Overstock Book Company v. Barry

• Citation: 436 F.2d 1289
• Decision Date: 23 December 1970
• Docket Number: Dockets 34833,35620.,No. 432,433,432
• Parties: OVERSTOCK BOOK COMPANY, Inc., Appellee-Cross-Appellant, v. John L. BARRY, in his capacity as Police Commissioner for the County of Suffolk Police Department, and George J. Aspland, in his capacity as District Attorney for the County of Suffolk, State of New York, Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

436 F.2d 1289 (1970)

OVERSTOCK BOOK COMPANY, Inc., Appellee-Cross-Appellant, v. John L. BARRY, in his capacity as Police Commissioner for the County of Suffolk Police Department, and George J. Aspland, in his capacity as District Attorney for the County of Suffolk, State of New York, Appellants-Cross-Appellees.

Nos. 432, 433, Dockets 34833, 35620.

United States Court of Appeals, Second Circuit.

Argued November 20, 1970.

Decided December 23, 1970.

COPYRIGHT MATERIAL OMITTED

Floyd Sarisohn, Commack, N.Y., and Robert Eugene Smith, Towson, Md., for appellee-cross-appellant.

George J. Aspland, Riverhead, N.Y., pro se.

George W. Percy, Jr., Riverhead, N.Y., for John L. Barry.

Before KAUFMAN, HAYS and GIBBONS,^* Circuit Judges.

GIBBONS, Circuit Judge:

This case involves an attack on the constitutionality of the New York obscenity statute. The appellee-cross-appellant is a New York corporation which filed in the district court a complaint, verified on information and belief, and with four supporting exhibits, in which it sought injunctive and declaratory relief and damages from the defendants Barry, Police Commissioner, and Aspland, District Attorney for Suffolk County. Since the constitutionality of certain New York statutes is challenged the Attorney General of the State of New York received notice and appeared. The matter came before the district court on the plaintiff's motions (1) for preliminary injunctive relief more particularly described hereinafter, and (2) for the convening of a three-judge court pursuant to 28 U.S.C. § 2281. The defendants and the Attorney General filed motions pursuant to Rule 12(b) Fed.R. Civ.P. to dismiss the complaint for failure to state a claim upon which relief can be granted, for failure to set forth a substantial federal question, and for lack of subject matter jurisdiction. The Attorney General's motion also suggested abstention. All motions were heard by a single district judge who on October 31, 1969 filed an opinion, 305 F.Supp. 842, in which each was discussed, and who on February 17, 1970 entered an order

(1) denying plaintiff\'s motion for a preliminary injunction,

(2) denying plaintiff\'s motion for the convening of a three-judge court,

(3) granting a limited final injunction both against the defendants and against the plaintiff with respect to certain seized materials, and

(4) dismissing the complaint.

The final injunctive order was apparently entered as a result of a stipulation between the parties respecting seized materials which completed the record for purposes of Rule 65(a) (2). The defendants appeal from that part of the order which granted injunctive relief against them. The plaintiff cross-appeals from those parts of the order which denied its motion to convene a three-judge court, which denied the more extensive preliminary and permanent injunctive relief which it sought, and which dismissed its complaint.

The events giving rise to the dispute began when a policewoman employed by the Suffolk County Police Department obtained employment with the plaintiff as a receptionist and clerical worker. She was so employed for two weeks. Thereafter she filed a verified information seeking the issuance of a warrant for the arrest of one Robert Brown, president of the plaintiff corporation, on a charge of promoting obscenity in violation of Section 235.05(1) of the New York Penal Law. She also filed a verified application for a warrant for search and seizure of certain described materials located at plaintiff's place of business. The warrant for search and seizure was issued, pursuant to Title II, Code of Criminal Procedure, § 791 et seq., after an ex parte examination by a judge of the County Court of Suffolk County, of the policewoman's 32 paragraph affidavit, which described the materials to be seized in graphic detail. The search warrant was executed by officers of the Suffolk County Police Department on April 21, 1969, and on that same date Brown was arrested on the charge of promoting obscenity. On May 15, 1969 the instant complaint was filed.

We deal first with the contentions of the plaintiff-cross-appellant.

