Tyrone, Inc. v. Wilkinson

• Decision Date: 15 January 1969
• Docket Number: Civ. A. No. 6051-R.
• Citation: 294 F. Supp. 1330
• Court: U.S. District Court — Eastern District of Virginia
• Parties: TYRONE, INC., a Virginia corporation, trading as Lee Art Theatre and Howard William Burtnett v. James B. WILKINSON, Commonwealth's Attorney for the City of Richmond, Va., and Frank S. Duling, Chief of Police for the City of Richmond, Va.

294 F. Supp. 1330

TYRONE, INC., a Virginia corporation, trading as Lee Art Theatre and Howard William Burtnett v. James B. WILKINSON, Commonwealth's Attorney for the City of Richmond, Va., and Frank S. Duling, Chief of Police for the City of Richmond, Va.

Civ. A. No. 6051-R.

United States District Court E. D. Virginia, Richmond Division.

January 15, 1969.

Joseph S. Bambacus, Richmond, Va., for plaintiffs.

James B. Wilkinson, Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

This is an action brought by plaintiffs seeking injunctive relief from the seizure of motion pictures and from criminal prosecutions based on the alleged offense of obscenity.

The Court, having considered the pleadings, exhibits and statements of counsel, and the evidence of witnesses, finds as follows:

Jurisdiction of the Court is invoked under Title 42 United States Code § 1983.

Plaintiff is a corporation operating a a movie theater in the City of Richmond, within this district; the individual plaintiff is a resident of Richmond, Virginia, and was manager of the movie theater on October 21, 1968; the defendant, Wilkinson, is the prosecuting attorney for the City of Richmond, Virginia; and the defendant, Duling, is the Chief of Police for the said city.

On or about March 21, 1966, with the acquiescence of the defendant, Wilkinson, members of the Police Department, one of whom had not attended a movie theater for some five to ten years prior thereto, commenced a series of raids on the Lee Art Theatre, operated by the corporate plaintiff. In each instance the modus operandi would be for one or more police officers to view the films, prepare affidavits after consultation with the Commonwealth's Attorney, and secure a search warrant. In at least three instances in 1966 this procedure was followed, search warrants secured, and the officers seized certain films being shown by the corporate plaintiffs. The plaintiffs were prosecuted and found guilty in all three instances of having "exhibited in public a lewd and obscene motion picture." In one case the United States Supreme Court reversed the conviction; in a second, the Supreme Court of Appeals of Virginia has issued a writ of error and will hear the matter; and in the third, a judgment of guilt became final without any appeal.

As a result of one of the raids, the corporate petitioner was forced to expend a sum in excess of $1,500.00 to install temporary projection machinery and to repair and re-install original equipment which the police officers had seized as having been used for the commission of a crime.

It is uncontradicted that the seizure of all of the films was accomplished without any prior adversary hearing on the question of obscenity. This by reason of the defendant, Wilkinson's, view that the law doesn't require an adversary hearing prior to the seizure of the films in question. The Commonwealth's Attorney very frankly states to the Court that he does not intend to afford a prior adversary hearing in the event search warrants are secured for films which may be shown in the future unless and until, as he put it, he is satisfied that he is required to do so under the law

As a result of a viewing of a film being shown by the plaintiff corporation, affidavits were filed by certain police officers and other parties affirming that each affiant "had witnessed a movie at Lee Art Theatre, 934 W. Grace Street and found it to be obscene without redeeming social value and it goes substantially beyond community standards in the display of nudity and sex and the dominant theme or purpose appeals to the prurient interest," and upon their application a search warrant was issued, the theater raided, and the allegedly obscene films confiscated and delivered to the City Sergeant for the City of Richmond. There was admittedly no adversary hearing prior to either the issuance of a search warrant or the seizure of the films. It should be noted that the magistrate who issued the search warrant likewise viewed the film prior to the issuance of said warrant.

Subsequent to said seizure, criminal informations were filed at the instance of the Commonwealth's Attorney, Wilkinson, charging the corporation and the plaintiff, Burtnett, with having unlawfully possessed, shown and exhibited in public a lewd and obscene motion picture in violation of the laws of Virginia. It would appear that the plaintiffs are charged with having violated the statutory laws of Virginia in reference to obscenity. See Title 18.1-227, etc., Code of Virginia 1960.

The plaintiffs ask this Court for equitable relief directing that the defendants return the prints of the motion picture films seized as aforesaid, and ask the Court to restrain the defendants, and all persons in concert with them, from seizing any prints of movie films, or otherwise interfering with the exhibition of any films exhibited by plaintiffs, prior to a determination of obscenity in an adversary proceeding. In addition, plaintiffs ask the Court to restrain the defendants from the further prosecution of the plaintiffs pursuant to the criminal informations filed by the defendant, Wilkinson, in the Hustings Court of the City of Richmond.

Defendants have moved the Court to dismiss the complaint and in argument before the Court, in essence denied that they are bound by certain opinions of the Supreme Court of the United States.

The facts are generally undisputed. It should be borne in mind that questions of abstention and of injunctive relief are not the same. See Dombrowski...