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 ineffectual and half-hearted, if not non-existent.
It did appear, however, that most of the incidents of alleged police excesses which occurred during other demonstrations concededly took place not in the prevention of the assemblies but in their regulation and control.
The protest marches and meetings were concerned with a variety of issues including boycotts against grapes and lettuce, opposition to Vice President Agnew on the occasion of his visit to Pittsburgh, objection to the extension of the war into Cambodia, and the Black Coalition's march in support of its demands for employment of black workmen in the construction industry. These incidents occurred both before and after the events which occurred in the City Court on March 19, 1970.
In none of these demonstrations, however, were any of the five plaintiffs arrested or harassed, although Ascheim had been arrested on one other occasion in a disagreement with patrolling officers. In none of these other events were any of the policemen on duty among those who preferred charges in this case. There was no evidence whatsoever of any plan by the police or of any co-operation between the arresting officers in the case at bar and the Tactical Force or of any official directive to carry out any prescribed policy with respect to these five plaintiffs.
The plaintiffs sought to prove that the Tactical Force was unduly harsh with any group whose views it considered sedetious, unpatriotic or nonconformist. However, it is undisputed that not one member of the Police Tactical Force was in the courtroom on March 20, 1970 when the disruption occurred. Most of the officers present were members of the homicide squad or narcotics squad who were in the building fortuitously that morning. Furthermore, none of these officers had had any previous contact with crowd control units or with the plaintiffs, nor is it likely they would have any such association in the future.
Plaintiffs failed to present any testimony whatsoever to show that the prosecuting officers in this case had any knowledge of any other demonstrations in which these particular plaintiffs might have been involved on earlier dates or any which occurred after the City Court incident other than that of the day following which was concerned with the incident itself.
The plaintiffs and a number of their witnesses testified that because of the City Court incident, they have not participated as freely in demonstration activity, that they fear police violence, that they did not feel as free to ask others to participate in public protest programs, and that in recent months mass activities have been smaller than before.
The evidence on this point was conflicting, vague, unimpressive and unconvincing.
Testimony did reveal that there had been a number of protest meetings, parades, and assemblages since March 19, 1970 and that the plaintiffs participated in most of them. Indeed during the course of the hearing in this case plaintiffs requested an early luncheon adjournment one day so that they could join a group protesting the involvement of the United States in Laos. The plaintiffs contended that they were not afraid to participate in that gathering, which was held in front of the Federal Building, because they felt the police would be deterred from exercising any violence by the pendency of this case. However, the argument cuts just as strongly in the other direction, i.e., that plaintiffs and their sympathizers would conceive it to be in their own best interests to conduct themselves in a peaceable and orderly fashion so as not to prejudice their suit.
Underlying the plaintiffs' theory on this phase of the case seems to be an assumption that the First Amendment grants unlimited discretion as to the means of expressing their views, and that free speech carries with it a privilege to participate in any type of demonstration unfettered by any form of police control.
The law however is to the contrary. As the Supreme Court said in Cox v. Louisiana, 379 U.S. 536, 554, 85 S. Ct. 453, 464, 13 L. Ed. 2d 471:
"From these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations."
Those who organize large numbers of people to protest or encourage governmental or social policies cannot escape responsibility for regulating the conduct of the assemblage simply by saying that it is planned to be nonviolent. It would be naive indeed to expect that in any large gathering there would not be some small group of people who would delight in disruption, and who would not be unhappy should a confrontation with the police occur.
The defendants did not attempt to meet all of the issues raised by the plaintiffs in this phase of the case but did describe the in-service training program which has recently been instituted by the police department which includes instruction of every member of the force in such matters as crowd control, community relations, etc. Since the testimony was one-sided, we refrain from passing judgment on these collateral matters particularly since counsel for the plaintiffs conceded in his closing summation that this Court is not to act as a Mayor's Commission on Human Relations in reviewing the actions of the police department nor is it to deal with the charges of alleged police brutality per se.
We do observe, nonetheless, that some of the testimony of excessive force by individual police officers on specific occasions was quite disturbing and should cause concern in the minds of those officials who have the responsibility of determining the accuracy of such charges and taking appropriate action. While the hearing of this case furnished an opportunity for public airing of many complaints of this nature, they should have been heard, answered, and evaluated long before this time.
Among the defendants named by the plaintiffs was Francis Quinlan, President of the Local Chapter of the Fraternal Order of Police. Allegations were made that this organization was influential in having the individual police officer defendants file criminal charges against the plaintiffs. The completed record, however, contains no support for this contention.
Much trial time was devoted to establishing that Quinlan had made some remarks on a television newscast on the evening of March 20, 1970 requesting public support for the police and condemning the activities of the plaintiffs in the courtroom on that day. Quinlan professed to be unable to remember any of the details of his statement but a videotape portion of the newscast established conclusively that the remarks had indeed been made. While Quinlan's lack of memory was curious, the statements themselves did not establish any more other than that he was exercising his rights to express views which were as unpopular with the plaintiffs as theirs were with him.
It appears that the F.O.P. has no control over the hiring, dismissal or disciplining of policemen but is simply a fraternal organization which does represent the police in their collective bargainings with the City with respect to wages and working conditions. There was no competent evidence to establish that the F.O.P. controls the police department in the discharge of its duties, or that the City Administration has surrendered its authority or responsibility to the fraternal group. No case against Quinlan was proved by the plaintiffs.
For the vindication or protection of civil rights, the law provides a number of remedies but none is more narrowly restricted than the grant of an injunction against state criminal proceedings, pending or threatened.3a This is an extraordinary remedy, sparingly applied. It is not every case of police misconduct, it is not every case of abuse of legal process, it is not every case of prosecution founded upon nonexistent grounds nor every case instituted out of improper motivation which qualifies for this exceptional intervention with the legal processes of a state, albeit that the same evidence may furnish grounds for other forms of relief.
The hesitancy of Federal Courts to exercise the power of injunction may be explained in terms of history and national policy. Traditionally, the American people have been opposed to a limitation by a court of equity upon the jury's authority in a criminal proceeding. While in modern times this policy has not been as forcibly expressed as it was in the early days of the Republic, it is nonetheless a continuing, viable concept, most recently finding expression by the Supreme Court of the United States in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, 1971.
The Court there, however, placed more reliance upon "National Policy" which it labeled "Our Federalism", defining it as:
"A recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. * * * What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States."
The Court goes on to say:
"* * * it has been perfectly natural for our cases to repeat time and time again that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions."
Younger and the other cases decided on the same day severely curtailed but still left in existence one exception to the broad policy which was set out in the earlier decision of Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22. The plaintiffs contend that this case establishes their eligibility for the injunctions which they now seek.
Careful analysis of the Dombrowski doctrine reveals that in order to qualify the plaintiffs must show that:
1. The prosecutions were instituted in bad faith;