Megan Lawson v. Curtis Hill

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3433
M EGAN L AWSON ,
Plaintiff-Appellant,
v.
C URTIS H ILL ,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:03-CV-261 AS—Allen Sharp, Judge.
____________
A RGUED F EBRUARY 19, 2004—D ECIDED M AY 24, 2004
____________
Before CUDAHY , P OSNER , and R OVNER , Circuit Judges.
P OSNER , Circuit Judge. The district judge dismissed this
suit to enjoin, under 42 U.S.C. § 1983, the prosecution of the
plaintiff under Indiana’s flag-desecration statute. The
statute provides that “a person who knowingly or intention-
ally mutilates, defaces, burns, or tramples any United States
flag, standard, or ensign commits flag desecration, a Class
A misdemeanor,” Ind. Code § 35-45-1-4(a), for which the
maximum punishment is a year in prison and a $5,000 fine.
§ 35-50-3-2. The judge ruled that the plaintiff lacked stand-
ing under Article III and that anyway it would violate

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2 No. 03-3433
comity to enjoin a public official on the ground on which the
injunction was sought.
Megan Lawson was a 17-year-old high-school student in
Goshen, a town in Elkhart County, when she filed this suit.
Earlier the same year she had participated in several
demonstrations against the war in Iraq and in one of them
had displayed an American flag owned by her on which she
had painted a peace symbol. Goshen’s chief of police was
present at that demonstration, called the altered flag
“contraband,” and said that it was illegal to paint a peace
symbol on an American flag. But he didn’t arrest or even
threaten to arrest any of the demonstrators; instead, having
declared his opinion, he withdrew from the distasteful
scene. After a similar demonstration a member of the county
board was reported in a local newspaper to have called for
the arrest of the student demonstrators. But again none of
them was arrested or threatened with arrest or otherwise
harassed, denounced, etc.
Curtis Hill, the defendant, is the Prosecutor of Elkhart
County, an elected office. At some point he learned about
the demonstrations and told both the police chief of Goshen,
and the county’s sheriff, not to investigate whether the
students had violated the flag-desecration statute. We do
not know when anyone was last prosecuted under the
statute. We know only that Hill has never prosecuted any-
one under it and is unaware of any prosecutions in other
counties.
Apparently Lawson was not concerned that the Goshen
police might arrest her if she continued to desecrate the flag,
for she didn’t name the police chief, or the county commis-
sioner who had urged the arrest of the student desecrators,
as defendants. The only defendant is the county prosecutor.
But far from having given any indication of wanting to
enforce the flag-desecration statute against Lawson or other

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No. 03-3433 3
students, Hill as we said had told the police not to investi-
gate whether the students were violating the statute. The
reason for his forbearance was that the U.S. Supreme Court
has held that the First Amendment forbids punishing
people who desecrate the American flag (although it does
not forbid punishing the theft of an American flag by
someone who means to burn or otherwise deface it or the
burning of it in circumstances that would create a safety
hazard) in order to make a political statement—which is an
exact description of Lawson’s actual and intended conduct.
United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson,
491 U.S. 397 (1989); Spence v. Washington, 418 U.S. 405 (1974)
(per curiam). Of course it is possible that an elected prosecu-
tor would institute a prosecution that violated the Constitu-
tion. He might be ignorant of the relevant constitutional law
or, more likely, might see an opportunity to reap political
gains from prosecuting people whose conduct though
lawful had outraged the community. But Lawson had no
reason when she filed her suit to suppose that Hill would do
such a thing. And if he did, she would have an adequate
remedy—to interpose the First Amendment as a defense to
the prosecution.
Article III of the Constitution bars a federal court from
enjoining threatened action that the plaintiff has no reason
to suppose even remotely likely ever to materialize; there
must be a real dispute in the sense that its resolution is
likely to have tangible consequences for the plaintiff. Poe v.
Ullman, 367 U.S. 497 (1961) (plurality); Wisconsin Right to
Life, Inc. v. Paradise, 138 F.3d 1183, 1185-86 (7th Cir. 1998).
When she sued, Lawson had no reason to think she had any
dispute with Hill, much less one that might have tangible
consequences for her. So far as appeared, they were in
agreement, and her dispute if any was with nonparties, the
police chief and the county board member.

