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March 14, 1973

Frank L. RIZZO et al., Defendants. Gerald G. GOODE et al., Plaintiffs, v. James H.J. TATE, Mayor, City of Philadelphia, Pennsylvania, et al., Defendants

Fullam, District Judge.

The opinion of the court was delivered by: FULLAM

Fullam, District Judge.

 In two separate but related civil rights actions, certain individuals and groups, acting on behalf of minority citizens and residents of Philadelphia, seek various forms of relief against the Mayor and police officials of the City, on the basis of alleged widespread violations of the constitutional rights of minority citizens by the police of the City of Philadelphia.

 From a procedural standpoint, the record in these cases is somewhat anomalous: plaintiffs and their respective counsel are different in the two cases, and have proceeded independently. However, both groups of plaintiffs purport to act on behalf of essentially the same class of plaintiffs. Although the specific relief sought in each case is different, both sets of plaintiffs urge that a pattern of unconstitutional behavior on the part of the police is shown by their evidence of numerous specific instances of such alleged misconduct; each group relies upon a different set of specific instances as examples alleged to establish the pattern. Since I have heard all of the evidence in both cases, it would be difficult, and in my opinion improper, in view of the nature of the claims, to dispose of each case separately, based upon its own limited record. The defendants in both cases are essentially the same, and are represented by the same counsel in both cases.

 Another factor requires mention. During the pendency of these two actions before the undersigned, a third case filed by different plaintiffs on behalf of the same class of plaintiffs, seeking similar relief, was pending before another member of this Court. That case, which was instituted after the Goode case but before the COPPAR case, eventuated in a consent decree granting injunctive relief, dated December 18, 1972. The defendants in all three cases are essentially the same, and all have been represented throughout by the City Solicitor's office. Nevertheless, at no time have defense counsel meaningfully addressed themselves to the class action issues involved, nor to questions of res judicata or collateral estoppel which may be involved.

 A brief summary of the issues in all three cases will provide a starting point for analysis: In the Goode case, Civil Action No. 70-491, plaintiffs contend that certain police officers of the City of Philadelphia are biased against Negroes and other minority groups, and habitually violate their legal and constitutional rights in the course of carrying out their police duties; that the proclivities of these officers are well known to their superiors in the Department; that the persons in control of the supervision of the Police Department, by failing to take appropriate disciplinary action, have condoned these illegal and unconstitutional activities, as a matter of policy. Plaintiffs further contend that there is no adequate machinery for dealing with civilian complaints against the police, and that departmental resistance to the creation or implementation of adequate complaint procedures justifies the conclusion that it is the policy of the Department to condone racially discriminatory actions by the police. Plaintiffs seek two kinds of relief in this action: removal or other appropriate disciplinary action in the cases of certain named policemen; and establishment of appropriate machinery to deal with civilian complaints against police.

 The COPPAR plaintiffs (Civil Action No. 70-2430) allege widespread and systematic violations of the constitutional rights of Negroes and other citizens by the police in the routine performance of their duties, with the express or tacit approval of their superiors. Plaintiffs ask the Court to appoint a "receiver" or similar official to supervise the Police Department (presumably, sweeping injunctive relief, and the appointment of a master to supervise enforcement of the decree), to prevent further violations. This case was originally precipitated by certain incidents involving police raids on buildings thought to be occupied by members of the "Black Panther" Party, threatened interference with a proposed convention of that group of the City, and the alleged holding of certain black militants without probable cause and in excessive bail. At an earlier stage, this Court entered a temporary restraining order which alleviated some of the immediate problems; eventually, this order expired by its own terms, and has not been renewed.

 The plaintiffs in Goode presented evidence of ten specific instances of alleged violations, together with a mass of evidence, including expert testimony, dealing with the alleged inadequacies of existing complaint procedures; the defendants produced some countervailing evidence on both subjects. The COPPAR plaintiffs produced evidence relating to some 30 additional specific instances of alleged misconduct, and a limited amount of evidence challenging the complaint procedures; the defendants presented evidence to the contrary in most, if not all, of the instances alleged.

 The Court's findings of fact are set forth below. They reflect evaluations of credibility which give appropriate weight, on the one hand, to the anti-police bias of many of the complaining witnesses, and their emotional involvement in the incidents, and, on the other hand, to the natural reluctance of the accused officers to concede any misconduct on their part. Whenever the merits were substantially in doubt, the defendants were accorded the full benefit of the presumption that the police officers acted properly.


