393 F.2d 202 (7th Cir. 1968), 16578, Metzger v. Pearcy

Docket Nº:16578.
Citation:393 F.2d 202
Party Name:Radley METZGER, d/b/a Audubon Films, Plaintiff-Appellee, v. Noble R. PEARCY, Prosecuting Attorney, 19th Judicial Circuit (Marion County); and Lee R. Eads, Sheriff of Marion County, Defendants-Appellants.
Case Date:April 29, 1968
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 202

393 F.2d 202 (7th Cir. 1968)

Radley METZGER, d/b/a Audubon Films, Plaintiff-Appellee,

v.

Noble R. PEARCY, Prosecuting Attorney, 19th Judicial Circuit (Marion County); and Lee R. Eads, Sheriff of Marion County, Defendants-Appellants.

No. 16578.

United States Court of Appeals, Seventh Circuit.

April 29, 1968

James A. Buck, Noble R. Pearcy, LeRoy New, Indianapolis, Ind., for defendants-appellants.

William P. Wooden, Henry J. Price, James E. Hughes, Indianapolis, Ind., for plaintiff-appellee, Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., of counsel.

Before DUFFY, Senior Circuit Judge, and KILEY and SWYGERT, Circuit Judges.

DUFFY, Senior Circuit Judge.

This is an appeal from a preliminary injunction issued by Honorable S. Hugh Dillin, United States District Judge for the Southern District of Indiana, Indianapolis Division. This injunction directed the defendants and each of them to refrain from interfering with the exhibition of the moving picture 'I, A Woman.' The injunction also ordered the return to the plaintiff of four prints or films which had been seized.

Plaintiff is and was the owner of four prints of the motion picture 'I, A Woman.' Three of these films were being shown in outdoor movie theatres in Marion County, Indiana, and were seized on October 25, 1967, by officers of the Sheriff's department. The fourth film was being shown in an outdoor theater in Indianapolis. This film was seized on November 2, 1967, by members of the Indianapolis Police Department.

The four prints or films were seized without a warrant. Four persons were arrested in connection with the showing of the films. These arrests were also without warrants. Criminal prosecutions were instituted.

On November 13, 1967, Honorable William T. Sharpe, a Judge of the Municipal Court of Marion County, before whom three of the four criminal charges were pending, issued an order that the three films seized by the Sheriff's department be retained in the Police Property Room of the Indianapolis Police Department or by the Marion County Sheriff's Department.

The Chief of Police of the city of Indianapolis returned his copy of the

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film to appellee's counsel. That film was not involved in the three cases pending before Judge Sharpe.

Two of the three films detained by the Sheriff are presently in the Sheriff's Property Room. The third copy was delivered to Attorney Price, counsel for appellee, to remain in Mr. Price's possession for viewing by proposed or intended witnesses, but to be returned immediately upon demand. However, since receiving Judge Dillin's order of November 13, 1967, Mr. Price has refused to return the film to the custody of the Sheriff.

On the hearing for a temporary injunction, defendants urged that they and their agents were justified in seizing the prints or films because the same were obscene within the meaning of Burns Indiana Stats.Anno., Sec. 10-2803. However, proof was made at the hearing that the movie in question had never been found to be obscene in any adversary proceedings. 1

It is without dispute that prior to the seizure of the films, there had been no adversary determination by any court in Indiana on the question of whether the motion picture 'I, A Woman' is obscene. Plaintiff-appellee claims that seizing the motion picture film prior to an adversary determination on the issue of obscenity is a violation of the First, Fourth and Fourteenth Amendments to the United States Constitution; and that motion pictures, like books, are protected by the constitutional guaranties of freedom of speech and press.

Plaintiff-appellee also urges that, unlike narcotics, gambling paraphernalia or burglary tools, a motion picture film and other First...

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