weeds had grown around, and on, the fence, substantially concealing it from view from the other side of the creek. A group of 15 to 20 adults and children had gathered at the fence watching the police at the Ice House. Suddenly the police were fired upon from three separate locations, viz., from the opposite (westerly) side of the creek approximately 300 yards away in the direction of the housing project; from under the bridge 100 yards North of where they were standing, and from three Negro youths standing on the bridge itself. In all, twelve shots were fired at the police and they returned a total of 60 to 70 rounds to all three positions. One of the policemen was observed pointing in the direction of the embankment and was heard to cry out "There they are. Get them." As the shots rang out, the group at the wire fence scattered and ran towards the housing project. Regrettably, three of those running were struck with bullets and wounded: Mrs. Patricia Ebersole (white), Jeanette Register (Negro and 8 years old), and her three-year-old brother, Daryl Register. All were taken to the hospital, where the Register children remained for seven days, while Mrs. Ebersole was treated and released. The policemen admit that shots were fired by them into the weeds at the foot of the embankment "* * * where we were shot from * * *", but insist that, at no time, were any people seen at the fence on the top of the embankment, presumably because of the heavy foliage entwining the fence. I realize that it is awkward, after the excitement and anxiety of the event has passed, to sit in sober and detached judgment, far removed from the fear of physical danger, and weigh the actions of policemen during a moment of crisis requiring a split-second reaction. Neither the lawyers, nor the Judge, were exposed to the intense rifle fire that greeted the policemen when they responded to calls for help and assistance. While judgment is difficult, an objective appraisal justifies the conclusion that, considering the time of day the awareness of the location of the housing project and the danger involved, the police retaliation was rash and excessive.
The Kohler-Meyers Incident
The importance of the testimony on this point, according to plaintiffs, is its showing that York Police allowed white gang members to congregate without being broken up and failed to respond to the telephone calls for help from the Kohler family. (The Kohlers, white, lived in a row house connected to that of Mr. and Mrs. Meyers, black, and the assaults were undoubtedly directed against the Meyers family, who were the only Negroes in the neighborhood. The Meyers did not testify.) Insofar as this police conduct supposedly reflected a deliberate plan, or indifferent attitude, to the plight of these families, it is emphatically rejected. Although the Kohlers most certainly had good cause for alarm and frustration, especially with the response received to their telephone calls, fault for what followed cannot be fairly laid at the door of the Police Department. Mr. Kohler conceded that when the police car was on the bridge, the white youths did not display any firearms or firebombs. The viciousness and callousness of the attacks by whites on the home of this unsuspecting Negro family shows a wicked and depraved mentality. But, as the Findings of Fact will disclose, as darkness fell that evening, shootings and acts of arson and violence burst out in several sections of this troubled City and continued throughout the night. Cruiser cars patrolled the Cottage Hill area as best they could and, while patrolling, were endangered by gunfire in the Gas Company storage area, near the Kohler home. At 2:30 A.M., police officers went to the Meyers' home and inquired of Mr. Meyers and were told everything was all right, although later that morning, a further barrage of gunfire was directed at the Meyers home and Mrs. Meyers was cut by flying glass. Under the circumstances, the charges of police collaboration with the assailants and unwillingness to protect a Negro family are without substance.