 A. General

 During the period covered by the evidence produced at the hearings in these cases, James H.J. Tate was Mayor of Philadelphia, and Frank L. Rizzo was Police Commissioner. Mr. Rizzo is now the Mayor.

 During the same period, Fred T. Corleto, was Managing Director of the City of Philadelphia; Hillel S. Levinson is now the Managing Director. Under § 5-100 of the Philadelphia Home Rule Charter, the Managing Director is charged with responsibility for supervising all activities of those departments the heads of which are appointed by him. Under § 3-206 of the Charter, the Managing Director, with the approval of the Mayor, appoints the Police Commissioner.

 The Police Commissioner, under Charter § 3-404, serves at the pleasure of the Managing Director. He has responsibility for supervision and control over activities of the Police Department. Charter § 5-200(b) provides that the Police Department "shall discipline the Philadelphia police."

 Defendant Robert G. Selfridge is Deputy Police Commissioner in charge of the uniformed forces of the Police Department. Defendant William Murphy is Chief of the Highway Patrol and exercises supervision and control over its members. The chain of command within the Highway Patrol is: captain, lieutenant, sergeant, and patrolman.

 During the period covered by the evidence, Anthony DeFazio was a police officer of the City of Philadelphia, having been appointed on December 28, 1965. He served as a member of the Highway Patrol. Shortly before the conclusion of the hearings in these cases, he was retired on disability, and is no longer an active policeman.

 John D'Amico is a Philadelphia police officer, a member of the Highway Patrol, having been appointed to the Department on June 26, 1967.

 B. Existing Complaint Procedures

 As a general practice, no record is made by the Police Department of any civilian complaints, unless submitted in writing. There are no forms available to citizens for filing such complaints. When a written complaint is filed, it is supposed to be recorded by the police on a "complaint and incident report" form (No. 75-48); but the general practice at the district level is not to record such complaints.

 When a complaint has been recorded, an investigation is made by Police Department inspectors assigned to Staff Inspection Headquarters. The investigation includes obtaining a statement of the complainant and the officers involved. The Police Department controls the investigation and does not assist the complaint in obtaining witnesses. The tendency is to minimize, and seek avoidance or withdrawal of complaints.

 Police officers accused of misconduct do not submit to interviews or give statements relating to the charges to anyone other than the police investigators.

 Police officers accused of misconduct never submit to polygraph tests. While there is no departmental regulation on the subject, the Fraternal Order of Police has a fixed policy of refusing to lend its support or provide counsel for any police officer who submits to a polygraph test, and this policy is well-known to the Police Department. In consequence, as above stated, police do not submit to such examination. Nevertheless, complainants against police officers are frequently requested to, and do, submit to polygraph examinations, unaware that the accused officer will not be so examined. No records are kept of the manner in which the polygraph test is administered; only a result is noted.

 When an officer is under investigation, his personnel file is usually examined. Commendations from the Commissioner and commendatory letters from citizens are always placed in an officer's personnel file. Letters of complaint are not. If an officer has been brought before a police board of inquiry, that fact is noted in his personnel file. If there are several such instances, some further investigation as to the basis for the previous board of inquiry contacts is usually made.

 The investigators prepare a report for the Police Commissioner. Previous incidents of alleged misconduct are not mentioned in the report, unless there are several of them and they have been investigated.

 The Commissioner decides, in his sole discretion, whether an officer should face trial before the Police Board of Inquiry for a violation of the Police Department Disciplinary Code. It is generally believed within the Department that the Commissioner refers cases to a board of inquiry for trial only if he is already convinced that the accused officer is guilty and should be disciplined.

 A board of inquiry consists of three police officers. The complaint is presented by a police "advocate" at a trial-type hearing. Upon a finding of guilty, penalties (reprimand, suspension or dismissal) are recommended to the Commissioner. The final decision with respect to imposition of penalties rests with the Commissioner. Dismissals are reviewable by the Philadelphia Civil Service Commission.

 Counsel for the complainant (other than the "police advocate") is not permitted to participate in the hearing before the Board of Inquiry. Accused police officers are represented by counsel.

