Hamar Theatres, Inc. v. Cryan
| Decision Date | 26 July 1973 |
| Docket Number | 496-73 and 585-73.,Civ. A. No. 472-73 |
| Citation | 365 F. Supp. 1312 |
| Parties | HAMAR THEATRES, INC., Plaintiff, v. John CRYAN, Individually and as Sheriff of Essex County, State of New Jersey, et al., Defendants. C & V THEATRE CORPORATION, and Edward N. Wilson, Jr., Plaintiff, v. James M. COLEMAN, Jr., Individually and as County Prosecutor of Monmouth County, State of New Jersey, et al., Defendants. Howard A. WEIN and Philip J. Guarino, Plaintiffs, v. TOWN OF IRVINGTON et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
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Podvey & Sachs by Robert L. Podvey, Newark, N. J., for plaintiff, Hamar Theatres, Inc.
Michael S. Sodowick, Charles V. Litt, Newark, N. J., for plaintiffs, C & V Theatre Corp. and Edward N. Wilson, Jr.
Stern & Weiss by Harvey L. Weiss, Maplewood, N. J., for plaintiffs, Howard A. Wein and Philip J. Guarino.
David S. Baime, Deputy Atty. Gen., State of New Jersey, Div. of Crim. Justice, East Orange, N. J., for defendant, Attorney General of New Jersey, George F. Kugler.
Ralph J. Jabbour, Asst. Prosecutor, Newark, N. J., for defendant, Joseph P. Lordi, Essex County Prosecutor.
Allen MacDuffie, Jr., County Prosecutor, Freehold, N. J., for defendant, James M. Coleman, Monmouth County Prosecutor.
Daniel A. Rosenberg, Legal Asst. Prosecutor, Irvington, N. J., for defendants, Town of Irvington and others.
Before ADAMS, Circuit Judge, and BARLOW and GARTH, District Judges.
This action was commenced by the filing of three separate complaints in April of 1973,1 all of which challenged the constitutionality of the New Jersey anti-obscenity statute, N.J.S. 2A:115-1 et seq. as well as procedures followed in each action by state, county or municipal authorities in seizing films or publications thought to be obscene. Jurisdiction was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). Following hearings on each of the three complaints concerning the necessity of convening three-judge panels, this three-judge court was convened pursuant to 28 U.S. C. §§ 2281 and 2284 to consider the three actions as a consolidated matter.2 A consolidated amended complaint was filed in July of 1973.
Plaintiff Hamar Theatres, Inc., a New Jersey corporation, operates a motion picture theater known as the Treat Theatre in Newark, New Jersey. Hamar has in the past exhibited sexually oriented adult films and intends to continue such exhibitions in the future. It is uncontested that on April 5, 1973, a certain film entitled "Fast Ball" then being exhibited at the Treat Theatre, was seized by Essex County Sheriff's detectives under the direction of Essex County Sheriff John Cryan and Essex County Prosecutor Joseph P. Lordi, both defendants in this action. The films were seized pursuant to a search warrant issued by the Honorable Ralph L. Fusco, New Jersey Superior Court Judge, on the strength of an affidavit of a Sheriff's detective. Prior to the seizure, Judge Fusco had not seen the film. Moreover, no prior adversary hearing was held as to the propriety of the seizure. The search warrant mentioned no individuals and was not issued in conjunction with any criminal complaint. No criminal complaints or indictments were returned prior to the commencement of Hamar's separate action (now consolidated herein) against the Essex County Sheriff, Prosecutor, and the New Jersey Attorney General.
Prior to the April 1973 seizure, plaintiff Hamar had experienced other film seizures by the Essex County authorities. As a result of a seizure in May 1972, plaintiff Hamar pleaded guilty to an accusation of "Maintaining a Nuisance." On March 5, 1973, the film "Deep Throat" was seized by defendants under the authority of a Newark Municipal ordinance without a prior adversary hearing. Following alleged harassment by the defendants and the issuance of a federal court order restraining defendants from further harassment of the plaintiff Hamar, the plaintiff pleaded guilty to violations of the Newark Municipal Ordinance dealing with obscenity. Although there are currently no criminal actions proceeding against Hamar, the past seizures have allegedly caused great perturbation among Hamar's employees and have disrupted its business.
Plaintiff Hamar intends to continue exhibition of the same genre of sexually oriented adult films. Among other relief, Hamar seeks a declaratory judgment invalidating the New Jersey anti-obscenity statute. Hamar also seeks an order enjoining the defendants from enforcing this anti-obscenity statute in any fashion, and in particular, a preliminary injunction prohibiting defendants from making unconstitutional seizures of the films it is and will be exhibiting.3
Plaintiff C & V Theatre Corporation also operates a theater which exhibits sexually oriented adult films. On March 6, 1973, Monmouth County officers seized the film "Deep Throat", then being exhibited at its theater. A criminal prosecution against the plaintiff C & V has been commenced based upon the exhibition of "Deep Throat" and is currently pending in the New Jersey state courts. No relief is sought here with respect to that seizure and criminal prosecution. Tr. June 1, 1973 at 18. Plaintiff C & V alleges, however, that subsequent to the "Deep Throat" incident, the Monmouth County officials who had been made defendants in C & V's initial separate complaint, and who now appear as defendants in the consolidated amended complaint, informed C & V that they would continue to review the sexually oriented adult films to be exhibited in plaintiff's theater and would seize films considered obscene with a view toward appropriate criminal proceedings. Plaintiff C & V seeks the same relief requested by the plaintiff Hamar.
