Opinion
Civil Action No. 01-D-914-N
July 30, 2001
L. Dan Turberville, William G. Hughes, Mobile, AL. for Plantiff
LaVette R. Lyas-Brown, John S. Andrews, Greenville, AL. for Defendant
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs' Motion For Temporary Restraining Order And For Preliminary Injunction ("Mot."), filed July 25, 2001. After careful consideration of the relevant law and the record, the court finds that Plaintiffs' Motion is due to be denied.
I. BACKGROUND
Plaintiffs own businesses in Autauga and Butler counties that profit in whole or in part from the use of coin-operated video machines where players receive rewards of merchandise as prizes. Defendant Randall Houston ("Houston") is the district attorney of Elmore, Autauga, and Chilton counties, and Defendant John Andrews ("Andrews") is the district attorney of Butler County. (Compl. ¶ 1-2.)
Earlier this year, the members of the Alabama House of Representatives requested an advisory opinion from the Justices of the Supreme Court of Alabama concerning whether Senate Bill No. 257 ("SB 257"), which was pending before the legislature, was a revenue-raising measure that should originate in the House of Representatives, pursuant to § 70 of Alabama Constitution of Alabama of 1901. See Opinion of the Justices No. 373, 2001 WL 431692 (Ala. Apr. 24, 2001). The House provided the following synopsis of SB 257 to the Justices:
This bill would provide that bona fide coin-operated amusement machines shall not be subject to the criminal prohibition against possessing gambling devices; would amend the exemption of racing facilities from existing gambling laws in order to accommodate other licensed wagering activities at such facilities; would authorize each racing commission in the state to license each racing facility under its jurisdiction to conduct skill dependent wagering games and prescribe the terms and conditions of such license; would confer upon each racing commission, in addition to the powers that it has to license and regulate racing and pan-mutual wagering thereon, the same or similar powers to license and regulate the conduct of skill dependent wagering games; would exempt skill dependent wagering games from the prohibitions of certain criminal and civil statutes and provide that certain acts related to skill dependent wagering games shall constitute crimes; and would levy certain state and local license taxes on the conduct of skill.Id. at *1.
In response to this request, four Justices issued an advisory opinion declaring that the proposed legislation violated § 65 of the Constitution of Alabama of 1901, which prohibits a lottery or "any scheme in the nature of a lottery," and was, therefore, unconstitutional. Id. Relying upon this advisory opinion, Defendants issued letters to Plaintiffs, in Defendants' respective counties, informing Plaintiff s that they were in violation of the law, and directing them to remove all video gaming devices from their places of business. Houston indicated that any "[i]llegal gaming devices remaining in Autauga County, Alabama after August 10, 2001, will be seized, condemned, and destroyed." Andrews indicated that, if the machines were not removed from Plaintiffs' places of business by August 3, "appropriate measures" would be taken to enforce the law. (Pls.' Ex. 1-2.) Plaintiffs claim that their machines are not illegal because the machines constitute "coin-operated games for bona fide amusement purposes," which are lawful in Alabama pursuant to § 13A-12-76 of the Code of Alabama.
Section 13A-12-76 of the Code of Alabama provides, in relevant part, as follows:
(a) Sections 13A-12-70 to 13A-12-75, inclusive, shall not apply to a coin-operated game or device designed and manufactured for bona fide amusement purposes which, by application of some skill, only entitles the player to replay the game or device at no additional cost if a single play of the bona fide coin-operated amusement machine or device can reach no more than 25 free replays or can be discharged of accumulated free replay, or rewards the player exclusively with merchandise limited to noncash merchandise, prizes, toys, gift certificates, or novelties, each of which has a wholesale value of not more than five dollars ($5). . . .
(e)(1) For purposes of this section, "bona fide coin-operated amusement machine" means every machine of any kind or character used by the public to provide amusement or entertainment whose operation requires the payment of or the insertion of a coin, bill, other money, token, ticket, or similar object, and the result of whose operation depends in whole or in part upon the skill of the player, whether or not it affords an award to a successful player, and which can be legally shipped interstate according to federal law. Examples of bona fide coin-operated amusement machines include, but are not limited to, the following:
c. Video games.
h. Novelty arcade games.
