                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              SEP 8 1998
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 JANAE KINGSTON, d/b/a Movie Buffs,

          Plaintiff-Appellant,

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

          Defendants-Appellees.
                        ____________________________

                             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 Utah County, Utah, from initiating

any criminal proceedings based on allegedly improperly seized evidence. 1 We



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          This order and judgment is not binding precedent except under the doctrines of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

      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.
exercise jurisdiction over this interlocutory appeal pursuant to 28 U.S.C.

§ 1292(a)(1). We vacate the district court’s order and 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, initiated an investigation of two

“Movie Buffs” video rental stores for renting pornographic 2 videos. Mr. Bryson

directed police officers to go to the stores and rent videos that might violate

Utah’s pornography law. On October 17, 1996, an officer visited the stores,

perused the videos in the “Adults Only” sections, and 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 evaluation. 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 pornography law. The officers who

visited the stores told the County Attorney that many of the videos in the “Adults


      2
       The State of Utah terms illegally obscene material “pornographic.” See Utah
Code Ann. § 76-10-1203.


                                         -2-
Only” sections of the stores also appeared to be pornographic. On October 25,

1996, a police officer requested a search warrant from a Utah County Magistrate

Judge. The officer presented the judge with an affidavit which set forth, in some

detail, the sexually explicit activities found in the four videos, along with an

observation that other videos in the “Adults Only” sections of the two stores

appeared to contain similar material. The magistrate 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 there
             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 similar
             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, and


      3
         This section is entitled “Distributing pornographic material.” The section does
not define or describe the term “pornographic.”


                                           -3-
the counter areas of the two locations.



       Officers executed the search warrant at both locations on October 25, 1996.

They seized more than 800 videos and at least 135 empty video boxes. 4 Some

videos in the “Adults Only” sections were not seized, 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 other.



       On November 5, 1996, Ms. Kingston, the owner of “Movie Buffs,” filed a

Complaint for Declaratory and Injunctive Relief and for Damages for Violation of

Civil Rights in the district court alleging a violation of her First, Fourth, and

Fourteenth Amendment rights and, in part, requesting an injunction against filing

criminal charges against her based on the seized material. 5 She named as

       4
         The 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.

       5
         The 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-
defendants, Utah County, Mr. Bryson, David Bateman, the Utah County Sheriff,

and ten unidentified members of the Utah County government. 6 The district court

held a hearing on the preliminary injunction on November 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 decision. Following the district

court’s decision, state criminal charges (Distributing Pornographic Material,

Dealing in Harmful Material to a Minor, and Racketeering) were filed against Ms.

Kingston, among others.



       At the outset, we must address the question of whether 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 federalism, 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 injunctive relief

against state criminal prosecutions only in certain narrow circumstances. Id. at

53. This case presents a significant problem under this doctrine because if we

send this case back to the district court, that court will be faced with enjoining a

well-developed state criminal prosecution (extremely close to trial if not already


       6
        In this order and judgment, we will refer to this group collectively as “the
defendants.”


                                            -5-
beyond trial).



      The defendants raised abstention (presumably invocation of the Younger

doctrine) as an affirmative defense in their answer to 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 address

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 briefed 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 application 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 expressly rejected the argument that

states must raise the Younger doctrine to preserve its applicability. See Morrow,


                                          -6-
94 F.3d at 1391 n.3. Because of the difficulties that would arise if we reversed

this case on the merits (now that criminal proceeding 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 must also determine if

they waived it in some other manner. Because abstention 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 might have 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 adjudication

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’


       7
          In ACORN, this Circuit declined to invoke the Younger doctrine 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 Younger before 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 Younger before 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-
actions in this case to such an express waiver, especially when considered in light

of the defendants’ statements made during oral argument and before the district

court. 8 Therefore, we must decide whether abstention pursuant 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 respect 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 proceedings; (2) the state

proceedings offer an adequate forum to hear the plaintiff’s federal claims; and (3)

the state proceedings implicate important state interests. 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 invoked once the three

conditions are met, absent extraordinary circumstances. See Seneca-Cayuga Tribe

v. Oklahoma, 874 F.2d 709, 711 (10th Cir. 1989). We will address each of these

conditions in turn.


       8
         Obviously the failure to brief Younger itself 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-
Ongoing state proceeding

      Generally speaking, federal courts invoke the Younger doctrine when a

state prosecution is pending at the time the federal proceeding is initiated.

However, the doctrine also may apply even when the state prosecution begins

after the federal complaint has been filed. “[W]here state criminal proceedings

are begun against the federal plaintiffs after the federal complaint is filed but

before any proceedings of substance on the merits have 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 considered necessary to support

criminal charges. Ms. Kingston then filed her federal complaint with the likely

knowledge that criminal charges were imminent. 9 She requested a temporary

restraining order from the district court to prevent the defendants from filing

those criminal charges. Instead of deciding whether a temporary restraining order

should issue, the district court requested (or ordered, depending on the version of


      9
          The 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-
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 district court’s decision.



      We conclude these facts are sufficient to establish the existence of a

pending state criminal proceeding. Although Ms. Kingston had not been charged,

the allegedly illegal activity had already taken place, the investigation had been

conducted, the search warrant had been executed, the necessary evidence had

been obtained, and the charges would have been filed 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 challenge 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)


                                         -10-
(deciding grand jury subpoena was pending state criminal proceeding). We agree

with the statement of one of those courts, that

      [p]ermitting the targets of state criminal investigations to challenge
      subpoenas or search warrants in federal court prior to 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 ongoing 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 orders, instead of asking state

defendants to voluntarily hold off action until a full 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 creates situations, like

this one, where the state defendants clearly would have proceeded with their

criminal proceedings absent the district court’s intervention.



Adequate forum

      An adequate forum exists to provide a review of Ms. Kingston’s Fourth

Amendment search and seizure challenge. State criminal charges have been filed

and a trial is pending. There is no reason to suspect this proceeding will not


                                         -11-
provide a full hearing concerning the validity of the search warrant. 10 “[T]he

admissibility of evidence in state criminal prosecutions [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 state 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 difficult to imagine a more disruptive

interference with the operation of the state criminal process short of an injunction

against all state proceedings [than federal suppression of evidence.]” Perez, 401

U.S. at 84 (overruling lower court’s order suppressing use of seized evidence in

criminal obscenity case pursuant to Younger doctrine).



      Because each of the three conditions for invoking the Younger doctrine are

met in this case, the district court should have abstained. Accordingly, we vacate

the district court’s decision and remand.


      10
         In 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-
      The Younger doctrine does not apply “in cases of proven harassment or

prosecutions undertaken by state officials in bad faith 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 faith, 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 overcome the bar of Younger

abstention by setting forth more than mere allegations 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, there 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 injunctive relief.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                        -13-