Plaintiffs Wein and Guarino, are owners and operators of a book store known as "Best Adult Book Store" located in Essex County, Irvington, New Jersey, in which sexually oriented adult books, films, magazines and novelties are exhibited and sold. On April 25, 1973, it is alleged that a member of the Irvington Police Department, without advising plaintiffs that he was a police officer, purchased a magazine from defendants, left, and a few minutes later returned with some other police officers who this time identified themselves as such and demanded that plaintiffs return the marked bill with which the initial purchase of the magazine had been made. On April 26, 1973, plaintiffs were served with criminal complaints charging them with violations of the New Jersey anti-obscenity statute, which complaints are still pending. Tr. June 1, 1973 at 17, 18. Plaintiffs allege that they were told by the Deputy Chief of the Irvington Police Department that if they were to remain open for business, the Irvington Police Department would issue daily criminal complaints against them under the New Jersey anti-obscenity statute. Plaintiffs allege similar representations were made to them by other Irvington law enforcement officials. Plaintiffs seek basically the same relief against the Irvington municipal law enforcement officials, the Essex County Prosecutor and the Attorney General of New Jersey as is sought by the plaintiffs Hamar and C & V against their respective defendants.4 Plaintiffs Wein and Guarino also seek to restrain defendants from further prosecution of the criminal complaints presently outstanding against them.
To the extent that relief is sought by Wein and Guarino against the Town of Irvington, the Municipal Court of the Town of Irvington, and the Town of Irvington Police Department, this court has no jurisdiction under 42 U.S. C. § 1983 to consider the matter and these defendants shall be dismissed from the action. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).
At oral argument on June 1, 1973, all parties agreed that no evidence other than the stipulations already filed with the court, would be presented and that the June 1, 1973 argument would constitute the final hearing before the three-judge panel in this action.5
Also at oral argument this panel granted a motion by the plaintiffs to proceed as a class with respect to the constitutionality of the challenged anti-obscenity statute. The panel denied so much of that motion as sought to establish or to have certified a class as to the allegedly illegal seizure procedures which were found to vary considerably in each case and thus to present different factual and legal issues best resolved on a case-by-case basis. The class certified by this panel under Rule 23(b)(2) was the class of all movie theater operators in the State of New Jersey that exhibit "X"-rated and/or sexually oriented adult films and the class of all bookstore owners in the State of New Jersey that sell sexually oriented adult books and magazines.
Defendants contend that the plaintiffs do not have standing to challenge the New Jersey anti-obscenity statute since the statute, as written, will not be enforced against the plaintiffs. After a three-judge panel for the District of New Jersey declared N.J.S. 2A:115-1.1 invalid on November 20, 1972 because of the failure of that statute to include "utterly without redeeming social value" in its definition of obscenity, Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F.Supp. 42 (D.N.J.1972), the Attorney General of the State of New Jersey modified the State's enforcement policy so as to include the "social-value" test in the definition of obscenity when applying N.J.S. 2A:115-1 et seq. to prosecutors' investigations, arrests, and indictments.6 Defendants argue that since plaintiffs will be investigated, arrested and indicted under a standard which received constitutional approval in Cine-Com, and since all formal prosecutions will be held in abeyance pending the determination of Cine-Com which is now on appeal before the Third Circuit,7 plaintiffs are not subject to any direct injury as a result of the...
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Miranda v. Hicks
...decisions which have held the statutes in other states not to comply with the mandate of Miller: New Jersey Hamar Theaters, Inc. v. Cryan, 365 F. Supp. 1312 (D.N.J.1973). Massachusetts Commonwealth v. Horton, 310 N.E.2d 316 (Mass.1974); Commonwealth v. Capri Enterprises, Inc., 310 N.E.2d 32......
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Bambu Sales, Inc. v. Gibson
...See Cine-Com., etc. v. Lordi, 351 F.Supp. 42 (D.N.J., 1972). The same result was reached by a three-judge court in Hamar Theatres v. Cryan, 365 F.Supp. 1312 (D.N.J., 1973), although by that time a new test had been articulated by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d ......
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United Artists Corporation v. Harris, Civ. A. No. CIV-73-498-D.
...of the New York obscenity laws expected in the near future from the remand of the Heller case. But see Hamar Theatres, Inc. v. Cryan, 365 F.Supp. 1312 (D.N.J.) (decided July 26, 1973). Thus we cannot agree that the claim of First Amendment rights deprives us of discretion to abstain to perm......
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Hamar Theatres, Inc. v. Cryan
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