FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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.
FINDINGS OF FACT
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 Solicitor's office or in the District Attorney's office about procedures to be followed in the Apparatus raids.
The defendant, McCullough, had been urged by counsel for the plaintiffs during the course of the third arrest to consult with counsel for the Police Department and the District Attorney's office in view of the pendency of the second arrest which involved the same posters as in the third arrest, and in view of the buttons, most of which had been seized at the time of the first arrest. After one attempt to call an Assistant District Attorney, the defendant McCullough made no further effort to discuss the matter with counsel and proceeded with the completion of the third arrest. Nonetheless, we find that Inspector McCullough acted in good faith and that he was motivated by a desire to insulate juveniles from what he considered to be pornographic material.
After the hearing and discharge in the third case on April 9, 1969, the defendant McCullough told one of plaintiffs' employees: "Well, see you Friday." While no further arrests were made or threatened, the police continued a surveillance of the Apparatus into the middle of April.
The defendant Frank Rizzo is Police Commissioner of Philadelphia and has supervision over and control of all Philadelphia policemen, including members of the Morals Squad.
Defendants initially attack our jurisdiction as to the corporate plaintiff, arguing that a corporation has no standing to invoke Title 42 U.S.C. § 1983 and relying mainly on Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939). In that case, certain individuals and the C.I.O. sought injunctive relief against the enforcement of certain ordinances of the City of Newark which allegedly interfered with plaintiffs' right of freedom of speech. The suit asserted that the ordinances were unconstitutional under the privileges and immunities clause of the Fourteenth Amendment. The action was brought under 28 U.S.C. § 41, now codified as 42 U.S.C. § 1983. The Hague Court said, at page 514, 59 S. Ct. at page 963:
"Natural persons, and they alone, are entitled to the privileges and immunities which Section 1 of the Fourteenth Amendment secures for 'citizens of the United States.' Only the individual respondents may, therefore, maintain this suit. * * *"
At first blush, this would seem to be a mortal blow to the corporate plaintiff's right to invoke § 1983 as a basis for federal jurisdiction. Upon analysis, however, we are not convinced that this is so. Hague involved a direct vindication of the right of free expression under the privileges and immunities clause. This case does not. It merely asserts that First Amendment rights are potentially involved and that the state procedures, i.e., seizure by police without a prior judicial determination of obscenity, are a denial of due process. The question of obscenity is not before us. See Tyrone, Inc. v. Wilkinson, 410 F.2d 639, 640 (C.A. 4, 1969). Thus, we are not called upon to decide, as was the Court in Hague, whether the expressions are protected, but only whether due process (and not privileges and immunities) was violated.
In Grosjean v. American Press Company, Inc., 297 U.S. 233, 244, 56 S. Ct. 444, 447, 80 L. Ed. 660 (1936), the Court said:
"Appellant contends that the Fourteenth Amendment does not apply to corporations; but this is only partly true. A corporation, we have held, is not a 'citizen,' within the meaning of the privileges and immunities clause. Paul v. Virginia, 75 U.S. 168, 8 Wall. 168, 19 L. Ed. 357. But a corporation is a 'person' within the meaning of the equal protection and due process of law clauses, which are the clauses involved here. Covington L. Turnpike Road Co. v. Sandford, 164 U.S. 578, 592, 17 S. Ct. 198, 41 L. Ed. 560, 565; Smyth v. Ames, 169 U.S. 466, 522, 18 S. Ct. 418, 42 L. Ed. 819, 840."