Petition for A Writ of Certiorari — McHenry v. Mobile (No. 74-778)

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DEC 21 i574

LIBRARY.

SUPREME COURT, U- 6.

MICHAEL RO°

IN THE

Pupreme Court of the United States

OCTOBER TERM 1974-1975 |

ee ek eS

NORMAN R. McHENRY

and

CORNELIUS SIMS BRADY,

Petitioners,

Vv.

CITY OF MOBILE,

a municipal corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

BRAXTON L. KITTRELL, JR.

Attorney for Petitioners

211 North Conception Street

Post Office Drawer 2025

Telephone 205/432-1671

Mobile, Alabama 36601

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

RE OA INET NM —

TABLE OF CONTENTS

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Constitutional Provisions and Ordinances Involved

Statement of the Case

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Exhibit “C”

Exhibit “D”

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AUTHORITIES CITED

CASES

53 Ala. App. , 299 So.2d 779

292 Ala. a Cb chaeh wnk Da skawadd wean ns s

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d

Gee ROOEEE caxnheheho0a 595045 bi0.¥n0.0a Konus besdabans

Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.

ML PEe CEU Wachee dake cheascdesyhanskheeedeabneas

Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d

205, reh. den. 361 U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383

UNS ay tec Riua Lees cid ke bed sak cabesceks has

Star v. Preller, 352 F.Supp. 530 (D.C. Md., 1972)

State v. Lavin, 204 N.W.2d 844 (Iowa, 1973)............

United States v. Gundlach, 345 F.Supp. 709 (M.D. Pa.,

1972)

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SD TERK TN BONE TG) cv ircdcawsasnacccassncusies

The Constitution of the United States, First, Fifth and Four-

SE BID bb cack chen epecestacetsrcccssacnes

City of Mobile Ordinance No. 36-022

City of Mobile Ordinance No. 41-183

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IN THE :

Supreme Court of the United States

OCTOBER TERM 1974-1975

2

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NO &

NORMAN R. McHENRY '

and i

CORNELIUS SIMS BRADY, ;

Petitioners,

v.

CITY OF MOBILE, :

a municipal corporation, 3

Respondent. °

Sal

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

Petitioners respectfully pray that a writ of certiorari

issue to review the order of the Court of Criminal Appeals

of Alabama entered on March 19, 1974, remanding this

cause to the Circuit Court of Mobile County, Alabama,

for certain determinations of fact.

2

OPINIONS BELOW

The Court of Criminal Appeals of Alabama remanded

with directions Petitioners’ appeal to that court on March

19, 1974, which said opinion is reported at 53 Ala. App.

—___., 299 So.2d 779, and a copy of said opinion is

appended hereto as Exhibit “A”.

On June 18, 1974, the Supreme Court of Alabama ini-

tially granted a writ of certiorari to review the decision of

the Court of Criminal Appeals of Alabama, and on Aug-

ust 29, 1974, quashed said writ as being improvidently

granted. Although, no opinion was rendered by the Su-

preme Court of Alabama, the actions of that court are

reported at 292 Ala. , 299 So.2d 779, and a copy

of the report of the proceedings of said court is appended

hereto as Exhibit “B”. ;

The Supreme Court of Alabama overruled Petitioners’’

application for rehearing on September 19, 1974, without

opinion. A copy of the order is attached hereto as Ex-

hibit “C”.

JURISDICTION

The final order of the Supreme Court of Alabama over-

ruling Petitioners’ application for rehearing was made and

entered on September 19, 1974. The jurisdiction of this

Court is invoked under Title 28, Section 1257 (3),

United States Code.

QUESTIONS PRESENTED

The following are the questions presented for review:

%

May a motion picture alleged to be obscene be seized

without a search warrant, but pursuant to an arrest war-'

3

rant for the projectionist and manager of the theater ex-

hibiting said film issued by a neutral magistrate after view-

ing said film, but prior to an adversary hearing?

Il.

Must the prosecution prove in an obscenity prosecution

that the Defendant has knowledge of the material which

is alleged to be obscene?

\

Il.

