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.
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 cleanliness that their very presence in the courtroom was an olfactory affront. These factors may help to explain, if not to legally justify, conduct by law-enforcement personnel which would otherwise be incredible.
But our criminal laws are directed toward actions, not status. Robinson v. State of California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (narcotics addiction); Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1961) and Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966) (chronic alcoholism); see, Perkins v. State of North Carolina, 234 F.Supp. 333 (W.D.N.C.1964) (homosexuality); Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939) (gang membership). It is not a crime to be a 'hippie', and the police could not lawfully arrest on the basis of suspicion, or even probable cause to believe, that the arrestee occupied the status of being a homosexual or narcotics addict.
On the other hand, it is a crime in Pennsylvania to engage in homosexual acts, or solicit same; and it is a crime to possess or use narcotics or dangerous drugs. When a police officer sees a known homosexual talking to a seeming juvenile, he is not precluded from investigating the situation; but of course, mass arrests without investigation go far beyond permissible limits of police conduct.
It is quite clear from the record in this case that the primary motive for the various arrests and interrogations referred to above was a desire to rid Rittenhouse Square of 'hippies', or at least those 'hippies' thought to be homosexuals, narcotics-users, or otherwise especially undesirable.
There have been throughout our history, many analogous attempts to apply the police-power of government to protect the conventional majority from too-close association with the unpleasant or undesirable minority. Certain legal principles are, by now, reasonably clear:
There can be no limitation of the freedom of persons to move interstate, United States v. Guest, 383 U.S. 745, 757, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966), even though they may be indigent or otherwise undesirable. Edwards v. People of State of California, 314 U.S. 160, 62 S. Ct. 164, 86 L. Ed. 119 (1941). 'Individuals coming into or going about a city upon their lawful concerns must be allowed free locomotion upon the streets and public places.' hague V. CIO, 101 F.2d 774, 780 (3d cir. 1939). see also, Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965).
In the colorful language of Judge Rudkin, the law may not '* * * suppress one class of idlers in order to make a place more attractive to other idlers of a more desirable class.' Territory of Hawaii v. Anduha, 48 F.2d 171 (9th Cir. 1931). See, generally: Foote, 'Vagrancy-type Law and its Administration', 104 Pa.L.Rev. 603 (1956).
The right of free speech and assembly may not be abridged, even if the speakers are so unpopular as to give rise to fears of possible violence. Sellers v. Johnson, 163 F.2d 877 (8th Cir. 1947). And of course, the use of a public park may not be denied merely because the governing body disapproves of the views or objectives of those barred. Niemotko v. State of Maryland, 340 U.S. 268, 71 S. Ct. 325, 95 L. Ed. 267 (1951).
In One Eleven Wines & Liquors, Inc. v. Div. of Alcoholic Beverage Control, 50 N.J. 329, 235 A.2d 12 (Nov. 6, 1967) it was held improper to suspend a beverage license for permitting apparent homosexuals to congregate in the licensed establishment. But cf. Freedman Liquor License Case, 211 Pa.Super. 132, 235 A.2d 624 (1967).
The cases and authorities cited above make it plain that while most of the limits beyond which police-power may not constitutionally be exercised are clearly-established, the myriad factual situations in which these issues can arise are so varied, and the boundaries in some areas of the law are so nebulous, that any attempt at broad-spectrum injunctive relief should be avoided. Courts are simply not equipped to supervise the day-to-day operations of police officers by injunction. Moreover, the entry of an injunction might tend to encourage the plaintiffs and their associates further to disregard the rights and sensibilities of other users of Rittenhouse Square.
Of course, mass arrests without legal justification, and similar harassment, are so clearly improper that, if there were any likelihood of further attempts in that direction, an injunction should issue. But I am satisfied that the defendants, as responsible officials, do not need to be compelled to prevent a recurrence of such violations. Indeed, the course of events since these matters were brought to the attention of the defendants by reason of the hearings in this case, is proof that the plaintiffs' constitutional rights are no longer threatened.
As a precautionary measure, jurisdiction will be retained so that appropriate relief can be granted should the need arise.
And it seems clear that all record of the mass arrests of June 17 and July 5 should be expunged, and all photographs returned or destroyed. It will be so ordered.
And now, this 11th day of April, 1968, it is ordered:
1. The defendants shall forthwith cause to be physically expunged from all police-department records, and from the records of any law-enforcement agencies to which the same may have been forwarded or referred, all references to the arrests of the plaintiffs and other persons arrested in Rittenhouse Square in company with the plaintiffs on the evenings of June 17 and July 5, 1967; and shall return to those arrested, or destroy, all photographs (including the negatives and all copies, prints, and reproductions of said photographs) taken by or at the direction of the police, of said persons arrested. Certification of compliance with this order shall be filed in this Court within thirty (30) days.
2. In all other respects, plaintiffs' application for preliminary injunction is denied, without prejudice.
3. This Court retains jurisdiction.