The opinion of the court was delivered by: LORD, III
JOSEPH S. LORD, III, District Judge.
This is an action seeking injunctive relief under the Civil Rights Act, 42 U.S.C. § 1983. Jurisdiction is based on 28 U.S.C. § 1343. At the hearing on preliminary injunction, it was stipulated that the entire matter should be heard and considered as if on final hearing. F.R.Civ.P. 65(a)(2). The court has jurisdiction of the parties and the subject matter.
The corporate plaintiff is Leslie Tobin Imports, Inc., and the individual plaintiff, Leslie Tobin, is its president. The corporate plaintiff operates a store known as the Apparatus at 128 South 20th Street in Philadelphia selling incense, candles, jewelry, buttons, posters and other symbols of hippie life, some of which are exhibited in the window. The store is located near two elementary schools, Center City School, 2025 Chestnut Street, Philadelphia, and St. Patrick's School, located in the 200 block of South 20th Street. Young children, aged 4 to 12, and adults passed by the store and had an opportunity to see the material displayed. The sale of the buttons and posters accounts for 15 to 20% of the income of the store.
On January 24, 1969, an officer from the Morals Squad of the Philadelphia Police Department, investigating a complaint, purchased two buttons in the store which had also been exhibited in the window. The buttons declared "Oral Sex Prevents Pregnancy" and "Go Fuc (followed by a letter that looks like but is not the letter "K") Yourself." Immediately following the purchase, other officers entered the store with a search warrant and seized several hundred buttons and arrested three employees. The buttons seized contained various slogans, mottos, sayings and quips referring to contemporary political, social and moral topics. There had been no prior judicial determination as to the question of obscenity before the warrants were issued and the arrests made.
On February 20, 1969, the employees were found not guilty by Judge J. Earl Simmons of the Philadelphia Municipal Court, of possession, etc., of obscene material. 18 P.S. § 4524.
On March 14, 1969, police, acting on complaints and armed with a search warrant, again raided the Apparatus, and a number of posters were seized. Two of the posters depicted rock musician, Jimmy Hendrix clothed, in the presence of a number of nude females whose bare breasts could be seen. At the time the police made the arrest, they observed a number of boys, age 11 to 16, looking in the window in which the posters were displayed. Again several employees of the Apparatus were arrested, the store closed, and the employees were held for trial on April 16, 1969.
While the trial stemming from the second arrest was pending, there was a third raid on the Apparatus Shop on March 31, 1969, again after complaints had been received. This time buttons, which had been the subject of the first arrest, and posters were seized, including those that were the subject of the second arrest. Because a number of school age youngsters were in the shop at the time of this midday raid, the Apparatus employees who were arrested, and the plaintiff, were charged with corrupting the morals of a minor child as well with possession, etc., of obscene material in violation of 18 P.S. § 4524. At the preliminary hearing arising from this arrest, held on April 9, 1969 before Judge James L. Stern of the Family Division of the Court of Common Pleas, all of the persons arrested were discharged.
On April 16, 1969, the employees who were arrested in the March 15, 1969 raid were found not guilty by Judge Paul Dandridge of the Municipal Court of Philadelphia.
Although none of the seized articles has been returned to plaintiffs, neither of the defendants has present custody of them.
There had been no judicial determination of obscenity before either the second or third arrests. The decision as to what constituted obscenity in the instance of each of the three arrests was made solely by the defendant, Inspector McCullough. He concluded the materials were obscene because young children looked at them. He had no other and believed he needed no other standard in determining obscenity than the fact that children looked at the buttons and posters.
At no time after the Apparatus employees were discharged after their first arrest did the defendants make any attempt to determine how they had erred in the bringing of the prosecution and why there had been an acquittal. At no time after any of the arrests in the instant case did the defendants inquire as to the reasons for the acquittal. At no time did the defendants consult with their legal counsel in the City ...