 The entire departmental disciplinary procedure is directed primarily to violation of departmental rules and regulations, rather than to alleged violations of legal or constitutional rights of civilians.

 For the most part, a civilian complainant against a police officer is not informed of the final disposition of his complaint.

 C. Commission on Human Relations

 The Philadelphia Commission on Human Relations is an independent commission established by § 3-100(e) of the Philadelphia Home Rule Charter. Its powers and duties are to ". . . enforce all statutes and ordinances prohibiting discrimination against persons because of race, color, religion or national origin . . ." and to ". . . conduct educational programs to promote the equal rights and opportunities of all persons regardless of their race, color, religion or national origin" (Charter § 4-700).

 The Commission receives complaints from citizens alleging misconduct by the Philadelphia Police, but the Commission has no investigatory or enforcement powers with respect to such complaints.

 D. Police Advisory Board of Philadelphia

 The Police Advisory Board of Philadelphia was an agency established in 1958 by the then Mayor of Philadelphia, to hear complaints by citizens against Philadelphia police involving alleged violations of constitutional rights or other mistreatment. The Board then made recommendation to the Mayor in each case.

 In March of 1967, the Court of Common Pleas of Philadelphia enjoined the Board from further functioning, and the Board became inactive. The Supreme Court of Pennsylvania reversed the lower court decision in June of 1969. On December 22, 1969, the Board was dissolved by Mayor Tate. During the period of its operations, the Board had no investigative resources, and relied primarily on the investigations made by the Police Department. Because of uncertainty as to whether the Board had subpoena power, it never attempted to exercise such power.

 E. Criminal Prosecution of Police Through District Attorney's Office

 The District Attorney is responsible for the prosecution of all persons charged with crimes, as defined by local and state law, within the City of Philadelphia. The Community Rights Division of the District Attorney's office is responsible for prosecuting police officers charged with having committed crimes against citizens.

 Complaints received by the District Attorney's office are sent to the Police Department for investigation. A report is returned to the District Attorney, who then decides whether or not to prosecute.

 In many cases where a complaint is made against a police officer, criminal charges arising out of the same incident are pending against the complainant. The District Attorney also has responsibility for prosecuting the complainant. In many cases, the same Assistant District Attorney may be responsible for some aspects of both prosecutions.

 Prosecutions of police officers do not occur unless serious physical injury has been sustained by a citizen as a result of police action. Often, complaints against police are dropped in exchange for a dismissal of criminal charges against the complainant.

 The District Attorney's office does not ordinarily communicate to the claimants its decision not to prosecute the police officer.

 F. Goode Case

 The plaintiffs in this case are black citizens of Philadelphia who claim that their constitutional rights have been infringed by the conduct of Philadelphia police; they bring their action on behalf of themselves and all other citizens of Philadelphia whose constitutional rights have been or are likely to be thus infringed.

 I make the following findings of fact concerning the specific instances alleged:

 1. Roy Lee Shaw. On March 10, 1969, Roy Lee Shaw, a 16-year old black male, was arrested and charged with assault and battery on a police officer, resisting arrest and disorderly conduct.

 A crowd, mostly blacks, was attracted to the scene by the commotion. As the officers left, DeFazio made various racially derogatory remarks to the crowd.

 Shaw was transported to the headquarters of the 25th Police District, where he was again struck by police nightsticks. His mother attempted to visit him, but was not permitted to see him while he was at the district office.

 Eventually, Shaw was transported to Episcopal Hospital and received medical treatment. A cut on his head required four stitches. After receiving medical treatment, Shaw was taken back to the 25th Police District and held for approximately two more hours, whereupon he was released in the custody of his mother.

 On June 11, 1969, Shaw was initially adjudicated delinquent in Juvenile Court proceedings, but was released without probation. The next day, the disposition of the case was changed to "discharge as to offense."

 There was no basis for stopping Shaw in the first place, there was no probable cause to arrest him, and his arrest was illegal. He did not assault DeFazio, nor was he guilty of disorderly conduct; he merely made minimal efforts to defend himself and to protest the violation of his rights.

 Neither Shaw nor any member of his family made any complaint to the Police Department or any other City official concerning this matter. Shaw did bring the matter to the attention of Community Legal Services; a staff attorney of that organization wrote to the Community Relations Service of the United States Department of Justice describing the incident, but received no reply.

