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February 10, 1970

Rosario BONGIOVANNI, Tom Weida, Reginald Wilson, Seymour Yaeger, Gilbert Atamian, Inc., and Tivoli Theatre, Inc., Plaintiffs,
Frank S. HOGAN, District Attorney for New York County, State of New York, Richard Beckler, Assistant District Attorney for New York County, State of New York, Ptl. Henry Hoffman, New York City Police Department and Ptl. Gerald Hughes, New York City Police Department, Defendants

Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

Plaintiffs bring suit under 42 U.S.C. § 1983 alleging that defendants violated their constitutional rights through the search of their theatre and the seizure of a print of the film "Muthers", various still photographs on display in the theatre, and the lenses of the projector. Plaintiffs seek the return of the film, photos, and lenses now in the possession of the defendants, and an injunction barring a state criminal prosecution, should the search and seizure be found constitutionally impermissible.

 The plaintiffs are the operator and employees of the Tivoli Theatre, Inc., 839 Eighth Avenue, New York City. The film "Muthers" was shown at the theatre on February 14, 1969. On that day Judge William Ringel of the New York City Criminal Court attended the afternoon performance of the movie from start to finish; while in the theatre, he also observed a number of still photographs on display there. Later that evening, Judge Ringel issued a search warrant authorizing police officers to seize both the film and the photographs. At the time of the seizure, plaintiffs Bongiovanni, Wilson and Yaeger were placed under arrest for the crime of obscenity. N.Y. Penal Law McKinney's Consol. Laws, c. 40, § 235.05 (McKinney 1967).

 The warrant issued by Judge Ringel was based on his ex parte judicial determination that the material to be seized was obscene within the meaning of Section 235.05 of the New York Penal Law. Concededly, there was no preliminary adversary hearing and adjudication on the question of obscenity.


 Return of the Film

 In all important aspects, the case at bar repeats the factual pattern of Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969), in which a similar motion for the return of the film was made and granted. On the basis of the ruling in Bethview, the motion for the return of the film is granted.


 Return of the Photographs

 In arguing against the return of the photographs, defendants ask the court to make a distinction between seizure for purposes of evidence and seizure that stifles expression presumtively protected by the First Amendment. Defendants base their argument on United States v. Wild, 422 F.2d 34 (2d Cir. 1969), a case charging conspiracy to use the mails to convey and deliver obscene material, including photographs. In Wild, the defendants, citing A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964), and Marcus v. Search Warrant, etc., 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961), sought reversal of their conviction on the ground that photos seized at the time of their arrest without a preliminary adversary hearing on the question of obscenity were improperly admitted at trial. The circuit court distinguished Wild from those cases:

"These cases are inapposite since they involved massive seizures of books under state statutes which authorized warrants for the seizure of obscene materials as a first step in civil proceedings seeking their destruction. The seizures in this case were of instrumentalities and evidence of the crime for which appellants were indicted and lawfully arrested. We do not believe Marcus and Quantity of Books can be read to proscribe the application of the ordinary methods of initiating criminal prosecution to obscenity cases."

 It is difficult to perceive why seizure in a civil instead of criminal case, or by a federal rather than the state government, or incidental to an arrest rather than on a warrant would make any difference to the impermissible "chilling effect" of seizure on expression which has not been shown in all likelihood to fall outside constitutional protection in an adversary hearing. Certainly the ruling of the Court of Appeals in Bethview demonstrates that no line will be drawn between civil and criminal or between federal and state actions. The reasoning in United States v. Brown, 274 F. Supp. 561 (S.D.N.Y. 1967), still appears sound: the government cannot make a "chilling" seizure permissible by removing the label of a search warrant and pasting on that of seizure incidental to a lawful arrest. In any event, the seizure in the case at bar was based on a search warrant and was not simply incidental to an arrest.

 As the Court of Appeals made clear in its denial of the petition for rehearing in United States v. Wild, 422 F.2d 34 (2d Cir. Feb. 2, 1970), the thrust of this paragraph in the original opinion goes to two points: the massive quality of the seizure and the necessity of reversal if improperly seized evidence is used at trial. The exact outline - and even the existence - of a constitutionally permissible seizure for the purposes of obtaining evidence which is not tainted by a "chilling effect" on expression lies hidden in the pregnant prose of Marcus and A Quantity of Books. Lower courts have struggled with the problem, cf. Gregory v. DiFlorio, 298 F. Supp. 1360 (W.D.N.Y. 1969) with Rage Books, Inc. v. Leary, 301 F. Supp. 546 (S.D.N.Y. 1969). The results rest largely on individual susceptibilities to cold and perhaps ultimately the resolution of the problem must be left to the discretion of trial courts. Fortunately, the reasoning of the court in Bethview allows me to avoid the icy metaphysical task of deciding how massive a seizure must be before it becomes impermissibly "chilling". In Bethview, the court pointed out that the large number of viewers who might see the movie made its seizure the equivalent of a massive seizure of books and therefore impermissible. Naturally, anyone who sees ...

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