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March 25, 1975

John CRYAN, Individually and as Sheriff of Essex County, State of New Jersey, et al., Defendants

Stern, District Judge.

The opinion of the court was delivered by: STERN

Plaintiff Hamar Theatres, Inc. brings suit under 42 U.S.C. § 1983 for a preliminary and a permanent injunction prohibiting the defendants Essex County Sheriff Cryan and Essex County Prosecutor Lordi from instituting any legal action, criminal or civil, against plaintiff in connection with seven motion pictures seized, pursuant to search warrants, by agents of the defendants at plaintiff's Newark place of business, known as the Treat Theatre, and for the return of those films, all on the ground that the judge who issued the warrants did not himself view the films before authorizing the seizure, but instead relied upon affidavits by policemen as to what each film contained. Plaintiff also seeks a restraint prohibiting the defendants from seizing any other films without first obtaining a search warrant from a magistrate who himself views the subject films before issuing a warrant for their seizure. Plaintiff also sues for declaratory relief.

 An Order to Show Cause was signed by this Court on January 31, 1975, and upon the representation of defendants that, pending this Court's determination, no action would be taken against plaintiff with regard to the seven films seized, plaintiff's request for a temporary restraining order was not granted. At oral argument on February 14, 1975, this Court ordered the application for preliminary and permanent injunctive relief denied, and the action dismissed, for the reasons set forth herein.


 There is no factual dispute concerning the procedures which were employed in this case. On November 22, 1974, agents of the Essex County Sheriff's Office entered the Treat Theatre in Newark, which is owned and operated by plaintiff Hamar Theatres, Inc. (hereinafter Hamar), pursuant to search warrants signed by the Honorable Richard B. McGlynn, Judge of the Superior Court of New Jersey (temporarily assigned). The warrants were based on the affidavits of detectives who claimed to have viewed the films and who described what they had viewed in their affidavits, which they presented to the judge in support of their application for warrants. The warrants thereafter issued, authorizing the seizure of prints of the films "Surprised Coed" and "Ski Bunnies," and the two prints were seized. Approximately three hours later, plaintiff Hamar appeared before the state court judge and formally moved for the return of the seized films on the grounds that "a judicial officer issuing a Warrant for the seizure of allegedly obscene material had an obligation under Heller v. New York, 413 U.S. 483 [93 S. Ct. 2789, 37 L. Ed. 2d 745] (1973), to first view that material in order to determine the probable cause for seizure," and "that the seizure of the only available print of those films just before a weekend effectively constituted a prior restraint of their exhibition in violation of the First Amendment of the United States Constitution." (PB: 1-2) The motion was denied on both grounds, but Judge McGlynn did order that plaintiff be permitted to copy the seized films at its own expense. Plaintiff declined to do so.

 The two films at issue were viewed by Judge McGlynn on November 27, 1974. At that time, plaintiff requested an evidentiary hearing on the question of obscenity, while expressly reserving its previously asserted constitutional objections to the seizure on the ground that no judicial officer had viewed the material himself before authorizing the seizure. The hearing was set for December 4, 1974. At the appointed time, plaintiff elected to waive its right to an adversary hearing rather than to submit the issue of obscenity to Judge McGlynn.

 On January 8, 1975, agents of defendants Cryan and Lordi entered the Treat Theatre pursuant to additional search warrants, authorized by Judge McGlynn and obtained by means of the same procedure, that is, a viewing by the officers and an account by affidavit thereafter. Pursuant to these warrants, the policemen seized prints of the films "Cheese," "Lovers in the Woods," and "Six for Sex." Once again, plaintiff thereafter instituted suit before Judge McGlynn for return of the seized films, on January 9, 1975, on the same grounds as those asserted with regard to the previous seizure. The motion was again denied. The same order permitting copying at plaintiff's expense was made, and once again plaintiff made no attempt to copy the films. In response to a question from the court, plaintiff indicated that it desired an adversary hearing on the issue of obscenity, while reserving its constitutional objections to the method of seizure. Representatives of all parties, and Judge McGlynn, viewed the three seized films on January 14, 1975. An adversary hearing on the issue of obscenity was held on January 16, 1975. The State called no witnesses at the hearing, but plaintiff called Dr. Seymour Sinick, Professor of Sociology at the City University of New York, who testified that under the three-pronged test of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the three films seized on January 8, 1975 should not be classified as obscene. On January 17, 1975, Judge McGlynn ruled that the films were obscene, that there existed probable cause for restraint of the exhibition of the films pending further action by the Essex County Prosecutor, and that plaintiff could no longer copy any of the films.

