Dale Book Company v. Leary
| Decision Date | 12 August 1964 |
| Docket Number | Civ. A. No. 34466. |
| Citation | 233 F. Supp. 754 |
| Parties | DALE BOOK COMPANY, Inc., a Pennsylvania Corporation, Plaintiff, v. Howard R. LEARY, Individually and as Commissioner of Police for the City of Philadelphia, James C. Crumlish, Jr., Individually and as District Attorney for the City of Philadelphia, Martin Weinberg, Individually and as Assistant District Attorney for the City of Philadelphia, Clarence J. Ferguson, Individually and as Commanding Officer and Captain of the Special Investigation Squad of the Police Force of the City of Philadelphia, Edmond Bivens, Individually and as Police Officer with the Special Investigation Squad of the Police Force of the City of Philadelphia, Cecil Satterfield, Individually and as Police Officer with the Special Investigation Squad of the Police Force of the City of Philadelphia, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Ethel S. Barenbaum and Herman M. Barenbaum, Philadelphia, Pa., for plaintiff.
Theodore H. Lunine, Asst. City Sol., Philadelphia, Pa., for defendants.
Plaintiff, a Pennsylvania Corporation engaged in the wholesale distribution of nudist magazines, has commenced the present injunctive action under the Federal Civil Rights Statutes, 42 U.S.C.A. §§ 1983 and 1985, and 28 U.S.C.A. § 1343. Since all parties are citizens of Pennsylvania, plaintiff's initial attempt to likewise assert diversity jurisdiction was unsuccessful. The asserted basis of such civil rights jurisdiction and the relief sought will be covered in the findings which follow.
Defendants are the various officials of the City and County of Philadelphia, identified in the caption, who took part in the seizure of publications distributed by the plaintiff, Dale Book Company, Inc. (hereafter to be at times referred to as Dale).
Defendants' Motion to Dismiss having been denied, the three-day hearing on preliminary injunction revealed the essential facts to be as follows.
On September 12, 1963, the District Attorney, James C. Crumlish, Jr., together with Assistant District Attorney, Martin Weinberg, caused the arrest of a newsstand operator at 18th and Arch Streets, Philadelphia, at which time, pursuant to search warrant, several thousand Dale nudist magazines were seized. On September 18, 1963, the Police Department arrested the same dealer at the same newsstand and seized an additional 218 nudist magazines. On October 1, 1963, arrests were made of 21 newsdealers and a distributor not a party to this action, and more than 2,000 nudist magazines, distributed by Dale, were seized in connection with the arrest. All these arrests and seizures were pursuant to the provisions of the Pennsylvania Obscenity Statute, 18 P.S. § 783.
Although Plaintiff in its complaint had attacked the constitutionality of the Pennsylvania Obscenity Statute last-mentioned, that attack was withdrawn during the course of argument on Defendants' Motion to Dismiss.
There was no evidence of prior threats, warnings or other orders relative to these arrests and seizures. Indeed, the testimony was entirely to the contrary as to the assertion of prior restraint (N.T. pp. 45-46, 128, 172, 189, 245 and 277), as appears in the specific findings which follow.
No officer of plaintiff was arrested for possessing or disseminating the nudist publications for which it is the distributor in this area. No nudist publications were seized from plaintiff. Indeed, no official action has ever been directed against plaintiff to prevent distribution of nudist publications. The arrest of Dale customers, the newsdealers mentioned above, have indirectly affected Dale in two ways. First, the dealers in Philadelphia are apparently afraid to buy Dale publications for fear of being arrested for violation of the Pennsylvania Obscenity Statute. Secondly, Dale is obligated by trade custom and practice to give the arrested dealers a credit for those magazines distributed by Dale which were seized on the three occasions already described. In turn, Dale has certain return privileges with the national distributors as to domestic publications, at least (N.T. p. 273). Finally, backdate publications in this field have a certain discounted sale value. The president of Dale, Mr. Silverberg, testified that such resale value would approximate 35% (N. T. p. 274).
Numerous exhibits have been submitted in addition to those introduced by plaintiff and defendants in the course of testimony. It was ruled at the hearing that examples of the seized periodicals to be submitted thereafter to the court should become part of the record (N.T. p. 269).
Plaintiff claims infringement on its civil rights by virtue of numerous violations of constitutional rights. In the view of this Court, however, the essential claims of deprivation to be considered are rights secured by:
First Amendment: free speech;
Fourth Amendment: search and seizure; and
Fourteenth Amendment § 1: due process of law.
Plaintiff earnestly asserts that the publications in question are free from any taint of obscenity, and seeks a declaration to that effect.
Defendants insist that there has been no violation of any civil right of plaintiff; and that the question of obscenity is not reached.
To this Court it appears that there is a further question: is this a matter in which a federal court should intervene at this stage in any event? This question, which is usually called the Doctrine of Abstention, in the opinion of this Court, seems to foreclose, in any event, a decision on the merits of the publications.
In order to make disposition of this case as complete as possible, however, three separate sets of findings will be made, covering the three sets of questions or issues for disposition. They will be discussed, however, in the following order: (1) Civil Rights; (2) Abstention; (3) Obscenity.
In view of that statement, this Court approaches the question of obscenity with great reluctance. Only because no direct proceedings have been undertaken against Dale as was done in the Outdoor case does the court even consider the obscenity aspect. The distinction between the two cases, however, impelled the court to conduct a full hearing in the present case, and then to consider as an alternative or contingent ground the merits of the publications themselves.
Only in the event that it be determined that this Court is in error on the first part of the problem, civil rights, need the second be considered. Again, and only in the circumstance that there is error in this Court's conclusion that the situation in any event is not one for federal interference at this stage, do the findings in the third part concerning obscenity become in any way part of this decision.
1. Plaintiff, Dale Book Company, Inc., a Pennsylvania corporation, is a wholesale distributor of nudist magazines in Philadelphia and surrounding areas.
2. Defendants are Howard R. Leary, Philadelphia Police Commissioner; James C. Crumlish, Jr., Philadelphia District Attorney; Martin Weinberg, Philadelphia Assistant District Attorney; Clarence J. Ferguson, Philadelphia Police Captain and Commander of the Special Investigation Squad; Edmond Bivens and Cecil Satterfield, police officers assigned to the Special Investigation Squad; all are citizens and residents of Philadelphia, Pennsylvania.
3. On September 12, 1963, pursuant to orders of defendant District Attorney Crumlish, defendant Assistant District Attorney Weinberg and several detectives from that office arrested Jerome Shapiro, a newsstand operator at 18th and Arch Streets, Philadelphia, Pennsylvania, and pursuant to a search warrant seized a large quantity of paper books and magazines, some of which were nudist magazines distributed by plaintiff. Shapiro was held for court, after preliminary hearing, for violation of the Pennsylvania Obscenity Statute, 18 P.S. § 783.
4. On September 18, 1963, Jerome Shapiro was again arrested, this time by officers of the Philadelphia Police Department, and 218 nudist magazines were seized from his stand at 18th and Arch Streets, some of which were publications distributed by plaintiff. Shapiro was again held for court on the same charges.
5. On October 1, 1963, 21 newsdealers were arrested by Philadelphia Police and pursuant to search warrants, 2,083 nudist magazines and calendars were seized from newsstands throughout the City, some of which magazines and calendars were publications distributed by the...
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