Petition — Hawkins v. City of Birmingham

EP Bioreme Cour, UR 1

j FILED \

i JUN 5 1980

MICHAEL ROUAK, JR. CLERR | °

LA NT ee NE ONO Te

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

no._ £9=1918

CARY HAWKINS AND MICHAEL HOLDERFIELD

Petitioners,

CITY OF BIRMINGHAM

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA COURT OF

CRIMINAL APPEALS

RITCHEY & RITCHEY, P.A.

Ferris S. Ritchey, Jr., Esquire

Suite 704, 11 West Oxmoor Rd.

Birmingham, Alabama 35209

Attorney for Petitioners

THE PAUL M. HARROD COMPANY, BALTIMORE, MARYLAND 21234

INDEX

TABLE OF CONTENTS

Page

| PTC CLT TTC C eT TTT Te ee 2

rs Pere errr rrr ry ary me re 2

eg errr rer rrr rrr Tre rs 2

Constitutional and Statutory Provisions Involved........... 3

| EOF CLC E ECE Ta Cee 4

ee a, rr ee ee er 7

CORIO 5 ic cs FRAN EAM S Cdee 48+ 37

TABLE OF CITATIONS

Cases

Associated Industries of Alabama v. State,

55 Ala.App. 217, 314 So.2d 879 (1975). . .25,26,27,28,29

Aguilar v. Texas, 378 U.S. 108 (1964) ............... 33,36

Baldwin v. New York, 399 U.S. 66 (1970) ................ 7

Birmingham v. Evans, 53 Ala.App. 358,

Fe a es sk ben ce dock e ea ceeeekaeae 7,16

Calian v. Wilson, 127 U.S. 540 (1888)... 0... eee eee 15

ii

‘’

City of Birmingham v. Williams,

I MD dacs ect ess Seren eeeccis 7

City of Duluth v. Sarette, 26 Crim.L.Rep.

(BNA) 2039 (Minn.S.Ct. August 31, 1979)...... 12,13,17

City of Kansas City v. Darby,

ee ND |) 12,13,17

Donahey v. City of Montgomery,

CN OD Oe”: y Se 7

Duncan v. Louisiana, 391 U.S. 145 (1968)............. 7,45

East Coast Lumber Terminal v. Town of Babylon,

ES re 2 eee 27

Funches v. State, 53 Ala.App. 330, 299 So.2d 772,

cert. denied, 292 Ala. 752, 299 So.2d 778 (1974) ..... 33

Giordenello v. U.S., 357 U.S. 481 (1958) ............. 33,35

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585,

EE Oe ee ee oe 27

Hamling v. United States, 418 U.S. 87 (1974). .... 10,12,14,15

Jenkins v. Georgia, 418 U.S. 153 (1974).............. 11,14

Johnson v. United States, 333 U.S. 10,

eS 6) 35

John F. Lawhon Furniture Co. v. Melvin Bailey,

i tt ccc cee essesensescns 29

Malone v. State, 51 Ala.App. 19, 282 So.2d 367 (1973)..... 35

Marguia v. Municipal Court for Bakersfield,

124 Cal.Rptr. 204, 540 P.2d 44 (1975)........... 19,21

Martin v. Municipal Court of Kansas City,

EE eo tcc wesc te eesacwere-s 17

McNary v. Carlton, 527 S.W.2d 343 (Mo. 1975)........... 12

Miller v. California,

413 US. 15(1973) ...... 7,10,11,12,13,14,15,18,23,24

Oliver v. State, 46 Ala.App. 118, 238 So.2d 916 (1970)..... 33

Page

Oyler v. Boyles, 368 U.S. 448, 82 S.Ct. 501,

rp) Be Se fy. Yr er rere +,

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ..... 11,14

People v. Utica Daw’s Drug Co., 16 App. Div.2d 12,

225 N.Y.S.2d: 128, 4 A.L.R.3d 393 (1962)........... 21

Simonetti v. City of Birmingham, 55 Ala.App. 163,

316 Bese Be (TITS). wc ccc cae 20,24 ,25,26,27,28,29,30

Smith v. United States, 97 S.Ct. 1756 (1977)........ 11,14,15

Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397,

ee cae bud a cb wesse es beestd ene 21

Starley v. City of Birmingham, 377 So.2d 1131

(Ala.Crim.App.) cert. denied, 377 So.2d 1134

(Ala. 1979) cert. denied, 79-1476 (1980)......... 20,22

State v. Luck, 353 So.2d 225 (La. 1977) .........cceeee 12

Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 353,

Pts ew ee ee Sih) | 21,28

Two Guys v. McGinley, 366 U.S. 582, 81 S.Ct. 1135,

Oe eee Oe i as aoa ee eee y eeepc 19

United States v. Character, 568 F.2d 442

8S TES ies Cpe ete ore Peer yar ery ae we 33

United States v. Hill, 500 F.2d 315 (Sth Cir. 1974) ........ 33

Whitely v. Warden of Wyoming State Penitentiary, 401

U.S. 560, 564, 28 L.Ed.2d 306, 91 S.Ct. 1031

SEER ks wet seth eee thew eekae eae ae 35

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064,

ee ee Ba Ce oi as oa We Ce eves 19, 21, 25, 27

iv

Page

Miscellaneous

United States Constitution

i ee ccc be ee eiaseenwnes 3, 12, 16

Fourth Amendment ........-cccccccccccees 3, 34, 35

i LS oe wa neae nd be ee ewe ee 3

Fourteenth Amendment........... 3, 12, 19, 20, 21, 28

Article I, Section 5, Constitution of Alabama of 1901 .. .35, 36

Alabama Code §12-14-6 (1975)... 2... eee eee eee eee ag

Section 2-97 of the General Code of the City of

Birmingham, Alabama, 1964, as amended.........- 3, 34

Section 16-16 of the General Code of the City of

Birmingham, Alabama, 1964, as amended....... 3, 14, 18

Section 16-18 of the General Code of the City of

Birmingham, Alabama, 1964, as amended

NSE bys el a ee Cre ee ae 3. 4, 17, 20, 22,31, Fa

7; ow ROR Felt Oh. | ere eer ieee ee 3

INDEX TO APPENDIX

a ed er rT cee ee ee re re ees ee A. 1

DE oo ss oak dane eae Sehabicneeenes ee enenWs A.9

PR a is 0 oon hea db as Feuee- chee eaN a Gaes A. 10

Pee er errr Leer ee ee eee A. 11

pr | ree reer rr rer rere er, eee Se ee A. 12

IN THE

Supreme Court of the United States

OCTOBER TERM. 1979

NO.

CARY HAWKINS AND MICHAEL HOLDERFIELD

Petitioners,

v.

CITY OF BIRMINGHAM

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA COURT OF

CRIMINAL APPEALS

The Petitioners respectfully pray that a Writ of Certiorari

issue to review the opinions and judgments of the Alabama

Court of Criminal Appeals entered in the above cases on

December 4, 1979.

2

OPINION BELOW

The opinion of the Alabama Court of Criminal Appeals

concerning Michael Holderfield is appended hereto as Appendix

A. Holderfield v. City of Birmingham, 380 So.2d 990 [Ala.

Crim. App. 1979] (A. 1 - A. 8). The denial of Michael Holder-

field’s Petition for Writ of Certiorari by the Supreme Court of

Alabama is attached hereto as Appendix B. Holderfield v.

City of Birmingham, 380 So.2d 994 [ Ala. 1979] (A. 9).

The opinion of the Alabama Court of Criminal Appeals

concerning Cary Hawkins is appended hereto as Appendix C.

Hawkins v. City of Birmingham, 380 So.2d 995 [Ala. Crim.

App. 1980] (A. 10). The denial of Cary Hawkins’ Petition

for Writ of Certiorari by the Supreme Court of Alabama is

attached hereto as Appendix D. Hawkins v. City of Birming-

ham, 380 So.2d 995 [Ala. 1980] (A. 11).

JURISDICTION

The Judgments of the Alabama Court of Criminal Appeals

were entered on December 4, 1979 (Appendix A, A. 1 - A. 8,

Appendix C, A. 10). The requests for Rehearing of both

decisions were denied by the Alabama Court of Criminal

Appeals on January 22, 1980 (Appendix A, C). The Supreme

Court of Alabama denied Certiorari for both Appellants on

March 7, 1980 (Appendix B, D). This Court’s jurisdiction is

invoked under Title 28 U.S.C. §1257 (3) (Appendix E, A. 12 -

A. 16).

QUESTIONS PRESENTED

1. Whether, in obscenity cases, a trial by jury is required

in the first instance on the issue of contemporary community

3

standards; trial by jury after appeal to Circuit Court from bench

conviction in Municipal Court does not satisfy constitutional

requirements.

II. Whether the enforcement of City of Birmingham

Ordinance 16-18, as amended, against Petitioner and others

of his class who own, operate, or are employed by adult book

stores or adult theatres in the City of Birmingham, while

permitting owners, operators, and employees of other business

establishments in the city, for whatever reason or justification,

to sell publications or show movies which describe or depict

sexual conduct also in presumptive violation of said ordinance,

works out unequally and invidiously towards Petitioners and

others of their class and constitutes discrimination violative

of the Equal Protection Clause of the Fourteenth Amendment.

