208 Cinema, Inc. v. Vergari

• Decision Date: 05 May 1969
• Docket Number: 69 Civ. 1747.
• Citation: 298 F. Supp. 1175
• Parties: 208 CINEMA, INC. and Philip Steinberg, Plaintiffs, v. Carl A. VERGARI, District Attorney, Westchester County, and Eric Geldart, Police Chief of the Village of Port Chester, New York, Defendants.
• Court: U.S. District Court — Southern District of New York

298 F. Supp. 1175

208 CINEMA, INC. and Philip Steinberg, Plaintiffs, v. Carl A. VERGARI, District Attorney, Westchester County, and Eric Geldart, Police Chief of the Village of Port Chester, New York, Defendants.

69 Civ. 1747.

United States District Court S. D. New York,

May 5, 1969.

Kunstler & Kunstler, New York City, for plaintiffs, by William M. Kunstler, New York City, of counsel.

Carl A. Vergari, Dist. Atty. of Westchester County, by William H. McKenna, Senior Asst. Dist. Atty., and B. Anthony Morosco, Asst. Dist. Atty., of counsel.

OPINION

POLLACK, District Judge.

The plaintiffs herein have moved by Order to Show Cause pursuant to Rule 65(a) and (b) of the Federal Rules of Civil Procedure for an order "staying the further arrests and prosecutions of the plaintiff herein until the eventual disposition of this action". This is the only relief requested or to be considered on this motion. See Rule 7(b) Fed.R. Civ.P.¹

The two plaintiffs in this case operate the Capitol Theatre in Port Chester, New York. This theatre is used primarily for the exhibition of motion pictures for profit and is owned by the corporate plaintiff, 208 Cinema, Inc.

The individual plaintiff Philip Steinberg is the president and principal stockholder of the corporate plaintiff.

The defendants are the District Attorney of Westchester County and the Police Chief of the Village of Port Chester, New York. Both are sued only in their official capacities.

Jurisdiction of the Court over the subject matter according to the complaint is asserted under 42 U.S.C. § 1983, 28 U.S.C. § 1343 (Civil Rights), 28 U.S.C. § 2281 (Three-Judge Court) and 28 U.S.C. §§ 2201 and 2202 (Federal Declaratory Judgment Act). The complaint charges that the Obscenity Law of the State of New York, Penal Law, McKinney's Consol.Laws, c. 40, §§ 235.00 and 235.05, is void on its face, and as applied to the plaintiffs, in that it violates the First, Fifth, Eighth and Fourteenth Amendments to the Constitution.

On April 22, 1969 the individual plaintiff was arrested and immediately brought before the Village Justice Court of Special Sessions, Village of Port Chester, where he was arraigned on an information charging obscenity in violation of Section 235.05 of the New York Penal Law, which reads, in pertinent part, as follows:

A person is guilty of obscenity when, knowing its content and character, he:

1. Promotes, or possesses with intent to promote, any obscene material; or

2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.

The arrest resulted from the execution of a search warrant issued by the Honorable George D. Burchell, County Judge of Westchester County, upon the affidavit of William H. McKenna, Senior Assistant District Attorney of Westchester County, after Judge Burchell himself had viewed two films entitled "The Girl from Pussy Cat" and "Professor Lust" and a reel of coming attractions at the theatre. In executing the warrant, law enforcement officers under the supervision of the defendants seized the two films and, in addition thereto, the lenses from both of the theatre's projectors together with advertisements and other papers. Also pursuant to the direction of the warrant, two other films entitled "The King" and "All Women Are Bad" which had been scheduled for showing the following evening, April 23, 1969, were seized, having been among those advertised in the coming attractions viewed.

On April 25, 1969 the reel of film containing the coming attractions referred to was seized pursuant to a search warrant.

On April 25, 1969 the matter was presented to the Westchester County Grand Jury which returned an indictment against the individual plaintiff. This indictment is pending but the filing of it is waiting the disposition of the motion before this Court.

On April 25, 1969 the complaint herein was filed and the plaintiff's attorney, proceeding ex parte, presented for signature an order to show cause to bring on a motion for a preliminary injunction containing a provision for a temporary restraint of the defendants pending the hearing of the motion; the restraint sought was against further arrests and prosecutions. The Court struck the requested temporary stay from the order submitted and fixed the return day of the motion for the following Tuesday, April 29, 1969. The Court declined even to consider a temporary stay without notice to the defendants. Thereupon the plaintiffs' attorney undertook to give notice to the defendants or their attorneys to appear in Chambers on the following day on the application for a temporary stay.

The plaintiffs and the defendant District Attorney appeared in Chambers by counsel. Plaintiffs' counsel stated that he was not seeking the return of the films. The Court declined to issue a temporary stay pending the hearing of the motion and directed that any change in the relief requested should be delineated in writing in the motion papers. The defendant objected to receiving mere oral notice of oral claims on plaintiffs' behalf.

On April 29, 1969, the motion was fully argued and decision was reserved. The only additional legal paper filed by the plaintiffs was an affidavit setting forth information to show where and when the films in question had been exhibited in the State of New York and elsewhere in the United States. No expansion of the relief requested was indicated in any supplemental notice of motion.

Plaintiffs have, as yet, made no motion for an order convening a Three-Judge Court under 28 U.S.C. § 2281. Nor do the moving papers request the return to the plaintiffs of the films and lenses seized. Accordingly, the issues that would be raised by such applications are, as a matter of plaintiffs' choice, not before the Court at this time.

Plaintiffs filed a brief indicating that they seek a preliminary injunction which, in addition to enjoining the defendants from further arrests and prosecutions of the individual plaintiff, would enjoin them from continuing with the prosecution now pending. The power of a federal court to issue such an injunction is doubtful. However, this additional request for relief was withdrawn by the moving parties in the course of the oral argument on the motion.

Thus, the only question properly presented to the Court at this time is whether plaintiffs have made the necessary showing for an order staying further arrests and prosecutions of the individual plaintiff until the determination of the action commenced by the filing of the complaint herein. The power of this Court to issue such an order is questionable.

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

28 U.S.C. § 2283.

Any injunction such as had been applied for here would substantially interfere with the prosecution and adjudication of the pending State court proceedings, as is amply demonstrated by the fact that the Grand Jury's indictment has not been filed out of deference to this Court. Cf. Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

Just as prosecutors cannot, by an abuse of process, chill the exercise of essential First Amendment rights, Dombrowski v. Pfister, supra, so the federal judiciary cannot ordinarily chill the prosecution of bona fide State prosecutions.

§ 2283 forbids any federal injunction substantially interfering with the prosecution of a pending state proceeding unless an exception applies. Citations The question thus becomes whether the injunction issued by the district court came within one of the exceptions recognized by the statute.

Studebaker Corp. v. Gittlin, 360 F.2d 692, 696 (2d Cir. 1966).

Plaintiffs have, in both their memoranda and oral argument, relied exclusively on 42 U.S.C. § 1983 as a purported exception to 28 U.S.C. § 2283. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Plaintiffs contend that this statute authorizes an injunction, at least of future arrests and prosecutions of the individual plaintiff for conduct similar to that which brought about the pending prosecution, since the latter violates the First Amendment to the Constitution in that the subject films were not obscene as a matter of law.

Assuming but not passing upon plaintiffs' legal arguments, in this respect,² they do not advance plaintiffs' cause since it has not been shown, with the degree of probability requisite to success on this motion, that the films are not obscene at a matter of law.

Obscenity is defined, for First Amendment purposes, in the following terms:

Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957).

Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex, (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1

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