Glen Theatre v. Civil City of South Bend
| Decision Date | 26 July 1985 |
| Docket Number | No. S 85-353.,S 85-353. |
| Parties | GLEN THEATRE, INC., an Indiana Corporation; Gayle Ann Marie Sutro; and Carla Johnson, Plaintiffs, v. CIVIL CITY OF SOUTH BEND; Charles Hurley, Chief of Police of the South Bend Police Department; Michael P. Barnes, Prosecutor of the County of St. Joseph, Indiana; and Linley E. Pearson, Attorney General of the State of Indiana, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Charles A. Asher, South Bend, Ind., Lee J. Klein, Okemos, Mich., for plaintiffs.
Robert C. Rosenfeld, Deputy City Atty., William E. Daily, Indianapolis, Ind., for defendants.
This case challenges the constitutionality of Indiana's public indecency statute, I.C. § 35-45-4-1. In their complaint, the plaintiffs seek preliminary and permanent injunctive relief restraining the defendants and their agents, servants and employees from further arrests or prosecutions or threats of arrests or prosecutions under I.C. § 35-45-4-1 in the factual context of this case. They are also seeking a declaratory judgment declaring I.C. § 35-45-4-1 to be facially unconstitutional or in the alternative, that the application and threatened application of the statute to plaintiffs' proposed nude or semi-nude appearance at the Chippewa Bookstore is unconstitutional. The plaintiffs filed a Motion for Preliminary Injunction with a supporting brief. A hearing on the preliminary injunction was held on July 1, 1985. All parties were given an opportunity to brief the issues and submit appropriate affidavits, which they have done. This memorandum and order constitutes the findings of fact and conclusions of law thereon as required by Rule 52 of the Federal Rules of Civil Procedure.
Plaintiff Glen Theatre, Inc. is an Indiana corporation with its business located in Indiana. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings and live entertainment at a fully enclosed bookstore at 500 West Chippewa Avenue, South Bend, St. Joseph County, Indiana called the Chippewa Bookstore. The live entertainment at the Chippewa Bookstore consists of nude and semi-nude performances and showings of the female body through glass panels. The customers would sit in a booth and insert coins in a timing mechanism that permitted them to observe the live nude and semi-nude dancers for a period of time. This live entertainment is offered to fee-paying consenting adults over the age of 18 and no accidental viewing by any non-consenting person of the live nude and semi-nude entertainment is possible. No alcoholic beverages are sold, consumed or allowed on the Chippewa Bookstore premises. Glen Theatre, Inc. has offered and wishes to continue to offer to the interested adult public live nude and semi-nude showings.
In a period of about two years from March 1983 to March 1985, there were approximately eleven arrests of individuals at the Chippewa Bookstore for violations of I.C. § 35-45-4-1(a) for appearing in a state of nudity. All those who have been arrested have been prosecuted and at least five of those persons have been convicted of violating the Indiana public indecency statute and have unsuccessfully appealed their conviction to the Indiana Court of Appeals and Indiana Supreme Court. The latest arrests occurred on March 27, 1985 at which time two females were arrested by the South Bend Police Department and charged by the prosecuting attorney with violating I.C. § 35-45-4-1. None of the plaintiffs in this case are the subject of criminal charges pertaining to the issues in this case.
As a result of the raids of March 27, 1985, the Chippewa Bookstore has discontinued the showing of any live nude entertainment. Glen Theatre, Inc. had scheduled Gayle Ann Marie Sutro (Sutro) to perform a nude dance production throughout the summer and fall of 1985 in conjunction with a South Bend area showing of one of her motion picture films at the Chippewa Drive-In. Sutro is a professional actress, stunt woman and ecdysiast and has studied acting, dancing, speech and language. She has danced, modeled and acted professionally for more than fifteen years and is a current member in good standing of the Screen Actors Guild, the Screen Extras Guild and AFTRA. In her affidavit, Sutro stated that her nude dances are appropriately choreographed and are an attempt to communicate as well as to entertain.
Timothy J. Corbett, a sergeant with the South Bend Police Department and stationed in the South Sector of South Bend where all arrests at Chippewa Bookstore have occurred, stated in his affidavit that no arrests have ever been made for nudity as part of a play or ballet.
This court has jurisdiction over the parties and the subject matter of this action under 28 U.S.C. § 1343(a)(3) and venue is proper under 28 U.S.C. § 1391(b). The plaintiffs have standing to challenge the constitutionality of the Indiana public indecency statute. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). They do not need to expose themselves to actual prosecution to present a justiciable controversy—the fear of prosecution, if reasonable is sufficient. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) and Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). The number of arrests and prosecutions, including those resulting from the raid on March 17, 1985, of individuals at the Chippewa Bookstore for violations of I.C. § 35-45-4-1 is a sufficient basis for a reasonable fear of prosecution to confer standing. Further, there are no grounds for this court to abstain from considering this case. None of the plaintiffs in this action are the subject of pending criminal prosecutions so abstention is not appropriate under the abstention theory described in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). Nor do the facts of this case require abstention under the abstention theories described in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) or Colorado River Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Accordingly, this court must proceed to determine the merits of plaintiffs' request for preliminary injunctive relief.
The issuance of a preliminary injunction is an extraordinary remedy and involves the exercise of a far reaching power. Therefore, it should not be used except in a case clearly warranting it and will not be available unless the plaintiffs carry their burden of persuasion as to all the prerequisites. See, e.g., Godinez v. Lane, 733 F.2d 1250, 1257 (7th Cir.1984); Shaffer v. Globe Protection, Inc., 721 F.2d 1121, 1123 (7th Cir.1983). To be entitled to preliminary injunctive relief, the plaintiffs must establish that (1) they have no adequate remedy at law or will be irreparably harmed if the preliminary injunction does not issue; (2) the threatened injury to the plaintiffs outweighs the threatened harm the preliminary injunction may inflict upon the defendants; (3) the plaintiffs have a reasonable likelihood of success on the merits; and (4) the granting of the preliminary injunction will not disserve the public interest. See, e.g., Palmer v. City of Chicago, 755 F.2d 560, 576 (7th Cir.1985); Roland Machine Co. v. Dresser Industries, Inc., 749 F.2d 380, 383 (7th Cir.1984); Technical Publishing Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1138-39 (7th Cir.1984). In considering each of these four factors, the court must weigh carefully the interests of both sides. Palmer v. City of Chicago, 755 F.2d at 577; see Doran v. Salem Inn Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975).
The Indiana public indecency statute provides in pertinent part as follows:
I.C. § 35-45-4-1.1 The plaintiffs in this case allege that this statute is unconstitutional on its face because it is overbroad and infringes upon their rights and the rights of others under the First Amendment of the Constitution of the United States.2 The defendants maintain that the statute is facially directed only to conduct not expression, and has been limited by Indiana's court to exclude application to protected expression and can therefore withstand a constitutional attack.
A demonstrably overbroad statute may deter the legitimate exercise of First Amendment rights and when a plaintiff's claim is rooted in those rights, he is entitled to rely upon the impact of the statute on the expressive activities of others as well as his own in challenging a statute on overbreadth grounds. See, e.g., Schad v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981); Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). However, a court must proceed with caution and restraint when considering a facial challenge to a statute so as to not unnecessarily interfere with a state's laws. In accommodating these competing interests, a court should not deem a state statute facially invalid unless it is not readily subject to a narrowing construction by the state courts and its deterrent effect on legitimate expression is both real and substantial....
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