III. Whether the magistrate in these cases determined

the issue of probable cause where no adequate basis for such

a finding appears on the face of the complaints and oral testi-

mony of the magistrate fails to cure the otherwise defective

affidavit of the police officer.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent provisions of the First, Fourth, Sixth and

Fourteenth Amendments of the United States Constitution,

the pertinent provisions of Sections 2-97, 16-16 and 16-18

of the General Code of the City. of Birmingham, Alabama,

1964, as amended, Alabama Code section 12-146 (1975)

and Title 28 U.S.C. §1257 (3), appear in Appendix E (A. 12 -

A. 16) (U.S. Const. Amends. I, IV, VI, XIV; Alabama Code

§ 12-14-6 (1975); Section 2-97 of the General Code of the City

4

of Birmingham, Alabama, 1964, as amended; Section 16-16

of the General Code of the City of Birmingham, Alabama,

1964, as amended; Section 16-18 of the General Code of

the City of Birmingham, Alabama, 1964, as amended).

STATEMENT

1. Petitioners were charged with violation of the

obscenity ordinance of the City of Birmingham. The complaint

against Cary Hawkins alleged that Petitioner “ . . knowingly

and unlawfully sold an obscene book or magazine or matter

entitled, ‘Locker Room Workout,’ to D. L. McNutt which

depicted or portrayed the following sexual conduct: actual

act or acts of homosexuality between males, contrary to and

in violation of Section 16-18 of the General Code of the City

of Birmingham, Alabama, 1964, as amended.” The complaint

against Michael Holderfield alleged that Petitioner * .. know-

ingly and unlawfully sold an obscene book or magazine or

matter entitled, “Color Sperma”, to D. L. McNutt which

depicted or portrayed the following sexual conduct: actual

act or acts of fellatio, sexual intercourse contrary to and in

violation of Section 16-18 of the General Code of the City of

Birmingham, Alabama, 1964, as amended.”

On May 10, 1978, Petitioner, Cary Hawkins, was tried

in the Municipal Court of the City of Birmingham on the

complaint filed against him, without a jury, and was convicted.

Petitioner was fined $300 and sentenced to 60 days in jail.

Petitioner appealed to the Circuit Court of Jefferson County,

Tenth Judicial Circuit. On November 16, 1978, Petitioner,

Cary Hawkins, was tried before a jury on the Complaint before

the Honorable Charles M. Nice. After a two day jury trial,

Petitioner was found guilty. Petitioner was sentenced to pay

a fine of $500.00 and perform hard labor for the City of

Birmingham for 180 days as additional punishment. The fine

was assessed by a jury and the hard labor sentence was added

by the Court.

On May 10, 1978, Petitioner, Michael Holderfield, was

tried in the Municipal Court of the City of Birmingham on the

Complaint filed against him, without a jury, and was con-

victed. Petitioner was fined $300 and sentenced to 60 days

in jail. Petitioner appealed to the Circuit Court of Jefferson

County, Tenth Judicial Circuit. On March 22, 1979, Petitioner,

Michael Holderfield, was tried before a jury on the Complaint

before the Honorable William A. Cole. After a two day jury

trial, Petitioner was found guilty. Petitioner was sentenced

to pay a fine of $500.00 and perform hard labor for the City

of Birmingham for 180 days as additional punishment. The

fine was assessed by a jury and the hard labor sentence was

added by the Court.

2. In both cases, a Motion to Quash was filed raising

constitutional questions as to the ordinance unde: which

Petitioners were tried, both as written and as applied to them.

The Motion to Quash in each case specifically raised the

issues of arbitrary and intentional discriminatory enforcement of

the ordinance (obscenity) by the city. The city purposefully

and intentionally enforces its obscenity ordinance against one

class of employees, those employed in adult bookstores and

adult theatres, while permitting another class of employees,

those employed in non-adult bookstores or theatres (general

patronage businesses such as convenience stores, drug stores,

newsstands, bookstores and family theatres), to sell books and

6

magazines or exhibit films which describe or depict sexual

conduct in presumptive violation of the city’s obscenity ordin-

ance, without fear of prosecution. The Motion further ques-

tioned the constitutionality of the city’s ordinance for its

failure to provide a jury determination of contemporary com-

munity standards in obscenity prosecutions. Also whether in

obscenity prosecutions a trial by jury is required in the first

instance, a trial by jury after appeal to the Circuit Court being

insufficient to satisfy the requirements of the United States

Constitution.

The Motion also questioned whether the magistrate found

probable cause to issue the arrest warrant, there being no

adequate basis for such a finding on the face of the complaint

and oral testimony of the magistrate failing to cure the other-

wise defective affidavit of the police officer.

The Motions to Quash were overruled, and the Petitioner

in each case was tried before a jury and found guilty as charged

in the complaint. In each case, the sentence imposed by the

jury and the Court was suspended pending appeal.

4. The Court of Criminal Appeals affirmed both Peti-

tioners’ convictions with opinions on December 4, 1979, and

Applications for Rehearing were timely filed and denied on

January 22, i980, (Appendix A, A. 1-A. 8; Appendix C,

A. 10).

5. A Petition for Writ of Certiorari was timely filed by

each Petitioner with the Supreme Court of Alabama and both

were denied without opinion on March 7, 1980, (Appendix B,

A. 9; Appendix D, A. 11).

7

REASONS FOR GRANTING THE WRIT

1. Sections 12-14-6, Code of Alabama 1975, provides

that ‘‘Ail cases in municipal courts shall be tried by a judge

without a jury.”” Alabama case law has consistently held that

the constitutional right of trial by jury does not extend to trials

under city ordinances. Birmingham y. Evans, 53 Ala. App. 358,

300 So.2d 396 (1974); City of Birmingham y. Williams, 229

Ala. 101, 155 So. 877; Donahey v. City of Montgomery, 43

Ala. App. 20, 178 So.2d 832. Further, this Court, in Duncan

v. Louisiana, 391 U.S. 145, at 159, reaffirmed a long-established

view that “petty offenses” may be tried without a jury, and in

Baldwin v. New York, 399 U.S. 66, 69 (1970), the plurality

opinion of Mr. Justice White concluded that the severity of the

sentence would determine whether an offense will be deemed

“petty” for purposes of the right to trial by jury. Petitioner

argues and urges that an obscenity prosecution is and must be

an exception to this rule.

On June 21, 1973, in Miller v. California, 413 U.S. 15, 23,

25, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419, this Court reformu-

lated the constitutional test for determining obscenity and said:

“This much has been categorically settled by the

Court, that obscene material is unprotected by the

First Amendment. Kois v. Wisconsin, 408 U.S. 229,

92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States

v. Reidel, 402 U.S. (351), at 354, 91 S.Ct. (1410),

at 1411-1412 (28 L.Ed.2d 813); Roth v. United

States, supra, 354 U.S. (476), at 485, 77 S.Ct. (1304),

at 1309 (1 L.Ed.2d 1498). ‘The First and Four-

teenth Amendments have never been treated as

absolutes (footnote omitted).’ Breard v. Alexandria,

341 U.S. (622), at 642, 71 S.Ct. (920), at 932 (95

L.Ed. 1233), and cases cited. See Times Film Corp.

vy. Chicago, 365 US. 43, 47, 50, 81 S.Ct. 391, 393-

395, 5 L.Ed.2d 403 (1961); Joseph Burstyn, Inc. v.

Wilson, 343 U.S. (495), at 502, 72 S.Ct. (777), at

780 (96 L.Ed. 1098). We acknowledge, however, the

inherent dangers of undertaking to regulate any form

of expression. State statutes designed to regulate

obscene materials must be carefully limited. See

Interstate Circuit, Inc. v. Dallas, supra, 390 US.

(676), at 682, 685, 88 S.Ct. (1298), at 1302, 1305

(20 L.Ed.2d 225). As a result, we now confine the

permissible scope of such regulation to works which

depict or describe sexual conduct. That conduct

must be specifically defined by the applicable state

law, as written or authoritatively construed. A state

offense must also be limited to works which, taken

as a whole, appeal to the prurient interest in sex,

which portray sexual conduct in a patently offensive

way, and which, taken as a whole, do not have

serious literary, artistic, political or scientific value.

“The basic guidelines for the trier of fact must be:

(a) whether ‘the average person, applying contempor-

ary community standards’ would find that the work,

taken as a whole, appeals to the prurient interest,

Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct.,

at 2246, quoting Roth v. United States, supra, 354

US., at 489, 77 S.Ct., at 1311; (b) whether the work

depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable

state law; and (c) whether the work, taken as a

whole, lacks serious literary, artistic, political, or

scientific value. We do not adopt as a constitutional

standard the ‘utterly without redeeming social value’

9

test of Memoirs vy. Massachusetts, 383 U.S. (413),

at 419, 86 S.Ct. (975), at 977 (16 L.Ed.2d 1); that

concept has never commanded the adherence of more

than three Justices at one time. See supra, (413 U.S.

at 21) at 2613. If a state law that regulates obscene

material is thus limited, as written or construed, the

First Amendment values applicable to the States

through the Fourteenth Amendment are adequately

protected by the ultimate power of appellate courts

to conduct an independent review of constitutional

claims when necessary. See Kois v. Wisconsin, supra,

408 US., at 232, 92 S.Ct., at 2247; Memoirs vy.

Massachusetts, supra, 383 U.S., at 459, 460, 86 S.Ct.,

at 998 (Harlan, J., dissenting); Jacobellis v. Ohio,

378 U.S. (184), at 204, 84 S.Ct. (1676), at 1686

(12 L.Ed.2d 793) (Harlan, J., dissenting); New York

Times Co. vy. Sullivan, 376 U.S. 254, 284, 285, 84

S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Roth ».

