Veen v. Davis

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Citation326 F. Supp. 116
Decision Date02 April 1971
Docket NumberNo. 71-454-AAH.,71-454-AAH.
PartiesClarence VEEN and Claudia Ruddick, aka Claudia Allece, Plaintiffs, v. Edward DAVIS, in his capacity as Chief of Police for the City of Los Angeles, Roger Arnebergh in his capacity as City Attorney for the City of Los Angeles, and Los Angeles Police Officer D. Kempton, Defendants.

Robert H. London, Marks, Sherman, London, Schwartz & Levenberg, a Professional

Corporation, Beverly Hills, Cal., for plaintiffs.

Roger Arnebergh, City Atty., George J. Franscell, Asst. City Atty., John T. Neville, Deputy City Atty., Los Angeles, Cal., for defendants.

DECISION AND ORDER DENYING TEMPORARY RESTRAINING ORDER; DENYING APPLICATION FOR 3-JUDGE COURT; AND DISMISSING COMPLAINT WITH PREJUDICE

HAUK, District Judge.

This matter came before us in a hearing on March 1, 1971, upon Plaintiff's application for "Order for Return of All Prints of Still Photographs Taken; Temporary Restraining Order; Order to Show Cause." Plaintiffs seek the Temporary Restraining Order to enjoin Defendants from further prosecution of two obscenity cases, Nos. 371,384 and 371,451, now pending before the Municipal Court for the Los Angeles Judicial District, County of Los Angeles, State of California. They also seek a Temporary Restraining Order against any further harassment by way of seizure, citation or arrest of Plaintiffs. These proposed Temporary Restraining Orders are to run pending the return of the Order to Show Cause why they should not be made permanent. Plaintiffs further request an order directing the return of all photographs taken on the 22nd and 27th of October, 1970, at the Vagabond Theater by the Defendants.

The Complaint, which is in two counts — one for injunctive relief and the other for declaratory relief — obviously follows an increasingly apparent trend of smut peddlers under vigorous attack by the City Attorney and the state law enforcement agencies in California to invoke the aid of the federal courts by seeking refuge in the Federal civil rights statutes enacted in the post Civil War period, and the United States Constitution, by asking for Federal intervention to stop and prohibit any and all city, county and state obscenity prosecutions.1 This trend has been just as vigorously resisted by some federal courts.2

THE COMPLAINT

The Complaint alleges the following facts which we accept as true for the purposes of this Order.3

Plaintiff, Clarence Veen, at all times mentioned in the Complaint, was and is an assistant manager of the Vagabond Theater which is located on Wilshire Boulevard in the City of Los Angeles, State of California. Plaintiff Claudia Ruddick aka Claudia Allece, was and is a cashier at this theater.

Named as Defendants are Edward Davis, Chief of Police for the City of Los Angeles, Roger Arnebergh, City Attorney for the City of Los Angeles, and D. Kempton, a member of the Los Angeles Police Department, Badge No. 12881.

The Complaint further alleges that on two occasions, October 22 and October 27, 1970, Defendant Kempton entered, without a search warrant, the Vagabond Theater which was then showing the film "The Sensual Woman." Kempton, while viewing the film, allegedly took still photographs of certain scenes from "The Sensual Woman." Plaintiff Ruddick was on duty as cashier at the Vagabond Theater on October 22, 1970; and Plaintiff Veen was on duty as assistant manager on October 27, 1970.

Thereafter, Plaintiffs were charged in separate complaints with violations of California Penal Code section 311.2.4

Plaintiffs seek the above described injunctive and declaratory relief on the following grounds:

(1) The taking of still photographs of the film "The Sensual Woman" without either a prior adversary hearing or a search warrant amounted to an illegal search and seizure under the Fourth and Fourteenth Amendments to the United States Constitution and the evidence so seized should be ordered suppressed by this Court.

(2) The film "The Sensual Woman" is not obscene and, therefore, a three-judge court should be convened to enjoin further prosecution of Plaintiffs for exhibiting this film. 28 U.S.C. § 2281 et seq.

