Supreme Video, Inc. v. Schauz

• Decision Date: 14 December 1992
• Docket Number: No. 91-C-773.,91-C-773.
• Citation: 808 F. Supp. 1380
• Parties: SUPREME VIDEO, INC., Plaintiff, v. Steven SCHAUZ, James Thome and One or More John Does, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

808 F. Supp. 1380

SUPREME VIDEO, INC., Plaintiff, v. Steven SCHAUZ, James Thome and One or More John Does, Defendants.

No. 91-C-773.

United States District Court, E.D. Wisconsin.

December 14, 1992.

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Jeff Scott Olson, Julian, Olson & Lasker, Madison, WI, for plaintiff.

Gregg T. Heidenreich, Schuch & Stilp, Milwaukee, WI, for defendants.

DECISION AND ORDER

RANDA, District Judge.

PRELIMINARY BACKGROUND

This is a civil rights action pursuant to 42 U.S.C.1983 brought by an adult video store, Supreme Video, Inc., (Supreme Video), against an Oshkosh police detective, Steven Schauz (Schauz), the Oshkosh Chief of Police, James Thome (Thome), and the City of Oshkosh (Oshkosh). Supreme Video alleges in an Amended and Supplemental Complaint that Thome, Schauz and Oshkosh, through eight separate violations of law relative to an investigation, issuance of a search warrant, and search and seizure pursuant to said warrant, violated Supreme Video's rights under the 1st, 4th, and 14th Amendments to the U.S. Constitution. The matter comes before the Court on the parties' cross-motions for summary judgment.

The Court has reviewed the pleadings, the affidavits, the findings of fact and responses thereto, the briefs, and all other filings and rules as follows:

Plaintiff's motion is denied and Defendants' motion is granted in full.

FACTUAL BACKGROUND

1. Wisconsin's Obscenity Statute

Wisconsin's current obscenity statute, Wis.Stat. § 944.21, was enacted in 1988, eight years after the preceding statute had been held unconstitutional by the Wisconsin Supreme Court. Kucharek v. Hanaway, 902 F.2d 513, 515 (7th Cir.1990). Although the current statute represents a compromise between booksellers and the legislature, stopping well short of the obscenity restrictions authorized by the U.S. Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the constitutionality of the new statute was quickly challenged in Kucharek v. Hanaway, 714 F.Supp. 1499 (E.D.Wis. 1989). Judge J.P. Stadtmueller concluded that the statute was unconstitutionally vague and violated equal protection guarantees, and issued a preliminary injunction enjoining enforcement of the statute. Id., at 1522.

The State appealed, and in a decision dated May 7, 1990, the 7th Circuit reversed, directing Judge Stadtmueller to dissolve the injunction and dismiss the case entirely. Kucharek, 902 F.2d at 521. The plaintiff subsequently petitioned the U.S. Supreme Court for review, which was denied in a decision dated January 7, 1991. Kucharek v. Hanaway, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). Judge Stadtmueller, however, did not formally dissolve the injunction until April 23, 1991. Kucharek v. Hanaway, Case No. 88-C-657, Docket Entry No. 29 (April 23, 1991).

II. The City's Investigation and Search Warrant

The foregoing dates are important because of the timing of the defendants' search and seizure. In or around January, 1991, Joseph Paulus, the District Attorney for the City of Oshkosh, and Michael Novotny, a detective with the City of Oshkosh Police Department, began discussing the possibility of investigating video stores in the area for violations of Wisconsin's obscenity statute. (Olson Aff. at Exhibit C, p. 1.) Those discussions coincided with the U.S. Supreme Court's denial of certiorari in the Kucharek case. Subsequently, in or around March, 1991, Novotny asked defendant Schauz, a fellow detective with the Oshkosh Police Department, to assist him in the investigation, and Schauz agreed. (Novotny Aff. at ¶ 2; Schauz Aff. at ¶ 1.) Thereafter, Novotny approached defendant James Thome, the Chief of Police for the City of Oshkosh, and requested permission to undertake the investigation. (Thome Aff. at ¶¶ 2-3; Novotny Aff. at ¶ 3.) Having received permission from Chief Thome, both Novotny and Schauz met with District Attorney Paulus, who explained how the investigation should proceed. (Novotny Aff. at ¶ 5; Schauz Aff. at ¶ 2.)

