Kaufman, Hays and Gibbons,*fn* Circuit Judges.
This case involves an attack on the constitutionality of the New York obscenity statute. The appellee-cross-appellant is a New York corporation which filed in the district court a complaint, verified on information and belief, and with four supporting exhibits, in which it sought injunctive and declaratory relief and damages from the defendants Barry, Police Commissioner, and Aspland, District Attorney for Suffolk County. Since the constitutionality of certain New York statutes is challenged the Attorney General of the State of New York received notice and appeared. The matter came before the district court on the plaintiff's motions (1) for preliminary injunctive relief more particularly described hereinafter, and (2) for the convening of a three-judge court pursuant to 28 U.S.C. § 2281. The defendants and the Attorney General filed motions pursuant to Rule 12(b) Fed.R.Civ.P. to dismiss the complaint for failure to state a claim upon which relief can be granted, for failure to set forth a substantial federal question, and for lack of subject matter jurisdiction. The Attorney General's motion also suggested abstention. All motions were heard by a single district judge who on October 31, 1969 filed an opinion, 305 F. Supp. 842, in which each was discussed, and who on February 17, 1970 entered an order
(1) denying plaintiff's motion for a preliminary injunction,
(2) denying plaintiff's motion for the convening of a three-judge court,
(3) granting a limited final injunction both against the defendants and against the plaintiff with respect to certain seized materials, and
(4) dismissing the complaint.
The final injunctive order was apparently entered as a result of a stipulation between the parties respecting seized materials which completed the record for purposes of Rule 65(a) (2). The defendants appeal from that part of the order which granted injunctive relief against them. The plaintiff cross-appeals from those parts of the order which denied its motion to convene a three-judge court, which denied the more extensive preliminary and permanent injunctive relief which it sought, and which dismissed its complaint.
The events giving rise to the dispute began when a policewoman employed by the Suffolk County Police Department obtained employment with the plaintiff as a receptionist and clerical worker. She was so employed for two weeks. Thereafter she filed a verified information seeking the issuance of a warrant for the arrest of one Robert Brown, president of the plaintiff corporation, on a charge of promoting obscenity in violation of Section 235.05(1) of the New York Penal Law. She also filed a verified application for a warrant for search and seizure of certain described materials located at plaintiff's place of business. The warrant for search and seizure was issued, pursuant to Title II, Code of Criminal Procedure, § 791 et seq., after an ex parte examination by a judge of the County Court of Suffolk County, of the policewoman's 32 paragraph affidavit, which described the materials to be seized in graphic detail. The search warrant was executed by officers of the Suffolk County Police Department on April 21, 1969, and on that same date Brown was arrested on the charge of promoting obscenity. On May 15, 1969 the instant complaint was filed.
We deal first with the contentions of the plaintiff-cross-appellant.
The Pending Criminal Charge Against Brown
Brown is not a party to this suit. Plaintiff seeks an injunction against "further proceeding with the prosecution of employee of petitioner, Robert Brown, in the criminal courts of the State of New York." The factual basis for plaintiff's claimed right to vindicate Brown's rights is the allegation that "* * * Petitioner has been required to defend an employee (Robert Brown) against unfounded criminal charges * * *." There is no allegation that Brown threatens to resign as plaintiff's president or leave its employ, or quit the distribution of plaintiff's merchandise. There is no allegation that Brown's prosecution has chilled his ardor for distribution of the publications which New York claims are obscene. No interest of the plaintiff is alleged to be invaded by the pendency of a single criminal charge against Brown other than its obligation, the source of which is unspecified, to retain an attorney for him. Even if Brown were before us 28 U.S.C. § 2283 would present a formidable obstacle. Plaintiff suggests on Brown's behalf that we should rule that 42 U.S.C. § 1983 is an expressly authorized exception to the anti-injunction statute. Compare Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950), and De Vita v. Sills, 422 F.2d 1172 (3d Cir. 1970), with Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964), cert. denied, sub nom. Chase v. McCain, 381 U.S. 939, 85 S. Ct. 1772, 14 L. Ed. 2d 702 (1965), Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957), and Sexton v. Barry, 233 F.2d 220 (6th Cir.), cert. denied, 352 U.S. 870, 77 S. Ct. 94, 1 L. Ed. 2d 76 (1956). It is time enough for the Second Circuit to reach that issue, expressly reserved in Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), when someone actually a defendant in a pending criminal proceeding comes before it with a complaint alleging a basis for injunctive relief. The allegation that the instant plaintiff is obliged to pay for Brown's lawyer patently fails to state such a basis. Indeed the plaintiff may have no standing to assert any right, legal or equitable, on Brown's behalf. See Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962); United States v. Raines, 362 U.S. 17, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960). In the absence of allegations sufficient to form a basis for ...