United States, supra, 354 U.S., at 497, 498, 77 S.Ct.,

at 1315, 1316 (Harlan, J., concurring and dissenting).

“We emphasize that it is not our functior to

propose regulatory schemes for the States. That must

await their concrete legislative efforts. It is possible,

however, to give a few plain examples of what a state

statute could define for regulation under part (b) of

the standard announced in this opinion, supra:

“(a) Patently offensive representations or descrip-

tions of ultimate sexual acts, normal or perverted,

actual or simulated.

“(b) Patently offensive representations or descrip-

tions of masturbation, excretory functions, and lewd

exhibition of the genitals.

10

“Sex and nudity may not be exploited without limit

by films or pictures exhibited or sold in places of

public accommodation any more than live sex and

nudity can be exhibited or sold without limit in such

public places. At a minimum, prurient, patently

offensive depiction or description of sexual conduct

must have serious literary, artistic, political, or scien-

tific value to merit First Amendment protection.

See Kois v. Wisconsin, supra, 408 U.S., at 230, 232,

92 S.Ct., at 2246, 2247; Roth v. United States,

supra, 354 U.S., at 487, 77 S.Ct., at 1310; Thornhill

v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736,

743, 744, 84 L.Ed. 1093 (1940). For example,

medical books for the education of physicians and

related personnel necessarily use graphic illustrations

and descriptions of human anatomy. /n resolving

the inevitable sensitive questions of fact and law,

we must continue to rely on the jury system.”

(Emphasis added).

The application of the “contemporary community stand-

ards” guideline was explained by Mr. Justice Rehnquist in

Hamling v. United States, 418 U.S. 87 (1974), at page 105:

‘Miller rejected the view that the First and Fourteenth

Amendments require that the proscription of

obscenity be based on uniform nationwide standards

of what is obscene, describing such standards as

‘hypothetical and unascertainable,’ 413 U.S., at 31,

93 S.Ct., at 2619. But in so doing the Court did not

require as a constitutional matter the substitution

of some smaller geographical area into the same sort

of formula; the test was stated in terms of the

understanding of ‘the average person, applying

contemporary community standards’ 413 US.,

at 24, 93 S.Ct., at 2615. When this approach is

coupled with the reaffirmation in Paris Adult Theatre

I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634,

37 L.Ed.2d 446 (1973) of the rule that the prosecu-

tion need not as a matter of constitutional law

produce ‘expert’ witnesses to testify as to the

obscenity of the materials, the import of the quoted

language from Miller becomes clear. A juror is

entitled to draw on his own knowledge of the views

of the average person in the community or vicinage

from which he comes. . . in deciding what con-

clusion ‘the average person, applying contemporary

community standards’ would reach in a given case.”

Miller states that the questions of what appeals to the

"prurient interest” and what is “patently offensive” under the

obscenity test which it formulated are “essential questions of

fact”. Jenkins v. Georgia, 418 U.S, 153 (1974),

This Court, in Smith v. United States, 97 S.Ct. 1756

(1977) has held that the issues of “appeal to prurient interest”

and “patent offensiveness” are fact questions for the jury, to

be judged in light of the jurors’ understanding of contempor-

ary community standards. The Court stated at page 1763:

“The phrasing of the Miller test makes clear that

contemporary community standards take on meaning

only when they are considered with reference to the

underlying questions of fact that must be resolved in

an obscenity case. The test itsclf shows that appeal

12

to the prurient intorest is one such question of fact

for the jury to resolve. The Miller opinion indicates

that patent offensiveness is to be treated in the same

way. See Hamling v. United States, 418 U.S. at

104-5.” (Emphasis added)

Therefore, Miller, as explained in Hamling, means that

in determining obscenity under the First and Fourteenth

Amendments, a jury determination of contemporary com-

munity standards is constitutionally required. McNary vy».

Carl.on, 527 S.W.2d 343 (Mo. 1975); City of Kansas v. Darby,

544 S.W.2d 529 (Mo. 1977), appeal dismissed, 21 Crim.L.

Rep. (BNA) 4065; State v. Luck, 353 So.2d 225 (La.1977).

In City of Kansas City v. Darby, supra, the Missouri

Supreme Court held that the denial of a jury trial on the issue

of community standards in an obscenity prosecution in muni-

cipal court was unconstitutional, notwithstanding the fact that

the municipal court was barred by ordinance from providing

a trial by jury or that a jury was available on appeal to the

circuit court. The City of Kansas City appealed this case to

the United States Supreme Court where, on May 31, 1977,

the appeal was dismissed. The Darby appeal raised the question

“Does the First and Fourteenth Amendments require that

questions of obscenity be decided by a jury?” See 21

Crim.L.Rep. 4048 (1977). This Court’s denial of the City of

Kansas City’s appeal strongly suggests that a jury of one’s

peers must determine questions of obscenity.

The Supreme Court of Minnesota on August 31, 1979,

agreed that a criminal obscenity charge must be tried to a jury.

City of Duluth vy, Sarette, 26 Crim.L.Rep. (BNA) 2039 (Minn.

1979). The Minnesota Court stated that:

13

“The need for a jury determination is particularly

compelling in cases such as this where no expert

testimony or extrinsic evidence other than the

allegedly obscene material itself is admitted at trial.

When the issue is tried to the court, a judge is placed

in the unenviable position of determining contempor-

ary community standards, either upon impressions

formed from his contacts with residents or upon his

individual opinion of the locality’s values. Neither

of these alternatives is wholly consistent with the

test enunciated in Miller v. California, 413 U.S. 15

(1973). In contrast, a jury represents a cross section

of the community and is better equipped to make

the important and sensitive determination of com-

munity standards required in an_ obscenity

prosecution although it is clear that a jury trial is not

constitutionally mandated under the circumstances,

see, Duncan v. Louisiana, 391 U.S. 145 (1968), we

believe that the contemporary-community-standards

test can best be applied by a jury and therefore

hold, under the supervisory powers of this court,

that a criminal obscenity charge must be tried to a

jury.” City of Duluth v. Sarette, supra, at page 2039.

In rejecting Petitioners contention that a jury trial should

be required in all criminal obscenity prosecutions, the Alabama

Court of Criminal Appeals seized upon the language of the

Supreme Court of Minnesota in Sarette “that a jury trial is

not constitutionally mandated under the circumstances.”

It chose, however, to completely disregard Darby and the fact

that that case was appealed to this Court by the City of Kansas

City on the very issue raised by these Petitioners and the appeal

was denied. It also chose to ignore the fact that the Minnesota

Court also held “that a criminal obscenity charge must be

14

tried to a jury.” The Alabama Court further ignored the

suggestions made and the directions set in cases decided by this

Court (Miller, Hamling, Jenkins, Smith) for requiring a jury

trial in criminal obscenity prosecutions.

In this respect, Alabama stands alone as far as Petitioners

can determine. Most states which prosecute obscenity viola-

tions do so in its state courts, where a jury trial is available.

In the few states where obscenity prosecutions are begun in

a municipal or district court where a jury trial is unavailable,

and the question has been presented to its highest court, except

for Alabama, the courts have uniformly held that only a jury

can determine community standards - only a jury can determine

whether or not the publication, applying contemporary com-

munity standards, appeals to the prurient interest - only a jury

can determine whether or not, again applying contemporary

community standards, the sexual conduct described or depicted

in the publication is patently offensive.

The Alabama Court, without explanation, other than to

uphold the constitutionality of the Alabama statute requiring

all cases in municipal courts shall be tried without a jury, ruled

that “the defendant was not denied due process of law.”” The

Alabama statute need not be unconstitutional for these Peti-

tioners to be denied due process. Obscenity prosecutions

are a special breed - made so because of this Court’s reasoning

in Miller v. California, supra, and Paris Adult Theatre v. Slaton,

413 U.S. 49 (1973), as explained in Hamling v. U.S., supra.

Miller required an understanding of the average person, applying

contemporary community standards. Paris did not require

affirmative proof of the obscenity of the materials. Hamling

explained that the import of Miller and Paris was clear - that

15

“a juror is entitled to draw on his own knowledge of the view

of the average person in the community or vicinage from which

he comes for making the required determination . . .”” at page

2615.

Duncan y. Louisiana, supra, cited by the Alabama Court

for the proposition that a jury trial is not mandated for a court

where the maximum fine is $500.00 and the maximum jail

sentence is six months, was decided in 1968, long before this

Court established its present evidentiary rules for criminal

obscenity prosecutions. In view of Miller and Hamling and

Smith, an exception to Duncan would lie in criminal obscenity

prosecutions where “the issue of contemporary community

standards for appeal to the prurient interest and patent offen-

siveness. . .[are] questions for the jury to decide in its tradi-

tional role as fact-finder.” Smith, supra, at p. 1767.

A constitutionally acceptable determination of obscenity

cannot be made in the Municipal Court of Birmingham because

no jury is available. This constitutional deficiency cannot be

cured by the process of allowing an appeal to the Circuit Court

where a jury is available. Callan v. Wilson, 127 U.S. 540 (1888).

In Callan, this Court said at page 557:

*““. . .to accord to the accused a right to be tried by a

jury, in an appellate court, after he has been once

fully tried otherwise than by a jury, in the court of

Original jurisdiction, and sentenced to pay a fine or

be imprisoned for not paying it, does not satisfy the

requirements of the Constitution.”

Recognizing that in Alabama under ordinary circumstances,

a trial by jury is not necessary for violation of a city ordinance,

16

Birmingham v. Evans, supra, an exception exists in determining

whether or not material is obscene. If a determination is made,

based on contemporary community standards, that material

is not obscene, then it will be protected by the First Amendment.