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4 No. 03-3433
Lawson argues that the mere existence of the flag-desecra-
tion statute establishes a threat of prosecution sufficiently
great to allow her to sue. She cites language to support this
argument from numerous cases, such as the following
language from our decision, on which she relies heavily, in
Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (citations
omitted): “A plaintiff who mounts a pre-enforcement
challenge to a statute that he claims violates his freedom of
speech need not show that the authorities have threatened
to prosecute him; the threat is latent in the existence of the
statute.” But we added an important qualification in the
next sentence: “Not if it clearly fails to cover his conduct.”
Id. This might be because his conduct was clearly outside
the statute’s scope. Or because the statute was clearly
unconstitutional, either entirely so or as applied to the
plaintiff’s conduct. The meaning of a statute or other
enactment resides not only in its words but also in the
meaning impressed on those words by authoritative judicial
decisions. Otherwise one might suppose that the First
Amendment forbade only Congress to abridge freedom of
speech, and allowed the President to do so freely; or that the
Eleventh Amendment merely forbade a citizen of one state
to sue another state in federal court, and left him free to sue
his own state in federal court. Of course a person might
have the misfortune to be prosecuted under a clearly
unconstitutional statute; but by the same token he might be
prosecuted under a statute the text of which clearly failed to
cover his conduct. Neither risk would justify an injunction
without some indication of a nontrivial probability of
prosecution. H.L. v. Matheson, 450 U.S. 398, 405-07 (1981);
United Public Workers of America v. Mitchell, 330 U.S. 75, 89-
91 (1947); Wisconsin Right to Life, Inc. v. Paradise, supra, 138
F.3d at 1186-87; SOB, Inc. v. County of Benton, 317 F.3d 856,
865-66 (8th Cir. 2003); Doe v. Duling, 782 F.2d 1202, 1206-09
(4th Cir. 1986); compare Navegar, Inc. v. United States, 103
F.3d 994, 999-1001 (D.C. Cir. 1997).

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No. 03-3433 5
The qualification “Not if it clearly fails to cover his
conduct” was inapplicable in Majors itself. The statute in
question—another Indiana statute, this one regulating po-
litical advertising—was ambiguous. It seemed on its face to
cover the plaintiff’s conduct, and although if so interpreted
it might violate the First Amendment, this was not certain.
We certified the question of interpretation to the Indiana
Supreme Court, which ruled both that the statute covered
the plaintiff’s conduct and that, even so, it was constitu-
tional. And we agreed. Majors v. Abell, 361 F.2d 349, 355 (7th
Cir. 2004). So the plaintiff had in fact been in some danger
of being prosecuted. Lawson, so far as appears, was not.
The statute books are littered with provisions that if read
literally and without regard to their interpretive history
would prohibit innocuous or even privileged conduct.
See, e.g., William Michael Treanor & Gene B. Sperling,
“Prospective Overruling and the Revival of
‘Unconstitutional’ Statutes,” 93 Colum. L. Rev. 1902 (1993).
Do state legislatures have a duty to conform their statute
books to authoritative judicial interpretations? After Johnson
and Eichman, should every state have been obliged, on pain
of seeing its prosecutors enjoined, to rewrite its flag-desecra-
tion statute to create an express privilege for the conduct
held privileged in those cases? There is no such obligation,
see EEOC v. Illinois, 69 F.3d 167, 170 (7th Cir. 1995), yet a
claim that there is is implicit in this lawsuit.
Lawson points us to Hill’s deposition, in which he said he
didn’t think he had the authority to declare any Indiana
statute unconstitutional, and when asked “can you say de-
finitively that you would never prosecute anyone for viola-
tion of” the flag-desecration statute, replied that “it would
be, in my estimation, inappropriate to speculate that we
would prosecute anybody for any particular violation . . .
without knowing what the circumstances of a particular

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6 No. 03-3433
case would be.” When asked in what circumstances he
would prosecute someone under the flag-desecration stat-
ute, he repeated that he thought it would be inappropriate
for him to speculate; “my job is to determine and evaluate,
when particular facts arrive, whether or not there has been
an appropriate violation of a criminal statute.” He also
said that “if facts came before me with regard to [the flag-
desecration] statute, certainly the dictates of Texas vs.
Johnson would be taken into consideration.” That was one
of the Supreme Court’s flag-burning decisions.
Hill’s statements, Lawson argues, did not add up to a
clear disavowal of an intention to prosecute her. But such
disavowals are important only in cases in which, without a
disavowal, the plaintiff seeking to enjoin enforcement
would have a reasonable basis for concern that he might be
prosecuted. See Hays v. City of Urbana, 104 F.3d 102, 103-04
(7th Cir. 1997); Presbytery of New Jersey of Orthodox
Presbyterian Church v. Florio, 40 F.3d 1454, 1468 (3d Cir.
1994). The disavowal might alleviate his concern, while
refusal to disavow would be a signal that his concern was
well founded. But without requiring well foundedness,
officials will be overwhelmed with requests for legal advice.
What if Lawson would like to chew bubble gum in
school—can she demand that Hill disavow any intention of
prosecuting her for such conduct and if he refuses seek to
enjoin him from prosecuting her for public indecency? If he
refused, she would not have standing to sue in federal court
because there is no danger that Hill would prosecute her for
public indecency for blowing bubbles; but neither is there
any danger that he would prosecute her for painting a peace
symbol on an American flag that she owns.
“[T]hat she owns . . .” is one clue to Hill’s reluctance to
offer the disavowal sought at his deposition. The Indiana
statute is not unconstitutional in all its possible applications.