The accusation that police in an armored car, without provocation, fired into a black residential area near Queen and Maple Streets comes from a former Negro Police Officer, Elmer Woodyard, Jr. While I do not question his sincerity or integrity, his vantage point for observing that which he now condemns was his second-floor bedroom window, two houses removed from the intersection. He had the "* * * blinds down and the curtain off to one side" as he peered out the window. Admittedly, there had been numerous acts of destruction and great turmoil in the neighborhood. (See Findings of Fact 90, 91 and 92.) Mr. Woodyard described "* * * a lot of shooting up in that area that night * * *", but maintained that the shooting had ceased for approximately one hour when an armored vehicle came up to the intersection of Queen and Maple, slowed down, and then unleashed a burst of 50 to 75 rounds West on Maple Street. When he was asked whether he knew if there was any activity taking place at that time on Maple Street, he responded:
"At that time I was under the impression that there couldn't possibly have been anybody up there. It would have been foolish. I don't believe those people up there are idiots. You can hear an armored car coming, the city ones, for two blocks, if not more, and you know exactly what it is when it is coming up the street. I learned later that there was a barricade set up in front of the Crispus Attucks Center. This may have been what they were firing at. I don't know." (N.T. 237, 238)
This is a slender reed, indeed, upon which to base a finding that there was no provocation for the shooting, especially in light of the witness' point of observation. The implication that the presence of an armored vehicle would cause those people discharging weapons to flee is misplaced in light of the testimony that, during the disorders, numerous shots were directed at, and struck, the armored vehicles, including the deplorable shooting of Officer Schaad. Mr. Woodyard's testimony is too speculative and uncertain and will not be accepted as proof of the fact sought to be established.
Searches on July 23 and July 24
As hereinbefore noted, two of the primary sites of havoc and bloodshed were near the intersection of Penn and College
and the Parkway Homes Project.
Suffice it to say that Penn and College was practically impassable during the nighttime hours, the streets were barricaded, and it had literally become an armed camp. Recital of the woundings, vicious assaults, arson attempts, and property damage is unnecessary. In this emotionally charged atmosphere, search warrants were obtained from a Justice of the Peace on July 23 for premises described as 202, 208, 254, 255 and 300 South Penn Street. Plaintiffs assert that these searches violated the Fourth Amendment of the United States Constitution as they were not based on a sufficient showing of probable cause and were accompanied by an excessive show of force. The background leading up to the searches will be briefly set forth here. Culminating an agonizing series of shootings at the Penn and College intersection, on Tuesday, July 22, at 3:30 P.M., in broad daylight, a motorcyclist named Fritz Heede was shot and seriously wounded as he was passing through the intersection. The following afternoon at 2:10 P.M., an unidentified informant stated to Lt. Wasser of the York Police Department that, on the previous day, she heard the shots when Mr. Heede was wounded; that she observed rifles and shotguns pointing out the windows of various houses in the 200 block of South Penn, and that she observed certain named persons entering and exiting from these premises with firearms. According to Lt. Wasser, he had known this informant for fifteen years; she was an outstanding citizen; she had given him confidential tips on six prior occasions, four of which were accurate and resulted in subsequent police action. At 6:00 P.M. that evening, Lt. Wasser, District Attorney John F. Rauhauser, Jr.; Detective Gerald Sweeney, and Mary Weaver, Secretary to the Director of Public Safety, went to the office of Alderman Forry,
where the applications for Search Warrants and accompanying affidavits were prepared and executed. After identifying the particular premises to be searched, and describing the items sought in the search as "unlicensed high-powered rifles; rifles, shotguns, automatic weapons, and similar weapons and the ammunition therefor * * *", the affidavit attached to each application stated:
"I was told on or about July 22, 1969, at or about 6:00 P.M. at City Hall, York, Pennsylvania, by an undisclosed informant, a person whom I believe to be reliable because that person's reputation for truthfulness in the community is highly regarded; that the description of the surroundings including broken windows, buildings, and persons were confirmed by me as being accurate and correct; that other information heretofore provided by said informant has been verified as being accurate and that the informant's description of events corresponds to information obtained by me independently of the information provided by the informant; that the informant personally observed that on or about July 22, and July 23, 1969 at various times in the city of York, County of York, Pa., at the aforesaid premises, certain persons of the negro race including but not limited to the following were seen to have entered and exited from said premises with firearms of the above description and were seen to have held, pointed and fired said weapons from windows in said premises repeatedly at various persons and objects, said persons including: Lionel Bailey, Smickle Wright, Michael Wright, John Day and William Green.