Only a jury can make that determination by applying contem-

porary community standards.

“In Blount v. Rizzi, 400 U.S. 410, 416, 417, 91 S.Ct.

423, 428, 27 L.Ed.2d 498, 503 (1970), the Supreme

Court of the United States cautioned that “*. . .Gov-

ernment ‘is not free to adopt whatever procedure it

pleases for dealing with obscenity. . .without regard

to the possible consequences for constitutionally

protected speech.’ Marcus v. Search Warrant, 367

U.S. 717, 731, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

Rather, the First Amendment requires that proce-

dures be incorporated that ‘ensure against the curtail-

ment of constitutionally protected expression, which

is often separated from obscenity only by a dim and

uncertain line. . .Our insistence that regulations of

obscenity scrupulously embody the most rigorous

procedural safeguards. . .is. . .but a special instance of

the larger principle that the freedom of expression

must be ringed about with adequate bulwarks. . .’

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83

S.Ct. 631, 9 L.Ed.2d 584 (1963). Since we have

recognized that ‘the line between speech uncon-

ditionally guaranteed and speech which may legiti-

mately be regulated. . .is finely drawn. . .[t]he

separation of legitimate from illegitimate speech

calls for. . .sensitive tools. . .” Speiser v. Randall,

357 US. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460

(1958). City of Kansas City v. Darby, supra, at 531.

17

A person is entitled to freedom of expression, in areas of

alleged obscenity, until a jury of his peers declares otherwise.

It is not constitutionally permissible to allow a municipal

judge to restrict freedom of expression prior to the time a jury

determines whether or not a magazine is obscene.

This Court let stand, by dismissing an appeal filed by the

City of Kansas City, a Missouri Supreme Court decision that

“in obscenity cases only, a trial by jury is required in the first

instance and a trial by jury after appeal to Circuit Court ‘does

not satisfy the requirements of the Constitution’. (127 U.S.

at 557, 8th S.Ct. at 1307).” City of Kansas City v. Darby,

supra. Martin v. Municipal Court of Kansas City, 546 S.W.2d

7 (Mo. 1977). City of Duluth v. Sarette, supra, 2039. Asa

result, in Missouri criminal obscenity prosecutions are tried by

a jury in the first instance. The Alabama Court, with exactly

the same set of facts and court situation, concluded differently.

Consequently, in Alabama the essential determination of “‘con-

temporary community standards” need not be made by a jury

in the first instance. The two states are in conflict on the same

point of law, a point of law essential to the determination of

whether or not the material in question is obscene. By grant-

ing certiorari, this Court can review this issue and set the same

procedural process for all states and for all offenders in the

criminal enforcement of obscenity laws.

2. Each Petitioner was arrested, tried, and convicted for

selling a publication in alleged violation of City of Birmingham

Ordinance 16-18, as amended.

City of Birmingham Ordinance 16-18, as amended, states:

“It shall be unlawful for any person to knowingly

publish, print, exhibit, participate in the exhibition

18

or performance of, or allow or permit the exhibition

or performance of, distribute, or have in his posses-

sion with intent to distribute, exhibit, sell, or offer

for sale any obscene matter in the City or the police

jurisdiction thereof.”

Found within Section 16-16 of this ordinance are defini-

tions of words and terms which, for the purpose of the ordin-

ance, have the meanings ascribed to them by this section.

“Obscene” is defined as follows:

“To the average person, applying contemporary com-

munity standards, the work or matter taken as a

whole, appeals to the prurient interests; the work or

matter depicts or describes, in a patently offensive

way, sexual conduct; and the work or matter, taken

as a whole lacks serious literary, artistic, political or

scientific value.”

The ordinance thus adopts the guidelines set out in Miller v.

California, 413 U.S. 15 (1973), in its definition of ‘“‘obscene.”

“Sexual conduct” is defined in the ordinance as follows:

“Any act of masturbation, excretory functions,

homosexuality, sadomasochistic abuse, nudity, sexual

intercourse or physical contact witha person’s clothed

or unclothed genitals, pubic area, buttocks or, if such

a person be a female, breasts, whether or not any

such conduct is actual or simulated and lewd exhibi-

tion of the genitals.” (Emphasis added.)

“Nudity” is defined in said ordinance as:

19

“The showing of the human male or female genitals,

pubic area or buttocks with less than a fully opaque

covering or the showing of the female breasts with

less than a fully opaque covering of any portion

thereof below the top of the nipple or the depiction

of covered male genitals in a discernibly turgid state.”

It is petitioner’s contention that the City of Birmingham,

through its Vice Squad in the Police Department, exercises

prosecutorial discretion in selecting the defendants it will

prosecute under this ordinance.

It is a well-settled proposition that the Equal Protection

Clause of the Fourteenth Amendment prohibits discriminatory

enforcement of a law by administrative or executive officials.

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220

(1886). In Yick Wo the Court stated:

“Though the law itself be fair on its face and impar-

tial in appearance, yet, if it is applied and adminis-

tered by public authority with an evil eye and unequal

hand, so as practically to make unjust and illegal

discriminations between persons in similar circum-

stances, material to their rights, the denial of equal

justice is still within the prohibition of the Constitu-

tion.” 118 U.S. at pp. 373-374.

The rationale of Yick Wo applies equally to the enforcement

of a city’s municipal laws. In Marguia v. Municipal Court for

Bakersfield, 124 Cal. Reptr. 204, 540 P.2d 44 (1975), the

California Supreme Court was confronted with Defendants

charged with violations of municipal laws. Citing 7wo Guys ».

McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed. 2d 551 (1961),

and Oyler v. Boyles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed. 2d

446 (1962), the California Court declared:

20

“the Court explicitly recognized both that the

Constitutional protection against discriminatory law

enforcement applies to the enforcement of criminal

statutes and that such discriminatory enforcement

may be raised as a defense in the criminal proceedings

themselves.”

In Simonetti v. City of Birmingham, 55 Ala. App. 163,

314 So. 2d 83 (1975) the Alabama Appellate Court also

acknowledged that a Defendant may properly raise selective

or discriminatory enforcement of a municipal ordinance as a

defense. The Petitioners did this in the Trial Court and before

the Appellate Court, alleging discriminatory enforcement of

City of Birmingham Ordinance 16-18, as amended, against

them and other adult book store and adult theatre operators

in violation of the Equal Protection Clause of the Fourteenth

Amendment. The Alabama Appellate Court, in Starley v. City

of Birmingham, 377 So.2d 1131 (Ala.Crim.App.) cert. denied

377 So.2d 1134 (Ala. 1979), cert. denied, 79-1476 (1980),

states that “although no clear standards exist for the quantum

or type of proof sufficient to illustrate discriminatory enforce-

ment of a statute or municipal ordinance, three elements must

generally be proved: (1) selectivity in enforcement, (2) selecti-

vity that is intentional, and (3) selectivity based on some

invidious or unjustifiable standard such as race, religion, or

other arbitrary classification. Annot., 4 A.L.R.3d 404, 410

(1965); 13 Proof of Facts 2d Section 5 (1977), and authorities

cited therein.”” The Court found that Petitioners did not meet

their burden of proof in this regard.

To prove deliberate, systematic, discriminatory application

of law towards an individual, it must be shown that the appli-

cation towards the individual is different from others within his

21

class or that the class is being discriminated against. Yick Wo

v. Hopkins, supra; Marguia v. Municipal Court for Bakersfield,

supra.

The Petitioners are cognizant of the fact that nonenforce-

ment of the statute in and of itself is not sufficient to establish

discrimination, Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397,

88 L.Ed. 497 (1944), and that a heavy burden rests on the

defendant to establish conscious, intentional discrimination.

In meeting the burden the United States Supreme Court has

said:

“The purpose of the equal protection clause of the

Fourteenth Amendment is to secure to every person

within the state’s jurisdiction against intentional and

arbitrary discrimination, whether occasioned by

express terms of a statute or by its improper execu-

tion through duly constituted agents.”

“There must be something more - something which

in effect amounts to an intentional violation of the

essential principle of practical uniformity.” Sunday

Lake Iron Co. v. Wakefield, 247 U.S. 350, 353, 38

S.Ct. 495, 62 L.Ed. 1154 (1918).

When selective enforcement is designed to discriminate

against the persons prosecuted without any intention to follow

it up by general enforcement against others the boundaries of

equal protection are crossed and violated. People v. Utica

Daw’s Drug Co., 16 App. Div.2d 12, 225 N.Y.S. 2d 128, 4

A.L.R. 3d 393 (1962).

22

Petitioners argue that the proof offered in eaci of their

cases was uncontradicted and unmistakable with reference to

their contention that they and others in their class (their class

being “adult bookstore operators”) are discriminated against

by the City in its enforcement of City of Birmingham Ordi-

nance 16-18, as amended. Each Petitioner proved the elements

set out in Starley. Still, the Alabama Court completely ignored

the discrimination which admittedly exists in the City of

Birmingham in the enforcement of its obscenity ordinance,

even though it had before it as exhibits copies of the type

publications being sold in non-adult business establishments

in the City of Birmingham.

