Potwora v. Dillon

• Decision Date: 15 November 1967
• Docket Number: No. 164,Docket 31748.,164
• Citation: 386 F.2d 74
• Parties: Francis POTWORA and Imperial News Company, Inc., Plaintiffs-Appellants, v. Michael F. DILLON, Individually and in his capacity as District Attorney of Erie County, Buffalo, New York, Frank Felicetta, Individually and in his capacity as Commissioner of Police of the City of Buffalo, New York, Louis Wenzka, Individually and in his capacity as Chief of Police, Village of Depew Police Department, Frank Spano, Individually and in his capacity as Head of the Salacious Literature Squad of the Buffalo Police Department, and John Maccarone, Individually and as a Member of the Depew Police Department, Defendants-Respondents.
• Court: U.S. Court of Appeals — Second Circuit

386 F.2d 74 (1967)

Francis POTWORA and Imperial News Company, Inc., Plaintiffs-Appellants, v. Michael F. DILLON, Individually and in his capacity as District Attorney of Erie County, Buffalo, New York, Frank Felicetta, Individually and in his capacity as Commissioner of Police of the City of Buffalo, New York, Louis Wenzka, Individually and in his capacity as Chief of Police, Village of Depew Police Department, Frank Spano, Individually and in his capacity as Head of the Salacious Literature Squad of the Buffalo Police Department, and John Maccarone, Individually and as a Member of the Depew Police Department, Defendants-Respondents.

No. 164, Docket 31748.

United States Court of Appeals Second Circuit.

Argued October 27, 1967.

Decided November 15, 1967.

Harold Price Fahringer, Lipsitz, Green, Fahringer, Roll, Schuler & James, Buffalo, N. Y., for plaintiffs-appellants.

Arthur G. Baumeister, Asst. Dist. Atty., Erie County, Buffalo, N. Y. (William E. Carey, Asst. Dist. Atty., of counsel on the brief), for appellee Michael F. Dillon.

Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal is from an order of the District Court for the Western District of New York denying a mandatory injunction for the return of a quantity of books alleged to have been illegally seized. It comes to us upon a record consisting only of the complaint, an order to show cause, an answer of two defendants, and a brief opinion.

The plaintiffs are Francis Potwora, who is the subject of a criminal charge for selling obscene books under N. Y. Penal Law, McKinney's Consol.Laws, c. 40, § 1141, subd. 1 before the village justice of the Village of Depew, and Imperial News Co. The complaint was filed under the Civil Rights Act, 42 U.S.C. § 1983, against the district attorney for Erie County, New York, and officers and members of the police department of the City of Buffalo and the Village of Depew.¹ It alleged that on August 28, 1967, some fifteen police officers entered the premises of Imperial in the Village of Depew and seized approximately 7000 allegedly obscene books.² These included ten titles — Pleasures & Follies of a Good Natured Libertine, Sex Life of a Cop, Adam and Eve, Business as Usual, Autobiography of a Flea, The Debauched Hospodar, Dark Hunger, Memoirs of a Young Rakehill, The Gilded Lily, and Flossie. The officers were armed with a search warrant issued ex parte by a county judge which mentioned the first six titles but not the last four. Plaintiffs' counsel protested to no avail against the seizure of copies beyond the small number that would be needed for a prosecution. None of the books have been restored except for the 177 copies of Sex Life of a Cop, which the "cops" returned when counsel called their attention to Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967), summarily reversing a decision holding the book obscene under 18 U.S.C. §§ 1461-62; United States v. West Coast News Co., 357 F.2d 855 (6 Cir. 1966).

The only immediate relief sought was the return of the publications seized except five copies of each; the complaint did not allege that defendants were threatening further seizures and no request was made for a temporary injunction against their making them. Noting that state criminal proceedings were pending and that "there is presently no reason to believe that prompt application for relief to the state courts will not provide an adequate forum for determining plaintiffs' claims," Judge Henderson, on September 12, 1967, in the exercise of discretion, denied plaintiffs' application for an order directing return of such of the books as were not needed for the criminal trial. In light of plaintiffs' representation that the order deprived them of important First Amendment rights, we heard the appeal on an expedited basis; meanwhile, at Potwora's request, his trial before the Village Justice was adjourned.

