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BARTON v. EICHELBERGER

March 31, 1970

Rhoda BARTON and Lewis Johnstone, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
Eli EICHELBERGER, Mayor, City of York, Pennsylvania; Leslie Jackson, Director of Public Safety, City of York, Pennsylvania; Leonard Landis, Chief of Police, City of York, Pennsylvania; Russell Koontz, Captain, York City Police Department, City of York, Pennsylvania, Defendants


Nealon, District Judge.


The opinion of the court was delivered by: NEALON

In this class action pursuant to Fed. R. Civ. P. 23(b)(2), declaratory and injunctive relief is sought by plaintiffs against the Mayor, Director of Public Safety, and certain named police officials of the City of York, Pennsylvania. Jurisdiction is premised upon 28 U.S.C. § 1343 (3) and (4) and 42 U.S.C. § 1983, the Civil Rights Act. Plaintiffs' complaint is bottomed on three basic issues, viz., that defendants, their agents, employees and all those acting in concert with them or at their direction violated the rights of plaintiffs and members of the class (a) by conducting unreasonable searches and seizures, in violation of the Fourth and Fourteenth Amendments of the United States Constitution; (b) by the use of excessive force and the imposition by them of summary punishment, in violation of the Due Process Clause of the Fourteenth Amendment, and (c) by authorizing or allowing illegal police tactics to be used primarily in black communities or against black people. Hearings were held August 6, 7, 8, 14; September 17; October 8 and 9, 1969, and a personal view of the area was made by the Court and counsel on August 6, 1969. After 1346 pages of testimony were transcribed, oral arguments were heard December 19, 1969, and the record finally closed on February 5, 1970, when defense counsel filed with the Court a copy of new police regulations adopted in the City of York. *fn1"

 After reviewing all of the evidence, exhibits and briefs filed, I make the following

 FINDINGS OF FACT

 1. The City of York, Pennsylvania, according to the 1960 census, has a population of 54,504, of which approximately 10% are members of the Negro race.

 2. Over the past several years, there have been outbreaks of racial strife in York and on October 23, 1968, in an effort to combat future outbursts "* * * as a result of mob action or other civil disobedience * * *", the York City Council enacted an ordinance empowering the Mayor to declare an emergency and to impose a curfew for 48 hours, which curfew could be extended beyond 48 hours by a resolution of Council.

 3. On Thursday, July 17, 1969, and at all times material to the factual issues involved in this proceeding, defendant John L. Snyder was Mayor of the City of York, *fn2" defendant Jacob Hose was Director of Public Safety, defendant Leonard Landis was Chief of Police, and defendant Russell Koontz was Captain of the York City Police Department. *fn3" There are 94 members of the York Police Department, 6 of whom are Negroes.

 4. On Thursday, July 17, 1969, a Negro juvenile was treated at the York Hospital for facial burns and he informed the police that he had been in the East section of the City when a group of white youths, known as the Girard Street Gang, threw flaming liquid in his face. He later recanted this story to the police, stating that he had burned himself while playing with lighter fluid, but the rumor of the original incident had spread throughout the City. It was this incident that allegedly set into motion the tragic series of disorders that follow.

 5. The five main areas of disorder were: (1) the intersection of South Penn Street and West College Avenue in the Southwest quadrant of the City, hereinafter identified as Penn-College; (2) Penn Commons, a park in the Southwest quadrant, bounded by West College Avenue, Lafayette Street, Lindbergh Avenue and South Pershing Avenue, approximately two blocks East of the intersection of Penn and College, hereinafter identified as Penn Commons; (3) the juncture of Cottage Hill Road and North Newberry Street near the railroad tracks in the Northwest quadrant, approximately six blocks North of the intersection of Penn and College, hereinafter identified as Cottage Hill; (4) the Parkway Homes Project in the Northwest quadrant, approximately one mile North of the intersection of Penn and College, hereinafter identified as Parkway Homes, and (5) the immediate vicinity of the intersection of South Queen Street and East Maple Street in the Southeast quadrant, approximately seven blocks East of the intersection of Penn and College, hereinafter identified as Queen-Maple.

