Heard v. Rizzo, Civ. A. No. 44151

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation281 F. Supp. 720
Docket Number44165.,Civ. A. No. 44151
PartiesTerry HEARD et al. v. Frank RIZZO et al. Richard TRAYLOR et al. v. Frank RIZZO et al.
Decision Date17 June 1968



Ronald M. McCaskill, Almanina Barbour, Lois G. Forer, Community Legal Services, Inc., Harvey N. Schmidt, Philadelphia, Pa., for plaintiffs in Civ. A. No. 44151.

Oscar N. Gaskins, Stephen A. Sheller, Joseph Coleman, Philadelphia, Pa., for plaintiffs in Civ. A. No. 44165.

William M. Kunstler, New York City, for all plaintiffs Civ. A. No. 44165 except Father E. Marshall Bevin and Father John Carpenter.

Frank P. Lawley, Jr., Asst. Atty. Gen. for Commonwealth of Pennsylvania, Harrisburg, Pa., for William C. Sennett.

Samuel Gorson, Stanley M. Bashman, Philadelphia, Pa., for Phila. Lodge No. 5, Fraternal Order of Police (amici curiae).

Levy Anderson, First Deputy City Solicitor and John M. McNally, Jr., Theodore H. Lunine, Asst. City Solicitors, Edward G. Bauer, Jr., Philadelphia Pa., for Frank Rizzo, John Doe, Richard Roe, et al., Fred Corletto, James H. J. Tate and Arlen Specter.

Michael J. Rotko, Asst. Dist. Atty. of Phila. County, Philadelphia Pa., for Arlen Specter.

Paul Bender, Washington, D. C., and Burton Caine, Philadelphia, Pa., for American Civil Liberties Union (amici curiae).

Before VAN DUSEN, Circuit Judge, and LORD and TROUTMAN, District Judges.

Judgment Affirmed June 17, 1968. See 88 S.Ct. 2307.



And now, January 9, 1968, "it is ordered that those portions of the complaints seeking relief under the Civil Rights Acts (42 U.S.C. §§ 1981-1983 & 1985) and the Federal Rules of Civil Procedure including F.R.Civ.P. 53 are dismissed without prejudice to the right of plaintiffs to file within 14 days additional civil actions, or a further amendment to each of such complaints, setting forth as against the present defendants in distinct counts the above mentioned claims, or such parts of them as they wish to press, separately from the claims that the acts of the Pennsylvania General Assembly enumerated in the Complaints are unconstitutional."


These complaints combine primary requests for relief against the enforcement of criminal statutes of Pennsylvania on the ground that they are unconstitutional by a three judge court under 28 U.S. C. §§ 2281-2284 with related applications that the law enforcement officers of the City of Philadelphia be restrained under the Civil Rights Acts (42 U.S.C. §§ 1981-1983 & 1985) from depriving juveniles and adults of their civil rights by alleged cruel and oppressive treatment. The applications under the Civil Rights Acts include a request that a Special Master be (1) appointed Receiver of the Police Department with full power to control all affairs of that department and its members and (2) authorized to hold hearings at which members of the public may present plans for the rehabilitation of the police department (presumably under F. R.Civ.P. 53). Part of the factual background of the claims under the Civil Rights Acts is the November 17 demonstration which is the major basis for the contention that the legislative acts have been applied in an unconstitutional way, but the plaintiffs have proposed to offer much evidence of alleged illegal police action unrelated to these legislative acts.

The probability that the evidence offered by plaintiffs under the Civil Rights Acts (without estimating the time to be taken in receiving evidence to be offered by defendants, who vigorously dispute plaintiffs' contention) will take considerably more than a week is indicated by the following, inter alia:

A. The complaints contain allegations such as these:

(1) the officials and officers of the Philadelphia Police Department "have repeatedly physically abused, beaten, detained, held in custody, arrested the plaintiffs, deprived them of their liberty and of their property, * * * and without probable cause have placed plaintiffs under surveillance * * * and threaten to continue said course of conduct * * * (p. 2 of Complaint on C.A. 44,151),

(2) the above enumerated officials and officers "have established a pattern of conduct * * * denying plaintiffs the right to see counsel and prohibiting counsel from seeing their client * *" (p. 3 of Complaint on C.A. 44,151), and

(3) "For a period of years * * * defendant Rizzo has engaged in a series of raids, involving multiple arrests without probable cause, harrassment and annoyance of teenage boys and girls whose lawful behaviour or appearance is unorthodox or unusual. (He) has arrested or caused the arrest without warrant of youths who were patrons at coffee houses, who frequented Rittenhouse Square and other public places, and who assembled peacefully on the streets of Philadelphia." (p. 5 of Complaint on C.A. 44,151.

