At the argument before us the district attorney for Erie County made no effort to defend the legality of the large scale seizure without an adversary hearing-- wisely so in view of Marcus v. Search Warrant, etc., 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961), and Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964); cf. People v. Rothenberg, 20 N.Y.2d 35, 281 N.Y.S.2d 316, 228 N.E.2d 379 (1967). His position was rather that plaintiffs had a number of avenues of relief available in the state courts. The most promising was to move under 813-c of the New York Code of Criminal Procedure which we quote in the margin;3 another was to proceed promptly to trial on the criminal charge.4 Plaintiffs did not here attempt to explain their failure to seek relief from the New York courts save by stressing that they did not seek to enjoin the state criminal proceeding, expressing a preference for 'federal justice,' and relying on a statement in Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 482, 5 L. Ed. 2d 492 (1961), that 'the federal remedy' under 42 U.S.C. 1983, 'is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.'

An appeal in which state officials persist in holding allegedly obscene books in defiance of applicable rulings of the Supreme Court but their distributor offers no better reason for federal injunctive relief than his preference for a federal forum does not greatly warm the cockles of the judicial heart. Nevertheless the case sharply poses the issue how far in an action under 42 U.S.C. 1983 a federal court should consider the adequacy of the remedies provided by the state when deciding whether to grant equitable relief.5

Plaintiffs' blanket position as to the irrelevancy of state remedies goes considerably beyond the authorities cited to support it. While the Marcus and Quantity of Books decisions demonstrate the invalidity of the seizure, these cases came to the Supreme Court from state courts and did not, and in the nature of things could not, deal with the propriety of federal injunctive relief. The quotation from Monroe v. Pape states the retionale of that decision incompletely. The Court's opinion carefully delineates the 'three main aims' that 1983 sought to serve. Id. at 173-174, 81 S. Ct. 473, 477, 5 L. Ed. 2d 492. First, the statute overrode invidious state law; second, it provided a federal remedy where the state's was inadequate on its face; 'the third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.' The language upon which the plaintiffs rely as it thus appears in context, id. at 183, 81 S.Ct. at 482:

It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.

simply emphasizes that the federal court must be certain that a remedy that seems 'adequate in theory' will be 'available in practice'; it is not enough that the state statute will be adequate 'if enforced.' Monroe v. Pape was an action for damages and the quoted statement must be read in that light; the Court surely had no intention to abrogate in civil rights cases the historic rule, embodied long ago in 16 of the First Judiciary Act, 1 Stat. 82 (1789), and later in Rev.Stat. 723 and 28 U.S.C. 384 (1940 ed.)6 that suits in equity shall not be sustained in courts of the United States 'in any case where a plain, adequate and complete remedy may be had at law.' See Matthews v. Rodgers, 284 U.S. 521, 525, 52 S. Ct. 217, 76 L. Ed. 447 (1932). McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963), further explicates the principles with respect to state remedies announced in Monroe. In denying a prayer for equitable relief including registration of negro students in racially integrated schools pursuant to an approved plan, the District Court, although recognizing that the state administrative remedies were cumbersome and inadequate, had 'dismissed' the complaint, saying that 'until at least an honest attempt is made to pursue that remedy, this Court should not interfere with the state authorities and deprive them of the opportunity to put their own house in order.' 199 F. Supp. 403, 407 (E.D.Ill.1961). While the Supreme Court reversed, it emphasized that the state administrative remedy was cumbersome and inadequate and did not suggest that a federal court cannot consult the traditional principles of equity, as informed by the standards announced in Monroe, when deciding whether or not to grant an injunction.

