                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 26 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID M. ZAHARIA,

                Plaintiff-Appellant,

    v.                                                   No. 99-1515
                                                     (D.C. No. 99-Z-1342)
    THE HONORABLE CHRISTOPHER                              (D. Colo.)
    CROSS; THE COURTS OF
    COLORADO’S EIGHTEENTH
    JUDICIAL DISTRICT; JAMES
    PETERS, District Attorney for
    Colorado’s Eighteenth Judicial
    District; STATE OF COLORADO,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
is therefore ordered submitted without oral argument.

       Plaintiff David M. Zaharia appeals from the district 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 and objected to the order as “many

of the tools of his trade may, in fact, be viewed as 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 federal district court

pursuant to 42 U.S.C. § 1983 asking the court to enjoin enforcement of the order.

Mr. Zaharia alleged he had been unconstitutionally denied his right to liberty as

the restraining order was entered without notice and 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 parte communication between the

prosecution and the court. The district court granted defendants’ motion to

dismiss on the basis that it was required to abstain under the principles announced

in Younger v. Harris , 401 U.S. 37 (1971).


                                            -2-
       On appeal, Mr. Zaharia argues that     Gerstein v. Pugh , 420 U.S. 103 (1975),

makes Younger inapplicable. He also contends that no enforcement 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 state court proceedings

except in unusual circumstances going beyond the possible 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 prosecutions . . . , but only at the

legality of pretrial detention without a judicial hearing, 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 opportunity 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).


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 Article III limits when they . . .
abstain under Younger [], without deciding whether the parties present a case or
controversy”).

                                             -3-
       Federal courts must abstain from exercising jurisdiction 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 “involve important state interests,

matters which traditionally look to state law for their resolution or implicate

separately articulated state policies.”     Taylor , 126 F.3d at 1297.   “Younger

abstention is not discretionary once the above conditions are met absent

extraordinary circumstances that render a state court 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 or dismissal

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 constitutional claims when challenging

the order. Cf. People v. Brockelman , 862 P.2d 1040, 1041 (Colo. Ct. App. 1993)

(hearing constitutional challenge to restraining order 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 pursue further


                                               -4-
appeals from that order.    Cf. Pompey v. Broward County , 95 F.3d 1543, 1551

(11th Cir. 1996) (noting that plaintiffs were not procedurally 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 Colorado is AFFIRMED.

                                                         Entered for the Court



                                                         Monroe G. McKay
                                                         Circuit Judge




2
        Further, generally states should have the first opportunity to address
constitutional issues. Cf. Coleman v. Thompson , 501 U.S. 722, 731 (1991)
(alleged violation of state prisoner’s federal rights should first be considered by
state); Michigan v. Lucas , 500 U.S. 145, 153 (1991) (remand from Supreme Court
to permit state to address in first instance whether 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).

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