 To recapitulate, the facts are that on three occasions, pursuant to warrants issued by Judge McGlynn, agents of the sheriff and prosecutor went to plaintiff's theater and seized certain films on the grounds that they were obscene, and their exhibition a violation of New Jersey law. N.J.S.A. 2A:115-2. Each of the warrants issued by Judge McGlynn was based on affidavits sworn by police officers, reflecting that the affiants had viewed the film and detailing that which they had viewed on the screen. Thereafter, Judge McGlynn read the affidavits and determined that there was probable cause to believe that the films named and described in the affidavits were obscene, and therefore exhibited in violation of statute, and the warrants issued. After each seizure, plaintiff Hamar appeared before Judge McGlynn and sued for the return of the films on the ground that the seizure was an unconstitutional abridgment of plaintiff's First and Fourth Amendment rights, through the Fourteenth Amendment, because in issuing the warrant in reliance only on the affidavits of police officers, and without having viewed the films first himself, Judge McGlynn had permitted a prior restraint to be effected by the police acting alone. As noted, plaintiff had asserted before Judge McGlynn, on each occasion, that the only proper procedure under the First and Fourth Amendments is for the judicial officer to view the films himself before authorizing law enforcement authorities to seize them. These arguments were made by plaintiff on its own motion on three separate occasions, after each seizure, and on each occasion the state court judge ruled against it. *fn1" Plaintiff took no appeal.

 After the last of the three state judicial determinations, plaintiff Hamar filed suit in this Court for injunctive and declaratory relief, on precisely the claim raised thrice and lost thrice before the state trial judge. Thus plaintiff here alleges that the procedures employed by the State of New Jersey in the seizures of plaintiff's films were violative of the First and Fourth Amendments of the United States Constitution, made applicable to the states by the Fourteenth Amendment and actionable by 42 U.S.C. § 1983, in that the acts of the state constituted a prior restraint of protected speech by police, because Judge McGlynn had himself made no determination regarding obscenity before empowering the police to seize the films. Plaintiff seeks injunctive and declaratory relief from the federal tribunal to secure the return of its property and to bar the institution of criminal proceedings based on the seized films, in the state courts.

 It is clear that this Court has jurisdiction over such a lawsuit. 42 U.S.C. § 1983; 28 U.S.C. § 1343(3). The state has conceded as much. Of greater import is the question whether this Court should exercise that jurisdiction, or whether it should instead defer to the state judicial process for reasons of comity and federalism, as enunciated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1970), and its progeny.


 A word of background is in order. It is well-settled that federal courts exist primarily as a forum to vindicate rights guaranteed to citizens of the United States by the federal Constitution and federal law, at least since general federal question jurisdiction was conferred on the federal courts in 1875. Act of March 3, 1875, § 1, 18 Stat. 470. Thus, in Zwickler v. Koota, 389 U.S. 241, 245, 88 S. Ct. 391, 394, 19 L. Ed. 2d 444 (1967), the Supreme Court observed:

During most of the Nation's first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. . . . But that policy was completely altered after the Civil War when nationalism dominated political thought and brought with it congressional investiture of the federal judiciary with enormously increased powers. The Act of March 3, 1875, was the principal ". . . measure of the broadening federal domain in the area of individual rights," McNeese v. Board of Education, 373 U.S. 668, 673, [83 S. Ct. 1433, 10 L. Ed. 2d 622]. By that statute ". . . Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789.
These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." (Emphasis added.) Frankfurter & Landis, The ...

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