 2. Gerald G. Goode. On December 1, 1969, at about 11 o'clock p.m. or mid-night, Gerald G. Goode, a 25-year old black graduate student at the University of Pennsylvania, six feet one inch tall and weighing approximately 200 pounds, was a passenger in an automobile driven by Mrs. Ruth Rotko, a white woman, the wife of an Assistant District Attorney of Philadelphia. They were proceeding north on Broad Street. Mr. Goode was sitting in the right rear seat and was the only passenger.

 Near the intersection of Broad Street and Erie Avenue, while their car was stopped for a traffic light, Mr. Goode noticed police officers DeFazio and D'Amico frisking a black man nearby. Mr. Goode rolled down the car window and called to the officers that they had no right to do what they were doing, and that they should leave the man alone. At that time, the officers were approximately 25 feet away from the car, and within hearing range of Mr. Goode's remarks. Mr. Goode did not use profanity or make any personally derogatory remarks.

 Goode demanded to know why he was being subjected to this treatment, but received no reply. The officers attempted to place handcuffs on him, and he swung his arms in an attempt to avoid the handcuffs.

 As Goode was being pulled from the car and turned around, he stepped on the foot or bumped the leg of Officer D'Amico.

 After being frisked, Goode turned and again asked for an explanation for the police action, whereupon Officer DeFazio struck him across the cheek and mouth with a blackjack, cutting his lip. Angered by this treatment, Goode told the officers to "get your fucking hands off me".

 After handcuffing Mr. Goode and placing him in the police car, the officers returned to the Rotko car and asked Mrs. Rotko for her driver's license and registration card. Officer D'Amico searched the back seat and rear interior portion of the car. Both officers inquired of Mrs. Rotko as to the basis of her acquaintanceship with Mr. Goode. Mrs. Rotko was given a ticket for failing to have her driver's license in her possession, and there was some suggestion that they might arrest her too.

 In explanation of their arrest of Mr. Goode, Officer D'Amico stated "you can't use profanity with an officer."

 Mr. Goode was taken to a police station and detained in a cell for approximately two hours. He was then taken to Episcopal Hospital, where he received several stitches in his lip and a tetanus shot. He was then returned to the police station and, at approximately 5 a.m., was taken to the Police Administration Building at 8th and Race Streets, where he was fingerprinted and photographed. At approximately 9 a.m. the next day he was brought before a magistrate on charges of assault and battery on an officer, resisting arrest, and breach of the peace, and was released on nominal bail. On February 11, 1970, all charges against Mr. Goode were dismissed, upon the joint motion of the Commonwealth and Mr. Goode's attorney.

 The Police Department conducted an investigation into the conduct of D'Amico and DeFazio in this matter; the investigation was under the supervision of staff inspectors Ditmer and Fragassi.

 Statements were taken from the persons directly involved and from five witnesses, and a report summarizing the statements was compiled. The personnel records of the officers were checked. DeFazio's personnel record at that time showed one previous suspension and two appearances before the Police Board of Inquiry. No further check into the backgrounds of the officers was made, nor was DeFazio's prior record referred to in the report.

 The statements obtained by the investigating inspectors were essentially in accord with the facts set forth above. The statements of Officers D'Amico and DeFazio (neither of whom testified in the present case) asserted that Goode had used profanity in his initial comments to them and that he was unruly and boisterous after they stopped his car.

 The inspectors expressed the conclusion that Mr. Goode's initial comments to the officers constituted probable cause for his arrest; that only reasonable force was used; that the officers were not unduly rude to Mrs. Rotko; and that, in summary, there was no basis for disciplinary action against either officer.

 In finding that there was probable cause for the arrest of Mr. Goode, the inspectors adopted the interesting reasoning that Mr. Goode's initial comments must have created probable cause for his arrest, otherwise the officers would not have pursued the Rotko car so vigorously.

 On the basis of the undisputed and admitted facts, it is entirely clear that there was no probable cause for arresting Mr. Goode, and that the conduct of the police was in flagrant violation of the law and the Constitution.

