Grove Press, Inc. v. Evans, Civ. A. No. 355-69-N.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtStanley E. Sacks, Sacks, Sacks & Tavss, Michael R. Caprio, Jr., Norfolk, Va., for plaintiffs
Citation312 F. Supp. 614
PartiesGROVE PRESS, INC., a New York corporation, Kenneth W. Andrews, Calvin Tyrone Gray and Bill-Ken, Inc., a Virginia corporation, t/a Star Twin Indoor Theatre, Plaintiffs, v. Andre EVANS, Commonwealth's Attorney for the City of Virginia Beach, Virginia, and W. E. Davis, Chief of Police for the City of Virginia Beach, Virginia, Defendants.
Decision Date12 March 1970
Docket NumberCiv. A. No. 355-69-N.

312 F. Supp. 614

GROVE PRESS, INC., a New York corporation, Kenneth W. Andrews, Calvin Tyrone Gray and Bill-Ken, Inc., a Virginia corporation, t/a Star Twin Indoor Theatre, Plaintiffs,
v.
Andre EVANS, Commonwealth's Attorney for the City of Virginia Beach, Virginia, and W. E. Davis, Chief of Police for the City of Virginia Beach, Virginia, Defendants.

Civ. A. No. 355-69-N.

United States District Court, E. D. Virginia, Norfolk Division.

March 12, 1970.


Stanley E. Sacks, Sacks, Sacks & Tavss, Michael R. Caprio, Jr., Norfolk, Va., for plaintiffs.

Anthony F. Troy, Asst. Atty. Gen. of Va., Richmond, Va., Andre Evans, Commonwealth's Atty., Virginia Beach, Va., for defendants.

OPINION AND ORDER

KELLAM, District Judge.

In their original and amended complaints, plaintiffs sought to (1) have a three-judge court declare unconstitutional Sections 18.1-227 through 18.1236.4 of the Code of Virginia, 1950, as amended; (2) enjoin defendants from interfering with the exhibition of a film "I Am Curious (Yellow)" prior to a determination that it is obscene; (3) have the aforesaid film, which had been seized, returned; (4) enjoin defendants from prosecution of plaintiffs in the proceedings pending in the Municipal Court of the City of Virginia Beach, Virginia;

312 F. Supp. 615
and (5) declare the aforesaid film as not obscene

A temporary injunction was issued July 23, 1969, ordering (1) the return of the film "I Am Curious (Yellow)" to plaintiffs, with direction that "the same prints of said film" be made reasonably available to defendants for use in the State court prosecutions, and (2) defendants be enjoined from seizing any prints of said film or interfering with its exhibition prior to a determination of its obscenity.

Subsequently, application was made for an injunction enjoining the prosecution of plaintiffs in the Municipal Court of Virginia Beach, Virginia. After a hearing before Judge Robert R. Merhige, Jr. at Richmond, the injunction was refused as the Court found "no failure of the defendants to act in good faith" in the pending prosecution and the Court could not say "that said statute is patently unconstitutional on its face." Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969).

A three-judge court was convened in accordance with the provisions of Title 28 § 2284 U.S.C. to determine the constitutionality of Sections 18.1-227 through 18.1-236.4 of the Virginia Code. In an opinion by Circuit Judge Butzner of November 26, 1969, D.C., 306 F.Supp. 1084, the Court held the statute in question constitutional, except as to the final sentence in Section 18.1-228(4), "setting forth a prima facie presumption" which the Court found unconstitutional. The presumption was found to be severable from the statute, and the remaining portion of the statute is constitutional. No appeal was sought from that decision.

Following the decision of the three-judge court, counsel for all parties agreed that the only issue remaining in this action was whether this Court should retain jurisdiction and "enjoin the Circuit Court of the City of Virginia Beach, Virginia, from proceeding with the prosecution of Kenneth W. Andrews and Calvin Tyrone Gray for alleged violation of Sections 18.1-227 through 18.1-236.4 of the Code of Virginia;" and if jurisdiction is retained, to determine if the motion picture film aforesaid is obscene. On the first issue the parties were granted time to present "affidavits and/or depositions, and written briefs." Within the time agreed, counsel filed their briefs, but did not submit evidence.

Plaintiffs assert in their brief that they "cannot offer proof that the prosecution of plaintiffs in the Virginia Beach Court is made in bad faith."1 Nor is it asserted or established that the prosecutions are "with no expectation of convictions, but only to discourage exercise of protected rights." Plaintiffs say that the pending prosecutions make it difficult for them to find theatres willing to show the film and therefore the right of plaintiffs to distribute the film is restricted; that the prosecution has a "chilling" effect upon plaintiffs' exercise of their first amendment rights. Plaintiffs further say that the issue of whether "the film is obscene is not one which can be readily determined by the State Court;" that appeals to the Supreme Court of Appeals of Virginia are time consuming and expensive, and plaintiffs will suffer irreparable harm because the public interest in the film will diminish.

Defendants say this Court should (a) refuse to issue an injunction against the State court proceedings, and (b) abstain from interfering with the orderly processes of the administration of its criminal laws.

Title 28 § 2283 U.S.C.A. provides:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction,
312 F. Supp. 616
or to protect or effectuate its judgments.

In an opinion in chambers in the case of Atlantic Coast Line v. Engineers, 396 U.S. 1201, 90 S.Ct. 9, 24 L.Ed.2d 23 (1969), Mr. Justice Black in denying enforcement of a Federal District Court injunction against State Court proceedings pending appeal, said:

Since 1793 a congressional enactment, now found in 28 U.S.C. § 2283, has broadly provided that federal courts cannot, with certain limited exceptions, enjoin state court proceedings. Whether this long-standing policy is violated by the district court's injunction here presents what appears to me to be a close, highly complex and difficult question. Not only does it present a difficult problem but it is one of widespread importance, * * *."

It has long been the rule that "Courts of equity do not ordinarily restrain criminal prosecutions." Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324. No person is nor ought to be immune from prosecution in good faith for his alleged criminal acts, "even though alleged to be in violation of constitutional guaranties," and it is not and ought not to be "a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction." 319 U.S. 157, 163, 63 S.Ct. 877, 881. The opinion and reasoning in Douglas v. Jeannette, supra, has been cited with approval many times. See Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Tyrone, Inc. v. Wilkinson, 410 F.2d...

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1 practice notes
  • Andrews v. Dillon, Civ. No. 1970-406.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • November 24, 1970
    ...Some have automatically convened a panel. See McSurely v. Ratliff, 282 F.Supp. 848 (E. D.Ky. 1967), and Grove Press, Inc. v. Evans, 312 F.Supp. 614 (E.D.Va. 1970). Others have exercised equitable discretion to refrain from providing relief. See Duncombe v. State of New York, supra, and Pric......
1 cases
  • Andrews v. Dillon, Civ. No. 1970-406.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • November 24, 1970
    ...Some have automatically convened a panel. See McSurely v. Ratliff, 282 F.Supp. 848 (E. D.Ky. 1967), and Grove Press, Inc. v. Evans, 312 F.Supp. 614 (E.D.Va. 1970). Others have exercised equitable discretion to refrain from providing relief. See Duncombe v. State of New York, supra, and Pric......

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