I. The Pending Criminal Charge Against Brown

Brown is not a party to this suit. Plaintiff seeks an injunction against "further proceeding with the prosecution of employee of petitioner, Robert Brown, in the criminal courts of the State of New York." The factual basis for plaintiff's claimed right to vindicate Brown's rights is the allegation that "* * * Petitioner has been required to defend an employee (Robert Brown) against unfounded criminal charges * * *." There is no allegation that Brown threatens to resign as plaintiff's president or leave its employ, or quit the distribution of plaintiff's merchandise. There is no allegation that Brown's prosecution has chilled his ardor for distribution of the publications which New York claims are obscene. No interest of the plaintiff is alleged to be invaded by the pendency of a single criminal charge against Brown other than its obligation, the source of which is unspecified, to retain an attorney for him. Even if Brown were before us 28 U.S.C. § 2283 would present a formidable obstacle. Plaintiff suggests on Brown's behalf that we should rule that 42 U.S.C. § 1983 is an expressly authorized exception to the anti-injunction statute. Compare Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950), and De Vita v. Sills, 422 F.2d 1172 (3d Cir. 1970), with Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964), cert. denied, sub nom. Chase v. McClain, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1965), Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957), and Sexton v. Barry, 233 F.2d 220 (6th Cir.), cert. denied, 352 U.S. 870, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956). It is time enough for the Second Circuit to reach that issue, expressly reserved in Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), when someone actually a defendant in a pending criminal proceeding comes before it with a complaint alleging a basis for injunctive relief. The allegation that the instant plaintiff is obliged to pay for Brown's lawyer patently fails to state such a basis. Indeed the plaintiff may have no standing to assert any right, legal or equitable, on Brown's behalf. See Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L. Ed.2d 524 (1960). In the absence of allegations sufficient to form a basis for injunctive relief, the complaint does not fall within the province of 28 U.S.C. §§ 2281, 2284, and the district court correctly denied injunctive relief without convening a three-judge court. Majuri v. United States, 431 F.2d 469 (3d Cir. 1970), cert. denied, 400 U.S. 943, 91 S. Ct. 245, 27 L.Ed.2d 248 (Dec. 7, 1970). Moreover, as will appear hereinafter, aside from the insufficiency of the allegations supporting the need for injunctive relief with respect to Brown's pending prosecution, the claimed illegality of that prosecution raises no substantial federal constitutional question.

II. Constitutionality of New York Penal Law § 235.00

Plaintiff seeks a temporary and a permanent injunction against the enforcement of § 235.00 of the New York Penal Law on the ground that the definition of obscenity in that statute does not conform with first amendment standards laid down by the Supreme Court. It is said to be both vague and overbroad. Modern constitutional law on the prohibition of obscenity starts, of course, with Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). It continues, through a long series of cases, to Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), which, while prohibiting the proscription of private possession of obscene materials, says, "Roth and the cases following that decision are not impaired by today's holding." Id. at 568, 89 S.Ct. at 1249. That § 235.00 of the New York Penal Law conforms to the standards of Roth and the cases following that decision is beyond question. The same attacks levied by plaintiff against § 235.00 were considered and rejected in Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969) (three-judge court), aff'd per curiam sub nom. New York Feed Co., Inc. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L. Ed.2d 78 (1970). Where the unsoundness of plaintiff's alleged federal constitutional claim clearly appears from previous decisions of the Supreme Court, a single district judge should dismiss a complaint for injunctive relief without convening a three-judge tribunal. California Water Service Co. v. Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex parte Poresky, 290 U. S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 108, 53 S.Ct. 549, 77 L.Ed. 1062 (1932); Fitzgerald v. Catherwood, 388 F.2d 400, 407-408 (2d Cir.), cert. denied, 391 U.S. 934, 88 S.Ct. 1846, 20 L.Ed.2d 854 (1968). Such is the case with plaintiff's attack on the constitutionality of § 235.00. See Milky Way Productions, Inc. v. Leary, supra, and cases therein cited, especially Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). This court has jurisdiction to affirm the single district judge's final order dismissing the action. Gunn v. University Committee to End War in Vietnam, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970); Mengelkoch v. Industrial Welfare Commission, 393 U.S. 83, 89 S.Ct. 60, 21 L. Ed.2d 215 (1968); Wilson v. City of Port Lavaca, Texas, 391 U.S. 352, 88 S. Ct. 1502, 20 L.Ed.2d 636 (1968); Schackman v. Arnebergh, 387 U.S. 427, 87 S. Ct. 1622, 18 L.Ed.2d 865 (1967); Buchanan v. Rhodes, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962).

III.

Constitutionality of New York Penal Law § 235.10(1),(2)

The New York obscenity statute prohibits promotion of or possession with...