 7. On Thursday, July 17, 1969, at approximately 11:00 P.M., twelve Negro youths were observed throwing rocks at windows at the intersection of Newberry and Gay Streets. (Cottage Hill)

 8. On Thursday, July 17, 1969, at 11:40 P.M., two Negro youths, Takani Sweeney and John Washington, were shot and wounded at the intersection of North Pershing Avenue and West Philadelphia Street. *fn4" (Cottage Hill)

 9. On Friday, July 18, 1969, shortly after 12:10 A.M., rifle fire erupted, and the throwing of rocks and bricks commenced, in the area surrounding the intersection of Penn and College in the Southwest quadrant of the City. A night of terror followed and continued until dawn. Persons were observed carrying rifles, running and hiding, and shots were heard throughout the night. It is this intersection, admittedly located in the Negro ghetto area, where repeated acts of violence occurred and where most of the searches of homes took place, as will be more fully explained hereafter.

 10. In the early morning hours of Friday, July 18, 1969, at 12:45 A.M., a windshield in an automobile owned by a Mr. Doug Bredbenner (white) *fn5" was shattered with rifle shot at the corner of Newberry Street and the railroad tracks. (Cottage Hill)

 11. On Friday, July 18, 1969, at 1:05 A.M., unknown youths threw rocks through the windows of homes of Mrs. Helen Miller and Mrs. Annie Poff in the 300 block of Smyser Street. (Cottage Hill)

 12. On Friday, July 18, 1969, at 2:30 A.M., Dolores Sipe (Negro), while getting into a cab on Salem Avenue, one block West of the intersection of Penn and College, was shot twice in the back. (Penn-College)

 13. On Friday, July 18, 1969, at 2:50 A.M., a Buick automobile containing a group of Negroes pulled alongside and shot into a vehicle being driven by John Smith (white) in the 500 block of West Princess Street. (Penn-College)

 14. On Friday, July 18, 1969, at 3:30 A.M., Negro youths threw rocks through a window at Detweiler's Auction at 480 Salem Avenue.

 15. On Friday, July 18, 1969, at 3:45 A.M., Negro youths threw pieces of concrete through a window at the Louis Foust home in the 500 block of Salem Avenue.

 16. On Friday, July 18, 1969, at 4:15 A.M., at the intersection of Penn and College, an automobile being driven by Mrs. Madelyn Bowman (white) was shot at and she was struck in the head with a brick, fracturing her jaw. (Penn-College)

 17. On Friday, July 18, 1969, at 4:40 A.M., at the intersection of Penn and College, Mr. Paul Ludwig was accosted in his car and struck in the face with a brick. (Penn-College)

 18. On Friday, July 18, 1969, at 5:00 A.M., at the intersection of Penn and College, a vehicle being operated by Mr. John B. Messinger was struck with rocks and bricks. (Penn-College)

 19. On Friday, July 18, 1969, at 5:00 A.M., at the intersection of Penn and College, a pickup truck being driven by John Detweiler was hit with bricks. (Penn-College)

 20. On Friday, July 18, 1969, at 5:00 A.M., at the intersection of Penn and College, an object was thrown at a passing car in which four whites were seated and one of the occupants fired a rifle shot and struck Mr. Rodney Brown (Negro), who was standing at the intersection. (Penn-College)

 21. On Friday, July 18, 1969, at 5:05 A.M., at the intersection of Penn and College, a brick was thrown through the window of a car being driven by Mr. Leroy Fray. (Penn-College)

 22. On Friday, July 18, 1969, at 5:10 A.M., at the intersection of Penn and College, a stationwagon operated by Mr. Martin Lehr was struck with a brick while proceeding through the intersection. (Penn-College)

 23. On Friday, July 18, 1969, at 5:20 A.M., at the intersection of Penn and College, an automobile driven by Mr. Chris Spinelli (white) was hit with bricks and fired upon by unidentified Negroes. (Penn-College)

 24. On Friday, July 18, 1969, at 5:20 A.M., at the intersection of Penn and College, a motor vehicle driven by Dean Coffman was struck and damaged. (Penn-College)