(1) Selectivity in Enforcement: The uncontradicted

evidence is that arrests in the City of Birmingham for violation

of its obscenity ordinance were directed only against operators

or employees of adult bookstores and adult theatres. There

were six to eight such adult bookstores which sold publications

depicting or describing the sexual conduct defined in the

city’s obscenity ordinance. These stores, and their employees,

were subject to constant arrests for violation of City of Birming-

ham Ordinance 16-18, as amended. There are hundreds of drug

stores, convenience stores, or other business establishments,

open to the general public, which regularly sell publications

depicting or describing sexual conduct in presumptive viola-

tion of the city’s obscenity ordinance. And yet not one of

these operators or employees has ever been arrested or tried

for violating this same ordinance. The arresting officer in these

cases swore that all during this time he knew the type of pub-

lications sold in the non-adult bookstores and magazine stands;

that those publications depict simulated and/or explicit sexual

activity, including pictures that show men and women engaged

23

in sexual intercourse, the male with his head between the legs

of a female with his face in her genitals, simulating cunnilingus,

and a female with her head between the legs of a male, simula-

ting fellatio, and various forms of homosexual activity. In

addition, at least five general patronage movie theatres in the

City of Birmingham and two general patronage drive-in theatres

either inside or just outside the city limits of Birmingham

sometimes exhibited sexual films in presumptive violation of

the city’s obscenity ordinance, yet the city permits these non-

adult movie theatres to show these films without fear of arrest.

(2) Selectivity that is Intentional: The testimony of the

arresting officer convincingly demonstrates that the City’s

focus is only on adult bookstores and adult theatres and is both

purposeful and intentional. The evidence shows a clear and

unmistakable pattern of conduct by police officers of the

City of Birmingham with reference to enforcing that city’s

obscenity ordinance. Since its enactment in 1973, only owners

or employees of bookstores classified as “adult” have been

subjected to arrests under the city’s obscenity ordinance. The

City admits giving a different classification to adult book-

stores as compared with non-adult bookstores, although both

sell sexually oriented materials in presumptive violation of the

city’s obscenity ordinance. The City admits that it prosecuted

only those stores or theatres knowingly selling or exhibiting

obscene matter, showing actual sexual acts (including penetra-

tion and bodily contact) as compared with simulated sexual

acts where the individuals were nude and/or were in close

proximity with the other but there was no penetration.

The city’s obscenity ordinance was adopted by the govern-

ing body of the City of Birmingham in 1973, following the

Miller decision. The ordinance’s proscription is clear: obscene

24

matter, sold or exhibited, described or depicted, actual or simu-

lated, is unlawful. The ordinance is due to be enforced equally

against all who violate it or not at all. Nevertheless, only

employees of adult book stores and adult theatres are arrested

for selling sex publications or exhibiting sex films. The city

admits it. The Alabama court says this is not discrimination.

Perhaps the Alabama Appellate Court associates porno-

graphy or obscenity only with graphic or pictorial illustrations

of sexual conduct, rather than with written accounts of sexual

activity. This is not an idea which this Court has embodied in

its obscenity rulings. That is not what the ordinance itself

proscribes. A completely verbal account, without photographs

or illustrations, falls within the Miller rules, if otherwise it

meets the test of that doctrine. While the photographs in pub-

lications sold in non-adult business establishments generally

depict simulated sexual activity, some depict explicit se xual

activity and all clearly and unmistakeably describe explicit

sexual activity in presumptive violation of the city’s obscenity

ordinance. If it is the city’s intent to prosecute only for graphic

depictions of explicit sexual activity, not for written accounts

of explicit sexual activity; if it is its intention to prosecute only

for explicit sexual activity, not for simulated sexual activity; if

it is its intention to not prosecute for nudity or lewd exhibi-

tions of the genitals, then the city should change its ordinance

and specify, as Miller provides, the type sexual activity it will

prosecute. “If it can’t be done in this fashion, then it must not

be done at all.” Simonetti, supra, (55 Ala.App. at 177, 314

So.2d at 95).

(3) Selectivity Based on. . Other Arbitrary Classification:

It is uncontradicted from the evidence that arrests in the City

of Birmingham for violation of its obscenity ordinance were

directed only against operators or employees of adult book

25

stores and adult theatres. If the sale or exhibition of materials

which depict or describe sexual conduct, actual or simulated,

is in presumptive violation of the city’s obscenity ordinance,

then an arbitrary classification is established when the City

directs its prosecutorial efforts against one class (the adult

book store) for presumptively violating its ordinance while

ignoring another class (the non-adult book store) for presump-

tively violating the same ordinance. Discriminatory application

of the law towards an individual is shown when the class to

which he belongs is being discriminated against. Yick Wo y».

Hopkins, supra.

The “quantum or type of proof” offered by the Petitioners

to illustrate discriminatory enforcement of the city’s obscenity

ordinance against them compares favorably with the “quantum

or type of proof” accepted by the Alabama Appellate Court

in Simonetti v. City of Birmingham, supra, and Associated

Industries of Alabama v, State, 55 Ala. App. 217, 314 So.2d

879 (1975).

In this case:

1. The Petitioners were employed at adult book stores,

and sold magazines to a police officer of the City of Birmingham

in alleged violation of City of Birmingham Ordinance 16-18,

as amended, for which they were arrested, tried and convicted.

2. There were numerous bookstores, drug and con-

venience stores which sold magazines describing or depicting

sexual conduct proscribed by the city’s obscenity ordinance.

3. No arrests were made by the City of Birmingham for

publications sold other than in adult book stores.

26

In the case of Simonetti v. City of Birmingham, supra,

the facts were:

1. Simonetti sold groceries on Sunday in alleged viola-

tion of the “blue laws” of the City of Birmingham, for which

he was arrested, tried and convicted.

2. Although there were other business establishments

open on Sunday selling their wares in alleged violation of the

city’s blue laws, none of their operators or employees were

arrested.

In the case of Associated Industries of Alabama vy. State,

supra, the facts were:

1. Five domestic corporations, one domestic association,

and five individuals were indicted by a special grand jury of

Montgomery County, Alabama, for violating the State’s Corrupt

Practices Law, and were arrested, tried and convicted.

2. Numerous other individuals and groups, engaged in

similar political activities during this same period of time, were

not indicted by the special grand jury, although they were well

known to the prosecution and were known to not have filed a

statement of campaign expenditures with the Secretary of

State, the charge for which the others were arrested, tried and

convicted.

In Simonetti and Associated Industries, both decided in

1975 by the Alabama Court, that Court cited the following in

support of its finding that there was discriminatory enforce-

ment of the penal law involved in each case:

27

1. “In Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064,

30 L.Ed. 220, the Supreme Court said:

‘Though the law itself be fair on its face, and

impartial in appearance, yet, if it be applied and

administered by public authority with an evil eye and

an unequal hand, so as practically to make unjust

and illegal discriminations between persons in similar

circumstances, material to their rights, the denial

of equal justice is still within the prohibition of the

constitution.” ” Simonetti, supra, 53 Ala.App. at

page 173, 314 So.2d at 92; Associated Industries,

supra, 55 Ala.App. at page 288, 314 So.2d at 889.

2. “In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585,

100 L.Ed. 891, the Supreme Court said:

‘A law non-discriminatory on its face may be

grossly discriminatory in its operation.’ ’’ Simonetti,

supra, 53 Ala. App. at 173, 314 So.2d at 92; Asso-

ciated Industries, supra, 55 Ala.App. at 289, 314

So.2d at 890.

3. “In East Coast Lumber Terminal v. Town of Baby-

lon, 2 Cir. 174 F.2d 106, Judge Learned Hand wrote:

‘It has indeed been the law for over sixty years

that the (14th) Amendment covers the unequal

enforcement of valid laws, as well as any enforcement

of invalid powers.’ Yick Wo vy. Hopkins, supra.”

Simonetti, supra, 53 Ala.App. at page 173, 314 So.2d

at 92; Associated Industries, supra, 55 Ala.App. at

page 289, 314 So.2d at 889.

4.

28

“In Sunday Lake Iron Company v. Wakefield, 247

US. 350-352, 38 S.Ct. 495, 62 L.Ed. 1154, the Supreme Court

said:

‘The purpose of the equal protection clause of

the Fourteenth Armendment is to secure to every

person within the state’s jurisdiction against inten-

tional and arbitrary discrimination, whether

occasioned by express terms of a statute or by its

improper execution through duly constituted

agents. ” (Emphasis added). Simonetti, supra,

53 Ala.App. at page 174, 314 So.2d at 92; Asso-

ciated Industries, supra, 55 Ala.App. at page 289,

314 So.2d at 890.

5. In Simonetti, supra, 53 Ala. App. at page 175, 314

So.2d at 93; this same Alabama Court said:

“Police officers are sworn to uphold and enforce

all laws within their jurisdiction .. . they permitted

businesses in direct competition with appellant to

remain open for business . . . and, thereby, go

unwhipped of justice while hauling appellant into

court to be fined and incarcerated.

«We find no trouble in concluding that appellant’s

constitutional rights under the Equal Protection

Clause of the Fourteenth Amendment have been

blatantly violated and that his arrest and conviction

were brought about by invidious discrimination

in the unequal enforcement of the . . . laws of the

City of Birmingham. To allow this conviction to

stand would be a grave miscarriage of justice and

would be wrong and unjust.”

29

6. In Simonetti, supra, 53 Ala. App. at 177, 314 So.2d

at 95, cited in Associated Industries, supra, 55 Ala. App. at

289, 314 So.2d at 890, the Alabama Court said:

“We believe that if the law, all laws, is enforced

equally and justice is dispensed with an even hand,

and on a non-discriminatory basis, all citizens will

maintain a high regard and a lofty respect for our

Court system as administered under the Constitution.

If it can’t be done in this fashion, then it must not

be done at all.”

