The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Plaintiffs, in this civil rights action brought under 42 U.S.C. § 1983, seek the convening of a three-judge court, 28 U.S.C. §§ 2281, 2284, and a temporary restraining order enjoining defendants from enforcing New York Penal Law § 235.00, McKinney's Consol.Laws, c. 40 and New York Criminal Procedure Law §§ 140.10 and 690.05 et seq. (McKinney's Consol.Laws, c. 11-A 1971), 28 U.S.C. § 2284(3). Defendants Richard H. Kuh, District Attorney of New York County, and Louis J. Lefkowitz, Attorney General of the State of New York, move to dismiss the complaint for failure to state a claim upon which relief can be granted, Rule 12(b)(6), Fed.R.Civ.P. Since we may not consider defendants' motions if a three-judge court is appropriate,
we turn first to plaintiffs' application under 28 U.S.C. § 2281.
Plaintiffs are operators or lessees of "adult" book stores in the Time Square area of Manhattan, selling sexually oriented books, magazines and films. They allege that the enforcement of the obscenity laws by the defendants
violates their rights under the First, Fourth and Fourteenth Amendments because (1) New York Penal Law § 235.00, as authoritatively construed by the New York Court of Appeals, is overbroad and vague; (2) the search warrant and arrest without a warrant provisions of the New York Criminal Procedure Law (CPL), as applied to them, are invalid and (3) the obscenity laws are being enforced against them discriminatorily.
A three-judge court is required whenever a plaintiff seeks "an interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute. . . ." 28 U.S.C. § 2281. Counts I and II of plaintiffs' complaint seek such relief.
Our inquiry on plaintiffs' application for a three-judge court is limited to determining whether (1) the constitutional questions raised are substantial, (2) the complaint alleges, at least formally, a basis for equitable relief and (3) the case otherwise comes within the requirements of the three-judge statute.
Count II of the complaint
challenges the constitutionality of the alleged use by the New York City Police of so-called "police list" warrant procedures. Plaintiffs assert that the police, pursuant to valid warrants, enter their establishments, but having failed to discover the items detailed in the warrants, proceed to seize other material not specified in the warrant for the premises being searched, but for which other warrants have been issued covering other premises at other times. Allegedly, plaintiffs' employees are then arrested for violation of the obscenity laws. Plaintiffs contend that the New York search warrant and arrest without a warrant statutes, as thus applied by the police, violate the Fourth and Fourteenth Amendments.
It appears, however, that CPL § 690.05 et seq. do not support the alleged actions of the police. Under the statutes, a search warrant must contain a description of the place or premises to be searched and the property which is the subject of the search.
Moreover, a search warrant must be executed within ten days of its date of issuance.
Since in this case the police allegedly seized items not specifically detailed in the warrants they obtained, any seizures made were invalid under New York state law, and a judge of the Criminal Court has so held in an identical case.
Plaintiffs' constitutional challenge, therefore, is not directed at the statutes, which do not support the police's alleged actions but administration by the police of a constitutional statute in an unconstitutional manner, or in bad faith. Determination of such a claim does not require the convening of a three-judge court.
Count II, therefore, does not come within the provisions of 28 U.S.C. § 2281 and does not require the convening of a three-judge court.
Count I of plaintiffs' complaint attacks Penal Law § 235.00, as recently construed by the New York Court of Appeals in People v. Heller, 33 N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805 (1973), in light of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), as vague and overbroad. This is an attack on the statute itself, and since plaintiffs seek to enjoin enforcement of the statute, a three-judge court is appropriate if plaintiffs raise a substantial federal constitutional question.
In Goosby v. Osser, 409 U.S. 512, 93 S. Ct. 854, 35 L. Ed. 2d 36 (1973), the Supreme Court recently outlined the standard for determining the substantiality of a constitutional claim. "A claim is insubstantial only if 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.'" 409 U.S. at 518.
Basically, plaintiffs contend that the Court of Appeals in Heller failed to construe § 235.00 in accordance with the requirements of Miller and that, consequently, the statute is invalid. We disagree and believe that Heller so clearly follows the language and meaning of Miller that plaintiffs' attack on the statute is insubstantial and does not require the convening of a three-judge court.
Miller sets forth a threefold test for determining whether material is obscene. The material alleged to be obscene must (a) taken as a whole, appeal to the prurient interest, as interpreted by the average person applying contemporary community standards; (b) depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law as written or authoritatively construed; and (c) taken as a whole, lacks serious literary, artistic, political or scientific value. 413 U.S. at 24.
Plaintiffs claim that the Court of Appeals' construction of § 235.00 in Heller does not comply with the specificity requirements of Miller test (b) because the Court has now adopted Justice Stewart's famous definition of obscenity in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683, 12 L. Ed. 2d 793 (1964), i.e., "I know it when I see it." Plaintiffs have simply misread Heller.
The Court of Appeals noted in Heller that it had consistently interpreted § 235.00 and its predecessor, § 1141, to prohibit only hard core pornography. 33 N.Y.2d at 327, 352 N.Y.S.2d 601, 307 N.E.2d 805. The Court then gave meaning to this term by quoting directly from Miller's examples of "what a state statute could define for regulation under the second part (b) ...