or enjoin pending stat e court proceedings except in unusual circumstances going beyond the po ssible unconstitutionality of
a statute. See Younger , 401 U.S. at 41, 54. Younger does not apply where the injunction sought is “not directed at the state pro secutions . . . , but only at the legality of pretrial detention without a judicial h earing, an issue that could not be raised in defense of the criminal prosecution.” Gerstein , 420 U.S. at 108, n.9; see also Juidice v. Vail , 430 U.S. 327, 336-37 (1977) ( Gerstein teaches that abstention is proper where federal plaintiff has op portunity to press claims in state courts); Amanatullah v. Colorado Bd. of Med. Exam’rs , 187 F.3d 1160, 1163 (10th Cir. 1999) (“ Younger abstention dictates that federal courts not interfere with state court proceedings by granting equitable relief . . . when such relief could adequately be sought before the state court.”) (quotation omitted).-4-

Federal courts must abstain from exercising jurisdi ction when the following three conditions are met: (1) there is an ongoing state judicial proceeding, (2) the state court provides an adequate forum to hear the claims plaintiff raised in the federal case, and (3) the state proceedings “involv e important state interests, matters which traditionally look to state law for t heir resolution or implicate separately articulated state policies.” Taylor , 126 F.3d at 1297. “Younger abstention is not discretionary once the above cond itions are met absent extraordinary circumstances that render a state cou rt unable to give state litigants a full and fair hearing on their federal claims.” J.B. ex rel. Hart v. Valdez , 186 F.3d 1280, 1291 (10th Cir. 1999) (quotation omitted) . Here, the state criminal proceeding is ongoing. Mr . Zaharia has a state remedy as he may apply “to the court at any time for modification ordismissal of the restraining order . . . .” Colo. Rev. Stat. § 18-1-1001(3). Indeed, the county court clarified the order at the hearing in which Mr. Zaharia was informed of its terms. Mr. Zaharia may raise his constituti onal claims when challenging the order. Cf. People v. Brockelman , 862 P.2d 1040, 1041 (Colo. Ct. App. 1993) (hearing constitutional challenge to restraining or der on appeal from conviction of violation). M r. Zaharia admitted at the hearing that he could appeal the county court’s order and stated he would raise his constitutional issues before the state district court. See App. at 50. He does not assert that he cannot pur sue further2 Further, generally states should have the first opp ortunity to address

constitutional issues. Cf. Coleman v. Thompson , 501 U.S. 722, 731 (1991) (alleged violation of state prisoner’s federal righ ts should first be considered by state); Michigan v. Lucas , 500 U.S. 145, 153 (1991) (remand from Supreme Cou rt to permit state to address in first instance whethe r defendant’s constitutional rights were violated); Miranda v. Cooper , 967 F.2d 392, 398-99 (10th Cir. 1992) (state courts should be given first opportunity to address federal claims as they “will enforce the federal constitution as fully and fairly as a federal court.”) (quotation omitted). -5- appeals from that order. Cf. Pompey v. Broward County , 95 F.3d 1543, 1551 (11th Cir. 1996) (noting that plaintiffs were not p rocedurally prevented from appealing adverse holdings through the state court system “and, ultimately, to the United States Supreme Court”). The state proceedings clearly involve important state interests. The restraining order was issued in accordance with state law and served the integrity of the state’s criminal proceedings and public safety. 2
As Mr. Zaharia has a forum in state court in which he may both challenge the restraining order and raise his constitutional claims, the judgment of the United States District Court for the District of Co lorado is AFFIRMED. Entered for the Court

Monroe G. McKay Circuit Judge