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No. 03-3433 7
Lawson presumably can be prosecuted for violating the
statute if she paints a peace symbol on her neighbor’s flag
without his consent, or, conceivably, if she tramples on it
not to make a political statement but to keep her feet from
getting wet. Cf. Texas v. Johnson, supra, 491 U.S. at 412-13 n.
8; Spence v. Washington, supra, 418 U.S. at 408-09. In other
words, the applicability of the statute to flag desecration
depends on the facts, so that the disavowal that Lawson
seeks would require an advisory opinion on the lawful
scope of the statute. There is no federal right to obtain
advisory opinions from local prosecutors. In addition, as an
elected official Hill is doubtless reluctant to express himself
publicly in a manner that would suggest he condoned flag
desecration. You can’t bring a federal suit just to put an
official on the spot.
Even if we are wrong to suppose the risk of prosecution
too remote to confer standing to sue on Megan Lawson (to
be clear, we don’t doubt that we’re right), the district judge
was right not to enter an injunction. The cases continue
to say that an injunction is an extraordinary remedy, that
there is no right to an injunction as there is to damages if
a wrong and an injury are proved, and that the decision
whether to issue an injunction is a matter of discretion. E.g.,
United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S.
483, 496-98 (2001); Weinberger v. Romero-Barcelo, 456 U.S. 305,
311-13 (1982); Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1203-
04 (7th Cir. 1996); United States v. Massachusetts Water
Resources Authority, 256 F.3d 36, 48 (1st Cir. 2001); 11A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 2942, pp. 37-44 (2d ed. 1995).
But there is a risk of misunderstanding if these familiar
formulas are taken literally. As we explained in Hoover v.
Wagner, 47 F.3d 845, 849-50 (7th Cir. 1995) (citations omit-
ted), “There is no ‘right’ to an injunction, it is true, but only
in the rather unhelpful sense that an injunction may be

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8 No. 03-3433
issued only in a case or class of cases where damages are
deemed an inadequate remedy. In this unhelpful sense, too,
an injunction might be thought ‘extraordinary’ relief
because damages are the ordinary relief. But it is not
extraordinary in the sense of being discretionary. . . . The
modern law of equity is a system of rules administered by
regular judges rather than a compendium of moral princi-
ples administered by ecclesiastical officials, as the Lord
Chancellors of England, who invented English equity
jurisprudence, originally were. In specific classes of case,
injunctions now issue pretty much as a matter of course.”
Yet because injunctions place defendants under threat of
prosecution for contempt of court and impose duties of
continuing enforcement on courts and often burden inno-
cent third parties, courts do retain the authority to deny an
injunction even if a wrong is proved and a threatened harm
shown. A particularly appealing case for withholding
injunctive relief is, as we noted in Hoover, when an injunc-
tion is sought against the performance of public functions
by the officials of another sovereign (or, in the case of the
states of the United States, a quasi-sovereign). Id. at 850-51;
see also McKusick v. City of Melbourne, 96 F.3d 478, 487-89
(11th Cir. 1996). In Hoover it was a state judge and city police
that the plaintiffs wanted a federal court to enjoin. In this
case the plaintiff wants the court to place an elected state
prosecutor under an injunction so that if he should ever
prosecute the plaintiff she can ask the court to hold him in
contempt, thus turning the tables on the prosecutor and
making him a criminal defendant.
The issuance of such an injunction would place humiliat-
ing and potentially paralyzing restrictions on law enforce-
ment. Cf. Younger v. Harris, 401 U.S. 37, 43-45 (1971); Hilton
v. Guyot, 159 U.S. 113, 163-64 (1895); EEOC v. Illinois, supra,
69 F.3d at 170. That is why federal courts refuse (it is not

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No. 03-3433 9
because of the Anti-Injunction Act, 28 U.S.C. § 2283, which
does not apply to suits under 42 U.S.C. § 1983, Mitchum v.
Foster, 407 U.S. 225, 242-43 (1972)), other than in exceptional
circumstances well illustrated by Gilliam v. Foster, 75 F.3d
881, 903-05 (4th Cir. 1996) (en banc), to enjoin an ongoing
prosecution even when it is contended to violate the federal
Constitution. Younger v. Harris, supra; see also City of Los
Angeles v. Lyons, 461 U.S. 95, 112 (1983); Palmer v. City of
Chicago, 755 F.2d 560, 573-74 (7th Cir. 1985). The present
case is in one sense weaker, because Lawson is seeking to
prevent Hill from doing something that he has no intention
of doing. But in another sense it is stronger because the
plaintiff has no actual interest in obtaining an injunction,
since she is in no danger of being prosecuted under the
statute whose enforcement she seeks to enjoin. Placing Hill
under an injunction could be justified only on the basis of
profound and, so far as appears, unwarranted distrust of the
probity and professionalism of local prosecutors.
The suit was properly dismissed.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-24-04

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