Entertainment Ventures, Inc. v. Brewer

Citation306 F. Supp. 802
Decision Date18 December 1969
Docket Number2900-N,Civ.A.No. 2898-N,and 2901-N.
PartiesENTERTAINMENT VENTURES, INC., a California corporation; 80 Drive-In, Inc., an Alabama corporation; MiniCinema of Alabama, Inc., an Alabama corporation; and Jefferson Drive-Ins, Inc., an Alabama corporation; T. W. Tidmore; Frank L. Thompson, Jr.; and L. J. Pepper, Plaintiffs, v. Honorable Albert P. BREWER, Governor of the State of Alabama; Honorable Floyd H. Mann, Director of the Department of Public Safety of the State of Alabama; Captain Willie B. Painter, Department of Public Safety of the State of Alabama; Captain E. J. Dixon, Department of Public Safety of the State of Alabama; Lt. R. H. Holmes, Department of Public Safety of the State of Alabama; City of Birmingham, a municipal corporation; Honorable Jamie Moore, Police Chief of the City of Birmingham, Alabama, and their successors in office, Defendants. Cecil QUARLES, Individually and doing business as Etowah Art Cinema, Intervening Plaintiff, v. Honorable Albert P. BREWER, Governor of the State of Alabama; Honorable Floyd H. Mann, Director of the Department of Public Safety of the State of Alabama; Captain James A. Davis, Sergeant Roy McDowell, the City of Attalla, Alabama, and Police Chief Claude Carr, Defendants. JET DRIVE-IN THEATRE, INC., a corporation, and William Ashley Metcalfe, Plaintiffs, v. Albert P. BREWER, Governor of the State of Alabama; Floyd Mann, Director, Department of Public Safety, State of Alabama; Herman Pitts, State Trooper, State of Alabama; David W. Crosland, District Attorney, State of Alabama; and Benjamin P. Franklin, Defendants. BLACK WARRIOR AMUSEMENT CORPORATION, an Alabama corporation; Jack Vaughn Productions, Inc., a Georgia corporation; and Johnny Moses, Plaintiffs, v. Floyd MANN, Willie Painter and R. W. Moore, Defendants.
CourtU.S. District Court — Middle District of Alabama

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Douglas P. Corretti, N. Daniel Rogers and Jimmy S. Calton, Corretti, Newsom, Rogers & May, Birmingham, Ala., for plaintiffs Entertainment Ventures, Inc., and others.

J. Richard Carr, Burns, Carr & Shumaker, Gadsden, Ala., for intervening plaintiff.

J. Paul Lowery, Montgomery, Ala., for plaintiffs Jet Drive-In Theatre, Inc., and another.

Sam R. Shannon, Jr., and James H. Crow, III, Beavers, Shannon, Harrison & Odom, Birmingham, Ala., and F. E. Leonard, Jr., Montgomery Ala., for plaintiffs, Black Warrior Amusement Corp. and others.

MacDonald Gallion, Atty. Gen., State of Alabama, and James J. Carter, William Inge Hill and Robert C. Black, Hill, Hill, Stovall, Carter & Franco, Montgomery, Ala., for defendants.

J. M. Breckenridge, Earl McBee and Herbert Jenkins, Birmingham, Ala., for defendants City of Birmingham and Police Chief Moore.

E. K. Hanby, Jr., Gadsden, Ala., for defendants City of Attalla and Police Chief Carr.

Before RIVES, Circuit Judge, and JOHNSON and PITTMAN, District Judges.

OPINION AND ORDER

RIVES, Circuit Judge:

I.

These cases were submitted for decision on the motions for preliminary injunction. Evidence was taken orally before the Court for about a day and a half and additional evidence has been supplied by affidavits. Upon the oral hearing the Court announced that for the purpose of this submission it was satisfied that the prosecutions of the plaintiffs by the defendants were not in bad faith within the meaning of that term as used in Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, and the Court now so finds. The Court stated also that, to decide the issues developed under the present state of the law and facts, there is no necessity for it to view the motion picture films or to make any finding as to the obscenity vel non of any of the films. We adhere to that position. The Court's decision on the motions for preliminary injunction turns on the issues of (1) whether the seizures of the films were constitutional and (2) whether the state prosecutions are based upon any applicable and constitutional statute or ordinance. In view of the public importance of those questions, we have called for briefs and have taken time for a detailed study of the law.

II.

The facts in these cases are almost identical. On the night of July 9, 1969, Alabama state police officers, acting pursuant to instructions from defendants Governor Albert Brewer and Floyd Mann, Director of the Department of Public Safety for the State of Alabama, conducted "raids" on six movie theaters located throughout Alabama. Defendants Brewer and Mann had instructed each of the several state officers to purchase tickets at the various theaters, to view the entire film, and to determine in the officer's own opinion whether or not the movie was obscene. If the movie was determined to be obscene, the film was to be seized and the operator arrested. Acting on these instructions, the officer at each theater viewed the movie and concluded that it was obscene. Thereafter, during the raids, the person in charge of operating each theater at the time of the raid was arrested and the film was seized as evidence.

