Spiegel v. City of Houston
| Decision Date | 09 February 1981 |
| Docket Number | No. 79-3811,79-3811 |
| Citation | 636 F.2d 997 |
| Parties | 6 Media L. Rep. 2544 Joe SPIEGEL, et al., Plaintiffs-Appellees, v. CITY OF HOUSTON et al., Defendants, City of Houston, Jim McConn, Mayor, Harry Caldwell, Chief of Police, and B. K., Johnson, Deputy Chief of Police, Defendants-Appellants. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dale M. Tingleaf, Sr. Asst. City Atty., Adolph Guerra, Asst. City Atty., Houston, Tex., for defendants-appellants.
D. Reid Walker, Houston, Tex., for W. L. Hayden, et al.
Woody & Rosen, Marian Rosen, Clyde W. Woody, Houston, Tex., for plaintiffs-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before COLEMAN, CHARLES CLARK and REAVLEY, Circuit Judges.
Plaintiffs-appellees Joe Spiegel and David Gee own a substantial portion of the "adult" movie theatres in Houston, Texas. Along with Melody Hutchins (an employee of one of Spiegel's theatres), they filed suit against the City of Houston, its Police Department, the Harris County District Attorney, and individuals working for these entities alleging the named government entities and their employees had conspired in violation of statute and the Constitution to drive the theatres out of business. They asked for monetary damages and an injunction forbidding certain police practices. On October 25, 1979, the District Court granted plaintiffs a preliminary injunction forbidding the Houston Police Department and its members from forcing patrons of adult theatres to give their names and addresses and forbidding the arrest of employees of these theatres where the arrest tends to close down the theatre. The governmental entities and the named police officers appeal the preliminary injunction, contending that (1) Spiegel, et al. do not have the standing to assert the constitutional rights of third party employees and prospective patrons, (2) appellees failed to meet the four part test required to justify a preliminary injunction, and (3) the injunction is overly broad and grants plaintiff-appellees a privileged position among potential targets of law enforcement activities. Since we find merit in the argument that the injunction is overly broad, we reverse it and return it to the District Court for revisions not inconsistent with this opinion.
Prior to 1979 the Texas Commercial Obscenity statutes, Articles 43.21 et seq. of the Texas Penal Code, did not classify the showing of an obscene film as a felony offense. In 1979 the Texas legislature made substantial changes in the statute, changing the definition of obscenity, and making some violations a felony. The changes were to become effective September 1, 1979. On August 23, 1979, plaintiff Joe Spiegel and other corporate entities also plaintiffs in this suit challenged the constitutionality of the new Commercial Obscenity statute. On August 31 the District Court granted a preliminary injunction, staying enforcement of the statute. After a hearing on the merits the District Court dissolved its injunction. Spiegel appealed to this Court and initially received a stay of enforcement of the statute. This Court lifted the stay October 12, 1979, allowing full enforcement of the new statute.
Defendant-appellants contend this suit by Spiegel in his attempt to stay enforcement of §§ 43.21 and 43.23 by other means. Since the District Court's preliminary injunction does not prevent appellants from prosecuting appellees for any allegedly obscene movie they choose to show, but only affects the timing of arrests of theatre personnel and the questioning of theatre patrons, we find no merit in this argument.
Appellees, on the other hand, assert that appellants have conspired by utilizing law enforcement methods not necessary in the enforcement of the Commercial Obscenity statutes to harass its employees and patrons, with the intention being to make it close down its theatres for lack of business. Appellees cite four incidents as proof of this conspiracy. Three occurred before the effective date of the revised Commercial Obscenity statute and one occurred after.
Incident Number One concerns arrests at the August 8, 1978 premiere of the film "Sex World", shown at the Village Theatre. The theatre had advertised heavily to the public and press that the star of the film, Leslie Bovee, would be present and would perform a dance. Two vice officers of the Houston Police who attended the premiere found Ms. Bovee's topless dance so objectionable that they arrested her for lewd conduct. They also arrested the manager of the theatre, Bernard Pearson, and the representative of the film distributor, Jeff Steinman, for aiding and abetting the lewd conduct. Steinman was also charged with possession of a small amount of cocaine. All charges were subsequently dismissed. This incident is unlike the other three in that it does not involve the confiscation of a film, the detention and questioning of patrons, or the closing of the theatre. Its only relation to the other three cited instances of alleged police harassment is that one of the owners of the Village Theatre was Joe Spiegel.
