Hughes v. Rizzo

• Decision Date: 11 April 1968
• Docket Number: Civ. A. No. 43199.
• Parties: Patrick HUGHES, Barbara Frederick and Allen Saft, Plaintiffs, v. Frank RIZZO, as Commissioner of Police of the City of Philadelphia, Harold Schick, as Director Fairmount Park Commission and Francis C. Deegan, as Superintendent Fairmount Park Commission.
• Court: U.S. District Court — Eastern District of Pennsylvania

282 F. Supp. 881

Patrick HUGHES, Barbara Frederick and Allen Saft, Plaintiffs, v. Frank RIZZO, as Commissioner of Police of the City of Philadelphia, Harold Schick, as Director Fairmount Park Commission and Francis C. Deegan, as Superintendent Fairmount Park Commission.

Civ. A. No. 43199.

United States District Court E. D. Pennsylvania.

April 11, 1968.

David Pittinsky and Julian E. Goldberg, Philadelphia, Pa., for plaintiffs.

Edward G. Bauer, City Sol., John M. McNally, Jr., Asst. City Sol., Philadelphia, Pa., for defendants.

OPINION

FULLAM, District Judge.

This is an action under the Civil Rights Act (42 U.S.C. § 1983), brought as a class action under Fed.R.Civ.P. 23, to restrain certain officials of the City of Philadelphia and the Fairmount Park Commission from harassing the plaintiffs and the class they represent in their use of Rittenhouse Square, a small public park.

Plaintiffs exemplify the cultural phenomenon commonly known as the "hippie" movement.¹ The complaint describes the class represented by plaintiffs as consisting of persons who are "unconventional or are regarded by defendants and their agents as unconventional in appearance, manner and life style, as compared with the mainstream of society", and charges unconstitutional arrests and interrogations, and interference with their freedom of association, assembly, and speech.

Plaintiffs sought preliminary injunctive relief, but at the hearings, through the cooperation of counsel, informal arrangements were worked out for the voluntary cessation of the police conduct complained of (without, of course, conceding it had occurred). After the notes of testimony were transcribed, I filed a memorandum opinion and order on August 31, 1967, pointing out that the named plaintiffs were minors and would have to be represented by guardians in this litigation. The record was corrected in this respect on October 5, 1967, after which further conferences were held to review developments and ascertain that the status quo was being maintained without the necessity of further hearings looking toward formal interim relief.

Fed.R.Civ.P. 23(c) (1) directs that "As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." I have no doubt that a class action under Fed.R.Civ.P. 23(b) (2) is permissible in this situation, although I am inclined to doubt the adequacy of the definition of the class set forth in the complaint. I have even stronger reservations as to whether minors can bring such an action on behalf of the class; there is considerable doubt as to whether the power of a guardian ad litem extends that far, and as to whether this would constitute adequate representation of the class, in any event.

But since the plaintiffs can obviously maintain the action in their own right, and since disposition of this matter has already been too long delayed, I shall defer the class-action issue for later determination, if that becomes necessary.

I SUMMARY STATEMENT OF FACTS

On June 17, 1967, at about 9:15 p. m., members of the Philadelphia police department conducted a raid in the public park known as Rittenhouse Square in the City of Philadelphia, and arrested approximately 27 young persons, including the plaintiffs, Hughes and Frederick. Those arrested were either "hippies", persons conversing with "hippies", or persons who sought to protest, or make inquiries concerning, the arrests. All of the persons arrested were transported in police vehicles to the police station-house at 13th and Thompson Streets, about eight or ten blocks away from the scene of the arrests. All were photographed. All were questioned, individually, by police officers; the questions included inquiries concerning "sexual orientation" and "political affiliation." There were no questions concerning any alleged criminal conduct, but some of those arrested were asked general questions about possession and use of narcotics and dangerous drugs. Those arrested were detained at the police station for about an hour, and then released. No charges of any kind have been lodged against any of the persons arrested. The police photographs remain on file.

On July 5, 1967, at about 7:30 p. m., members of the Philadelphia police force again raided Rittenhouse Square and arrested approximately twenty young persons, including the plaintiff, Allen Saft. All of the persons arrested were transported in police vehicles to the police station-house located at 20th Street and Pennsylvania Avenue. There was some discussion concerning attitudes toward our policies in Viet Nam, but no questioning concerning any supposed criminal activity. No charges were lodged against any of the persons arrested. The draft-cards of some of the young men arrested had been confiscated at the time of the arrest; these were returned at the police-station. All those arrested were released.

At various other times during June and July, 1967, "hippies" and other young persons associating with "hippies" were taken into temporary custody by Fairmount Park guards in Rittenhouse Square. They were taken to the guardhouse located at one end of Rittenhouse Square, where they were searched and interrogated, and warned to stop frequenting Rittenhouse Square. Several were forced to leave the Square area, due to threats of physical violence by some Park guards; and many conventionally-dressed young persons were warned against any further contact or association with "hippies."

Some Park guards tend to discriminate against "hippies" in such matters as ordering them not to sit on certain walls or the perimeter of the pool in the Square (while permitting conventionally-dressed persons to do so); other Park guards do not discriminate against "hippies."

The mass arrests of June 17 and July 5 were totally unjustified. There is no evidence that the persons arrested were guilty of any improper conduct, nor did the police have any grounds for belief, or even suspicion, that those arrested were guilty of any crime.

At various times, juvenile runaways have been apprehended in Rittenhouse Square, and the police are constantly required to check the area for persons in that category. But this was not the purpose of the mass-arrests of June 17 and July 5; there was no probable cause to suppose that any of the persons arrested were runaway juveniles; and no comparison was made with any list of persons reported missing. Moreover, it is neither necessary nor reasonable to detain, transport, or interrogate young persons in order to ascertain whether they have been reported missing.

The constant presence of groups of "hippies" in Rittenhouse Square frequently acts as a deterrent to the use of the park by others, particularly elderly persons, having the same right to use the area as the "hippies."

No adequately-detailed regulations governing the conduct of persons in the Square or defining where, particularly in reference to the pool area, persons may congregate, have been promulgated.

II DISCUSSION

There is no evidence that the defendants, or anyone else exercising top-level supervision over the police or park guards, authorized or directed the police activities outlined above. It would indeed be surprising if that were the case. On the other hand, it is not especially reassuring to suppose that under existing administrative regulations, individual police officers and park guards, or their immediate superiors, are at liberty to ignore the constitutional rights of individuals at their pleasure.

It would be naive to ignore the social frictions, and the pressures — real or imagined — which underlie this litigation. Rittenhouse Square is located in a wealthy center-city residential area, surrounded mostly by high-cost apartments and hotels, and exclusive shops. But residential areas best characterized as Bohemian are fast encroaching, and genuine slums are not far away.

The police undoubtedly received complaints from area residents appalled by the sinister appearance of some "hippies" and the conduct ascribed to them. (For example, there is some suggestion in the testimony that on earlier occasions some "hippies" were guilty of swinging from trees, and similar boisterous conduct). One can almost take judicial notice of the fact that many "hippies" experiment with narcotics and dangerous drugs.² And the hearings in this case were persuasive that some are promiscuous; some are overtly homosexual; and some have so completely rejected the middle-class value of...