In Simonetti, supra, 55 Ala. App. at 172, 314 So.2d at

90, the Alabama Court quotes Federal District Court Judge

Sam Pointer in discussing the question of burden in John F.

Lawhon Furniture Company vy. Melvin Bailey, (D. C. Ala.

CA 72-1109):

“The question then becomes, in order to make out

the case, must the plaintiff prove intentional sort of

malicious discrimination and enforcement, or is it

sufficient if the plaintiff proves that whatever the

reason or justification, nevertheless in actual fact

it works out unequally and invidiously toward him

or it. I think it is the latter. And if the Sheriff's

Department, as I’m convinced under the evidence,

cannot enforce this type of law throughout the entire

county on a completely equal basis, then it should

not be permitted to let its forces be directed as

against one particular company in effect unequally,

that is what it turns out to be, and again not from

any intent to harm, but simply as the sheer result

30

of the fact that there are other items, much more

important that the Sheriff's Department could be

doing ultimately than dealing with the victimless

crime involving a number of its patrol cars in this

type of investigative work. * * * * * Either you have

got to do it more equally than you have done...

or not do it.’” (Emphasis Added)

The following statement of the Alabama Court from

Simonetti, supra, 55 Ala. App. at 177, 314 So.2d at 95, with

appropriate changes, could well apply to this case:

“It may be a violent presumption that the courts

are not supposed to be ignorant of that which

everybody knows; and everybody in this state knows

one can go almost anywhere in [the City of Birming-

ham] and purchase a [sex magazine in presumptive

violation of City of Birmingham Ordinance 16-18,

as amended]. We indulge this presumption with

the knowledge that the [City’s obscenity] laws

are not uniformly enforced.”

The city’s obscenity ordinance has been enforced only

against owners, operators or employees of adult business

establishments. The testimony in these cases verifies this.

There is no claim that the law cannot be enforced equally

against all who violate it. It is a matter of choice. If the city

has the time and the manpower to arrest the same employees

of the same adult businesses time and time again, surely it can

find the time and manpower to arrest employees of business

establishments classified as non-adult but which nevertheless

sell publications or exhibit movies which describe or depict

sexual conduct in presumptive violation of its obscenity ordi-

nance.

31

Petitioners are not seeking protection from the law. They

merely ask to be afforded the same protection of the law as are

murderers, rapists, drug peddlers, “blue law” violators, those

who violate the State’s Corrupt Practices Law, and employees

of the non-aduit business establishments which sell adult

materials.

3. The Affidavit of Complaint sworn to by the arresting

officer before the Magistrate in the Petitioner Holderfield’s

case reads as follows:

“Personally appeared before me, the undersigned

authority in and for said Municipal Court of Birming-

ham, D. L. McNutt, who being first duly sworn,

says on oath that he has probable cause for believing

and does believe that Mike Holderfield, whose name

is otherwise unknown to affiant, did within twelve.

months before making this affidavit and within the

City of Birmingham, or the Police Jurisdiction

thereof:

Did unlawfully on to-wit: May 10, 1978, at approxi-

mately 11:20 a.m. at or near 3021 Bessemer Road,

Bessemer News, Birmingham, Jefferson County,

Alabama, knowingly publish, print, exhibit, distribute,

or have in his possession with intent to distribute,

exhibit, sell, or offer for sale in the City of Birming-

ham, Alabama, any obscene matter, to-wit: an

obscene book, “Color Spefma”, contrary to and

in violation of General City Code 16-18 as amended

against the laws and ordinances of the City of

Birmingham.

//D. L. McNutt//

32

Sworn to and subscribed before me this 17th of

May, 1978.

//3. M. Burns//

Magistrate of Municipal Court

of Birmingham”

The Affidavit of Complaint sworn to by the arresting

officer before the Magistrate in Petitioner Hawkins’ case reads

as follows:

“Personally appeared before me, the undersigned

authority in and for said Municipal Court of Birming-

ham, D. L. McNutt, who being first duly sworn,

says on oath that he has probable cause for believing

and does believe that Cary Hawkins, whose name is

otherwise unknown to affiant, did within twelve

months before making this affidavit and within the

City of Birmingham, or the Police Jurisdiction

thereof:

Did unlawfully on to-wit: May 10, 1978, at approxi-

mately 12:45 p.m. at or near 7610 North Ist Avenue,

Birmingham, Jefferson County, Alabama, knowingly

publish, print, exhibit, distribute, or have in his

possession with intent to distribute, exhibit, sell,

or offer for sale in the City of Birmingham, Alabama,

any obscene matter, to-wit: an obscene book,

“TLocker-Room Workout”, contrary to and in viola-

tion of General City Code 16-18 as amended against

the laws and ordinances of the City of Birmingham.

//D. L. McNutt//

33

Sworn to and subscribed before me this 17th of

May, 1978.

//J. M. Burns//

Magistrate of Municipal Court

of Birmingham”

Based upon these affidavits, Petitioners were arrested, tried and

convicted in the Municipal Court of Birmingham. The Alabama

appellate court found each affidavit to be “in and of itself. . .

insufficient to support a finding of probable cause for a warrani

of arrest because it only recites the affiant’s belief and contains

no supporting facts or circumstances upon which a finding of

probable cause could be based. Aguilar v. Texas, 378 U.S. 108,

84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United

States, 357 U.S. 481, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).”

However, the Alabama appellate court stated that the

reviewing court is not restricted to examining the four corners

of the affidavit in passing on the validity of an arrest warrant.

United States v. Character, 568 F.2d 442, 445 (Sth Cir. 1978).

“A reviewing court may consider an affiant’s oral testimony,

extrinsic to the written affidavit, which is sworn before the

issuing magistrate, in determining whether the warrant was

founded on probable cause. United States v. Hill, 500 F.2d

315, 320-21 (Sth Cir. 1974). Oral testimony is admissible to

cure an otherwise defective warrant Oliver v. State, 46 Ala.

App. 118, 238 So.2d 916 (1970); Funches v. State, 53 Ala.

App. 330, 299 So.2d 771, cert. denied, 292 Ala. 752, 299

So.2d 778 (1974).” (Emphasis added.)

The oral testimony in these cases does not cure these

defective warrants. The magistrate who issued the arrest

34

warrants was a law student, had taken no special courses,

attended no seminars, nor received any special instructions

dealing with the subject of obscenity. He executed the arrest

warrant after being requested to do so by the arresting officer.

However, there is absolutely no evidence that the affiant swore

to any testimony, other than the conclusory statements found

in the affidavits themselves. The magistrate did not question

the arresting officer and reduce his answers to writing. The

defective warrants issued by the magistrate were prepared by

the arresting officer prior to his going in to see the magistrate.

The magistrate had no specific recollection of having examined

or even seeing the magazine sold by Holderfield, no recollection

of it even being brought to him for his examination of it, nor

did he remember any of the circumstances or the basis for his

issuing arrest warrants for the Petitioners. Even the officer

who took the magazines to him did not remember how long the

magistrate “examined” them, although when pressed to give

his best judgment, he ventured “ten minutes.” There was no

proof of any discussion with the magistrate concerning the

contents of either magazine, and no finding of probable cause

by the magistrate that the magazines were obscene. The exe-

cuted affidavits and arrest warrants stated that the officer, not

the magistrate, had probable cause for believing the magazines

were obscene and the magistrate signed the arrest warrants

based upon those affidavits.

Section 2-97 of the General Code of the City of Birming-

ham, Alabama, 1964, provides that a writ of arrest can be

issued by a city magistrate only upon a written and sworn

complaint that an offense has been committed and setting forth

sufficient facts tending to establish the commission of the

offense and the guilt of the defendant. The provisions of this

ordinance must be read in light of the constitutional require-

ments it implements.. The Fourth Amendment to the United

35

States Constitution provides “‘no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and par-

ticularly describing the place to be searched, and the person or

things to be seized.”” Article I, Section 5, Constitution of

Alabama of 1901, provides ‘“‘No warrant shall issue to search

any place, or to seize any person or thing, without probable

cause, supported by oath or affirmation.”

The language of the Fourth Amendment and Article I,

Section 5, of the Alabama Constitution applies to arrest as well

as search warrants. Malone v. State, 51 Ala.App. 19, 282 So.2d

367 (1973); Giordenello v. United States, 357 U.S. 481, 485-

486 (1958).

“The point of the Fourth Amendment, which is not

grasped by zealous officers, is not that it denies law enforce-

ment the support of the usual inferences which reasonable

men draw from evidence. Its protection consists in requiring

that those inferences be drawn by a neutral and detached

magistrate instead of being judged by the officer engaged in the

often competitive enterprise of ferreting out crime.” Johnson

v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed.

436 (1948); Malone v. State, supra at 21.

“The decisions of this Court concerning Fourth Amend-

ment probable-cause requirements before a warrant for either

arrest or search can issue require that the judicial officer issuing

such a warrant be supplied with sufficient information to sup-

port an independent judgment that probable cause exist for the

warrant.” Whitely v. Warden of Wyoming State Penitentiary,

401 U.S. 560, 564, 28 L.Ed.2d 306, 91 S.Ct. 1031 (1971).

“The Court must still insist that the magistrate perform his

‘mutual and detached’ function and not serve merely asa rubber

36

stamp for the police.” Aguilar v. Texas, 378 US. 108, 111

(1964).