Incident Number Two occurred June 4, 1979, at the West Branch Theatre, owned by plaintiff David Gee. Members of the Vice Squad served an arrest warrant and a search warrant for the film "Behind the Green Door." They arrested the cashier, Lonnie Meredith, and detained the ten patrons of the theatre an estimated 10-15 minutes to take their names and addresses. On reports prepared by the officers, patrons were listed as "suspects" who were "arrested and released at the scene." The reports included a diagram showing the actual location of each patron in the theatre. Charges of commercial obscenity lodged against Lonnie Meredith were later dropped in exchange for his agreement to testify before a grand jury. The appellants offered no explanation of what Meredith was expected to testify to or what indictments the grand jury could return in the area of Commercial Obscenity. At the time Meredith was charged, Commercial Obscenity was not a felony in Texas and was therefore not chargeable by the grand jury. At the same time Meredith was arrested, a warrant was issued for the arrest of David Gee for selling a print of an allegedly obscene film. This arrest was later dismissed when it was discovered that the signature of the police officer on the warrant had been forged.
Incident Number Three occurred at the Deauville Theatre, owned by Joe Spiegel. Vice Officers confiscated the movie "Teenage Pajama Party" and arrested the cashier/ticket taker, Melody Hutchins. Although police took all the patrons' names they inexplicably left the names and addresses out of the file they prepared for prosecution. The Deauville is a twin-cinema, one side showing X-rated films and the other showing films of a less explicit nature. Both share a common entrance, lobby and projection booth. Because of Hutchins' arrest the X-rated side of the theatre closed but the other remained open. Charges against Ms. Hutchins were later dropped.
The final incident of the four appellees cite occurred October 16, 1979, at the Cinema West. It occurred four days after the stay placed on the enforcement of the revised Texas Commercial Obscenity statute had been lifted by this Court. Because of the timing, interest by the news media on how the police would enforce the new statute was at a high pitch.
Vice officers confiscated the films "Pro Ball Cheerleaders" and "John Holmes Superstar." They arrested the manager of the theatre, Lois Goodman, and sought to arrest the ticket-taker, Kathryn Spiegel (who is the wife of Joe Spiegel). She was not at the theatre at the time the raid was made and was picked up the next day. All patrons (approximately 30) were detained and their names and addresses taken.
The unique element in this incident was the presence of television cameras and reporters from both radio and television stations. Testimony in the record indicates that the television personnel came in either with or immediately after the vice officers. The movie stopped abruptly, the lights were turned up high and television cameras began filming patrons being questioned by the police. Some patrons slouched in their seats and covered their faces in order to avoid being filmed. Several patrons indicated their discomfort and declared they would not return. When they were no longer involuntarily detained, patrons left very quickly through the exits. Film of their detention and questioning was shown on the afternoon news by at least one television station. Business at the Cinema West fell by 50% the next day and continued at this low level into and beyond the date that plaintiffs filed this suit.
Vice officers responsible for the Cinema West raid said they did not know how the news media knew about the raid. One speculated that they could have learned of it by listening to police band radio. He admitted that one of the television reporters who was later at the scene of the raid had been in the vice squad's office earlier that day and might have heard of the raid as it was being planned. Police officers admitted that they had control of the scene at which the patrons were detained and could have easily excluded television cameras but chose not to do so. They said that news media representatives were allowed full access to the interior of the movie theatre as long as they did not get in the way of police officers questioning the patrons.
Plaintiffs filed this suit October 22, 1979, citing violations of 42 U.S.C. 1981, 1983, 1985, 1986 and 1988 and the First, Fourth, Fifth, Ninth, Tenth and Fourteenth Amendments of the Constitution. They asked for monetary and injunctive relief. On October 25, 1979, the District Court granted plaintiffs a preliminary injunction from which appellants appeal.
As mentioned ante, the preliminary injunction limits some police methods...
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