Is an ordinance attempting to regulate obscenity un-

constitutional if it fails to specifically define sexual con-

duct which is prohibited, or which precludes a determina-

tion of whether a work alleged to be obscene, when taken

as a whole, lacks serious literary, artistic, political or

scientific value? 3

- CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

The constitutional provisions involved are the First,

' Fifth and Fourteenth Amendments to the United States

Constitution. The ordinance involved is City of Mobile

Ordinance No. 36-022, as amended, which said ordinance

and pertinent amendments are appended hereto as Ex-

hibit “D”.

STATEMENT OF THE CASE

The Petitioners, NORMAN R. McHENRY and COR-

NELIUS SIMS BRADY, were the manager and projec-

tionist, respectively, of the Midtown Cinema, a local the-

ater in the City of Mobile, Alabama (Tr. 83-84; 82).

4

They were arrested on July 22, 1972, by police officers of

the City of Mobile, for allegedly exhibiting an obscene

motion picture, viz: “Pornography-Prostitution, U.S.A.”,

in violation of City of Mobile Ordinance No. 36-022, as

amended (Tr. 88).

At the time of the arrest of the Petitioners, the police

had two (2) “John Doe” warrants for the arrest of the

manager and the projectionist of the Midtown Cinema

(Tr. 88). Although the police had no search warrant,

they seized the alleged obscene film allegedly exhibited by

the Petitioners, viz: “Pornography-Prostitution, U.S.A.”

(Tr. 88).

The Petitioners have raised three (3) questions for re-

view by this court; namely, that the film was unlawfully

seized because no search warrant was issued for tly film

itself; that the prosecution failed to prove the element of

scienter, which Petitioners assert is necessary for a convic-

tion; and that the ordinance under which the Petitioners

were: convicted is unconstitutional in that it fails to speci-

fically define sexual conduct which is prohibited, and pre-

cludes a determination by the fact finder of whether a

work has serious literary, artistic, political, or scientific

value.

With respect to the seizure of the film, the Petitioners

first raised this issue to the trial court by objection to the

. introduction of the film into evidence (Tr. 107-108). This

issue was specifically raised in the Assignments of Error

filed by Petitioners in the Court of Criminal Appeals of

Alabania; in the Application for Rehearing filed in the

Court of Criminal Appeals of Alabama; and in all of the

briefs filed by Petitioners in the Court of Criminal Appeals

of Alabama and the Supreme Court of Alabama.

5

The total failure of the prosecution to prove the essen-

tial element of scienter was raised in motions to exclude

filed by Petitioners in the trial court, which said motions

were denied by the trial court, notwithstanding that said

motions included grounds setting forth that the evidence

was insufficient to support a verdict of guilty and that the

City of Mobile failed to prove a prima facie case (Tr.

11-13; 30-31). This issue was also raised in the Assign-

ments of Error filed by the Petitioners filed in the Court of

Criminal Appeals of Alabama; and in all of the brief

filed by Petitioners in the Court of Criminal Appeals of

Alabama and the Supreme Court of Alabama.

The Petitioners also raised in the trial court, by way of

demurrer to the complaint filed by the City of Mobile

against the Petitioners, the issue that the said City of

Mobile Ordinance No. 36-022, as amended, was uncon-

stitutional, in that it failed to specifically define prohibited

sexual conduct and precluded a determination of whether

a work alleged to be obscene, when taken as a whole,

lacks serious literary, artistic, political, or scientific value,

which said demurrers were overruled by the trial court

(Tr. 6-10; 24-29). This issue was also raised in the As-

signments of Error filed by Petitioners in the Court of

Criminal Appeals of Alabama, and in the briefs filed by

Petitioners in the Court of Criminal Appeals of Alabama

and the Supreme Court of Alabama.

REASONS RELIED ON FOR THE

ISSUANCE OF THE WRIT

I.

The Petitioners, NORMAN R. McHENRY and COR-

NELIUS SiMS BRADY, who were, respectively, the man-

ager and projectionist of the Midtown Cinema, a local

6

theater in Mobile, Alabama, were arrested on “John Doe”

warrants issued for the arrest of the manager and the pro-

jectionist of said Midtown Cinema (Tr. 86). The record

shows that the Petitioners were arrested for allegedly ex-

hibiting an obscene motion picture, and that the film upon

which the prosecutions were based was seized without a

warrant (Tr. 86). In fact, a portion of the opinion of the

Court of Criminal Appeals of Alabama, which is attached

hereto as Exhibit “A”, reads as follows:

“The film was seized as an incident to the arrests of

the projectionist and manager of the cinema.”