At the argument before us the district attorney for Erie County made no effort to defend the legality of the large scale seizure without an adversary hearing — wisely so in view of Marcus v. Search Warrant, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); cf. People v. Rothenberg, 20 N. Y.2d 35, 281 N.Y.S.2d 316, 228 N.E.2d 379 (1967). His position was rather that plaintiffs had a number of avenues of relief available in the state courts. The most promising was to move under § 813-c of the New York Code of Criminal Procedure which we quote in the margin;³ another was to proceed promptly to trial on the criminal charge.⁴ Plaintiffs did not here attempt to explain their failure to seek relief from the New York courts save by stressing that they did not seek to enjoin the state criminal proceeding, expressing a preference for "federal justice," and relying on a statement in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), that "the federal remedy" under 42 U.S.C. § 1983, "is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked."

An appeal in which state officials persist in holding allegedly obscene books in defiance of applicable rulings of the Supreme Court but their distributor offers no better reason for federal injunctive relief than his preference for a federal forum does not greatly warm the cockles of the judicial heart. Nevertheless the case sharply poses the issue how far in an action under 42 U.S.C. § 1983 a federal court should consider the adequacy of the remedies provided by the state when deciding whether to grant equitable relief.⁵

Plaintiffs' blanket position as to the irrelevancy of state remedies goes considerably beyond the authorities cited to support it. While the Marcus and Quantity of Books decisions demonstrate the invalidity of the seizure, these cases came to the Supreme Court from state courts and did not, and in the nature of things could not, deal with the propriety of federal injunctive relief. The quotation from Monroe v. Pape states the rationale of that decision incompletely. The Court's opinion carefully delineates the "three main aims" that § 1983 sought to serve. Id. at 173-174, 81 S.Ct. 473, 477, 5 L.Ed.2d 492. First, the statute overrode invidious state law; second, it provided a federal remedy where the state's was inadequate on its face; "the third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice." The language upon which the plaintiffs rely as it thus appears in context, id. at 183, 81 S.Ct. at 482:

It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.

simply emphasizes that the federal court must be certain that a remedy that seems "adequate in theory" will be "available in practice"; it is not enough that the state statute will be adequate "if enforced." Monroe v. Pape was an action for damages and the quoted statement must be read in that light; the Court surely had no intention to abrogate in civil rights cases the historic rule, embodied long ago in § 16 of the First Judiciary Act, 1 Stat. 82 (1789), and later in Rev.Stat. § 723 and 28 U.S.C. § 384 (1940 ed.)⁶ that suits in equity shall not be sustained in courts of the United States "in any case where a plain, adequate and complete remedy may be had at law." See Matthews v. Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 76 L.Ed. 447 (1932). McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), further explicates the principles with respect to state remedies announced in Monroe. In denying a prayer for equitable relief including registration of negro students in racially integrated schools pursuant to an approved plan, the District Court, although recognizing that the state administrative remedies were cumbersome and inadequate, had "dismissed" the complaint, saying that "until at least an honest attempt is made to pursue that remedy, this Court should not interfere with the state authorities and deprive them of the opportunity to put their own house in order." 199 F.Supp. 403, 407 (E.D.Ill.1961). While the Supreme Court reversed, it emphasized that the state administrative remedy was cumbersome and inadequate and did not suggest that a federal court cannot consult the traditional principles of equity, as informed by the standards announced in Monroe, when deciding whether or not to grant an injunction.

Turning to cases where injunctions have issued to protect First Amendment rights, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), held that defending a state criminal prosecution was not, on the facts of that case, an adequate means of vindicating plaintiffs' First Amendment rights, see fn. 4, and that consequently the District Court had erred in deciding there was no showing of "irreparable injury" sufficient to merit equitable intervention. The fact that the decision was stated in terms of "the traditional doctrines of equity," id. at 490, at 85 S.Ct. 1123, demonstrates that the Court sought to control equitable discretion, not to abolish it. The order for the return of documents in that case, 380 U.S. at 497, at 85 S.Ct. 1127, was part of a broader injunction; apparently also it was not urged that Louisiana law afforded adequate relief on that score and examination of the Louisiana statutes, Code of Criminal Procedure §§ 42, 48, would indicate that they do not. The order in In re Louisiana News Co., 187 F.Supp. 241, 245 (E.D.La.1960), for the return of seized magazines was also part of a broader injunction restraining future violations of plaintiffs' First Amendment rights and, as just stated, there appears to have been no state remedy other than the there inadequate...