Eagle Books, Inc. v. Reinhard

• Decision Date: 28 May 1976
• Docket Number: No. 76 C 20014.,76 C 20014.
• Citation: 418 F. Supp. 345
• Parties: EAGLE BOOKS, INC., a Delaware Corporation, et al., Plaintiffs v. Philip REINHARD, Individually and in his capacity as State's Attorney of Winnebago County, Illinois, and Delbert Peterson, Individually and in his capacity as Chief of Police of the City of Rockford, Illinois, Defendants.
• Court: U.S. District Court — Northern District of Illinois

418 F. Supp. 345

EAGLE BOOKS, INC., a Delaware Corporation, et al., Plaintiffs v. Philip REINHARD, Individually and in his capacity as State's Attorney of Winnebago County, Illinois, and Delbert Peterson, Individually and in his capacity as Chief of Police of the City of Rockford, Illinois, Defendants.

No. 76 C 20014.

United States District Court, N. D. Illinois, W. D.

May 28, 1976.

J. Steven Beckett, Champaign, Ill., for plaintiffs.

James Zagel, Asst. Atty. Gen., Chicago, Ill., A. Curtis Washburn, Rockford, Ill., for defendants.

Before CUMMINGS, Circuit Judge, and WILL and FLAUM, District Judges.

MEMORANDUM OPINION

FLAUM, District Judge.

Plaintiffs are employees of bookstores and the corporate owner of those bookstores. They bring this suit to declare Ill. Rev.Stat. ch. 38, § 11-20 unconstitutional, and to enjoin defendant Philip Reinhard, State's Attorney of Winnebago County, Illinois and defendant Delbert Peterson, Chief of Police of the City of Rockford, Illinois, from enforcing the statute. Retrospective relief for prior activities carried out in connection with enforcement is also sought. Because of the injunctive nature of the relief requested against a state statute, a three judge court was requested under 28 U.S.C. § 2281. The substantiality of the federal question presented was discussed in a memorandum opinion issued by the single judge, issued April 15, 1976, which concluded with the convening of the present three judge court. In addition to the verified complaint, and the attached exhibits, representations of fact have been made through plaintiffs' Voluntary Bill of Particulars, motions and accompanying exhibits by both defendants for dismissal or summary judgment, and during oral argument held on May 14, 1976 before the three judge court. These sources are sufficient to dispose of this case. For the reasons which follow, prospective injunctive and declaratory relief will be granted with respect to the corporate defendant, and the suit will be dismissed with regard to the individual defendants without prejudice.

FACTS

Plaintiff Eagle Books, Inc. ("Eagle Books") owns two bookstores in the City of Rockford, "The Adult Book and Cinema", and the "Hollywood Art Store". Individual plaintiffs were employed as salespersons in these stores. In a series of searches at least in part authorized by search warrants signed by state judges, Rockford police appeared at the Eagle Book stores on February 27, March 1, and March 3, 1976. They seized the films named in the warrants, as well as the film projectors that carried them, monies, business records, a cash register, safe, brief case, and other items. Another search was made on March 11. The warrants were limited to films, and were based on complaints signed by police officers characterizing the conduct portrayed in the movies and giving the opinion of the officers that the movies were obscene. In the course of these searches, the individual plaintiffs were arrested under Ill.Rev.Stat. ch. 38, § 11-20 for the selling of "obscene" materials. On March 5, two more employees of the bookstores were arrested on the same ground. They were subsequently added as plaintiffs in this lawsuit. In the course of the searches, seizures and arrests, the bookstores cannot operate, and temporarily cease business. It is uncontested that the bookstores sell, in addition to items which were seized as obscene, communicative material which is not obscene. (See defendant Peterson's Motion To Dismiss Or In The Alternative For Summary Judgment, at 6; Transcript of Oral Argument at 37.)