(2) The term "bona fide coin-operated amusement machine" does not include the following:
k. Slot machines.
1. Video poker games.
ALa. CODE § 13A-12-76 (1996)
The constitutionality of § 13A-12-76 is currently being litigated in the Circuit Court of Montgomery County. See Pryor v. Westfaul, CV-99-7032 (Montgomery County Circuit Court) (filed June 7, 2001). In light of the advisory opinion issued April 24, 2001, by four of the Supreme Court justices, the State is asking the circuit court to declare § 13A-12-76 unconstitutional on its face or as applied to "bona fide coin-operated amusement machines" on the ground that such games are lotteries or schemes in the nature of a lottery, in violation of the Constitution of Alabama.
On July 25, 2001, Plaintiffs filed this action, asserting violations of their federal constitutional rights, as enforced by 42 U.S.C. § 1983. In their Complaint, Plaintiffs contend that Defendants acted "without affording [them] any reasonable notice or opportunity to be heard, or any procedural or substantive due process of law," and deprived them of equal protection of the law, in violation of the Fourth, Fifth and Fourteenth amendments. (Compl. ¶ 9, 11.)
This Motion accompanied the Complaint. Plaintiffs ask for a temporary restraining order, followed by a preliminary injunction, enjoining Defendants from any acts
that deprive Plaintiffs of their constitutional rights, including, but not limited to closing the Plaintiffs' business operations, threatening to arrest the Plaintiffs or Plaintiffs' employees for not closing the businesses or removing the Plaintiffs' machines from the places of business, confiscating or attempting to confiscate or destroy amusement machines and currency belonging to the Plaintiffs.
(Compl. ¶ 13; Mot. ¶ 1-5.) Plaintiffs request a temporary restraining order and preliminary injunction until the constitutionality of § 13A-12-76 is determined in Pryor v. Westfall, supra.
II. STANDARD OF REVIEW
The purpose of a temporary restraining order and preliminary injunction is to preserve the status quo when the balance of equities so heavily favors the movant that justice requires the court to intervene pending a trial on the merits. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). Whether a temporary restraining order should issue turns upon four factors:
(1) a substantial likelihood that the plaintiff will prevail on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; (3) a showing that the threatened injury to the plaintiff outweighs the threatened harm the injunction may do to the defendant; and (4) that granting the preliminary injunction will not disserve the public interest. See Johnson v. USDA, 734 F.2d 774, 781 (11th Cir. 1984). The elements are the same for a preliminary injunction. See Butler v. Alabama Jud'l Ing. Comm'n, 111 F. Supp.2d 1224, 1229-30 (M.D. Ala. 2000)
An injunction is an "extraordinary and drastic remedy" not to be granted unless the movant clearly carries the burden of persuasion as to all four factors. See United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Callaway, 489 F.2d at 572). "The first element is generally regarded as the most important because the granting of a temporary restraining order would be inequitable if the movant has no chance of succeeding on the merits of the case." Butler, 111 F. Supp.2d at 1229-30 (citing Callaway, 489 F.2d at 576). "The last three elements require the court to balance the equities of the matter in dispute in order to "choose the course of action that will minimize the costs of being mistaken.'" Id. (quoting American Hosp. Supply v. Hospital Products, Ltd., 780 F.2d 589, 593 (7th Cir. 1986)); see also Clark Constr. Co. v. Pena, 930 F. Supp. 1470, 1477 (M.D. Ala. 1996). Ultimately, the decision to grant or deny a temporary restraining order is within the "sound discretion of the district court." Sierra Club v. Georgia Power Co., 180 F.3d 1309, 1310 (11th Cir. 1999) (citing United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983)).
