The adult film, "Cafe Flesh" - confiscated by lawmen last week - was back in the hands of Blue Mouse Theatre owners Friday - for about two minutes.
That's how long it took a city prosecutor to tell 3rd Circuit Judge Eleanor Van Sciver that the city planned to appeal the judge's ruling that the film "Cafe Flesh" was seized unlawfully and that it be returned to the theater.The Salt Lake Police Department's vice squad seized the film April 27 on the order of a search warrant signed by Van Sciver. Officers who viewed "Cafe Flesh," which deals with sexuality following a nuclear war, had told the judge the film contained sexually explicit material that exceeded the legal standards.
However, those officers had failed to file an affidavit of probable cause in the public record prior to seizing the film, a procedure required when the material to be seized might have First Amendment protection, according to Blue Mouse attorney John O'Connell.
O'Connell argued that last week's seizure of the film was unlawful and that "Cafe Flesh" should be returned to the theater.
Van Sciver agreed and so ordered.
But prosecutor Cecelia Espinoza objected, saying the film should not be returned but destroyed because it is contraband. Espinoza argued that Van Sciver should view the film to determine if it is illegal.
The judge wasn't keen on the idea. "You want me to view the film, in a non-adversarial setting, and try to figure out what the community standard is on this? I'm not sure I want to do that," Van Sciver said.
The prevailing community standard is one part of a three-pronged test used to determine if material is obscene.
The prosecutor said she plans to take the case to the Court of Appeals, asking the higher court to overturn Van Sciver's ruling on the seizure and to compel the judge to determine whether the film constitutes contraband.
Randy Lucky, manager of the theater, 260 E. First South, said after the ruling that he was pleased with the judge's decision but disappointed the city wished to pursue the matter.
"(Police and prosecutors) have accomplished what they wanted and that is to get the film out of town. We were just going to return it to the distributor," said Lucky.