 3. The Ballow Incident. On June 20, 1970, at approximately 7:45 p.m., Officers Frederick Moorse and John D'Amico observed a black male operating a motorcycle which did not have registration plates. The man refused to stop at their request, whereupon they gave chase in their police car. Eventually, the man fell off the motorcycle, and escaped on foot, the officers in pursuit.

 The officers concluded that the person sought had entered a house at 2337 N Howard Street. As the officers arrived at that address, a crowd of approximately 20 people, mostly black, gathered in the street.

 Juanita Ballow and one Carlos Edney resided at that address. Plaintiffs' testimony was to the effect that Officer D'Amico ran into the house, passed Miss Ballow, went up to the second floor, came back downstairs and then told Miss Ballow that he was chasing someone. The defense version was that the two officers stopped at the door of the house, where they were confronted by Miss Ballow and Mr. Edney. For present purposes, this discrepancy need not be resolved.

 It appears to be undisputed that, when Miss Ballow and Mr. Edney demanded to know what the police wanted, Officer D'Amico drew his service revolver and threatened to shoot Miss Ballow. Officer Moorse summoned assistance, and an additional police officer arrived. D'Amico broke the glass in the front door of the house with his nightstick, and the three officers entered the house. Mr. Edney was standing inside in the hallway, with a wrench in his hand. After a brief discussion with Officer D'Amico as to the officers' purpose, a scuffle ensued. When D'Amico again threatened to use his revolver, Edney escaped out the back door.

 The officers searched the upper floors of the house, but did not find the man they were originally looking for. The officers emerged from the front of the house, and Carlos Edney, who had come around from the back of the house, again asked what they were doing, and made a derogatory remark to D'Amico. D'Amico pushed Edney against a parked car and handcuffed him.

 As Carlos Edney was being handcuffed, his brother, Frederick Edney, arrived on the scene, ran up to D'Amico and asked him what Carlos was being arrested for. Allegedly because Frederick seemed to be reaching into his pocket as if to draw something from it, the officers physically restrained him and handcuffed him as well. Frederick Edney had no weapon or anything else in his pocket. Both of the Edneys were taken into custody. On July 31, 1970, Frederick Edney was convicted in Municipal Court on a charge of interfering with a police officer.

 4. Herbert Brown Incident. On December 1, 1969, at about 12:30 a.m., Herbert Brown and Wesley Joiner, two black men, were walking along Atlantic Street near its intersection with Old York Road. There were automobiles parked along Atlantic Street near where they were walking, and they were carrying a flashlight.

 Officers DeFazio and D'Amico, who were patrolling the area in an unmarked car, stopped the two men and pushed them up against a wall. Brown and Joiner were discovered to be carrying a pair of pliers and a screwdriver, as well as a flashlight. DeFazio stated to Brown, "Got you now, nigger," and accused him of attempting to steal a car battery. When Brown attempted to explain that his own disabled vehicle was parked about a block away, with two girlfriends in it; and that he was looking for a piece of wire with which to attempt to start his car, DeFazio struck him in the face with his hand.

 The two men were handcuffed, placed in the police car, and taken to the police station. Their request for permission to inform their waiting female companions, and to give them carfare so that they could get home, was denied. When Brown complained that his handcuffs were too tight, DeFazio again used racially derogatory terms and did not loosen the handcuffs until they arrived at the police station. Charges of attempted larceny against Brown and Joiner were ultimately dismissed, for lack of a prosecuting witness.

 Giving the police the benefit of the doubt, I shall assume for present purposes that the two men were, or reasonably appeared to be, attempting to steal a battery. But this would not, of course, justify the racial slurs, the rough treatment, or the disregard of the plight of their stranded female companions.

 5. Bernard Sisco Incident. On October 31, 1969, at about 9:30 p.m., police patrolling in the 16th District were notified by radio that a rape had occurred in the area of 37th and Wallace Streets. Shortly thereafter, approximately six officers arrived at the scene. The complaining witness stated that she had been raped by several males, and that she knew that one of them was blind and lived at 3620 Wallace Street, a short distance away.

 Bernard Sisco, a blind 20-year old black male, resided at the address stated. Officers DeFazio, Carroll and Brown proceeded to that address, and, without standing on ceremony, opened the door and entered the house, announcing simultaneously that they were police officers. Bernard Sisco opened the vestibule door from the inside and stood there, with an open knife in his hand. The police officers heard the victim of the rape, who had accompanied them, say something to the effect that Sisco was one of the rapists.

