The opinion of the court was delivered by: CURTIN
By order of this court, dated April 4, 1969, defendants were ordered to show cause why a preliminary injunction, directing the return of plaintiffs' books and other publications now in defendants' possession, custody and control, should not issue on April 9, 1969. The court granted the defendants an adjournment of this return date to April 16, 1969. Apparently because of events occurring on or about April 14 and 15, 1969, plaintiffs, without leave of court, amended their original complaint and requested, in addition to the relief originally asked, an increased amount of $75,000 in money damages and a temporary and permanent injunction enjoining the trial of certain criminal charges instituted in the City Court of Niagara Falls, New York on April 15, 1969 against Donald Gregory, Jr.
On the return date the court heard extensive oral argument of counsel to complement the written briefs submitted by all the parties. Each of the parties agreed that hearing testimony would not assist the court in disposing of the plaintiffs' motion for a preliminary injunction requiring the return of the books seized.
In lieu of any hearing, the parties agreed that the court consider the complaint and various documents on public record, including the affidavits, search warrants and returns of the March 21 and April 2 seizures at plaintiffs' premises. Also considered were several criminal complaints lodged against Gregory, Jr. All these documents and the affidavit of James Milne, Niagara Falls Corporation Counsel, in behalf of defendants Lynch and Collins, were made part of the record. Finally, although no formal answer has been filed by any of the defendants, the defendants were able to agree to certain facts in plaintiffs' verified complaint for the purpose of determining the propriety of the preliminary relief requested.
What follows is a statement of facts which is not disputed and, as such, constitutes the findings of fact by this court at this stage of the proceeding.
Donald Gregory, Jr., plaintiff herein and the defendant in certain criminal actions pending in the City Court of Niagara Falls, New York, manages a store known as 233 Company in Niagara Falls, New York. The 233 Company is an assumed name at which Donald Gregory, Sr. legally does business. On April 17, 1969, the court, upon motion by the plaintiffs originally named, ordered the addition of the name, Donald Gregory, Sr., as a plaintiff in this action pursuant to Rules 19 and 21 of the Federal Rules of Civil Procedure.
At all times pertinent, defendant, Aldo L. DiFlorio, was employed as the District Attorney of Niagara County. He will be ultimately responsible for the prosecution of the charges lodged against Donald Gregory, Jr. Defendant, John J. Collins, Superintendent of the Niagara Falls Police Department, was in charge of the police officers who participated in the seizures from the plaintiffs' premises. Defendant, Albert Lynch, head of the Confidential Squad of the Niagara Falls Police Department, was apparently personally in charge of the April 2 seizure from plaintiffs' premises.
On or about March 11, 1969, a confidential informant of the Niagara Falls Police Department purchased a book entitled Casandra for $6.00. The affidavit which described the purchase of Casandra and its contents stated that it was a "magazine entirely of females in a state of undress at various poses, all suggestive or revealing." The affidavit and warrant issued on March 18 did not mention any other titles by name. The warrant did not specifically set forth what should be seized but, in a general fashion, directed the officers to seize "Magazines and books showing obscene photographs * * * depicting sexual conduct far exceeding the limits of candor and affronting the contemporary standards relating to descriptions or representations of sexual matters and all being material which is utterly without any redeeming social value." The judgment of what material would meet this definition was left to the raiding officers.
On or about March 14, 1969, officers and agents of the defendant went to the plaintiffs' premises and purchased three books, I, Mirage, and Duet. Later, on or about March 17, 1969, officers and agents of the same defendants purchased an additional three books from the plaintiff called Taunt, Togetherness, and Photographing the Female Group.
On or about March 21, 1969, officers and agents of the Niagara Falls Police Department, apparently under the supervision of Lieutenant John E. Belkota, a member of the Confidential Squad, seized and confiscated approximately 1,000 books and magazines from 233 Company pursuant to a search warrant issued March 18, 1969 by Niagara Falls City Court Judge Peter J. Paonessa. This was the warrant previously described which was based upon the purchase in part of the book, Casandra. No adversary hearing on the obscenity issue was held before the issuance of this warrant.
On March 21 plaintiff, Donald Gregory, Jr., was charged on an information laid by the Niagara Falls Police with a violation of Section 235.05 of the Revised Penal Law of New York, McKinney's Consol. Laws, c. 40, for possession of obscene material.
On or about April 2, 1969, under the direction of the defendant, Albert Lynch, officers and agents of the Niagara Falls Police Department returned to the bookstore and confiscated approximately 4,000 books and magazines, along with certain still and motion pictures, from plaintiffs' premises under the authority of a search warrant issued by Judge Paonessa on April 2, 1969. The only title specifically designated in either the affidavit or the search warrant was Broadway Girls. Made part of the affidavit supporting the request for a search warrant on April 2, 1969 was information from a confidential informant, whose age is alleged to be 16 years, that he had purchased from the 233 Company a magazine entitled Broadway Girls for a price of $5.00. Again, no adversary hearing on obscenity was held prior to issuing this warrant.
At the same time the plaintiff, Donald Gregory, Jr., was charged with a violation of Section 235.21(1) of the Revised Penal Law of New York for knowingly and unlawfully selling the magazine entitled Broadway Girls, an allegedly obscene magazine, to a minor aged 16 years old.
On April 15, 1969, the plaintiff, Donald Gregory, Jr., surrendered himself to officers and agents of the defendants and was arraigned in Niagara Falls City Court upon additional charges of violations of Section 235.05(1) of the Revised Penal Code of New York. Section 235.05(1) proscribes possession of obscene materials with the intent to promote same. Incorporated by reference in two complaints was the ...