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FARBER v. RIZZO

June 22, 1973

Steven FARBER et al.
v.
Frank L. RIZZO, Individually and as Mayor of the City of Philadelphia et al.


Huyett, District Judge.


The opinion of the court was delivered by: HUYETT

Huyett, District Judge.

 President Richard M. Nixon came to Philadelphia on October 20, 1972 to utilize Independence Hall as a symbolic backdrop for the signing of the Revenue Sharing Act. He chose this site, the building in which the Constitution of the United States was drafted, to emphasize the significance of this bill to the concept of federalism established by the Constitution. Others came to Independence Mall, directly across from Independence Hall, to demonstrate to the President their deep disagreement with this nation's policies in Southeast Asia and the continued war there. Persons were arrested that day while peacefully demonstrating with anti-war signs in an area open to the public, while others were prevented from entering Independence Mall because they had such signs. These actions transgressed the spirit of the Declaration of Independence and the letter of the Bill of Rights, which documents are also closely associated with the buildings on Independence Square.

 Plaintiffs filed a Complaint and a Motion for a Temporary Restraining Order (TRO) on the morning of October 20, 1972. The Complaint asserted that they and others had been forcibly prevented by defendants from displaying signs, posters and leaflets opposing the President's policies in Independence Mall (Mall), an area to the north and directly across from Independence Hall (Hall) which was open to the public. The Court, after meeting with counsel for plaintiffs and an Assistant City Solicitor, issued a TRO at 12:40 P.M. which forbade interference with the peaceful exercise of First Amendment rights in areas open to the public near Independence Hall. *fn1" On October 27, 1972, plaintiffs filed a Petition for Civil Contempt claiming numerous violations of the TRO by the defendants. Several days of hearings were held on this petition.

 FACTS *fn2"

 At approximately 9 P.M. on October 19, 1972, about fifty persons congregated in front of Independence Hall on the south side of Chestnut Street between Fifth and Sixth Streets. They were there to take part in an all-night vigil to protest the continued presence of the United States in Southeast Asia. The impetus for this protest was President Nixon's scheduled visit to Independence Hall the next day. The protestors originally intended to remain in that place through the night and until the President arrived. At about midnight, however, at the request of defendant Lt. George Fencl, commanding officer of the Civil Disobedience Squad, they moved across to the north side of Chestnut Street. The south side of Chestnut Street was then made a "security area" barred to the general public. There was no indication then, or later, that the north side of Chestnut Street was a "security area". The protestors, many of whom had anti-war and anti-Nixon placards, spent the rest of the night in a peaceful manner.

  On the morning of October 20, at approximately 7 A.M., Lt. Fencl ordered the persons with signs on the north side of Chestnut Street to leave that area. He indicated that that area would be closed to persons with signs or leaflets and that anyone desiring to demonstrate in that manner would have to go to an area at Fifth and Market Streets, a block away. They were told, however, that if they relinquished their signs and leaflets they could remain where they were. About fifteen minutes later sixteen persons, all of whom are plaintiffs in this case, *fn3" were arrested by police at the direction of Lt. Fencl. At this time they were peacefully carrying signs and standing on the sidewalk on the north side of Chestnut Street. They were not interfering with either vehicular or pedestrian traffic. Plaintiff Steven Farber, Esquire, who had just arrived at the scene to serve as a legal adviser, picked up a sign dropped by one of the persons arrested. He was arrested when he refused to put down the sign or get out of the area. These persons were all taken to the Police Administration Building where they were fingerprinted and placed in the cell room. No charges were placed against them at that time or later. Anyone who relinquished his sign was permitted to remain in the area.

 At approximately 9 A.M. Louis Natali, Esquire, who was representing those persons arrested at 7:15 A.M., engaged in a discussion concerning the persons arrested with Commissioner Joseph O'Neill, Philadelphia Police Commissioner, and Lt. Fencl. Commissioner O'Neill said that persons with signs were limited to the area designated for signs and that those in the area directly across from Independence Hall would be arrested. An agreement was then reached so that those arrested at 7:15 A.M. would be permitted to return to the south side of Independence Mall provided they agreed not to carry signs. Mr. Natali went to the Police Administration Building to relay this proposition to those held in custody. Only plaintiff Farber accepted this offer and he was immediately released. The others refused the conditional release.

 Mr. Natali arrived back at the Independence Hall area at approximately 10:30 A.M. and informed Commissioner O'Neill of the results of his discussion. Immediately thereafter the police, at the direction of Commissioner O'Neill and in the presence of Lt. Fencl, arrested sixteen persons, all plaintiffs in this case, *fn4" who were peacefully standing behind police barricades in an area open to the public. They were all carrying signs against the war or against the re-election of President Nixon. These persons were told that they could remain if they gave up their signs or they could carry them on Market Street. When they refused they were all taken to the Police Administration Building where they were held. They were not informed of any charges against them.

 In regard to the arrests on the morning of October 20, 1972, Lt. Fencl had received information from unidentified sources concerning possible "confrontation" or other actions of disruption by the demonstrators. The informants, however, did not name or describe the persons who would engage in these acts. Lt. Fencl did not learn or attempt to learn what was meant by "confrontation". There was no reason to believe that signs were a part of any plan for illegal activities.

 At 11:00 A.M. the Complaint and Motion for a Temporary Restraining Order were filed in this Court on behalf of the persons arrested at 7:15 A.M. This Court held an informal hearing in chambers at which Mr. Farber and Mr. Natali described the arrests and the terms of the conditional release offer. Murray Goldman, Esquire, Assistant City Solicitor, representing the defendants, expressed the opinion, based on discussions with Lt. Fencl, that these persons were arrested for being in a walkway which was to be used by visiting dignitaries and was not open to the public. At 12:40 P.M. we issued a TRO, a copy of which was immediately handed to Mr. Goldman.

 A request to order the persons arrested to be released was refused. After the TRO was issued Mr. Natali called Lt. Margolis of the Philadelphia Police Department and informed him of the order's contents. He told Lt. Margolis that the persons arrested that morning at Independence Hall should be released. Lt. Margolis refused to release them on the ground that he was awaiting orders from superiors.

 Plaintiff Gary Thomas, a member of Vietnam Veterans Against the War, went to Independence Mall at about 1:00 P.M. with a certified copy of the Court's TRO and a banner of his organization. He had been ordered to leave the Mall that morning because he had the banner under his jacket. At 1:00 P.M. he was refused entry to the Mall even after he read the Court's order to the officers on duty. Thomas identified the officers as Lt. Rich and Officers Hughes, Wimberly, Jones, O'Donnell, and unidentified officers with badge numbers 4288 and 8552. Thomas' companion, Patrick Rogers, was arrested as he attempted to enter the Mall after he returned the banner to Thomas.

 Plaintiff Farber arrived at the Mall at 12:50 P.M. and observed that police were still refusing entry to the Mall of persons with signs even though he informed numerous police officers of the existence of the TRO. When he was not permitted to see Lt. Fencl he returned to the courthouse where he obtained certified copies of the order. Farber then returned to the Mall where he handed copies to Captain Lindsey and Lt. Rich of the Philadelphia Police Department, who were near the corner of Sixth and Chestnut Streets. These officers then conferred with Mr. Goldman who told them that ...


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