Pursuant to Attorney Paulus' instructions, Schauz purchased three (3) videotapes from the plaintiff, Supreme Video, on April 2, 1991. (Schauz Aff. at ¶ 3.) The videos were entitled "Alex Derenzy's Juicy Lucy", "Wall to Wall The Way You Like It" and "Home Movie Productions". (Schauz Aff. at ¶ 4.) "Juicy Lucy" was apparently a single-issue, nonserial work. The other two videos, however, were individual volumes in two separate series of movies generically entitled "Wall to Wall" and "Home Movie Productions", respectively. (Plaintiff's Proposed Findings of Fact at ¶¶ 12, 17; Defendants' Response to Plaintiff's Proposed Findings of Fact at ¶¶ 12, 17.) The individual volumes contained in each movie series were "wholly different movies", packaged in boxes that "obviously identify the different volumes as separate, different movies", and had cover graphics using "different colors" and "depicting different actors engaging in different activities". (Plaintiff's Proposed Findings of Fact at ¶¶ 17-23; Defendants' Response to Plaintiff's Proposed Findings of Fact at ¶¶ 17-23.) Each volume, however, bore the same generic title as every other volume within the series. (Defendants' Proposed Findings of Fact at ¶ 14; Plaintiff's Response to Defendants' Proposed Findings of Fact at ¶ 14.) After purchasing the three videos, Schauz watched each movie and narrated a candid summary of their contents in a report he submitted to District Attorney Paulus. (Schauz Aff. at ¶¶ 5-6, Exhibit A.) Upon reviewing the report, Paulus concluded that probable cause existed for a violation of Wisconsin's obscenity statute. (Schauz Aff. at ¶ 7.) Accordingly, Paulus prepared an affidavit for Schauz' signature summarizing the content of the movies, which was used in support of an application for a warrant to search the premises of Supreme Video. (Schauz Aff. at ¶ 8; Plaintiff's Proposed Findings of Fact at ¶ 14; Defendants' Response to Plaintiff's Proposed Findings of Fact at ¶ 14.) Schauz reviewed the affidavit, found it to be true and correct, and signed it. (Schauz Aff. at ¶ 8.)

Prior to requesting the search warrant, however, both Novotny and Schauz, aware of the injunction previously issued by Judge Stadtmueller, asked District Attorney Paulus whether the investigation could proceed. (Schauz Aff. at ¶ 12; Novotny Aff. at ¶ 11.) Paulus advised the officers that the investigation could proceed because the U.S. Supreme Court had overturned Judge Stadtmueller's decision and had held the obscenity statute constitutional. (Id.; See also, Defendants' Proposed Findings of Fact at ¶ 16; Plaintiff's Response to Defendants' Proposed Findings of Fact at ¶ 16.) In addition, Detective Schauz was advised around that time, by an individual who remains nameless, that he should seize all volumes of any movie series for which he had reviewed a single volume, such as the "Wall to Wall" and "Home Movie Productions" series. (Plaintiff's Proposed Findings of Fact at ¶ 11; Defendants' Response to Plaintiff's Proposed Findings of Fact at ¶ 11.)

A search warrant was then prepared and submitted, along with Schauz' affidavit, for review by the Hon. William Crane, Circuit Court Judge for Winnebago County. Neither the warrant nor the affidavit expressly indicated that the movies "Wall to Wall The Way You Like It" and "Home Movie Productions" were individual volumes in a series of movies, nor is there anything in the record indicating that Schauz informed Judge Crane of his intention to seize all volumes within these two series. (Novotny Aff. at Exhibits B-D; Plaintiff's Proposed Findings of Fact at ¶ 16; Defendants' Response to Plaintiff's Proposed Findings of Fact at ¶ 16.) Judge Crane reviewed the warrant and supporting materials, and signed the warrant without modification. As to what was to be seized, the warrant read as follows:

... copies of the cassettes Wall to Wall the Way You Like It, Alex Derenzy's Juicy Lucy and Home Movie Productions as well as the records, documents and writings relating to the original receipt, rental and/or sale, retention and/or storage of the above-named video cassette tapes, including any duplicate copies thereof, by said business establishment, directory, source book or guide which contains specific reference to or representation of the above-named video cassette tapes, advertisement, literature, flyers, pamphlets, pictures, posters, lists and notebooks containing specific reference to or representation of the above-named video cassette tapes or any other evidence which may constitute a violation of Sec. 944.21, Wis.Stats.

(Novotny Aff. at Exhibit C.)

III. Execution of the Warrant

On April 6, 1991, Detective Schauz, along with other officers of the Oshkosh Police Department, executed the search warrant. (Schauz Aff. at ¶ 13.) Schauz and the other officers first informed Thomas Ruby, the Supreme Video employee present during the search, that they were there to seize "all movies of Wall to Wall, Juicy Lucy and Home Movie Productions." (Plaintiff's Proposed Findings of Fact at ¶ 28; Defendants' Response to Plaintiff's Proposed Findings of Fact at ¶ 28.) Thereafter, in addition to certain business records, Schauz and the other officers seized one copy each of Wall to Wall, volumes 1-4, 8-15, 17 and 18, along with three (3) copies each of Home Movie Productions, editions 2 and 4, two (2) copies each of Home Movie Productions, editions 3 and 5, and one copy each of Home Movie Productions, editions 1 and 6-8. (Plaintiff's Proposed Findings of Fact at ¶¶ 29-31; Defendants' Response to Plaintiff's Proposed Findings of Fact at ¶¶ 29-31.) These videos were seized from an inventory of approximately 2,000 videotapes. (Defendants' Proposed Findings of Fact at ¶ 23; Plaintiff's Response to Defendants' Proposed Findings of Fact at ¶ 23.)

Subsequent to the seizure, counsel for Supreme Video sent a letter to Detective Schauz, making the following demands: (1) the immediate copying...