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HAIRSTON v. HUTZLER

November 18, 1971

Early W. HAIRSTON, Jr., et al., Plaintiffs,
v.
Joseph HUTZLER, et al., Defendants


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 In this action for injunctive relief brought under the Civil Rights Act, 42 U.S.C. § 1983, *fn1" fourteen plaintiffs on behalf of themselves and other black persons seek to enjoin seven police officers and a police inspector of the City of Pittsburgh Police Department from continuing the deprivation under color of state law of rights, privileges, and immunities guaranteed by the First, Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments to the Constitution of the United States.

 On motion of the plaintiffs, the Police Inspector, Donald Aubrecht, was dismissed as a defendant.

 Affidavits of thirteen of the plaintiffs were attached to the motion for preliminary and permanent injunction. Nineteen affidavits in support of the injunction were filed on September 20, 1971, after the hearing.

 The hearing for a preliminary injunction was held on September 16 and 17, 1971.

 The defendants, on October 8, 1971, filed an answer asserting, inter alia, that the court lacks jurisdiction of the parties and subject matter; that plaintiffs have an adequate remedy at law; and denying all the factual allegations in the complaint. No counter-affidavits were filed by or on behalf of the defendants.

 At the hearing, the plaintiffs produced uncontradicted testimony that the police officers, including six of the defendants, had illegally beaten, arrested, searched and harassed the plaintiffs and other black persons within a period of over nine months, i.e., from November 16, 1970 to and including August 28, 1971.

 When the complaint was filed on September 1, 1971, each of the seven defendants was attached to No. 5 police station which services the East Liberty, Homewood and Brushton areas of Pittsburgh. All of the incidents which were testified to in detail took place within those areas.

 Subsequent to the filing of the complaint and motion for preliminary and permanent injunction, the seven remaining defendants were transferred to other police stations in Pittsburgh. (See affidavit of Inspector William Moore filed on October 12, 1971.)

 The court has jurisdiction over the parties and the subject matter under the Civil Rights Act. Throughout this proceeding the plaintiffs have adequately represented the interests of all black persons living in or visiting the City of Pittsburgh.

 At the conclusion of the testimony presented by the plaintiffs pertaining to assaults and beatings by the police, counsel represented that plaintiffs' only remaining witness was a police official who had been subpoenaed to produce certain police records, but that he had not yet arrived in court (Tr., pp. 315-316). Counsel for defendants agreed to proceed with testimony on behalf of defendants (Tr., p. 319), but when the testimony of the defendant, Robert Pindel, was concluded, the defendants decided to rest without calling any other defendant or witness. *fn2"

 Plaintiffs promptly presented "Proposed Findings of Fact, Conclusions of Law and Order of Court", and two briefs in support of the preliminary injunction. Defendants did not present a brief, but their counsel made an exhaustive argument, a transcript of which was filed of record on November 16, 1971.

 At argument counsel indicated that the defendants rested because the court did not have jurisdiction, that the evidence showed that the plaintiffs had adequate remedies at law, and that they had not met their burden of proving that they were ...


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