III. JURISDICTION
The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights jurisdiction). Furthermore, the court finds that Plaintiffs have presented an "actual controversy," as required to confer jurisdiction in this court under Article III of the Constitution and the express terms of the Federal Declaratory Judgment Act. 28 U.S.C. § 2201. Each Plaintiff has alleged threats of prosecution and deprivation of property that cannot be characterized as imaginary or speculative. Defendants have mailed letters to Plaintiffs directing Plaintiffs to remove their video gambling machines from their businesses by either August 3 or August 10, 2001. Failure to comply, according to one letter, will mean that the machines "will be seized, condemned and destroyed," and Plaintiffs "may be prosecuted" for a Class A misdemeanor. See ALA. CODE § 13A-12-27 (1975). In these circumstances, it is not necessary that Plaintiffs first expose themselves to actual arrest or prosecution before challenging the activity that they claim deters their federal constitutional rights. See Steffel v. Thompson, 415 U.S. 452, 462-63 (1974)
IV. DISCUSSION
Plaintiffs' Motion is due to be denied. Regardless of whether they can satisfy the last three prerequisites, Plaintiffs have not shown a substantial likelihood of success on the merits.
A. Fourth Amendment
The merit of Plaintiffs' Fourth Amendment claim is dubious. In reaching this conclusion, the court is persuaded by the wellreasoned opinion of the Honorable Judge H. Dean Buttram in Novel Management, Inc., d/b/a Spin Win Arcade v. Jim Woodward, Civ A. 01-BU-1699-S (N.D. Ala. July 13, 2001) ("Novel Management") In Novel Managent, the plaintiffs owned arcade establishments in Jefferson County, Ala., with coin-operated video machines like the ones at issue in this case. Id. at 4. Plaintiffs named as Defendants the sheriff of Jefferson County, Ala., and "his deputies, officers, agents and any person(s) acting in concert with him." Id. at 1.
Plaintiffs did not cite this case to the court. The court presumes that counsel's failure to do so was inadvertent.
In response to an unrelated state court ruling in Jefferson County that coin-operated video machines of the type owned by the Novel Management plaintiffs were illegal "gambling devices" under Alabama statute, the defendant Sheriff formed a task force to seize all similar video machines throughout the county. Id. at 2-3. The Sheriff's deputies came to the plaintiffs' arcades, informed the plaintiffs that the machines were illegal, and threatened to arrest the plaintiffs and seize the machines.Id. at 4.
Instead of going to state court, where they surely had an adequate, available forum, the plaintiffs reacted by filing a federal lawsuit. In their complaint and accompanying motion for temporary restraining order and preliminary injunction, they asserted that their rights under the Fourth, Fifth, and Fourteenth amendments "ha[d] been violated and [would] continue to be violated unless (the] Sheriff . . . and his agents are enjoined and restrained from closing down Plaintiffs' businesses or seizing their video machines and from threatening to do so." Id. at 5.
The court in Novel Management denied the plaintiffs' request for a temporary restraining order and preliminary injunction, finding that the plaintiffs failed to establish a substantial likelihood of success on the merits. Id. at 8-9. As to the plaintiffs' Fourth Amendment claim, theNovel Management court found that the sheriff's testimony that no seizures would occur absent a warrant eliminated any Fourth Amendment concerns. Id. at 9. plaintiffs' claims in this case mirror those of theNovel Management plaintiffs.
As in Novel Management, the court has received the same assurances from Defendants, i.e., that any seizures will be endorsed by a warrant. Based on this assurance, as in Novel Management, the court finds that the likelihood of a Fourth Amendment violation is negligible, at best. Because warrant-supported searches are necessarily based upon a neutral magistrate's formal finding of probable cause, such a search and seizure would dissolve any potential Fourth Amendment problems. See id.; see generally Johnson v. United States, 333 U.S. 10, 14 (1948) ("[l]nferences [must] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.").
B. Fourteenth Amendment 1. Procedural Due Process
Plaintiffs assert that a seizure of their video machines, without a hearing or opportunity to be heard, would violate their procedural due process rights under the Fourteenth Amendment. There appears to be little merit to this contention. "The Constitution certainly requires that Plaintiffs be permitted at some point to argue that their video machines are in fact legal under state law. However, the Constitution simply does not require this type of hearing to occur prior to the seizure of their property where it is determined that there is probable cause to believe that such is contraband under state criminal law." Novel Management, Civ. A. 0l-BU-1699-S, at 9-10.
