Pinkus v. Arnebergh

• Decision Date: 27 September 1966
• Docket Number: No. 66-861.,66-861.
• Citation: 258 F. Supp. 996
• Court: U.S. District Court — Central District of California
• Parties: William PINKUS, Petitioner, v. Roger ARNEBERGH, City Attorney for the City of Los Angeles, Evelle J. Younger, District Attorney for the City of Los Angeles, William H. Parker, Chief of Police for the City of Los Angeles, Peter J. Pitchess, Sheriff of the County of Los Angeles, Thomas C. Lynch, Attorney General for the State of California, Municipal Court of Beverly Hills Judicial District, County of Los Angeles, State of California, Respondents.

258 F. Supp. 996

William PINKUS, Petitioner, v. Roger ARNEBERGH, City Attorney for the City of Los Angeles, Evelle J. Younger, District Attorney for the City of Los Angeles, William H. Parker, Chief of Police for the City of Los Angeles, Peter J. Pitchess, Sheriff of the County of Los Angeles, Thomas C. Lynch, Attorney General for the State of California, Municipal Court of Beverly Hills Judicial District, County of Los Angeles, State of California, Respondents.

No. 66-861.

United States District Court C. D. California.

September 27, 1966.

Burton Marks, Beverly Hills, Cal., for petitioner.

Harold W. Kennedy, County Counsel, by Irvin C. Taplin, Jr., Deputy County Counsel, Los Angeles, Cal., for respondents Evelle J. Younger, Los Angeles County Dist. Atty., and Beverly Hills Municipal Court.

Roger Arnebergh, City Atty., Robert B. Burns, Asst. City Atty., by George J. Franscell, Deputy City Atty., Los Angeles, Cal., for respondents Los Angeles City Atty. Roger Arnebergh, Los Angeles City Chief of Police William H. Parker, Los Angeles Board of Police Commissioners.

Thomas C. Lynch, Atty. Gen., by A. Barry Cappello, Deputy Atty. Gen., Los Angeles, Cal., for respondent California State Atty. Gen., Thomas C. Lynch.

HAUK, District Judge.

This is an action for declaratory judgment and injunction brought by the owner and operator of a so-called "arcade" establishment in the unincorporated territory of Los Angeles County, California, where petitioner exhibits and sells "nudie" motion picture films and "nudist" magazines. The method of operation is to exhibit the films in small booths, utilizing "peep show" machines which are activated when customers deposit silver coins for metered showings measured in terms of minutes proportionate to the value of the coins deposited. After viewing the films, the customers can later purchase them in the same place where the "nudist" magazines may also be viewed and purchased.

Petitioner has been prosecuted and convicted by respondents for violation of California Penal Code §§ 311 and 311.2, the State obscenity statute,¹ and now proceed under the Federal Civil Rights Acts (42 U.S.C. §§ 1981-1985, 1988) seeking the empanelment of a three-judge Federal Court (28 U.S.C. §§ 2281-2284) for a declaration that the films and magazines were not obscene as a matter of law and that the enforcement, operation and execution of the California obscenity statute has deprived and will continue to deprive petitioner of his civil and constitutional rights protected by the First (freedom of speech), Fourth (freedom from unreasonable searches and seizures), and Fourteenth (equal protection of the laws) Amendments of the United States Constitution. Additionally, petitioner also seeks injunctive relief against the various respondent court and law enforcement agencies and officers of City, County and State to prohibit them from conducting such prosecutions, together with an order compelling the law enforcement agencies and officers to set up a pre-prosecution censorship system to which petitioner could submit future films and magazines for a determination as to obscenity prior to exhibiting and selling them.

Originally coming on for hearing upon petitioner's motion for a preliminary injunction and respondents' motions to dismiss the complaint and motions for summary judgment, extensive evidence was presented by both sides and received by the Court at hearings which ran for four days, including the films and magazines themselves, which were marked as exhibits and viewed by the Court in their entirety throughout lengthy and eventually boring sessions. Detailed and comprehensive affidavits were submitted by respondents covering all stages of the law enforcement procedures followed in the prosecutions of petitioner. Because of this receipt of evidence and by stipulation of the parties the motions to dismiss were treated as motions for summary judgment, all parties having been given reasonable opportunity to present all material pertinent to the issues. Rule 12(b) and Rule 56, Federal Rules of Civil Procedure. Moss v. Hornig, 214 F.Supp. 324, 329-330 (D.Conn.1962); North American Iron and Steel Co. v. United States, 130 F.Supp. 723, 724 (E.D.N.Y.1955); Hibben v. Kuchaj, 117 F.Supp. 55, 56 (N.D.Ill.1953).

