Tuesday, November 03, 2009
Ind. Decisions - Still more on: " First, Annex Books, now New Albany DVD"
The City of New Albany must decide whether to keep fighting following another loss in its long-running battle to shut down an adult bookstore.
The 7th U.S. Circuit Court of Appeals last week denied the city’s request that the full court reconsider a September ruling by a three-judge panel blocking the city from closing New Albany DVD.
The panel’s ruling upheld a U.S. District Court injunction that allowed the store at 601 W. Main Street to remain open to sell sexually explicit movies and books.
Ten of the 11 judges on the Chicago-based appeals court participated in considering the city’s petition for rehearing and voted against it, the court said. The eleventh judge did not participate.
Steven Mason, the attorney representing New Albany DVD, said Monday that for the city, “The significance is that they don’t really have anywhere to go.” * * *
The city’s options include an appeal to the U.S. Supreme Court or taking up the 7th Circuit panel’s challenge to go back to district court to prove the city’s claim that adult bookstores attract thieves and create a problem of pornographic litter.
The appeals panel said no such evidence was presented at the district court level in a 2004 lawsuit filed by the bookstore against a newly-passed city ordinance that ordered the store to close.
U.S. District Judge Sarah Evans Barker granted an injunction against enforcement of the ordinance in January 2005, based on doubts about its constitutionality, and ordered that New Albany DVD be allowed to open.
The 7th Circuit panel upheld the city’s ordinance but kept the injunction against enforcement in place pending a district court hearing on any evidence the city can produce to back up its claims of harmful effects produced by the business.