No evidence other than the film itself and the ordinance

involved were presented by the City of Mobile in the trial

court; therefore, if the film was not due to be admitted

into evidence, then the convictions of the Petitioners must

be reversed.

This court, in the case of Roaden v. Kentucky, 413 US.

496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), held that a

film may not be seized without a warrant as an incident

to an arrest, and made the following statement:

“. . . ordinary human experience should teach that

the seizure of a movie film from a commercial theater

with regularly scheduled performances, where a film

is being played and replayed to paid audiences, pre-

sents a very different situation from that in which

contraband is changing hands or where a robbery or

assault is being perpetrated. In the latter settings, the

probable cause for an arrest might justify the seizure

of weapons, or other evidence or instruments of

crime, without a warrant.”

This court went on to say in the Roaden case, supra,

that a seizure prior to an adversary hearing may be valid,

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but only if the seizure is pursuant to a lawful warrant. The

evidence is without dispute that there was no search war-

rant for the film in the case sub judice.

Il.

Petitioners also urge this Honorable Court to grant the

writ of certiorari and to reverse Petitioners’ convictions

for the reason that in the trial court the City of Mobile

entirely failed to prove the vital element of scienter on the

part of the Petitioners. The law seems well established

that proof of such element is necessary in an obscenity

prosecution, and that the burden is on the prosecution to

prove that the Defendant had knowledge of the material

which is alleged to be obscene. Smith v. Californi®, 361

U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, reh. den. 361

U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383. (1959). United

States v. Gundlach, 345 F.Supp. 709 (M.D. Pa., 1972).

Star v. Preller, 352 F.Supp. 530 (D.C. Md., 1972). State

v. Lavin, 204 N.W.2d 844 (lowa, 1973). Additionally,

Section 2 of City of Mobile Ordinance No. 36-022, as

amended, under which the Petitioners were prosecuted,

provides in part as follows:

“Every person who knowingly prepares, sells, ex-

hibits or commercially distributes . . . any obscene,

printed or written matter or materials, shall be guilty

of an offense . . .” (emphasis supplied).

There is absolutely no evidence in the record in this

cause from which a jury could draw an inference that the

Petitioners had knowledge of the contents of the alleged

obscene film which the Petitioners allegedly exhibited. The

evidence was uncontradicted that the Petitioner, McHenry,

did not view the film forming the basis of the prosecution

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(Tr. 125-126), and is devoid of any evidence that the

Petitioner, Brady ever viewed said film.

Ill.

Lastly, Petitioners urge the court to grant the writ of

certiorari for the reason that the ordinance under which

the Petitioners were prosecuted is unconstitutional. A copy

of that ordinance is attached hereto as Exhibit “D”.

The ordinance provides, as amended by City of Mobile

Ordinance No. 41-183, that:

“As a matter of state and City of Mobile public

policy, olscenity is utterly without redeeming social

importance and constitutes a public nuisance which

should be abated.”

STs 6 ee, we

This court in the case of Miller v. California, 413 US.

15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), set forth the

obscenity test that if the average person, applying con-

temporary community standards would find that, taken as

a whole, the work appeals to the prurient interests; that it

depicts or describes in a patently offensive way sexual con-

duct that is specifically defined by state law; and that,

taken as a whole, it lacks serious literary, artistic, political,

or scientific value. The test prior to the Miller case had

included the test that a work must be “utterly without

redeeming social importance”.

City of Mobile Ordinance No. 36-022, as amended, was

drafted prior to the Miller case, and was obviously de-

signed to preclude a determination of whether or not a

work alleged to be obscene was‘utterly without redeeming

| social value, and the test specifically precludes that ele-

_ ment. Even under the Miller test a work must lack serious

literary, artistic, political, or scientific value. Therefore,

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the provision in the ordinance that obscenity is utterly

without redeeming social importance renders the entire

ordinance unconstitutional, and precludes a determination

by the jury of whether or not a work has any social value.