After full consideration of the pleadings and the evidence submitted by the parties, after hearing all arguments by the parties, and after full consideration of the points and authorities, presented to the Court in support of the respective positions of the petitioner and the respondents, the Court now makes its decision, findings of fact and conclusions of law that petitioner's application for a convocation of a three-judge Federal Court be denied, and that summary judgment be entered in favor of respondents.

So that the facts will be clear and the findings incontestably correct, the Court must describe in detail the films and magazines which it viewed, and the actions and gyrations of the female models and actresses in the films, and of the male and female models, actors and actresses in the magazines, whose duplicating displays of obscenity and pornography are the central and only themes of these tiresome titillations.

FINDINGS OF FACT

1. That the respondent William H. Parker was the Chief of Police of the City of Los Angeles and had been a member of and the General Manager and Chief Administrative Officer of the Police Department of the City of Los Angeles, which Department has the powers and duty of enforcing the laws of the State of California within the territorial limits of the City of Los Angeles, including the apprehension and arrest of persons reasonably believed to be in violation of Penal Code Section 311.2.

2. That William H. Parker died on July 16, 1966.²

3. That the respondent, Roger Arnebergh, was and now is, City Attorney for the City of Los Angeles and at all times mentioned in petitioner's complaint, said respondent was and now is, the duly elected and acting City Attorney of the City of Los Angeles, empowered and required by the Charter of the City of Los Angeles to prosecute any and all misdemeanor offenses occurring within the territorial limits of the City of Los Angeles, including prosecution of Penal Code Section 311.2, a misdemeanor offense.

4. That at all times mentioned in petitioner's complaint, respondent, Evelle J. Younger, was and now is, the duly elected and acting District Attorney for the County of Los Angeles, State of California, empowered and charged with the duty of prosecuting any and all felonies within said county and any and all misdemeanor offenses occurring within the unincorporated territory of said County, including prosecution of Penal Code Section 311.2, a misdemeanor offense.

5. That at all times mentioned in petitioner's complaint, respondent Peter J. Pitchess, was and now is, the duly elected and acting Sheriff of the County of Los Angeles, State of California, and pursuant to laws of the State of California charged with the duty of enforcing the law within said County, including the apprehension and arrest of persons reasonably believed to be in violation of Section 311.2 of the Penal Code of the State of California.

6. That at all times mentioned in petitioner's complaint, Thomas J. Lynch was, and now is, the Attorney General of the State of California.

7. That The Municipal Court of the Beverly Hills Judicial District is an aggregate body consisting of two judges for the consideration and action on matters of judicial business.

8. That petitioner, William Pinkus, was at all times mentioned in petitioner's complaint, and now is, licensed by the County of Los Angeles to conduct an arcade business pursuant to a permit issued by respondent Peter J. Pitchess, Sheriff of Los Angeles County and petitioner William Pinkus is, and at all times mentioned in the complaint, was engaged in the business of selling books and magazines in the City and County of Los Angeles.

9. That petitioner William Pinkus, since April, 1964, has demanded that respondent Peter J. Pitchess provide petitioner with a Board of Review to pass on the obscenity or non-obscenity of films displayed by petitioner in his business establishment. That in addition said petitioner has demanded that respondent Peter J. Pitchess provide him with guidelines or opinions as to which, if any, of the films displayed by petitioner were improper to exhibit and to give petitioner notice and an opportunity to defend or remove said objectionable films from sale or exhibition to the public before any arrest was to be made or any criminal complaint filed. Respondent Peter J. Pitchess refused and still refuses, to do any or all of the foregoing as demanded by petitioner William Pinkus.

10. That petitioner, William Pinkus, and one of his employees, were arrested pursuant to a Warrant of Arrest issued by respondent Municipal Court of the Beverly Hills Judicial District on or about May 12, 1964, for a violation of California Penal Code Section 311.2, (exhibiting obscene material) in the unincorporated territory of Los Angeles County, by members of the Sheriff's Department of the County of Los Angeles and thereafter prosecuted in the Municipal Court of the Beverly Hills Judicial District in Cases Nos. M12706 and M12707 by Deputies in the Office of the District Attorney of Los Angeles County. At the conclusion of said trial, petitioner was adjudged guilty of exhibiting obscene matter, to wit, the motion picture films identified in said cases, Exhibits 1 and 2, and 56 rolls of other film stipulated as being the same quality and character as Exhibits 1 and 2, in violation of California Penal Code Section 311.2. Said convictions were affirmed on appeal by the Appellate Department of the Los Angeles Superior Court in Cases No. CRA-6101 and CRA-6102. Subsequent to said affirmance, petitioner applied for and was granted a stay of execution of sentence for the purpose of permitting petitioner to apply for...