Turning to cases where injunctions have issued to protect First Amendment rights, Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), held that defending a state criminal prosecution was not, on the facts of that case, an adequate means of vindicating plaintiffs' First Amendment rights, see fn. 4, and that consequently the District Court had erred in deciding there was no showing of 'irreparable injury' sufficient to merit equitable intervention. The fact that the decision was stated in terms of 'the traditional doctrines of equity,' id. at 490, at 85 S. Ct. 1123, demonstrates that the Court sought to control equitable discretion, not to abolish it. The order for the return of documents in that case, 380 U.S. at 497, at 85 S.Ct 1127, was part of a broader injunction; apparently also it was not urged that Louisiana law afforded adequate relief on that score and examination of the Louisiana statutes, Code of Criminal Procedure 42, 48, would indicate that they do not. The order in In re Louisiana News Co., 187 F. Supp. 241, 245 (E.D.La.1960), for the return of seized magazines was also part of a broader injunction restraining future violations of plaintiffs' First Amendment rights and, as just stated, there appears to have been no state remedy other than the there inadequate one of defending the criminal prosecution. Evergreen Review, Inc. v. Cahn, 230 F. Supp. 498, 504-505 (E.D.N.Y.1964), is more helpful to plaintiffs since, as examination of the briefs shows, defendant argued the availability of 813-c of the New York Code of Criminal Procedure as a basis for denying federal equitable relief. However, the opinion does not discuss the point and the order for return of the magazines was part of an injunction covering future interference. We should therefore not consider ourselves required to reverse the order denying plaintiffs' motion if we were convinced that 813-c of the New York Code of Criminal Procedure as enforced afforded a 'plain, adequate and complete remedy.'

This, however, is where appellees' argument fails. The difficulty stems from the fact that even if the motion to suppress should be granted, 813-c provides that the property shall be restored only if it is not 'otherwise subject to lawful detention,' cf. F.R.Cr.P. 41(e), but is silent as to how, when and by whom this issue is to be determined. While the section has been little construed in this respect in reported cases, such decisions as we have found convey the impression that a successful movant may still be a long way from getting his property back. Application of Pinta, 36 Misc. 2d 386, 232 N.Y.S.2d 336 (Sup.Ct. Bronx County 1962), concerned $2606 in cash unlawfully seized by the police in a gambling raid. Not only had Pinta already won a 813-c motion to suppress but the criminal charge against him had been dismissed for want of evidence and the Bronx District Attorney had issued a release to the police property clerk stating in substance that the prosecutor had no further need for the money. However, the property clerk refused to hand the money over to Pinta, the magistrate who had granted the 813-c motion declined to order the clerk to do so because he was not sure that Pinta was the 'proper and legal owner' though apparently no one had appeared to make a competing claim, and the Special Term sustained him.7 Still more apposite is Stengel v. Smith, 37 Misc. 2d 947, 236 N.Y.S.2d 569 (Sup.Ct.Erie County), rev'd, 18 A.D.2d 458, 240 N.Y.S.2d 200 (App.Div. 4th Dep't 1963), where the Supreme Court's opinion, 236 N.Y.S.2d at 571, recounts the following: On December 5, 1962, police seized 79 cartons of books, magazines and pictures from defendant's book store. After criminal charges were preferred, a magistrate granted Smith's motion under 813-c to suppress the great majority of the publications that had been confiscated. Apparently, however, they were not returned, and Smith had to petition the District Court for the Western District of New York for an injunction under 42 U.S.C. 1983 ordering the Buffalo Police Department to return the material that had been suppressed. While Judge Henderson there directed the police to return the material by January 3, 1963, he granted a stay until January 11 and on January 4, Buffalo's Corporation Counsel instituted an action under 22-a of the Code of Criminal Procedure demanding that 300 items be declared obscene. Not until January 8, a month after the seizure, did the Supreme Court judge hearing this complaint order the release of everything that had been suppressed except these items. Meanwhile defendant was deprived of its right to distribute salacious books and the public of its right to read them. If other victims of massive seizures of obscene publications have found orders of suppression under 813-c to be more efficacious, the state has not brought this to our attention.

Since on the limited record before him the district judge was not warranted in finding state remedies adequate for the prompt protection of plaintiffs' First Amendment rights, we are constrained to reverse with directions to enter the injunction requested by them. Hillsborough Township, Somerset County, N.J., v. Cromwell, 326 U.S. 620, 625, 66 S. Ct. 445, 90 L. Ed. 358 (1946).

It is so ordered.