Furthermore, the ordinance fails to define prohibited

conduct. In the Miller case, supra, this court said:

“Under the holdings announced today, no one will be

subject to prosecution for the sale or exposure of

obscene materials unless these materials depict or

describe patently offensive ‘hard core’ sexual conduct

specifically defined by the regulating state law, as

written or construed.”

CONCLUSION

In conclusion, the Petitioners urge this Honorable Court

to grant the writ of certiorari to the Supreme Court of

Alabama.

Respectfully submitted,

BRAXTON L. KITTRELL, JR.

Attorney for Petitioners

Post Office Drawer 2025

211 North Conception Street

Mobile, Alabama 36601

Of Counsel:

McDERMOTT, SLEPIAN,

KITTRELL & FLEMING

10

CERTIFICATE OF SERVICE

I, BRAXTON L. KITTRELL, JR., Attorney for Peti-

tioners, hereby certify that on the ___. dav of December,

1974, I served a copy of the foregoing Petition for a

Writ of Certiorari to the Supreme Court of Alabama upon

Chandler K. Stanard, Esquire, Attorney for the City of

Mobile, 2502 First National Building, Mobile, Alabama,

and upon Honorable William J. Baxley, Attorney General

for the State of Alabama, Montgomery, Alabama 36104,

by mailing the same to each by First Class United States

mail, postage prepaid.

BRAXTON L. KITTRELL, JR.

1 GOL GE NEY SPN Ee OE TS

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EXHIBIT “A”

THE STATE OF ALABAMA—

JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1973-74

1 Div. 395

Cornelius Sims Brady and N. R. McHenry

v.

City of Mobile

Appeal from Mobile Circuit Court

CATES, PRESIDING JUDGE

Ordinance breach for exhibiting an obscene film.

The film was seized as an incident to the arrests of

the projectionist and manager of the cinema. No copy

was made. No adversary proceeding for a judicial deter-

mination was available following seizure. A provision for

a hearing before seizure in Ordinance 41-085 had been

repealed.

We remand to the trial court to ascertain the appli-

cability of Heller v. New York (June 25, 1973)____US.

____and cases therein cited.

REMANDED WITH DIRECTIONS.

All the Judges concur.

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EXHIBIT “B”

In re Norman R. McCHENRY and Cornelius

Sims Brady

. AN

CITY OF MOBILE

Ex parte Norman R. McHenry and

Cornelius Sims Brady

SC 840

Supreme Court of Alabama

August 29, 1974

Rehearing Denied September 19, 1974

Certiorari to the Court of Criminal Appeals.

Braxton L. Kittrell, Jr., Mobile, for petitioner.

No brief for respondent.

FAULKNER, Justice.

Petition of Norman R. McHenry and Cornelius Sims

Brady for Certiorari to the Court of Criminal Appeals to

review and revise the judgment and*decision of that

Court in Brady v. City of Mobile, 53 Ala. App.___, 299

So.2d 779.

Writ granted; <

Writ quashed as being improvidently granted.

HEFLIN, C. J., and MERRILL, HARWOOD and

MADDOX, JJ., concur.

ELE ILE REM AIR LLM LIS OL LOSE IG ELIOT SS

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EXHIBIT “C”

OFFICE OF

CLERK OF THE SUPREME COURT

STATE OF ALABAMA

MONTGOMERY

Re: SC 840

EX PARTE: NORMAN R. McHENRY AND COR-

NELIUS SIMS BRADY, PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF CRIMINAL

APPEALS |

v.

(Re: McHenry and Appellant Brady v. City of Mobile)

Appellee

You are hereby notified that the following indicated

action was taken in the above cause by the Supreme Court

today:

—___| Petition for Writ of Certiorari denied. No

opinion.

__| Submitted on briefs

___| Appellant granted additional time to file tran-

script of record to and including

xxxx| Application for rehearing overruled. No opinion.

___| Appell_____granted 15 additional days to file

briefs to and including

__| Appell_____granted 15 additional days to file

reply briefs to and including

&

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FPP WON ELE OE OE EU LUN

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___| Transcript filed (Notice under Rule 12)

—__| Permission to file amicus curiae briefs granted

| Permission to make additional assignments of

error granted.

