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G.I. Distributors Inc. v. Murphy

decided: November 14, 1972.

G.I. DISTRIBUTORS, INC., ET AL., PLAINTIFFS-APPELLEES,
v.
PATRICK MURPHY, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE COMMISSIONER OF NEW YORK CITY, DEFENDANT, FRANK S. HOGAN, INDIVIDUALLY AND IN HIS CAPACITY AS DISTRICT ATTORNEY OF NEW YORK COUNTY, DEFENDANT-APPELLANT



Friendly, Chief Judge, and Lumbard and Feinberg, Circuit Judges. Feinberg, Circuit Judge (dissenting).

Author: Lumbard

LUMBARD, Circuit Judge:

The District Attorney of New York County*fn1 appeals from part of an order of the Southern District of New York, 336 F. Supp. 1036, which requires him to return to the appellees 19,000 magazines which had been seized less than 18 hours prior to an adversary hearing on their obscenity. At the hearing which was held the following morning Judge Moldow of the New York City Criminal Court authorized the seizure. Judge Weinfeld found that the procedures followed by the police in confiscating these magazines prior to the hearing violated the first amendment as applied to the state by the fourteenth amendment. We reverse for the reasons given below.

On Thursday, January 6, 1972 the New York City police, acting pursuant to a search warrant and under the supervision of the District Attorney of New York County, entered the Long Island City warehouse of appellee G.I. Distributors, a wholesale distributor of books and periodicals, and seized six copies each of 55 allegedly obscene magazines.*fn2 While conducting the search the police discovered 19,000 additional copies of the publications they were seeking. An adversary hearing on the magazines' obscenity was scheduled for the following morning and G.I. and its attorney were notified. To prevent possible removal of the magazines before the hearing, the police packed the periodicals in 221 cartons and stationed a police officer on G.I.'s premises overnight.*fn3

The hearing was held the next morning before Judge Moldow, who examined samples of the 55 magazines and found probable cause to believe that they were obscene. He issued a search warrant authorizing the seizure of the 19,000 copies*fn4 and they were removed from G.I.'s Long Island City warehouse the same day.*fn5

Three days later, on January 10, 1972, appellees brought suit under 42 U.S.C. § 1983 in the Southern District seeking return of the 19,000 magazines and other relief.*fn6 Relying on the Supreme Court's decision in A Quantity of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964), and our decisions in Astro Cinema Corp. v. Mackell, 422 F.2d 293 (2d Cir.1970) and Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir.1969), Judge Weinfeld held that the first amendment, as applied to the states by the fourteenth amendment, requires an adversary hearing before the seizure of allegedly obscene material. He found that the overnight quarantine of 19,000 magazines was an invalid prior restraint; he ordered the magazines returned to appellees and granted the other relief prayed for in the complaint.*fn7

An application for a stay of Judge Weinfeld's order was denied by this court on January 26, 1972, and by Mr. Justice Blackmun on January 28, 1972.

Appellant challenges on this appeal only that part of Judge Weinfeld's order requiring him to return the 19,000 magazines. The District Attorney claims that the procedures followed by the police in sequestering the 19,000 periodicals overnight did not violate the first amendment.*fn8 We agree.

The discovery of a large cache of magazines thought by the police to be obscene necessitated immediate action on their part to seize it as contraband*fn9 and to secure it as evidence in a criminal prosecution for wholesale distribution of pornography, a felony under New York law.*fn10 The police had good reason to believe that the magazines were obscene, since all of the periodicals specified in the warrant had previously been scrutinized by a judicial officer who had found them to be so. They immediately recognized that an adversary hearing was required before the magazines could be removed and kept until the trial of the criminal charges.*fn11 The District Attorney scheduled a hearing at the earliest possible time -- the following morning -- and notified the parties. Understandably anxious that the magazines not disappear during the short delay before the hearing, the police took the precaution to segregate them from the other publications in G.I.'s warehouse and stationed a man there for the night to see that they were not removed. This was a minimal interference with the normal distribution of the magazines because the quarantine occurred only from sometime after 6 P.M., January 6,*fn12 until Judge Moldow's issuance of the search warrant after a hearing the next morning. As there is nothing in the record to show that G.I. had any plans to distribute any of the magazines after usual business hours on January 6, the interference with possible distribution to retailers could not have amounted to more than a few hours on the morning of January 7th.