The purpose of the complaint, then, is to enable the

appropriate magistrate ‘> determine whether the “probable

cause” required to support a warrant exists. The magistrate

must judge for himself the persuasiveness of the facts relied on

by a complaining officer to show probable cause. He cannot

accept without question the officer’s mere conclusion that

the person whose arrest is sought has committed a crime.

There is absolutely no evidence of sworn to, oral testi-

mony by the affiant in the record from which the magistrate

could have found probable cause to issue these warrants. The

strict requirements of the law with regard to the issuance of

search warrants and arrest warrants were adopted to prevent

just this type situation, where a police officer of the City of

Birmingham can type up his own affidavit and arrest warrant

and present it to a magistrate for his signature. From the

testimony given, the magistrate, a law student with no legal

or judicial background, merely rubber stamped the request of

the arresting officer. Surely, this Court must recognize that the

magistrate would remember most of the details involving a

“sex publication” if, in fact, he had examined it. The testi-

mony is, and the facts are, that less than twenty such cases

were presented to him, if indeed they were, during the time he

was a magistrate for the City of Birmingham. There are just

some subject matters that people do not forget and sex is one

of them. If, as the Fourth Amendment to the United States

Constitution and Article I, Section 5, Constitution of Alabama

of 1901 requires, the judicial officer issuing an arrest warrant

is supplied with sufficient information to support an indepen-

dent judgment that probable cause exists for the warrant, then

the testimony of both the magistrate and the officer would

37

not be so “fuzzy” that they can remember nothing that was

said or done other than the preparation of an affidavit and the

execution of an arrest warrant.

The written affidavits of the officer in these cases do not

set forth any sufficient basis upon which a finding of probable

cause could be made. All testimony taken on the motions

clearly shows that the magistrate did not issue the arrest

warrants in these cases based upon his finding that probable

cause existed that the publications involved herein were obscene.

The Alabama appellate court agreed that no adequate basis

for finding probable cause appeared on the face of the com-

plaints. The testimony of the magistrate that he had no recol-

lection of ever examining or reading the magazines nor of even

issuing the arrest warrants exemplifies the requirement for an

affidavit to contain sufficient information for a magistrate

to judge for himself the persuasiveness of the facts relied on

by a complaining officer to show probable cause. To agree

to less would be an open invitation for officers to obtain

open-ended warrants for arrest from a “friendly” magistrate.

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Alabama Court of

Criminal appeals.

Respectfully submitted,

Ferris S. Ritchey, Jr., Esquire

Attorney for Petitioners

A. 1

APPENDIX

APPENDIX A

Michael HOLDERFIELD

The CITY OF BIRMINGHAM.

6 Div. 38.

Court of Criminal Appeals of Alabama.

Dec. 4, 1979.

Rehearing Denied Jan. 22, 1980.

BOWEN, Judge.

This is a pornography case involving the sale of a maga-

zine entitled “Color Sperma”’ in violation of Birmingham City

Ordinance 16-18 as amended.

The defendant was employed as a clerk by the Bessemer

News, an adult bookstore in Jefferson County. In May of

1978, an officer of the Vice Squad of the Birmingham Police

Department purchased the magazine from the defendant. The

defendant was tried without a jury in Municipal Court and

convicted. He appealed to the Circuit Court of Jefferson

County, was tried by a jury, convicted and fined five hundred

dollars and costs.

A. 2

The defendant contends that under the United States

Supreme Court’s definition of obscenity stated in Miller v.

California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),

and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41

L.Ed.2d 590 (1974), only a jury can apply “contemporary

community standards” in determining whether a publication

is obscene. Although Alabama Code (1975), § 12-14-6, pro-

vides that ‘‘(a)ll cases in municipal courts shall be tried by a

judge without a jury”, the defendant contends that an obscen-

ity prosecution must be the exception to this statute.

While neither Miller nor Hamling specifically states that

only a jury can determine the issue of obscenity, the Supreme

Courts of Missouri and Minnesota have found such a holding

implicit.

In McNary v. Carlton, 527 S.W.2d 343 (Mo.1975), the

Supreme Court of Missouri held that in obscenity cases jurors

must be the triers of fact.

“Third, in considering application of the ‘contemporary

community standards’ guideline, we must note the follow-

ing language from Hamling v. United States, 418 U.S. 87,

at 104 and 105, 94 S.Ct. 2887, 2900, 41 L.Ed.2d 590:

* * * * *€

““ (T)he test (for determining obscenity) was stated in

terms of the understanding of ‘the average person, apply-

ing contemporary community standards’. 413 USS., at

24, 93 S.Ct., at 2615. When this approach is coupled with

the reaffirmation in Paris Adult Theatre I v. Slaton, 413

A. 3

US. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973)

of the rule that the prosecution need not as a matter of

constitutional law produce ‘expert’ witnesses to testify as

to the obscenity of the materials, the import of the quoted

language from Miller becomes clear. A juror is entitled to

draw on his own knowledge of the views of the average

person in the community or vicinage from which he comes

for making the required determination, just as he is entitled

to draw on his knowledge of the propensities of a ‘reason-

able’ person in other areas of the law.

“ ‘The result of the Miller cases, therefore, as a matter of

constitutional law and federal statutory construction, is

to permit a juror sitting in obscenity cases to draw on

knowledge of the community or vicinage from which he

comes in deciding what conclusion ‘the average person,

applying contemporary community standards’ would

reach in a given case.’

“However, we consider the above language extremely

significant. The emphasis which Miller and Hamling

place on the unique qualifications of jurors to apply the

‘contemporary community standards’ guideline raises a

practical question in this suit for injunctive relief... .

In ‘obscenity’ cases, we believe we should ‘rely on the

jury system’ (413 US., at 26, 93 S.Ct. 2607), and require

that jurors be involved as triers of fact under the Miller

guidelines.”

McNary, 527 S.W.2d at 346-7.

A.4

In City of Kansas City v. Darby, 544 S.W.2d 529 (Mo.

1976), the Missouri Supreme Court applied McNary and held

that the denial of a jury trial on the issue of community stan-

dards in an obscenity prosecution in municipal court was

unconstitutional, notwithstanding the fact that the municipal

court was barred by ordinance from providing a trial by jury or

that a jury was available on appeal to the circuit court.

“We hold, in obscenity cases only, that a trial by jury is

required in the first instance and that a trial by jury after

appeal to circuit court ‘does not satisfy the requirements

of the Constitution’.

“We recognize that today’s holding renders the Kansas

City obscenity ordinance unenforceable so long as juries

are not permitted in Kansas City municipal courts.”

(citations omitted) Darby, 544 §.W.2d at 532.

This same result was reached in Martin v. Municipal Court of

Kansas City, 546 S.W.2d 7 (Mo. 1976), and XLNT Corporation

v. Municipal Court of Kansas City, 546 S.W.2d 6 (Mo. 1976).

The Supreme Court of Minnesota, exercising its ‘‘super-

visory powers”’, has recently decided that a criminal obscenity

charge must be tried before a jury even though not constitu-

tionally required.

“The need for a jury determination is particularly compel-

ling in cases such as this where no expert testimony or

extrinsic evidence other than the allegedly obscene mater-

ial itself is admitted at trial. When the issue is tried to the

court, a judge is placed in the unenviable position of

determining contemporary community standards, either

upon impressions formed from his contacts with residents

A.5

or upon his individual opinion of the locality’s values.

Neither of these alternatives is wholly consistent with the

test enunciated in Miller v. California, 413 U.S. 15, 93

S.Ct. 2607, 37 L.Ed.2d 419 (1973)]. In contrast, a jury

represents a cross section of the community and is better

equipped to make the important and sensitive determina-

tion of community standards required in an obscenity

prosecution. Although it is clear that a jury trial is not

constitutionally mandated under these circumstances,

see, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,

20 L.Ed.2d 491 (1968), we believe that the contempor-

ary-community-standards test can best be applied by a

jury and therefore hold, under the supervisory powers

of this court, that a criminal obscenity charge must be

tried to a jury.”

City of Duluth v. Sarette, 283 N.W.2d 533 (Minn. 1979)

(emphasis added).

Sarette makes it clear that while the jury system may be

the best method for determining obscenity as defined in Miller

v. California, it is not a constitutional requirement. The statute

requiring that all cases in municipal courts shall be tried by a

judge without a jury is not unconstitutional as it applies to an

obscenity prosecution in the municipal court. In this regard,

the defendant was not denied due process of law.

Additionally, we note that the defendant never requested

a trial by jury in the municipal court. The question of the

constitutionality of the city ordinance and its failure to pro-

vide for a jury determination of obscenity was first raised by

the defendant on appeal before the circuit court. Since the

record shows no objection to being prosecuted in the municipal

court until after the defendant had been convicted, we do not

think he should be heard to complain. We do not think that it

A.6

would have been a mere useless or futile gesture for the defend-

ant to have voiced his objection before the municipal judge.

We note that in Martin, supra, upon which the defendant

bases his argument, the accused did file a motion for a jury

trial in the municipal court even though a statute prohibited a

jury trial in the municipal court.

II

The defendant contends that there is insufficient evidence

of probable cause to support the arrest warrant from the face

of the complaint and the testimony of the magistrate.

The affidavit of complaint sworn to by the arresting officer

states:

“Personally appeared before me, the undersigned authority

in and for said Municipal Court of Birmingham, D. L.