J. O. SENTELL

Clerk, Supreme Court of Alabama

~ September 19, 1974

FEIGNED MLE LED EEL LIL SEMI —

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EXHIBIT “D”

36-022 1966

AN ORDINANCE PROHIBITING THE

POSSESSION, DISTRIBUTION OR

SALE OF OBSCENE MATERIAL WITHIN

THE CITY OF MOBILE, AND ITS

POLICE JURISDICTION

BE IT ORDAINED BY THE BOARD OF COMMIS-

SIONERS OF THE CITY OF MOBILE, ALABAMA,

as follows:

Section 1. The following words, terms, phrases used in

this ordinance shall, for the purpose of this ordinance,

have the meaning respectively ascribed to them in this

Section.

(a) Obscene—means lewd, lascivious, filthy and por-

nographic and that to the average person, applying con-

temporary community standards, its dominant theme taken

as a whole appeals to prurient interest.

(b) Person—means any individual, partnership, firm,

association, corporation, or other legal entity.

(c) Printed or Written Matter or Material—means any t

book, pamphlet, magazine, periodical, newspaper, picture

magazine, comic books, story book or other printed or

written matter but does not include written or printed ;

matter or material used by or in any religious, scientific :

or educational institution.

(d) Licensee—means any person holding a City of

Mobile business license.

Section 2. Every person who prepares, sells, exhibits

or commercially distributes or gives away or offers to give

dive. PTE ER LA OES SSL TIE PEEL TIE GE EMI BLL EOLE LE SLL ELV REE LIED PO ac

ss ul QPP IIR vy

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away or has in his possession with intent to sell or com-

mercially distribute or to give away or offer to give away, .

any obscene, printed or written matter or material, shall

be guilty of an offense against the City of Mobile and

shall be punished as hereinafter provided. :

Section 3. Every person who has in his possession any

obscene printed or written matter or material shall be.

guilty of an offense against the City of Mobile and upon

conviction shall be punished as hereinafter provided.

Section 4. Any person found guilty of violating any

provision of this ordinance shall be fined in an amount

not exceeding the sum of ONE HUNDRED DOLLARS

($100.00) or may be sentenced to the City Sail or to hard

labor for the City for not exceeding six (6) months, or

by both such fine and imprisonment or hard labor, in the |

discretion of the Court trying the case. Each day any

violation of any provision of this ordinance shall continue

shall constitute a separate offense.

Section 5, In addition to any penalty provision of this

ordinance, should the Board of Commissioners of the

City of Mobile be reasonably satisfied from evidence pre-

sented to it that a licensee is violating any provision of

this ordinance, then the license or licenses held by such

licensee may be suspended or revoked in the discretion of

the Board of Commissioners of the City of Mobile, for a

term not exceeding the term of such licenses. The pro-

cedure for revocation or suspension of any license held by

a licensee shall be as set forth in the provisions of the

License Code of the City of Mobile, adopted December

21, 1954, as amended by the provisions of an ordinance

adopted on December 12, 1961, the provisions of which

are incorporated herein as fully as if herein set ‘forth in

full.

PREMERA ce ORDO ION ENON TENS SERRATE, roe poche |

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Section 6. It is hereby declared to be the intention of

' the Board of Commissioners that the sections, paragraphs, |

sentences, clauses, phrases of this ordinance are severable

and if any phrase, clause, sentence, paragraph or section

of this ordinance shall be declared unconstitutional or

invalid by any Court of competent jurisdiction, such un-

constitutionality or invalidity shall not affect any of the

remaining phrases, clauses, sentences, paragraphs or sec-

tions of this ordinance since the same would have been

enacted by the Board of Commissioners without the in-

corporation of this ordinance of any such unconstitutional

or invalid phrase, clause, sentence, paragraph or section.

Section 7. This ordinance shall apply and be effective

in the City of Mobile and its police jurisdiction.

Section 8, This ordinance shall be in full force and effect

from and after its adoption ” publication as required

by law.