Subsequent to the seizures of items from the bookstores, attempts were made by plaintiffs' attorneys to retrieve those items which were not specified in the warrant. For reasons not entirely clear to this court, plaintiffs' attorney felt obligated to refuse return of at least some of the items unless the State's Attorney would stipulate that those items had been seized in violation of the law. Such a stipulation was never offered, and the items have all, consequently, been retained. (See Tr. of Oral Argument at 17-19.)

An important ingredient of plaintiffs' allegations is the prospect that the procedure for obtaining warrants to seize "obscene" movies is unconstitutional in that it gives rise to confiscation of communicative materials without adequate provision for a hearing or for supervision by a magistrate or other judicial officer. However, alternative search procedures have since been exclusively utilized by the defendants as part of an agreement which obviated the need for a ruling by this court on plaintiffs' motion for a temporary restraining order. Defendants have not, however, conceded that their original procedure is unconstitutional.

JUSTICIABILITY

Law enforcement officers intended to prosecute violations of section 11-20. (See exhibit DD of "Exhibits For Defendant Reinhard's Motion To Dismiss Or For Summary Judgment"; Defendant Peterson's Motion To Dismiss, Or, In the Alternative For Summary Judgment at 6.) Taken together with the number and nature of searches carried out on Eagle Books' premises prior to the filing of the complaint, this circumstance leads the court to find that the prospect of future enforcement of section 11-20 in such a fashion as will disrupt the operations or deprive of materials the Adult Book and Cinema and the Hollywood Art Store is sufficiently immediate to give rise to a case or controversy under Article III of the Constitution. Steffel v. Thompson, 415 U.S. 452, 460, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).

CONSTITUTIONALITY OF SECTION 11-20

The plaintiffs' challenge to the constitutionality of section 11-20 revolves around the requirements set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The circumstances under which Miller arose and the logical consequences of its holding and judgment merit examination to determine what it mandates state courts to do.

The Miller standards fall in two categories, a tripartite definition, and a requirement of specificity. The first category was described as follows:

The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary standards' would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Id. at 24-25, 93 S.Ct. at 2615 (citations omitted, emphasis added). The second category is an elaboration of the specificity requirement alluded to in (b), above. Miller did not, however, set standards with its explanation of specificity; it merely gave examples of what would be sufficiently specific:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Id. at 25, 93 S.Ct. at 2615. It can be seen from these examples that mere "sexual conduct" is not specific enough to give adequate notice of what is being regulated as obscene, but with the addition of "the ultimate sexual act", it would be. Similarly, it can be seen that through the use of such examples, "excretory functions" can be incorporated into the "sexual conduct" of the (b) of the tripartite standard.

The tripartite standard of Miller was an embellishment on a tripartite standard then in use, originally promulgated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). The so-called Roth-Memoirs standard was that material could be regulated as obscene if:

. . . (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.

Memoirs v. Massachusetts, supra at 418, 86 S.Ct. at 977, cited in Miller v. California, supra at 21, 93 S.Ct. at 2607. A comparison of the two tripartite standards must take into account the facts confronting the Miller Court. A defendant had been convicted for knowingly distributing obscene matter, under the California Penal Code, § 311.2(a). The jury had been "instructed that, in determining whether the `dominant theme of the material as a whole . . . appeals to the prurient interest' and in determining whether the material `goes beyond the customary limits of candor and affronts contemporary community standards of decency,' it was to apply `contemporary community standards of the State of California' instead of the national community standards." 413 U.S. at 31, 93 S.Ct. at 2618. The court found these deviations from the prevailing view that a national standard should have been used did not give rise to a constitutional error. Thus, as far as the defendant was concerned, no complaint could be had as to the shift between the (a) and (b) of the respective standards, except for the specificity requirement alluded to in part (b) of the Miller tripartite standard. Conviction under part (c) of the Memoirs standard similarly could have no prejudice to one arguing for part (c) of Miller, for material utterly without redeeming social value, as that term had been defined, would a fortiori lack serious artistic, literary, political, or scientific value. It...