386 F.2d 74 (2nd Cir. 1967), 164, Potwora v. Dillon

Docket Nº:164, 31748.
Citation:386 F.2d 74
Party Name: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 o
Case Date:November 15, 1967
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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386 F.2d 74 (2nd Cir. 1967)

Francis POTWORA and Imperial News Company, Inc., Plaintiffs-Appellants,


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, 31748.

United States Court of Appeals, Second Circuit.

November 15, 1967

Argued Oct. 27, 1967.

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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

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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. Nothing that state criminal proceeding 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

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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...

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