whole thing. The driver apparently kept asking the officer, "What did I do?" "What did I do?" Soon a police van came and Weiner was handcuffed and put into the van. In the meantime, a crowd had formed and seemed very puzzled as to what the whole matter was about. Schacter was not acquainted with any of the parties but was curious enough to go down to the police station where Weiner had been taken. He noted that Weiner was bleeding from the cheeks and that his glasses were broken. Schacter asked Weiner, at this point, what he had done and Weiner denied knowing what the whole thing was about. He testified that the officer was in a rage and called the driver some very vile names while holding him down awaiting the arrival of the police van. Weiner is described as being about five feet ten inches tall and weighing one hundred and thirty-five pounds. The Court observed that the officer was somewhat shorter in height but of a much more stocky build.
One of the passengers in the Weiner vehicle was Barbara Eichinger, twenty-one years of age, who had known Weiner for about five years. She stated that as far as she knew, Weiner was attending school. She described how they got off the Parkway at the Squirrel Hill exit and were attempting to make a Uturn when someone in the gas station, whom they did not recognize as a police officer, yelled at them. They continued on their way up the street and there is no evidence of unusual speed or of an attempt to get away from the scene. The next thing she observed was at the next intersection when the police officer came riding up on his motorcycle. She stated that the officer jumped off his motorcycle and pulled Weiner out of the car. The officer physically beat Weiner, who was on the ground, with his hands and fists right in the middle of the street, and when she last saw him he was bruised and bleeding.
The other passenger was Sheryl Sauer, who also testified that she heard a man yell "pull over" as they were making a U-turn, but there was no identification on him to indicate that he was a police officer and they thought it was simply someone who knew them. She testified that the officer grabbed Weiner by the hair and pulled him out of the car and onto the street. At that time Weiner said, "I didn't know you were a policeman" . . . . "Stop!" . . . "Stop!" Her testimony is that the police officer beat Weiner for a short period of time during which he was making no resistance of any kind.
Officer Marsteller claims that while Weiner was making a U-turn at Murray Avenue, he was standing on the curb and was struck on the shin by the rear bumper of Weiner's car. He ordered Weiner to stop and when the car took off, he immediately got on his motorcycle and started after it. He testified that as the Weiner vehicle approached the intersection of Phillips and Murray it attempted to pass between a building and a pole. When there was not sufficient space for the car to get through, it stopped. It was at this point that he came running up to Weiner. He admits pulling Weiner out of the car but denies striking him at any time. In the light of the very strong and consistent testimony of the many witnesses for the plaintiffs, the defendant's version of this incident is very difficult to believe.
Based upon the above discussion, the Court makes the following Conclusions of Law.
II. CONCLUSIONS OF LAW
1. Local law enforcement officials who act under color of state law and who use excessive force or who make illegal arrests are subject to the equity powers of this Court under 42 U.S.C. Section 1983. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); N.A.A.C.P. v. Thompson, 357 F.2d 831 (5th Cir. 1966); York v. Story, 324 F.2d 450 (9th Cir. 1963); Hairston v. Hutzler, D.C., 334 F. Supp. 251, affirmed, 468 F.2d 621 (3d Cir. 1972).
2. That the defendant, Richard Marsteller, acting under color of state law, has engaged in a course of illegal and unconstitutional conduct by using wrongful and excessive physical force on numerous occasions, disclosing a pattern of conduct that has violated the constitutional rights of users of the sidewalks and streets of the City of Pittsburgh.
3. The actions of the defendant, Richard Marsteller, were directed against users of the streets and sidewalks of the City of Pittsburgh in the course of their use of the streets and sidewalks of the City of Pittsburgh.
4. The deprivation of the constitutional rights of the plaintiffs and other users of the streets and sidewalks of the City of Pittsburgh constitutes irreparable harm for which they are entitled to equitable relief. Lewis v. Kugler, supra; Lankford v. Gelston, supra; Schnell v. The City of Chicago, supra; Gomez v. Layton, 129 U.S.App.D.C. 289, 394 F.2d 764 (1968).
5. Injunctive relief is essential to prevent the defendant from continuing to deprive the plaintiffs and other users of the streets and sidewalks of the City of Pittsburgh of their constitutional rights.
6. Plaintiffs do not have an adequate remedy at law.
7. This is a valid class action under the provisions of Rule 23(b)(2) and (3).
8. Taking into account the fact that deprivations of constitutional rights must be stopped promptly but that unnecessary encroachment upon state and local government functions must be avoided ( Lewis v. Kugler, supra), it is necessary that injunctive relief be granted to the plaintiffs. This action is required to insure that the rights of the plaintiffs, which are subject to constitutional protection, will not be violated by the defendant in the future. Monroe v. Pape, supra; Hairston v. Hutzler, supra; Gomez v. Wilson, 323 F. Supp. 87, (D.D.C.1971).
9. In civil rights matters under Section 1983, unappealed state convictions do not constitute collateral estoppel preventing the plaintiff from attacking the constitutional questions in the federal courts. Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970) cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970); Ney v. State of California, 439 F.2d 1285 (9th Cir. 1971); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); Moran v. Mitchell, 354 F. Supp. 86 (E.D.Va.1973).
10. It is clear with respect to the testimony as adduced in this case, that the unconstitutional conduct of the defendant, in violating the constitutional rights of the users of the streets and sidewalks of the City of Pittsburgh, may recur.
11. On the basis of the evidence as presented in this case which shows a continued course of conduct on the part of the defendant, which course of conduct violated the constitutional rights of the plaintiffs and others using the streets and sidewalks of the City of Pittsburgh, it is the conclusion of this Court that a preliminary injunction must issue enjoining the defendant officer from:
(a) Stopping, arresting or imprisoning plaintiffs or other users of the streets and sidewalks of the City of Pittsburgh without adequate cause while they are conducting themselves in a lawful and proper manner;
(b) Physically manhandling or otherwise mistreating, users of the streets and sidewalks of the City of Pittsburgh while they are conducting themselves in a lawful and proper manner;
(c) Using wrongful or excessive force while bringing about lawful arrests, subduing, or otherwise handling the users of the streets and sidewalks of the City of Pittsburgh;
(d) Intimidating users of the streets and sidewalks of the City of Pittsburgh and violating their constitutional rights of assembly, association and rights of equal protection; and
(e) Seizing or otherwise manhandling residents and users of the City of Pittsburgh in violation of their Fifth Amendment rights not to be deprived of liberty without due process of law.
An appropriate order will be issued.