The police procedure used here was designed to restrain distribution of the magazines for the minimum time possible until an adversary hearing could be held before a judicial officer. That hearing was held promptly the next morning, and a decision was rendered immediately thereafter. Thus, the procedure did not present the interference condemned in Marcus v. Search Warrant of Property, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961) and A Quantity of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964). Marcus involved an attempt to suppress allegedly obscene books by means of a vague search warrant which in effect allowed the police to seize anything that they deemed to be obscene. A Quantity of Books concerned the seizure of a large number of books under a statute which did not permit a hearing on the books' obscenity until at least 10 days after the seizure and did not require the judge to make a speedy decision after the hearing. Unlike these cases, no extended interruption in the public's access to the magazines nor long term suppression of possibly nonobscene literature was threatened here. Therefore, we hold that the procedures used by the police in this case did not offend the first amendment.

We find support for our conclusion in several recent Supreme Court decisions. While it has been clear for some time that all prior restraints were not invalid, see Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961), it was not until 1965 that the Supreme Court in striking down Maryland's motion picture censorship statute indicated some of the essential elements of an acceptable licensing scheme. Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). The Court stated that any restraint imposed in advance of an adversary hearing on the obscenity question must be "for the shortest fixed period compatible with sound judicial resolution . . . [and] the procedure must also assure a prompt final judicial decision." Freedman v. Maryland, supra at 59, 85 S. Ct. at 739. See also Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S. Ct. 754, 19 L. Ed. 2d 966 (1968); Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971).

Last term the Supreme Court spelled out for the first time a set of specific requirements which would meet, in at least one factual context, the standards laid down in Freedman. In United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971), the Supreme Court upheld 19 U.S.C. § 1305(a) which prohibits the importation of obscene materials into the United States and authorizes the seizure of such materials by customs officials pending a hearing by the district court on their obscenity. As enacted by Congress, § 1305(a) contained no time limits within which judicial action had to be commenced. To bring the statute into harmony with the first amendment, the Supreme Court read into § 1305(a) the requirement that judicial "proceedings be commenced within 14 days and completed within 60 days of their commencement." United States v. Thirty-Seven Photographs, supra at 373, 91 S. Ct. at 1407.

Justice White, writing for the majority, stated that, "of course, we do not now decide that these are the only constitutionally permissible time limits. We note, furthermore, that constitutionally permissible limits may vary in different contexts". United States v. Thirty-Seven Photographs, supra at 374, 91 S. Ct. at 1407. Each pre-hearing seizure must be evaluated in light of its particular circumstances and the nature and duration of the restraint imposed. The procedures followed in this case resulted in the least prior restraint possible in the situation.*fn13

Nothing in our decisions in Astro Cinema Corp. v. Mackell, 422 F.2d 293 (2d Cir.1970) or Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir.1969) is inconsistent with the result we reach here. Both Astro and Bethview concerned the seizure of a motion picture film during a regular theatre performance as evidence in a later prosecution for the crime of obscenity. The films were not seized by the police as a temporary measure until a full adversary hearing could be had; instead they were to be retained as evidence until the trial of the underlying criminal charges. Thus, the defendants had no way of securing a prompt judicial determination of the question of obscenity except by bringing suit themselves. In such circumstances we concluded that "if the State wishes to interfere substantially with distribution of films or books, it must first provide . . . an adversary hearing". Astro Cinema, supra, 422 F.2d at 296 (emphasis added). However, when we were presented with a minor and insubstantial prior restraint involving the seizure of a few samples of ...


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