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March 19, 1971

Burton L. ASCHEIM, Jr., Kenneth P. Boas, Mark Cohen, Robert L. Ruck and Thomas W. Simonds, Plaintiffs,
Francis QUINLAN, Police Officer of the City of Pittsburgh and President of Fort Pitt Lodge No. 1, Fraternal Order of Police, Stephen Joyce, Superintendent of the City of Pittsburgh Police Department, Robert W. Duggan, District Attorney of Allegheny County, et al., Defendants

Weis, District Judge.

The opinion of the court was delivered by: WEIS

The privilege of free expression has always been cherished by Americans and it is some measure of the priorities which they have assigned to their various liberties that among the rights chosen for inclusion in the very First Amendment of the Constitution and articulated among the earliest clauses of the Bill of Rights are those of freedom of speech and assembly.

 We have chosen to follow a philosophy that everyone has a right to express his opinions on the burning issues of the day, be his views ever so unpopular, leaving evaluation of their wisdom to the inexorable judgment of history rather than to an emotional response and repression of the hour. As a corollary, it has seemed only proper to show a corresponding concern for others in the community who may be affected so that as a generalization we may say that while all are free to speak, no one is forced to listen.

 It is against this background of sweeping and broad statement of principles that we are called upon to reach a decision in a specific factual situation where, as in most cases in this Court, the line must be drawn when the rights of one collide with those of another.

 The plaintiffs' suit in this Court alleges that there has been an infringement of their First Amendment rights by repressive activities of the Pittsburgh Police Department and various individual members. An injunction is requested to enjoin certain pending criminal prosecutions in the Pennsylvania courts and to prevent future harassment and intimidation by similar use of criminal process.

 When the case was originally filed, plaintiffs also sought the convocation of a three-judge Court to consider the constitutionality of certain Pennsylvania Criminal Statutes relating to assault and battery, aggravated assault and battery on a police officer, resisting arrest, the common law crime of inciting to riot, *fn1" and the City of Pittsburgh ordinance on disorderly conduct. This Court in an opinion by Judge Wallace S. Gourley, 314 F. Supp. 685, denied the petition for a three-judge Court and refused the injunction.

 The denial of the three-judge Court was sustained by the Court of Appeals which, however, remanded the proceedings for an evidentiary hearing on the request for an injunction to enjoin the state prosecutions and future harassment. In compliance with this mandate, an extensive hearing was held which required eight trial days and involved the testimony of more than 50 witnesses.

 While the plaintiffs' claims were sweeping and evidence was produced to demonstrate examples of claimed police misconduct on numerous occasions, the principal incident involves an occurrence in the "City Court" of Pittsburgh. This is a court of the minor judiciary and although its magistrates are appointed by the Mayor of Pittsburgh, they are part of the unified Judicial System and are subject to control by the Court of Common Pleas of Allegheny County and by the Supreme Court of Pennsylvania. *fn2"

 The stage was set when a number of persons, including the plaintiff Ascheim, were arrested in the early hours of March 19, 1970 on charges of disorderly conduct growing out of a demonstration which had been conducted at about 1:30 A.M. in front of the residence of a draft board member. The picketing was part of a series of planned vigils protesting American participation in the Vietnam War and the operation of the Selective Service System.

 The charges were scheduled for hearing in the City Court at about 9:30 A.M. of that same day and as that hour neared, there were seated in the body of the courtroom the other four plaintiffs involved in this case, Cohen, Ruck, Boas and Simonds, along with a number of other young people who were friends of the accused or who supported their activities. While the number of sympathizers present was not clearly established, somewhat more than fifty appears to be an accurate estimate.

 The hearing room was not a large one and it was overcrowded. All the seats had been taken and police officers, who had been called because of reports of possible trouble, stood along the two side walls. The defendants at the hearing, their attorneys and the arresting police officers were gathered in a group in front of the magistrate's bench. Standing beside the bench was the assistant superintendent of police and close by were the press reporters. Also in this area in front of the magistrate was an officer named Sachko who was a turnkey at the police station where the court is located and who also doubled as a tipstaff for the magistrate. Separating this group of participants from the spectators was a metal railing about three feet high.

 When the defendants were brought into the room from the adjoining cell area, there was applause from their partisans. The magistrate warned that the courtroom would be cleared if any disruption occurred during the course of the hearing. During the taking of testimony, he again made a number of requests for quiet in the room.

 The magistrate's admonitions met with some limited response but when the tipstaff-turnkey took hold of Ascheim to compel him to turn to face the magistrate, decorum vanished. Some of the spectators, including the plaintiff Cohen, leaped up in noisy protest and the magistrate gave the order to clear the courtroom. In compliance with this directive, the police had moved most of the spectators through the courtroom door to an anteroom when a general melee broke out involving the officers and those being ejected.

 As a result of this fracas, police officers filed various charges against the present plaintiffs including aggravated assault and battery, assault and battery, inciting to riot, and assault on a police officer. The present suit was filed after the preliminary hearings had been held on these criminal charges but before the dates on which the indictments were returned by the Grand Jury.

 With this broad outline the parties are generally in agreement. Substantially different versions, however, of the particulars were presented by plaintiffs and defendants.

 A number of witnesses called on behalf of the plaintiffs insisted that the tipstaff had viciously pulled Ascheim's long hair in an attempt to turn his head toward the magistrate. They also said that the police had been using insulting and obscene language toward the spectators, many of whom were garbed in informal style and who affected long hair and beards in what might loosely be described as "hippie" style. They claimed that the police had committed completely unprovoked and brutal attacks upon a number of the young people, particularly in the anteroom where most of the violence occurred.

 On the other hand, the magistrate and the various policemen who testified painted a picture of a disruptive, disrespectful, unruly and completely uncooperative group of spectators at the hearing. According to this version, the taunting, obscenities and verbal provocations came from the spectators, not from the police and the scuffling in the anteroom was precipitated by the plaintiffs and their friends.

 In view of our disposition of this case, it would not be appropriate to make any comments upon the credibility of witnesses or pass upon the responsibility for the courtroom disturbance. It is sufficient to say that the testimony is sharply controverted and if the witnesses appearing on behalf of the police are believed by a jury, there would be enough evidence to sustain a conviction of the present plaintiffs in the state court criminal proceedings.

 While it is also true that a jury could decide in favor of the plaintiffs, that is not controlling in the context of this case. It is not the function of this court to decide the guilt or innocence of the participants in the courtroom incident nor indeed is it the burden of the state at this time to prove the guilt of the plaintiffs beyond a reasonable doubt. Once having found that genuine issues of fact exist, a resolution of the conflicting contentions by this Court would be an unwarranted usurpation of the prerogatives of a state court jury.

 As a part of their secondary attack that there was a conspiracy and continuing plan to harass them, the plaintiffs produced evidence through a number of witnesses to show what was claimed to be other examples of police violence against those who held unpopular views with respect to the war, the draft, racial discrimination, and other causes. The contention is made that part of this testimony concerning alleged police excesses, particularly by members of the Police Tactical Force, which was formed and used for riot and crowd control, established a pattern or plan to intimidate those who participated in public demonstrations.

 Witnesses were also called by the plaintiffs to show that on some occasions, at least, police efforts to discipline errant members within their ranks were ...

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