(3) A three-judge Court should be convened to declare unconstitutional California Penal Code Section 1523-42, which authorized the search and seizure in this case, as unconstitutional on their face and as applied in this case in that they authorize the imposition of unlawful prior restraints on freedom of speech.

(4) A three-judge court should be convened to declare unconstitutional California Penal Code Sections 311 and 311.2 on the ground that they are overbroad on their face and as applied in this case where they are being used to prosecute those who exhibit obscene materials even where there is no question of commercial pandering, intrusion upon the rights of others, or receipt by juveniles.

THE LAW

Many Federal courts have been granting rather freely the relief sought by plaintiffs here, citing and relying upon Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).5

However, it now appears that these Courts have been reading too much into Dombrowski.6 The Supreme court has just recently shed great light on the fundamental tenets underlying our Federal system which turn upon the question of Federal intervention in State judicial proceedings. In a group of cases decided on February 23, 1971, the Supreme Court has at last outlined the proper policy that the Federal courts should follow when asked to intervene by way of injunction or declaratory judgment in a criminal prosecution which is contemporaneously pending in a State court. These illuminating cases are Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).7

They set forth that, as a matter of Federal policy, the Federal courts "must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution." Younger v. Harris, 401 U.S. 37, 56, 91 S.Ct. 746, 756, 757, 27 L.Ed. 2d 669 (1971) (STEWART, J., concurring). As a matter of fact the cases hold that, except in the rare case, we must not even consider the merits. Therefore, there can be no need for the convening of a three-judge court and this Court must peremptorily dismiss without a hearing on the merits if the allegations in the Complaint and the supporting Affidavits are insufficient to show the "exceptional circumstances" hereinafter set forth. Samuels v. Mackell, supra.

In Younger the Supreme Court reversed the judgment of a three-judge court which had declared California's Criminal Syndicalism Act void for vagueness and overbreadth and restrained the District Attorney from further prosecution of the currently pending State court criminal action against the Plaintiff for alleged violation of the Act. The Court said, following Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed.2d 927 (1926) and Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), that this type of interference with State court criminal procedures is not justified except when there is a danger of great, immediate and irreparable injury to the defendant if the state prosecution were allowed to proceed. Thus Dombrowski was not reversed but rather, it was limited to its facts. The Plaintiffs in Dombrowski offered to prove by affidavits that there had been illegal searches and seizures, continuing harassment and threats of prosecution even after a state court had quashed the warrants and suppressed the evidence initially seized. The allegations in the Complaint, together with the affidavits, clearly showed a type of aggravated harassment amounting to bad faith prosecution which should not be countenanced by the Federal courts.

The Supreme Court in this latest set of cases on February 23, 1971, has given us some guidelines to aid us in determining what constitutes great, immediate and irreparable injury that is required before we should intervene.

"Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered `irreparable' in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution." Id., 401 U.S. at 46, 91 S.Ct. at 751.

In other words, to be an injury of this nature it must be "above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention." Id., 401 U.S. at 37, 48, 91 S.Ct. at 751.

The Court in Younger and again in Samuels v. Mackell, supra, held regarding declaratory relief,

"that, in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well." Samuels v. Mackell, supra, 401 U.S., at 73, 91 S.Ct., at 768.

Further, it is clear that

"the possible unconstitutionality of a statute `on its face' does not in itself justify an injunction against good faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief." Younger v.
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    • United States
    • U.S. District Court — District of Nevada
    • May 11, 1976
    ...Pichler v. Jennings, 347 F.Supp. 1061 (S.D.N.Y.1972); whether the court may intervene in an ongoing state proceeding, Veen v. Davis, 326 F.Supp. 116 (C.D.Cal. 1971). So we must now determine whether the case before us presents a substantial federal constitutional claim and, also, whether al......
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    • U.S. District Court — Central District of California
    • October 30, 1973
    ...by asking for Federal intervention to stop and prohibit any and all city, county and state obscenity prosecutions. Veen v. Davis, 326 F.Supp. 116 (C.D.Cal. 1971). The Complaint alleges that at all times the Plaintiff Inland Empire Enterprises, Inc., was a California corporation duly organiz......

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