Jackson, 257 F.2d 41, 44 (C.A. 3, 1958); United States v. Restaino, 369 F.2d 544, 547 (C.A. 3, 1966). The same rule will apply, wherever applicable, and against both parties, by reason of the failure to show the film to the Court.
It may also be noted that the Allegheny County defendants filed no responsive pleading to the complaint within the period prescribed for that purpose, and may therefore be taken to have admitted all well-pleaded factual allegations, of a non-conclusory character, contained therein.
Thus the uncontradicted testimony of plaintiff may be accepted as true. In particular the witness David Arnett, manager of the Colonial Drivein, a benevolent and truthful appearing man aged 70, for 35 years a school teacher, testified that he was arrested and the film confiscated at 9:30 P.M. The officers arrived on the premises at 8:55 and 9:05. The film started at 9:10, and after the arrest the theatre was permitted to finish the showing before the film was taken away. It is therefore obvious that the officers did not witness the entire film, as required by federal obscenity standards, and the arrest without warrant, and any seizure incident thereto, was invalid.
The same situation existed in the case of the other seizures. At the Strand in Oakland the testimony was that the officers came to the theatre at 11:00 P.M. The film was exhibited from 10:00 to 11:30. At the North Side Drive-in the officers came at 9:20, at the beginning of the film, but made the arrest at 10:45, before the conclusion of the showing. At the Greater Pittsburgh Drive-in the officers arrived at 9:30 and made the arrest at 10:10. The picture began at 9:15. The Allegheny County seizures are therefore invalid.
We shall therefore direct the return of the film seized by and in the possession of the Allegheny County defendants. It will not be necessary to enjoin the prosecutions, which will doubtless collapse of their own weight in the absence of what would perhaps be the best evidence on the obscenity issue.
Under exceptional circumstances, it may be noted, a federal court may enjoin a State prosecution where the mere existence of the litigation, apart from its merits, could "chill" constitutional rights. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). See also Cox v. Louisiana, 348 F.2d 750, 753 C.A. 5 (1965). These are unusual, and perhaps even unorthodox, rulings, attributable to the history of peculiar obstructions placed by Southern States upon the exercise of civil rights by their black population. Such local circumstances often distort the symmetry of established legal doctrine, which is fashioned for the regulation of normal conduct.
In Dombrowski the prosecution was obviously unmeritorious and doomed to futility, but was pursued with motives of harassment and vexation.
In this regard, what shall we say as to the motives of Allegheny County's District Attorney Robert W. Duggan with regard to salacious-type motion pictures?
It is common knowledge that his crusade was goaded by the stimulus of being prodded by the late Mr. Justice Michael A. Musmanno, and led to lengthy and still uncompleted litigation regarding another film, "Therese and Isabelle". See Com. v. Guild Theatre, 432 Pa. 378, 248 A.2d 45, supra, and Duggan v. Guild Theatre, at No. 83 March Term 1969 in the Supreme Court of Pennsylvania. According to the grapevine, heated discussion in the courtroom took place between Justice Musmanno and Justice Herbert B. Cohen. The latter expressed the view that the sponsor of the prosecution should not sit as a member of the tribunal to adjudicate it.
In any event, the record in the case at bar shows that "The Female" was exhibited uneventfully, and with no diligence displayed by the District Attorney, during six weeks in 1968 at a prominent downtown theatre. The practice of the industry is to show first-run films downtown, then to distribute them subsequently to suburban locations and driveins, such as those involved in the case at bar.
Then all of a sudden on March 7 and 8, 1969, four small suburban drive-ins were raided, and prints of the film seized.
Counsel for District Attorney Duggan undertake to explain this inaction during the metropolitan showing by saying that they did not know that "The Female" was an obscene film until a three-judge federal court in Kentucky decided that it was.
Herblock and Hungerford might draw an amusing cartoon of the District Attorney's staff poring over the advance sheets of the Federal Reporter and Federal Supplement for the dernier cri as to the appearance of questionable movies, rather than consulting advertisements in the Pittsburgh newspapers or trade journals such as Variety or Boxoffice.7
Though an inference might be drawn from the District Attorney's inactivity followed by a subsequent Blitz seizing four prints of the same film with regard to the Dombrowski issue whether this was good faith formulation of a legal issue for presentation to a judicial tribunal for determination or was vexatious institution of knowingly unmeritorious proceedings doomed to futility but burdensome and harassing to the businessmen involved in the cinema industry, we prefer to draw no conclusions as to this issue on the present record. We believe that adequate relief to plaintiff will be provided by the return of the four prints held by Allegheny County authorities.