B. Plaintiffs in Civil Action 44151 have adopted as an amplification of their claims under the Civil Rights Acts on page 18, affidavit of Spencer Coxe, Esquire, (attached to Doc. #37), enumerating alleged instances of deprivations of civil liberties most of which are unconnected with any of the acts contended to be unconstitutional. Similarly, Exhibits P 148-150 describes alleged instances of police brutality arrests and entry of homes, detaining of citizens for many hours for questioning without any charge and for the purpose of harrassing demonstrations, the exercise of first amendment rights, etc., without warrants and other alleged deprivations of civil liberties, where the activities were done by the police and were not carried out under the statutes sought to be declared unconstitutional.

C. Stephen A. Sheller, Esq., one of the attorneys for plaintiff in C.A. 44,165 made this statement to the Court on Jan. 8, 1968:

"I see something more crucial and that is that we have * * * we could produce a couple of hundred people in terms of arrest and release and so forth * * * I am interested in presenting great numbers of people who have been picked up, questioned with regard to first amendment activities. The arrest occurred and then release and no charges * * * held for the jury at the time and in many instances beaten. * * *" This one lawyer alone stated that he would estimate as much as 3 days for his testimony. Another attorney for plaintiffs has had the affidavits of over 70 persons marked as Exhibits which contain allegations of the denial of civil rights of the type described in the Complaint so that these deponents may be called as witnesses.

D. Counsel for plaintiffs were unwilling to limit their presentation of evidence of their claims under the Civil Rights Acts to 1½ days in addition to the previous 6½ hearing days, when this option was suggested to them by the Court on Jan. 8, 1968.

The existence of two basically different claims for relief involving different types of federal courts and not separated into two separate counts of the Complaint was called to the attention of plaintiff's counsel no later than the 4th and 5th day of the proceedings. Congress has provided in 28 U.S.C. § 2284(4) that applications to restrain the enforcement of state statutes on the ground of its constitutionality before a three judge federal court "shall be given precedence and assigned for a hearing at the earliest practicable day," whereas applications to restrain the executive branch of the government from violating the civil rights of members of the Community are normally heard by a single judge federal court. See Phillips v. United States, 312 U.S. 246, 252, 61 S.Ct. 480, 85 L.Ed. 800 and other cases cited at N.T. 834-835.

We suggested that the parties stipulate that they requested that the three judge court pass on the claims under the Civil Rights Acts and for the appointment of a Master under the Federal Rules of Civil Procedure (F.P.Civ.P. 53) with a limitation to 1½ days on the length of the additional hearings in plaintiffs' case in order that the community might have a prompt disposition of the serious allegations of arbitrary denial by the Philadelphia police of the civil rights of both adults and juveniles in the Philadelphia Community. The limitation on the hearing time allocated to this part of the complaints was felt necessary in order to carry out the Congressional Mandate that consideration of the alleged unconstitutionality of state statutes be given "precedence" as well as to comply with the strict construction to be applied to 28 U.S.C. §§ 2281-2284. However, as noted above, counsel for plaintiffs were unwilling to agree on the suggested limitation and did not all agree on any definite limitation.

The broad range of alleged repeated police denial of Civil Rights in the Complaint and in the documents mentioned above makes it probable that if plaintiffs establish their case, there may well be future hearings required on issues of compliance with any injunction issued. This would take additional time of three judges which this busy court can ill afford. As recently as Kesler v. Dept. of Public Safety, 369 U.S. 153, 156, 82 S.Ct. 807, 810, 7 L.Ed.2d 641 (1962), the Supreme Court of the United States has emphasized that the court had already held that a three judge court "involves a serious drain upon the federal judicial manpower."

Under these circumstances, the order of January 9, 1968 was required by the record in this case as part of the rulings on the defendants' Motions to Dismiss under F.R.Civ.P. 41(b).


And now, January 10, 1968, after consideration of the record and on the basis of the findings and conclusions contained in the...

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