ADOPTED: March 29, 1966

RICHARD L, SMITH |

City Clerk

4 ‘”

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Sie! RISER, OE LN ERS RLOMEALLS SIRI, ae

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41-196 1967

AN ORDINANCE AMENDING ORDINANCE

NO. 36-022 ADOPTED MARCH 29, 1966 AND

ENTITLED, “AN ORDINANCE PROHIBITING

THE POSESSION, DISTRIBUTION OR SALE OF

OBSCENE MATERIAL WITHIN THE CITY OF

_ MOBILE, AND ITS POLICE JURISDICTION”

BE IT ORDAINED BY THE BOARD OF COMMIS-

SIONERS OF THE CITY OF MOBILE, ALABAMA,

that Sub-section (c) of Section 1 of Ordinance No. 36-022

adopted March 29, 1966 and entitled, “An Ordinance

Prohibiting the Possession, Distribution or Sale of Obscene

Material Within the City of Mobile, and Its Police Juris-

diction,” is hereby amended to read as follows:

Section I(c). Printed or Written Matter or Material—

means any book, pamphlet, magazine, periodical, news-

paper, picture’ magazine, comic books, story book, photo-

graph, motion picture, negatives, or other printed or writ-

ten matter but does not include written or printed matter

or material used by or in any religious, scientific or edu-

cational institution.

ADOPTED: December 12, 1967

RICHARD L. SMITH

' City Clerk |

!

Rie FEAL NEI RADY. TPT NL AE AT OR, IL PLE ATID

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41-183 1969

AN ORDINANCE AMENDING ORDINANCE NO.

36-022 ADOPTED MARCH 29, 1966 AND

ENTITLED, “AN ORDINANCE PROHIBITING

THE POSSESSION, DISTRIBUTION OR SALE OF

OBSCENE MATEFIAL WITHIN THE CITY OF

MOBILE, AND ITS POLICE JURISDICTION”

BE IT ORDAINED BY THE BOARD OF COMMIS-

SIONERS OF THE CITY OF MOBILE, ALABAMA,

that Sub-section (a) of Section 1, and Section 2 of Ordi-

nance No, 36-022 adopted March 29, 1966 and e..titled,

“An Ordinance Prohibiting the Possession, Distribution or

Sale cf Obscene Material Within the City of Mobile, and

its Police Jurisdiction,” are hereby amended to read as

follows:

Section I(a). A thing is “obscene” if, by contemporary

community standards, and considered as a whole, its pre-

dominant appeal is to prurient interest. As a matter of

state and City of Mobile public policy, obscenity is utterly

without redeeming social importance and constitutes a

public nuisance which should be abated.

Section 2, Every person who knowingly prepares, sells,

exhibits or commercially distributes or gives away or

offers to give away or has in his possession with intent to

sell or commercially distribute or to give away or offer to

give away, any obscene, printed or written matter of ma-

terial, shall be guilty of an offense against the City of

Mobile and shall be punished as hereinafter provided.

BE IT FURTHER ORDAINED BY THE BOARD

OF COMMISSIONERS OF THE CITY OF MOBILE,

ALABAMA, that Section 3 and Section 5 of Ordinance

‘Bene el iat

d: PY ig Bs pn AO ELUNE MOLE PE AO ANS (LS MORIN RE OURO IE SI LF IPE CPG

20

No. 36-022 adopted March 29, 1966, and entitled, “An

Ordinance Prohibiting the Possession, Distribution or Sale

of Obscene Material Within the City of Mobile, and Its

Police Jurisdiction”, are hereby deleted from said ordin-

ance.

Section 3. This ordinance shall be effective on the date

of its adoption and shall remain in full force and effect

and apply to each calendar year thereafter from year to

year.

Section 4. Each and every provision of this ordinance

is hereby declared to be an independent provision and the

holding of any provision hereof to be void and invalid

shall not affect any other provision hereof, and it is hereby

declared that the other provisions of this ordinance would

have been enacted regardless of any provision which might

have been held invalid.

ADOPTED: November 18, 1969

HELEN B. DANNER

Acting City Clerk

PASEO INR REINS POO LOE TN ELIOT Ta 8 Fe DNR.