 25. On Friday, July 18, 1969, at 5:20 A.M., at the intersection of Penn and College, a brick was thrown through the windshield of a vehicle being driven by Josephine Guiffrida. (Penn-College)

 26. On Friday, July 18, 1969, at 5:30 A.M., at the intersection of Penn and College, the right rear window of the automobile being driven by Thomas McCaulsin was shot out while proceeding through the intersection. (Penn-College)

 27. On Friday, July 18, 1969, at 5:30 A.M., at the intersection of Penn and College, three rifle shots were fired into the Edgar Leber car. (Penn-College)

 28. On Friday, July 18, 1969, at 5:30 A.M., at the intersection of Penn and College, a brick was thrown and three shots fired into a vehicle being operated by Larry Witmer. (Penn-College)

 29. On Friday, July 18, 1969, at the intersection of Penn and College, the left front and right rear windows were broken in the automobile of Esther Mae Klindinst by unknown assailants. (Penn-College)

 30. On Friday, July 18, 1969, at 5:40 A.M., at the intersection of Princess and College, the front window of a Rambler automobile driven by Mary Wolf was smashed with stones. Princess Street is one block to the North of and runs parallel to College Avenue. (Penn-College)

 31. On Friday, July 18, 1969, at 6:45 A.M., two Molotov cocktails were thrown at the G.F. Plitt and Son garage door at 523 Cooper Avenue.

 32. On Friday morning, July 18, 1969, exact time unknown, a hole was shot in the window of a building owned by Sophie Timmerman at 424 East Philadelphia Street in the Northeast quadrant.

 33. In the early morning of Friday, July 18, 1969, exact time unknown, Negro men with guns were seen on porches in the 100 and 200 blocks of South Newberry Street. (Penn-College)

 34. On Friday evening, July 18, 1969, at 6:30 P.M., a firebomb was thrown into a building owned by Edward Hoffman at 931 West King Street.

 35. On Friday evening, July 18, 1969, at 7:45 P.M., a fire was set at the home of Alice Stough, 206 North Beaver. (Parkway Homes)

 36. On Friday, July 18, 1969, at 9:25 P.M., front windows were broken in a business place owned by Harry Butzel at 564 North Pershing. (Parkway Homes)

 37. During the evening of Friday, July 18, 1969, two armored vehicles owned by the York Police Department and identified as "Bonny" and "Big Al" were assigned to patrol the area near the Penn and College intersection. (Penn-College)

 38. On Friday, July 18, 1969, at 10:20 P.M., a windshield in a vehicle owned by Kenneth Kauffman was shot out while moving toward the west end of the West Princess Street Bridge, approximately two blocks from the intersection of Penn and College. (Penn-College)

 39. On Friday, July 18, 1969, at 10:30 P.M., a window was broken in the C.H. Arnies garage and $2.00 was taken. The garage is at 339 East Cottage Place and four white youths were observed in the area. (Queen-Maple)

 40. On Friday, July 18, 1969, at 10:30 P.M., the armored truck "Big Al" was dispatched to the 300 block of West Hope Lane to assist the firemen in extinguishing a mattress fire and heard gunfire from the intersection of Penn and College, approximately one block away in a southwesterly direction. (Penn-College)

 41. On Friday, July 18, 1969, at 11:00 P.M., Officer George Palmer observed two Negro youths with a rifle and pistol at the intersection of Green Street and College Avenue, one block from the intersection of Penn and College. (Green Street is immediately West of Penn Street and consists of only one block, the 200 block.) (Penn-College)

 42. On Friday, July 18, 1969, at 11:10 P.M., Stanford Gilbert was shot and seriously wounded while seated on his motorcycle at the intersection of College and Pershing, approximately two blocks from the intersection of Penn and College. While policemen were assisting him and attempting to place him in an ambulance, they were fired upon from three corners of the intersection. (Penn-College)

 43. On Friday, July 18, 1969, at 11:10 P.M., the armored vehicle "Big Al" was dispatched to the intersection of Pershing and College to assist the wounded motorcyclist and as the vehicle passed the intersection of Penn and College, five Negro males and one white male were observed at the intersection. While proceeding East on College Avenue toward Pershing and College, and while on the College Avenue Bridge, several rifle shots struck the vehicle and Officer Henry Schaad was shot and sustained wounds from which he ultimately died on August 1, 1969. (Penn-College)