2. Substantive Due Process
To the extent Plaintiffs are attempting to state a claim under the Substantive Due Process Clause of the Fourteenth Amendment (Compl. ¶ 9), this Clause does not provide them with a remedy. In Albright v. Oliver, 510 U.S. 266, 273-74 (1994), the Supreme Court held that the petitioner's claim of a right to be "free from criminal prosecution except upon probable cause" failed to state a Fourteenth Amendment substantive due process claim. In reaching its holding, the Supreme Court explained:
Where a particular amendment "provides an explicit textual source of constitutional protection" against a particular sort of governmental behavior "that Amendment, not the more generalized notion of "substantive due process,' must be the guide for analyzing these claims." We think this principle is likewise applicable here. The Framers considered the matter of pretrial deprivations of liberty, and drafted the Fourth Amendment to address it.Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); See e.g., 141 F.3d 1000, 1003 (11th Cir. 1998) (characterizing a malicious prosecution claim as being based on the Fourth rather than the Fourteenth Amendment); Tinney v. Shores, 77 F.3d 378, 380-381 (11th Cir. 1996) (holding that the plaintiffs' Fourteenth Amendment substantive due process claim was foreclosed because the Fourth Amendment provided protection for their claim that law enforcement officers participated in an unlawful seizure of their mobile home).
Here, the factual underpinnings of Plaintiffs' Fourth Amendment claim, i.e., the alleged unreasonableness of a seizure of their machines, is the same as their Fourth Amendment claim. Plaintiffs' Fourteenth Amendment substantive due process claim, thus, is subsumed into their Fourth Amendment claim.
3. Equal Protection
Plaintiffs also bring a claim under the Equal Protection Clause of the Fourteenth Amendment but do not state the basis for that claim. (Compl. ¶ 11.) While it is far from clear, the ground appears to be based upon the following averment: "At the present time other owners of coin-operated amusement machines are free to conduct their businesses in many other counties of the State of Alabama. Several District Attorneys have indicated they will not act until the law is clarified by the Alabama Supreme Court." (Id. ¶ 10.)
Initiation of a criminal prosecution rests within the discretion of the prosecutor. "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotations omitted). A criminal defendant can show a violation of the equal protection of the law only where there is "clear evidence" that the decision to prosecute is based upon an impermissible standard such as race or religion. Id. at 464-65; see also United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000) Here, the fact that District Attorneys in other districts have decided to abstain from prosecution does not support plaintiffs' equal protection claim. Plaintiffs' rights are not violated if the state determines that probable cause exists to believe Plaintiffs have committed a crime. Absent a discriminatory purpose, which is not alleged in this case, Plaintiffs' claim does not appear to have merit.
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall "deny to any person within its jurisdiction the equal protection of the law." U.S. CONST. AMEND. XIV.
C. Fifth Amendment
Plaintiffs' Fifth Amendment claim likewise fails. The Fifth Amendment only applies to the federal government, not the state government. See Riley v. Camp, 130 F.3d 958, 972 n. 19 (11th Cir. 1997); Sweatt v. Bailey, 876 F. Supp. 1571, 1582 (M.D. Ala. 1995). Because Defendants are state actors, Plaintiffs cannot predicate liability under the Fifth Amendment.
V. CONCLUSION
The circuit courts of this state are courts of general jurisdiction and are empowered to enjoin inequitable conduct and to compensate Plaintiffs with money damages. The record does not reflect why Plaintiffs elected to file suit in this court rather than in the circuit courts of this state, where Plaintiffs clearly have adequate remedies available. Plaintiffs, however, have failed to show a substantial likelihood of success on the merits and, thus, are not entitled to the emergency injunctive relief. Accordingly, the court finds that Plaintiffs' Motion is due to be denied.
VI. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that Plaintiffs' Motion For Temporary Restraining Order And For Preliminary Injunction be and the same is hereby DENIED.