 The police ordered Sisco to drop his knife, and he did so, whereupon the police wrestled him to the floor. Lieutenant Taylor and Lieutenant McGaughrin came up onto the porch to help subdue Sisco. After a struggle, the officers succeeded in handcuffing Sisco, and pulled him out of his house and into the street. While they were awaiting the arrival of a patrol wagon, Sisco spit on Officer Carroll, whereupon Officer Carroll lost control of his temper, grabbed him by the collar, pushed him to the ground, and began beating him. A superior officer ordered Carroll to go back to his police car, and he did so.

 When the officers were placing Sisco in the patrol wagon, he stumbled, whereupon Officer DeFazio pushed him violently into the wagon.

 Sisco was taken to the West Detective Division Headquarters at 44th and Parkside, where he remained for approximately four hours. He had been at the Detective Division Headquarters for about two hours before his mother was permitted to see him for the first time. She brought him a clean set of clothing, and observed that he was bleeding from his nose and mouth.

 Thereafter, Sisco was taken to the Police Administration Building for processing. Photographs, taken some time between 2:25 a.m. and 4:45 a.m., on November 1, 1969, reveal no visible signs of physical injury to his head, nor do they conclusively rule out the presence of injury. The medical records of the Philadelphia Detention Center, where Sisco was held without bail pending preliminary hearing, do not reveal that he received any treatment. He was kept in the prison hospital solely because of his blindness, and not for any other reason.

 At a preliminary hearing on November 7, 1969, the rape charges were dismissed when the victim was unable to identify Sisco positively as one of her assailants. He was, however, held for court on charges of resisting arrest, assault and battery on an officer, and carrying a concealed deadly weapon.

 The evidence upon which the foregoing findings are based is sharply conflicting. According to Sisco, his sister, and his mother, Sisco never offered any resistance to the police, but was nevertheless severely and monstrously abused, both at the scene of the arrest, and while in police custody thereafter. If their testimony were accepted at face value, the police acted with utter barbarity. If the testimony of the police and the victim of the alleged rape were accepted as literally correct, Sisco was never struck at all by any of the police. Under this version, any physical mistreatment of Sisco was self-inflicted, by reason of his rolling around on the ground and otherwise struggling against the handcuffs.

 Given the fact that the police believed they were in "hot pursuit," and the admitted circumstances of their entry into the Sisco house and their initial observation of Sisco; and given the admitted fact that at least one officer became so angry that he had to be restrained by his superior officer, I have no doubt that Sisco was struck, and that the officers did not limit their use of force to the precise amount required to "subdue" a prisoner who was, after all, both blind and handcuffed, and who had earlier relinquished his weapon when ordered to do so.

 While I have concluded that the testimony of the complaining witnesses is undoubtedly exaggerated, I do not believe it is totally fictional. The exaggerations and embroidery sprang from a sincere and deeply held conviction that the conduct of the officers was totally unjustified.

 The evidence was sharply in conflict as to whether the victim of the crime identified Sisco as one of her assailants, before his arrest. I have accepted the defense testimony that she did. It must be conceded, however, that the extent of her opportunity to make such an identification before the initial scuffle is not altogether clear; and 10 days later she was unable to identify him at the preliminary hearing.

  6. Joseph Reas Incident. On the evening of May 2, 1969, Joseph Reas, a 16-year old white male, was attending a carnival at Father Judge High School. At approximately 10 p.m., he and three other boys entered the school playground near the carnival area, and saw a girl who was weeping and who had blood on her face. Police arrived at the scene and some of the boys started to run away. Reas did not run. However, he was struck twice on the head with a blackjack, fell to the ground, and was struck again on the back of the head. His head was cut open, and he lost consciousness as he was being placed in a police wagon.

  Officer DeFazio was one of several officers who arrested Reas and other teenagers on that occasion.

  Reas was taken to Nazareth Hospital, where he regained consciousness and received several stitches to close his head wound. He remained in the hospital for two days. He was initially charged with inciting to riot, but the charges were dropped while he was still in the hospital.

  The boy's mother could obtain no information from the hospital as to what had occurred. The next day she went to the 7th Police District Headquarters but no one there could give her any information as to the identity of the police officers ...

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