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February 17, 1993

JOAN SUDOLNIK, Supreme Court Judge, as a Justice of the Supreme Court of New York, ROBERT MORGENTHAU, District Attorney of New York County, and the DISTRICT ATTORNEY'S OFFICE OF NEW YORK COUNTY, LAWRENCE "LARRY" STEVENS, individually and as an Assistant District Attorney for the New York County District Attorney's Office, SARAH "SALLY" STRAUSS, individually and as an Assistant District Attorney for the New York County District Attorney's Office, LEE P. BROWN, as Police Commissioner of the City of New York, and the POLICE DEPARTMENT OF THE CITY OF NEW YORK; and D.I. JOSEPH DiMARTINI, LT. KIM FOLEY, SGT. WILLIAM HARVEY, DET. ROBERT MILLER, LT. JOHN LAINE, and the INTERNAL AFFAIRS DIVISION, all of the New York City Police Department, Defendants.


The opinion of the court was delivered by: JOHN F. KEENAN

JOHN F. KEENAN, United States District Judge:


 Before the Court are the defendants' motions to dismiss the complaint under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), or, in the alternative, for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). Plaintiffs, who were all police officers in the New York City Police Department ("NYPD"), commenced this action pursuant to Sections 1983 and 1985 of Title 42 of the United States Code ("U.S.C."), alleging violations of their rights protected under the Fifth and Fourteenth Amendments to the United States Constitution. For the reasons set forth below, defendants' motions are granted in part and denied in part.


 On September 26, 1990, the plaintiffs conducted a search in a low-income housing project in New York City, looking for a police radio allegedly stolen by drug dealers. The officers claim to have been acting on a tip from a confidential informant that a certain drug-selling gang located in the housing project possessed the radio. After the police probe, which failed to find the radio, the tenants whose apartments had been searched filed a complaint against the plaintiffs with the Civilian Complaint Review Board ("CCRB"). *fn1" Later that day, a security officer working at the housing project found the radio and returned it to the plaintiffs' precinct.

 On January 18, 1991, plaintiff Feerick was interrogated pursuant to Patrol Guide 118-9 ("P.G. 118-9") at the MNFIAU. P.G. 118-9 confers a form of testimonial or use immunity resulting from any statements, evidence, or leads derived from that interrogation. Defendant Foley of the NYPD, allegedly monitored the interrogation, while defendants Laine of the Internal Affairs Division of the NYPD ("IAD") and DiMartini of the MNFIAU were also present. Defendant Foley monitored P.G. 118-9 interrogations of plaintiffs Rosario, Schultz, and DeVito at the MNFIAU later that week. Plaintiff Feerick was interrogated again in March of 1991. In mid-April, 1991, all plaintiffs were served with Departmental Charges and Specifications.

 On March 20, 1992, the DAO empaneled a grand jury, which indicted the plaintiffs on 30 counts arising out of the September 26, 1990 search. These counts included second degree burglary, second degree unlawful imprisonment, second degree coercion, and second degree grand larceny. Plaintiffs sought to enjoin the prosecution by filing a petition pursuant to Article 78 of the New York Civil Practice Laws and Rules 78 in the First Department of New York's Appellate Division. In their Article 78 petition, plaintiffs requested the Appellate Division to consider only the relevant provisions of the New York State Constitution, citing their desire to preserve their federal claims for a Section 1983 action. The petition was denied. *fn2"

 Plaintiffs also brought this civil rights action against the judge currently handling the state criminal case; the DAO, the head of its office, and two members thereof; and the NYPD, its commissioner, certain employees, and the IAD. The gravamen of the plaintiffs' complaint is that the state criminal indictment filed against them is improperly derived from the immunized testimony, and therefore violates their constitutional privilege against self-incrimination. They request that this Court: (1) enjoin the criminal prosecution brought against them in the Supreme Court of New York; (2) declare them immune from state criminal prosecution; (3) reinstate them in the New York City Police Department with back pay; (4) order the NYPD to appoint plaintiff Feerick to the rank of Captain; (5) enjoin future attempts at securing indictments via immunized testimony under P.G. 118-9; and (6) direct defendants to train and supervise their employees concerning the proper use of the P.G. interrogation provisions.


 A. Younger Abstention

 In Younger v. Harris, 401 U.S. 37, 46, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), the Supreme Court announced that federal courts should abstain from interfering with pending state criminal prosecutions, unless there is a showing of "great and immediate" irreparable harm. This policy is compelled by the interests of federalism, comity, and equity. See id. at 43-44; Davis v. Lansing, 851 F.2d 72, 76 (2d Cir. 1988). The Supreme Court has held that Younger abstention applies to both injunctive and declaratory relief. See Samuels v. Mackell, 401 U.S. 66, 73, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971). Where the relief requested also includes monetary damages that are unavailable in the state proceeding, as in the present case, then the court should stay rather than dismiss the federal action for damages. See Deakins v. Monaghan, 484 U.S. 193, 202, 98 L. Ed. 2d 529, 108 S. Ct. 523 (1988).

  Exceptions to the doctrine of Younger abstention are quite narrow. Even irreparable injury, unless "both great and immediate," is insufficient to warrant an exception to this policy. See Younger, 401 U.S. at 46. For instance, "the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution" does not establish the sort of irreparable injury that would permit federal interference in the state proceedings. Id. The Younger Court set forth an exception in its distinguishing of Dombrowski v. Pfister, 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965), in which it had approved federal intervention in an ongoing state prosecution. The Younger Court noted that in Dombrowski, prosecutors had harassed the appellants and had attempted to discourage them and their supporters from vindicating the constitutional rights of African-American citizens in Louisiana. See Younger, 401 U.S. at 48. Such harassment "sufficiently established the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered to justify federal intervention." Id. The Court has since defined a finding of prosecutorial bad ...

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