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ECLIPSE ENTERPRISES v. GULOTTA

September 26, 1996

ECLIPSE ENTERPRISES, INC., d/b/a ECLIPSE COMICS; and WANTAGH DISTRIBUTORS, INC. d/b/a COLLECTORS COMICS, Plaintiffs,
v.
THOMAS GULOTTA, individually and in his capacity as COUNTY EXECUTIVE of the County of Nassau; DONALD KANE, individually and in his capacity as Commissioner of the Nassau County Police Department; JOSEPH MONDELLO, BRUCE NYMAN, DONALD DeRIGGI, BENJAMIN ZWIRN and LEWIS YEVOLI, individually and in their capacity as members of the Nassau County Board of Supervisors; and the COUNTY OF NASSAU, Defendants.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This lawsuit addresses the constitutionality of Nassau County Local Law No. 11-1992 ("Local Law 11-1992") which provides that selling trading cards to minors which depict a "heinous crime, an element of a heinous crime, or a heinous criminal and which is harmful to minors" is a Class A misdemeanor. According to the plaintiffs Eclipse Enterprises, Inc., doing business as Eclipse Comics, ("Eclipse"), and Wantagh Distributors, Inc., doing business as Collectors Comics ("Comics," collectively the "plaintiffs"), Local Law 11-1992 violates their free speech, due process and equal protection rights under the United States and New York State Constitutions. As a result, the plaintiffs seek declaratory and injunctive relief, monetary damages and attorneys' fees. The defendants contend that the Local Law 11-1992 is an appropriate exercise of the Nassau County Legislature's authority to protect the welfare of its children and as a result they are entitled to judgment in their favor.

 I. Background

 Eclipse manufactures series of trading cards, including, among others, a "True Crime" series which creates an encyclopedic history of infamous criminals and law enforcement officials. Other series include "Coup D'etat," which reviews the assassination of President John F. Kennedy. This series contains cards portraying President Kennedy, Lee Harvey Oswald and the actual shooting. The "Rotten to the Core" series addresses various crimes connected with New York City's municipal scandals. The "Drug Wars" series considers individuals and events related to the prohibition of drug trafficking.

 The defendant Thomas Gulotta is the Nassau County Executive who presided over the Nassau County Board of Supervisors in 1992, which at the time, was the county legislature, and was responsible for enacting Local Law 11-1992. The Board of Supervisors has since been replaced with a new form of county legislature. The defendants Joseph Mondello, Benjamin Zwirn, Donald DeRIGGI, Lewis Yevoli, and Bruce Nyman were members of the former Board of Supervisors. The defendant David Kane is the Commissioner of the Nassau County Police Department, responsible for enforcement of Local Law 11-1992. For the sake of clarity, the Court will refer to individual defendants and the defendant County of Nassau together as the "defendants" or the "County."

 Local Law 11-1992, which was enacted by the defendants, became operative on June 16, 1992, and provides as follows:

 
DISSEMINATING INDECENT CRIME MATERIAL TO MINORS
 
* * *
 
Section 1. Legislative Intent
 
The Board of Supervisors finds that in light of their limited experience, education and emotional development, children under the age of seventeen are impressionable and susceptible to the influence of violence and criminal conduct in our society. The dissemination of materials devoted to the depiction of heinous crimes and heinous criminals is a contributing factor to juvenile crime, a basic factor in impairing the ethical and moral development of our youth and a clear and present danger to the citizens of Nassau County. The County has a responsibility and an exigent interest to protect the welfare of its children and to see that they are safeguarded from influences which might prevent their growth into free and independent well-developed citizens by preventing the distribution to children of material deemed harmful to children.
 
Section 2. Definition of Terms
 
A. "Minor" means and [sic] person under the age of seventeen.
 
B. "Trading Card" means any card, souvenir card, playing card or game card commonly known as a trading card.
 
C. "Heinous Crime" means murder, assault, kidnapping, arson, burglary, robbery, rape or other sexual offense.
 
D. "Heinous Criminal" means a person who has been convicted of a heinous crime or who has been found not criminally responsible by reason of mental disease or defect for criminal conduct concerning the commission of a heinous crime.
 
E. "Harmful to Minors" means that quality of any description or representation in whatever form of a heinous crime, an element of a heinous crime or a heinous criminal, when it:
 
1. Considered as a whole, appeals to the depraved interest of minors in crime; and
 
2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
 
3. Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.
 
Section 3. Disseminating Indecent Crime Material to Minors
 
A person is guilty of disseminating indecent crime material to minors when, with knowledge of its character and content, he sells or loans to a minor for monetary consideration in Nassau County any trading card which depicts a heinous crime, an element of heinous crime, or a heinous criminal and which is harmful to minors. Disseminating indecent crime material to minors shall be a Class A misdemeanor.
 
Section 4. Presumption and Defense
 
A. A person who engages in the conduct prescribed by Section 3 of this Title is presumed to do so with knowledge of the character and content of the material sold or loaned.
 
B. In any prosecution for disseminating indecent crime material to minors, it is an affirmative defense that:
 
1. The defendant had reasonable cause to believe that the minor involved was seventeen years old or made [sic]; and
 
2. Such mionor [sic] exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was seventeen years old or more.
 
Section 5. Severability
 
If any clause, sentence, paragraph, subdivision, section or part of this Title or its application to any person or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order of judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part of this Title or its application to the person or circumstance directly involved in the controversy in which such judgment or order shall be rendered.

 Nassau County, Local Law No. 11-1992.

 On July 21, 1992, the plaintiffs filed their Complaint in federal court alleging violations of their free speech, due process and equal protection rights under the First, Fifth and Fourteenth Amendments of the United States Constitution and Article I, sections 6, 8 and 11 of the New York State Constitution. As a result, they ask the Court to declare Local Law 11-1992 invalid on its face, permanently enjoin its enforcement, and award them money damages and attorneys' fees. The defendants filed their Answer on August 11, 1992 denying the material allegations contained in the Complaint and stating, among other things, that the "defendants have properly exercised their legislative prerogatives in enacting Local Law 11-1992. [The] defendants have a valid governmental interest in . . . protecting the health, welfare and safety of its minor population."

 On November 12, 1993, the Court denied both the plaintiffs' and the defendants' motions for summary judgment pursuant to Fed. R. Civ. P. 56 without prejudice and subject to renewal upon the conclusion of an evidentiary hearing to be held by United States Magistrate Judge Michael L. Orenstein pursuant to Fed. R. Civ. P. 43(e). The purpose of the evidentiary hearing was to consider the following issues:

 
1. Whether Nassau County Local Law 11-1192 is narrowly tailored, i.e., employs the least restrictive means available, to serve the County's compelling interest in providing for the well-being of minors and otherwise ...

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