The chart below lists the movies that were seized by the defendant officers. All owners of theaters, owners of films and parties arrested listed are plaintiffs in these three cases. The officers who seized the films, together with Governor Brewer and Alabama Safety Director Mann, are defendants.

                           Theater &         Film       Owner of     Owner of        Party             Officer
                Case No.    Location        Seized       Theater      Film          Arrested   Seizing Film1
                2898-N    80 Drive-In    "The         80 Drive-In,   Entertainment  L. J.       Capt. Willie
                          Theater,       Starlet"     Inc.           Ventures,      Pepper      B. Painter
                          Selma, Ala.                                Inc
                          Festival       "The         Mini-Cinema    same           T. W.       Lt. R. H
                          Cinema         Starlet"     of Alabama,                   Tidmore     Holmes
                          Theater,                    Inc
                          Birmingham
                          Ala
                          Auto Movies    "Thar        Jefferson      same           Frank L.    Capt. E. J.
                          No. 1,         She          Drive-In,                     Thompson,   Dixon
                          Jefferson      Blows"       Inc.                          Jr.
                          County, Ala.
                          Etowah Art     "Babette"    Cecil          ------         Cecil       Capt. James
                          Cinema,                     Quarles                       Quarles     A. Davis
                          Attalla, Ala.                                                         Sgt. Roy
                                                                                                McDowell
                2900-N    Jet Drive-In   "Inga"       Jet Drive-In   ------         William     Herman
                          Theater,                    Theater,                      Ashley      Pitts
                          Montgomery,                 Inc.                          Metcalfe
                          Ala.
                2901-N    Tide II        "The         Black Warrior  Jack           Johnny      Capt. R. W.
                          Theater,       Secret       Amusement      Vaughn         Moses       Moore
                          Tuscaloosa,    Sex Lives    Corp.          Production,
                          Ala.           of Romeo                    Inc.
                                         and Juliet"
                

By stipulation of all parties, the arrests and seizures of film were made without arrest or search warrants and without a prior adversary hearing as to the obscenity of the films. All six films were introduced as evidence and are now in the possession of this Court.

In all three cases the plaintiff theater managers were charged with violating Section 374, Title 14, Code of Alabama of 1940,2 when arrested. Subsequent to his arrest, each theater manager was also charged with violating Section 374(4), Title 14, Code of Alabama Recompiled 1958, pocket part Act No. 856, Acts of Alabama, 1961.3

In case 2898-N, plaintiff theater-manager Tidmore was also charged by the City of Birmingham with violating Ordinances 36-564 and 67-2,5 General City Code, City of Birmingham.

In cases 2901-N and 2898-N, criminal prosecutions are currently pending in the state courts. Prosecutions of the following plaintiffs have been set for trial but not actually tried pending the conclusion of this case: Johnny Moses, Recorder's Court of City of Tuscaloosa; Frank L. Thompson, Jr., Bessemer County Court; T. W. Tidmore, Recorder's Court, City of Birmingham;6 L. J. Pepper, Dallas County Court. It is difficult to ascertain from the complaint, briefs and records whether a state criminal prosecution is currently pending against Quarles, plaintiff-intervenor.

In case 2900-N, plaintiff Metcalfe is charged with violating Section 374, Title 14 of the Alabama Code 1940, and Section 374(4), Title 14 of the Alabama Code Recompiled 1958 (pocket part) (see footnotes 2 and 3, supra). From the complaint, briefs and record, it appears that trial of this charge has not begun.

This case also involves an additional element. On June 27, 1969, Metcalfe was arrested on a warrant sworn to by defendant Franklin, Probation Officer of the Circuit Court of Montgomery County, for "contributing to the delinquency, dependency or neglect of" minors. At the time of his arrest, Metcalfe was exhibiting the movie "Space Thing" at the Jet Drive-In in Montgomery. Metcalfe was also arrested on July 9, 1969, for contributing to the delinquency of a minor.7 At the time of this arrest, the movie "Inga" was being exhibited by Metcalfe at the Jet Drive-In. Trial in the state courts for these charges has not begun, but a trial date has been set pending the Court's order in this case.

III.

We find that this Court has jurisdiction over the subject matter under various statutes, including 28 U.S.C.A. § 1343 and 42 U.S.C.A. § 1983. We also find that this case is a proper one for a three-judge court under 28 U.S.C.A. §§ 2281, 2284.

IV.

(1) Were the seizures of the films...

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