Schackman v. Arnebergh

• Citation: 258 F. Supp. 983
• Decision Date: 27 September 1966
• Docket Number: No. 66-784.,66-784.
• Court: U.S. District Court — Central District of California
• Parties: Harry SCHACKMAN, Joseph Gross, Nathan DeLuca, Harry Pinch, Charles Gray Strieby and Joseph Richard Touart, Petitioners, 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 of the City of Los Angeles, Peter J. Pitchess, Sheriff of the County of Los Angeles, Thomas C. Lynch, Attorney General of the State of California, Municipal Court of the Beverly Hills Judicial District, County of Los Angeles, State of California, Municipal Court of the Los Angeles Judicial District, County of Los Angeles, State of California, and Board of Police Commissioners of the City of Los Angeles, Respondents.

258 F. Supp. 983

Harry SCHACKMAN, Joseph Gross, Nathan DeLuca, Harry Pinch, Charles Gray Strieby and Joseph Richard Touart, Petitioners, 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 of the City of Los Angeles, Peter J. Pitchess, Sheriff of the County of Los Angeles, Thomas C. Lynch, Attorney General of the State of California, Municipal Court of the Beverly Hills Judicial District, County of Los Angeles, State of California, Municipal Court of the Los Angeles Judicial District, County of Los Angeles, State of California, and Board of Police Commissioners of the City of Los Angeles, Respondents.

No. 66-784.

United States District Court C. D. California.

September 27, 1966.

COPYRIGHT MATERIAL OMITTED

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

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., Beverly Hills Municipal Court and Los Angeles 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 owners, operators and employees of so-called "arcade" establishments in Los Angeles and Beverly Hills, California, where petitioners exhibit and sell "nudie" motion picture films. 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 the same.

Petitioners have 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 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 petitioners of their 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, petitioners also seek injunctive relief against the various respondent courts 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 petitioners could submit future films for a determination as to obscenity prior to exhibiting and selling them.

Originally coming on for hearing upon petitioners' 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 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 petitioners. 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, 330-331 (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 petitioners and the respondents, the Court now makes its decision, findings of fact and conclusions of law that petitioners' 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 which it viewed and the actions and gyrations of the models and actresses whose duplicating displays of obscenity and pornography are the central and only themes of these tiresome titillations.

Let, then, the reader be duly warned so that any shock or disgust generated be directed at the films themselves and not at the Court. It is high time that the facts of obscenity and hard core pornography be faced in their full, complete, stark and revolting essence, relieved only by the tawdry tediousness generated by their predominant and pounding appeal to the prurient. If four-letter words are used by the Court, they were used by the shoddy actresses in the films and they should be read in the context of the California obscenity statute, (Penal Code Sections 311 and 311.2). The appeal of the films, taken as a whole, is to a shameful and morbid interest in nudity, sex, and the female organs of sex and excretion, going substantially beyond customary limits of candor in description and representation, and utterly without redeeming social importance.

Sensitive souls may wince at the facts which follow, but no one can gainsay their truth, delineated as accurately as possible.

Borrowing the jargon of the street, it is time to "tell it as it is", to say what this trash actually is, though embarrassingly filthy and wearisomely boring the task may be. So the Court proceeds with the fact finding and the legal conclusions.

The Court having heard the arguments and having examined the proofs offered by the respective parties, and the cause having been submitted for decision, and the Court being fully advised in the premises makes its findings of fact as follows:

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 petitioners' 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 petitioners' 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 the prosecution of Penal Code Section 311.2, a misdemeanor offense.

5. That at all times mentioned in petitioners' 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 laws 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 petitioners' complaint, Thomas C. Lynch was, and now is, the Attorney General of the State of California.

7. That at all times mentioned in petitioners' complaint, the Board of Police Commissioners of the City of Los Angeles was, and now is, a department of the City of Los Angeles exercising a governmental function and charged with the control and management of the Police Department of the City of Los Angeles, and the exclusive authority to grant or revoke permits to engage in the arcade business within the territorial limits of the City of Los Angeles.

8. That The Municipal Court of the Los Angeles Judicial District is an aggregate body consisting of forty-nine judges for the consideration and action on matters of judicial business.

9. 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.

10. That petitioner, Harry Schackman, was at all times mentioned in petitioners' complaint, and now is, licensed by the City of Los Angeles to conduct an arcade business; said permits having been issued by the respondent Board of Police Commissioners of the City of Los...