 44. On Friday, July 18, 1969, before Midnight, at the intersection of Penn and Princess, one block from the intersection of Penn and College, a Negro male was wounded and was taken to the hospital by Richard Noll, Esq., who was in the area assisting the police. (Penn-College)

 45. On Saturday, July 19, 1969, at 12:30 A.M., at the intersection of Penn and College, the tires and rear window were shot out of a Ford sedan being operated by Sarah E. Miller by three Negro males armed with rifles. (Penn-College)

 46. On Saturday, July 19, 1969, at 12:30 A.M., in the 200 block of Green Street, two Negro males, Clarence Ausby and Bennie Carter, were shot and wounded by police fire. (Penn-College)

 47. On Saturday, July 19, 1969, at 8:15 A.M., a firebomb was thrown against a building at 434 South Queen Street. (Queen-Maple)

 48. During the night of July 18 and the early morning of July 19, the York Hospital reports indicated the following emergency treatment: Dennis Keefer for a small wound of the left side of his back, but the location of the shooting was unknown; Dale Witmyer for wounds of the chest, location of shooting unknown; Calvin Sims for wounds in back of head received when he was shot at 12:41 A.M. at the intersection of Penn and College; Norman Lehr shot in the left side at 12:35 A.M. while going East on College Avenue, approximately one block from Penn and College; Nelson Lushman for cuts on left hand received at 12:35 A.M. at Grantley and College, approximately two blocks from Penn and College; James Needham for wounds of right leg when shot at 2:45 A.M. in his back yard at 155 South Newberry Street, approximately two blocks from Penn and College.

 49. On Saturday, July 19, 1969, Mayor Snyder declared a state of emergency and imposed a curfew from 9:00 P.M. to 6:00 A.M. for all persons under 21, and from 10:00 P.M. to 6:00 A.M. for all persons over 21.

 50. On Saturday, July 19, 1969, at 6:00 P.M., Charles Harris was fired upon by a group of white men at the intersection of North Newberry and Market in the Northwest quadrant. (Cottage Hill)

 51. On Saturday, July 19, 1969, at 8:03 P.M., at the intersection of Gay and Newberry Streets, a stone was thrown at a passing car operated by Russell Wantz. (Cottage Hill)

 52. On Saturday, July 19, 1969, at 9:10 P.M., near the intersection of George and Market Streets, John Charity, a Negro, was arrested for curfew violation.

 53. On Saturday, July 19, 1969, at 9:30 P.M., shots were fired into the home of Betty Rice located at 533 Thomas Street.

 54. On Saturday, July 19, 1969, at 10:00 P.M., a Mercury automobile being operated by Ralph Hamilton, a California resident, was shot at and damaged at the intersection of Lincoln Drive and Beaver Street. (Parkway Homes)

 55. On Saturday, July 19, 1969, at 11:45 P.M., Lionel Bailey, since June 2, 1969, a Director of the Community Progress Council, an anti-poverty organization sponsored by the Office of Economic Opportunity; Greland Holmes and Willie Harris were arrested for curfew violation. Racial slurs and threats were directed at Bailey by Police Officers at the time of arrest and later at the Police Station. They were ultimately acquitted of violation of curfew when it was determined that they had permission to undertake a peace keeping mission in the Penn and College area until 10:30 P.M.

 56. On Saturday, July 19, 1969, at 10:30 P.M., on South George Street near College Avenue, a car being driven by Susan Strayer was fired upon by two Negro males and Miss Strayer was wounded in the left knee. (Penn Commons)

 57. On Saturday, July 19, 1969, at 11:00 P.M., a Pennsylvania State Trooper, Dale Allen, was wounded in the left arm while operating a State Police vehicle at Parkway Boulevard and Front Street. Officer John Provenza, an occupant in the vehicle, was cut by flying glass. Rifle shooting continued in this area for approximately two hours. (Parkway Homes)

 58. On Saturday, July 19, 1969, at 11:10 P.M., rifle shots were fired into the home of Richard Shaeffer at 447 South George Street, ...


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