The opinion of the court was delivered by: GOURLEY
This is a Complaint for injunctive and declaratory relief filed by five individuals who currently face prosecution in the Criminal Division of the Court of Common Pleas of Allegheny County, Pennsylvania. All of the plaintiffs are charged with aggravated assault and battery upon a police officer
and inciting to riot,
and certain of the plaintiffs are charged additionally with disorderly conduct
and resisting arrest.
Defendants are the Superintendent and Assistant Superintendent of the City of Pittsburgh Police Department, various police officers, and the District Attorney of Allegheny County.
It is asserted that the jurisdiction of the Court over the Complaint arises under Title 28 U.S.C. Sections 1331, 1332, 1343, 2201, 2202, 2281 and 2284, Title 42 U.S.C. Sections 1983 and 1985 and the Constitution of the United States, particularly the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and Fourteenth Amendments thereto.
The Complaint alleges that the defendants, acting under the color of statutes of the Commonwealth of Pennsylvania, both individually and pursuant to a common plan or scheme have deprived plaintiffs of rights, privileges and immunities secured to them by the Constitution and laws of the United States. Allegedly, defendants have subjected and are subjecting plaintiffs to violence, intimidation, humiliation, arrests without probable cause and prosecution without basis in fact solely on account of plaintiffs' physical appearance and political beliefs, and with an ultimate objective of chilling the efforts of plaintiffs, as well as the efforts of their friends and supporters, to peaceably demonstrate their objection to the war in Vietnam and to express criticism of police misconduct.
Specifically, it is alleged that two of the plaintiffs, as well as friends and supporters, engaged in a silent vigil at 12 o'clock midnight on March 18, 1970, in front of the Federal Building in downtown Pittsburgh to protest the policy of the United States in Vietnam and the operation of the Selective Service System. Allegedly, said persons, at or about 1 o'clock A.M., removed to the homes of members of local draft boards to continue the protest, and, in the course of this latter stage of the vigil, eight individuals including one of the plaintiffs were arrested for disorderly conduct by officers of the City of Pittsburgh.
The arrestees were preliminarily arraigned at or about 10 o'clock A.M. on the following morning in the Police Magistrate's Court of the City of Pittsburgh. It is set forth that a large number of the arrestees' friends and supporters, including the remaining plaintiffs herein, attended the hearing as spectators and that a similarly large number of police officers also were present. During the midst of the hearing, it is alleged that all of the plaintiffs were subjected to unprovoked, brutal physical abuse by the police officers present and subsequently variously charged, again without provocation, with aggravated assault and battery upon a police officer, inciting to riot, resisting arrest and disorderly conduct.
It is asserted in the Complaint that the statutes under which plaintiffs are charged are unconstitutional as applied to plaintiffs, and the Court is requested to enjoin the prosecutions of plaintiffs under said statutes. For this purpose, the convening of a three-judge district court is requested pursuant to Title 28, U.S.C. Sections 2281 and 2284. Also, plaintiffs seek a declaratory judgment to the effect that the disorderly conduct ordinance of the City of Pittsburgh, Ordinance 580 of 1968, is unconstitutional on its face. Pending a hearing upon the requests for final relief, a preliminary injunction is sought.
The immediate question before the Court is whether a three-judge district court is properly to be convened in this action. Section 2284 of 28 U.S.C. provides, in part:
"§ 2284. Three-judge district court; composition; procedure
In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows:
(1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding."
Under 28 U.S.C. Sections 2281 and 2284(1) this Court is required to ask the Chief Judge of the United States Court of Appeals for the Third Circuit to convene a three-judge district court only if there is a substantial, non-frivolous attack upon the constitutionality of a Pennsylvania statute but not otherwise. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 8 L. Ed. 2d 794; Ex parte Poresky, 290 U.S. 30, 32, 54 S. Ct. 3, 78 L. Ed. 152 (1933).
The term "statute" as employed in Section 2281, does not encompass municipal ordinances. Moody v. Flowers, 387 U.S. 97, 101-102, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1966); Ex parte Collins, 277 U.S. 565, 567, 48 S. Ct. 585, 72 L. Ed. 990 (1928). Here, plaintiffs have joined claims challenging the constitutionality of statutes of the Commonwealth of Pennsylvania, the common law crime of inciting to riot and an ordinance of the City of Pittsburgh. The joinder of the claim challenging the municipal ordinance is inappropriate for purposes of a three-judge district court, and the attacks upon the ordinance and its enforcement present issues properly triable only before a single judge. Landry v. Daley, 280 F. Supp. 929, 937 (N.D. Ill. 1967).
Similarly, the crime of inciting to riot, being a common law offense, does not come within the ambit of the term "statute" as used in Section 2281. Section 2281 is not "a measure of broad social policy to be construed with great liberality, but * * * an enactment technical in the strict sense of the term and to be applied as such." Phillips v. U.S., 312 U.S. 246, 251, 61 S. Ct. 480, 483, 85 L. Ed. 800 (1941). Thus, the challenge to the constitutionality ...