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Ag oo Aae Lip teint |

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41-085

AN ORDINANCE SETTING PROCEDURES

FOR ARREST AND SEIZURE OF MOTION

PICTURE FILMS SUBJECT TO CITY OF

MOBILE ORDINANCE NO. 36-022 AS AMENDED

BE IT ORDAINED BY THE BOARD OF COMMIS-

SIONERS OF THE CITY OF MOBILE, ALABAMA,

that in those cases, and only in those cases where a com-

plaint under the obscenity ordinances of the City of Mo-

bile arises out of the commercial exhibition or distribution

of a motion picture film, the following procedure is to be

followed:

Section 1. Upon complaint being made to the Recorder

of the City of Mobile Recorder’s Court that a motion

picture film is being shown in violation of City of Mobile

Ordinance No. 36-022, the Recorder may attend the show-

ing and view the subject film for the purpose of determin-

ing whether or not saic film is obscene and whether or not

probable cause exists for the issuance of an arrest war-

rant; if the Recorder determines that the film is obscene

and that probable cause does exist, then a warrant may

be issued and the film may be seized. After seizure of the

film the Recorder shall set the matter for hearing on the

question of whether or not the film is obscene; said hear-

ing to be held not less than twenty-four (24) hours and

not more than seventy-two (72) hours after said seizure.

Notice of the hearing shall be served upon the person

against whom the arrest warrant is issued and he may be

present at such hearing and present any legal evidence con-

cerning whether or not the film is obscene. If, after this

hearing, the Recorder should determine that the film is

not obscene, then the film shall be returned to the owner

or exhibitor and the warrant dismissed. If, however, the

film should be determined to be obscene, it may be re-

tained and may be introduced in evidence on the trial of

the case and any subsequent appeals.

Section 2. In the alternative, upon complaint being

made to a Recorder of the City of Mobile Recorder’s

Court that a person, firm or corporation has in its posses-

sion with the intent to sell or commercially distribute, or

is preparing, selling, exhibiting or commercially distribut-

ing, any obscene motion picture film, the Recorder receiv-

ing such complaint shall set down for hearing the question

of whether or not probable cause exists to believe that an

; offense has been or is being committed. The person, firm

P or corporation complained against in said complaint shall

by order of the Recorder be served personally by an officer

of the Mobile Police Department with a notice of the

name of the film and of the time and place of said hearing

and the nature thereof; the matter is to be set for hearing

not less than twenty-four (24) hours nor more than

seventy-two (72) hours after the filing of the original

complaint.

sebreBetts ES shee

At the hearing hereinabove provided for, the sole ques-

tion to be considered is: Whether or not the film made

the subject matter of the hearing is obscene as defined by

Ordinance No. 36-022 as amended.

At the hearing hereinabove provided for, evidence shall

be submitted in accordance with the usual rules governing

the issuance of search and arrest warrants in the State of

Alabama with the exception that the person, firm or cor-

poration complained against may, if they choose to attend

such hearing, be represented by counsel, cross examine

witnesses and present evidence and witnesses in their own

23

behalf. Such evidence may include, but is not limited to,

affidavits of persons viewing the film, recordings, tran-

scripts, narrations or other method of depicting the con-

tent of the film; the consideration of the film itself shall

be unnecessary unless the person, firm or corporation

complained against submits same for consideration at said

hearing.

After receiving said notice, said person, firm or corpor-

ation shall retain the subject film unaltered in its posses-

sion and within the jurisdiction of the Recorder’s Court

of the City of Mobile during the pendancy of the hearing;

if the hearing should result in a determination that the

film is not obscene, then the party in possession of the

film shall be free to take any lawful action with regard

to the film; however, if the hearing should result in a

determination that the subject film is obscene, then the

party in poss&ssion of said film must maintain the film in

an unaltered state within the jurisdiction of the Recorder’s

Court of the City of Mobile; said film may then only be

relinquished to an officer of the law pursuant to an arrest

warrant issued after the subject hearing. Any violation of

this subsection shall be punished under the provisions of

Section 1-4 of the Code of the City of Mobile.

Section 3. Each and every provision of this ordinance

is hereby declared to be an independent provision and the

holding of any provision hereof, to be void and invalid

shall not affect any other provision hereof, and it is hereby

declared that the other provisions of this ordinance would

have been enacted regardless of any provision which might

have been held invalid.

ADOPTED: May 20, 1970

HELEN B. DANNER

Acting City Clerk

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