McNutt, who being first duly sworn, says on oath that he

has probable cause for believing and does believe that

Mike Holderfield whose name is otherwise unknown to

affiant, did within twelve months before making this

affidavit and within the City of Birmingham, or the

Police Jurisdiction thereof:

Did unlawfully on to-wit: May 10, 1978, at approxi-

mately 11:20 A.M. at or near 3021 Bessemer Road,

Bessemer News, Birmingham, Jefferson County, Alabama,

knowingly publish, print, exhibit, distribute, or have in

his possession with intent to distribute, exhibit, sell, or

offer for sale in the City of Birmingham, Alabama, any

obscene matter, to-wit: an obscene book, ‘Color Sperma’,

contrary to and in violation of General City Code 16-18

as amended against the laws and ordinances of the City of

Birmingham.”

A.7

This affidavit in and of itself is insufficient to support a finding

of probable cause for a warrant of arrest because it only recites

the affiant’s belief and contains no supporting facts or circum-

stances upon which a finding of probable cause could be based.

Aguilar v. Texas, 378 U.S. 108, 84S.Ct. 1509, 12 L.Ed.2d 723

(1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct.

1245, 2 L.Ed.2d 1503 (1958).

However, in passing on the validity of an arrest warrant,

the reviewing court is not restricted to examining the four

comers of the affidavit. United States v. Character, 568 F.2d

442, 445 (Sth Cir. 1978). A reviewing court may consider an

affiant’s oral testimony, extrinsic to the written affidavit,

which is sworn before the issuing magistrate, in determining

whether the warrant was founded on probable cause. United

States v. Hill, 500 F.2d 315, 320-21 (Sth Cir. 1974). Oral

testimony is admissible to cure an otherwise defective warrant.

Oliver vy. State, 46 Ala.App. 118, 238 So.2d 916 (1970); Fun-

ches v. State, 53 Ala.App. 330, 299 So.2d 771, cert. denied,

293 Ala. 752, 299 So.2d 778 (1974).

Officer McNutt, at the time he gave the sworn affidavit

before a magistrate for the City of Birmingham, presented the

magistrate with the magazine “Color Sperma” which he had

personally purchased from the defendant seven days earlier.

The magistrate examined the magazine for ten minutes before

issuing the arrest warrant. The affidavit together with the

presentation of the alleged obscene matter to the magistrate

support the finding of probable cause and issuance of the

warrant despite the fact that the affidavit is conclusionary.

The defendant’s contention that Birmingham City Ordin-

ance 16-18 as amended was systematically and selectively

A. 8

enforced against him resulting in purposeful and intentional

discrimination violative of the equal protection clause of the

Fourteenth Amendment was found to be without merit in

Starley v. City of Birmingham, Ala.Cr.App., 377 So.2d 1171

(1979). The evidence presented by the defendant in this case

is substantially identical to that presented in Starley. There

simply has been no evidence to indicate an intentional selec-

tivity based upon an unjustifiable standard.

We have searched the record for error and, finding none,

affirmed the judgment of the circuit court.

AFFIRMED.

All Judges concur.

A.9

APPENDIX B

Ex Parte Michael HOLDERFIELD.

Re: Michael Holderfield

v.

The City of seesieiihises

79-333.

Supreme Court of Alabama.

March 7, 1980.

Certiorari to the Court of Criminal Appeals (6 Div. 38),

380 So.2d 994.

oe ea ok

BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J.,and FAULKNER, ALMON and EMBRY,

JJ., concur.

A. 10

APPENDIX C

Cary HAWKINS

The CITY OF BIRMINGHAM.

6 Div. 975.

Court of Criminal Appeals of Alabama.

Dec. 4, 1979.

Rehearing Denied Jan. 22, 1980.

BOWEN, Judge.

This is a pornography case based on the sale of the book

“Locker-Room Workout” in violation of Section 16-18 of the

General Code of the City of Birmingham, 1964, as amended,

prohibiting the sale of an obscene book. The defendant was an

employee of the Pussycat Adult Theater. The defendant was

tried before a jury on the complaint and found guilty. Sen-

tence was 180 days hard labor and a fine of $500.00.

The issues in this case are exactly identical and the facts

substantially identical to those in Holderfield v. The City of

Birmingham, Ala.Cr.App., 6 Div. 38, 380 So.2d 990 (Ms.

December 4, 1979). The judgment of the trial court in this

case is affirmed on authority of our opinion in Holderfield.

AFFIRMED.

All Judges Concur.

Writ denied, Ala., 380 So.2d 995.

—

A. 11

APPENDIX D

Ex Parte Cary HAWKINS.

(Re: Cary Hawkins

v.

The City of Disuainghens).

79-334.

Supreme Court of Alabama.

March 7, 1980.

Certiorari to the Court of Criminal Appeals (6 Div. 975),

380 So.2d 994.

BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J.,and FAULKNER, ALMON and EMBRY,

JJ., concur.

A. 12

APPENDIX E

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. The pertinent provisions of the First Amendment are:

“Congress shall make no law. . . , abridging the free-

dom of specch, or of the press. . . .”

2. The Fourth Amendment states:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the per-

sons or things to be seized.”

3. The pertinent provisions of the Sixth Amendment are:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been com-

mitted... .”

4. The pertinent provisions of the Fourteenth Amend-

ment are:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or

. 13 ”

property, without due process of law... .

A. 13

5. Ala. Const. Art. I § 5 states:

“That the people shall be secure in their persons,

houses, papers, and possessions from unreasonable seizure or

searches, and that no warrants shall issue to search any place

or to seize any person or thing without probable cause, sup-

ported by oath or affirmation.”

6. Ala. Code § 12-14-6 (1975) states:

“All cases in municipal courts shall be tried by a

judge without a jury.”

7. Section 2-97 of the General Code of the City of

Birmingham, Alabama, 1964, as amended, in pertinent part

provides:

“It shall be the duty and function of city magis-

trates to issue writs of arrest in accordance with the provisions

contained herein.

“A writ of arrest can be issued by a city magistrate

only upon a complaint being made before such magistrate that

an offense has, in the opinion of the complainant, been com-

mitted, and the magistrate must examine the complainant, and

such witnesses as complainant may propose, on oath, take their

depositions in writing, and cause them to be subscribed by the

person making them.

“The depositions must set forth the facts stated by

the complainant and his witnesses, tending to establish the

commission of the offense and the guilt of the defendant.

A. 14

“If the magistrate is reasonably satisfied from such

deposition that the offense complained of has been committed,

and that there is reasonable ground to believe that the defend-

ant is guilty thereof he must issue a warrant of arrest.”

8. City of Birmingham ORDINANCE, Sections 16-16

and 16-18 provide:

“AN ORDINANCE TO AMEND ARTICLE II OF

CHAPTER 16 OF THE GENERAL CODE OF THE CITY OF

BIRMINGHAM, 1964, AS AMENDED.

BE IT ORDAINED by the Council of the City of

Birmingham, as follows:

SECTION I. That Article II of Chapter 16 of the

General Code of the City of Birmingham, 1964, be and is

hereby amended to read as follows:

Article Il. OBSCENITY.

Sec. 16-16. Definitions.

The following words and terms, when used in this article,

shall for the purpose of this article have the meanings respec-

tively ascribed to them by this section:

Distribute. To transfer possession of, whether with or

without consideration.

Knowingly. Having actual or constructive knowledge of

the character and content of the subject matter. A person has

constructive knowledge if a reasonable inspection under the

circumstances would disclose the nature of the subject matter

and the failure to inspect is for the purpose of avoiding such

disclosure.

A. 15

Nudity. The showing of the human male or female geni-

tals, pubic area or buttocks with less than a fully opaque

covering or the showing of the female breast with less than a

fully opaque covering of any portion thereof below the top of

the nipple or the depiction of covered male genitals in a dis-

cernibly turgid state.

Obscene. To the average person, applying contemporary

community standards, the work. or matter, taken as a whole,

appeals to the prurient interest; the work or matter depicts or

describes, in a patently offensive way, sexual conduct; and the

work or matter, taken as a whole, lacks serious literary, artistic,

political or scientific value.

Sadomasochistic abuse. Flagellation or torture by or upon

a person undressed or clad in undergarments, mask or bizarre

costume or the condition of being fettered, bound or otherwise

physically restrained on the part of one undressed or so clothed.

Sexual conduct. Any act of masturbation, excretory

functions, homosexuality, sadomasochistic abuse, nudity,

sexual intercourse or physical contact with a person’s clothed or

unclothed genitals, pubic area, buttocks or, if such a person be

a female, breast, whether or not any such conduct is actual or

simulated and lewd exhibition of the genitals.

Work or Matter. Any book, magazine, newspaper or other

printed or written material, performance or any picture, draw-

ing, photograph, motion picture or other pictorial representation

or any statue, figure of any recording transcription or mech-

anical, chemical or electrical reproduction or any other articles,

equipment, machines or materials.

Sec. 16-18. Publishing, printing, etc., prohibited.

It shall be unlawful for any person to knowingly publish,

print, exhibit, participate in the exhibition or performance of,

or allow or permit the exhibition or performance of, distribute,

A. 16

or have in his possession with intent to distribute, exhibit, sell

or offer for sale any obscene matter in the city or the police

jurisdiction thereof.”

Title 28, U.S.C. § 1257(3)

§ 1257. State courts: appeal; certiorari

“Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be reviewed by

the Supreme Court as follows:

“ (3) By writ of certiorari, where the validity of a

treaty or statute of the United States is drawn in

question or where the validity of a State statute is

drawn in question on the ground of its being repug-

nant to the Constitution, treaties or laws of the

United States, or where any title, right, privilege or

immunity is specially set up or claimed under the

Constitution, treaties or statutes of, or commission

held or authority exercised under, the United States.”