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September 20, 1973

Cyril H. WECHT et al.,
Richard MARSTELLER et al.

Snyder, District Judge.

The opinion of the court was delivered by: SNYDER

SNYDER, District Judge.

 The named individuals brought an action for injunctive relief under the Civil Rights Act, 42 U.S.C. Section 1983, on behalf of themselves and on behalf of all persons who now, have in the past, or will in the future, travel upon the public roads, sidewalks and highways of the City of Pittsburgh, to enjoin Richard Marsteller, *fn1" an employed full-time Police Officer of the Traffic Division of the Police Department of the City of Pittsburgh, from continuing alleged deprivations, occurring under color of state law, of rights, privileges and immunities guaranteed by the Fourth, Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States.

 At the hearing, the plaintiffs *fn2" produced substantial testimony relating to numerous incidents in which the defendant police officer was involved.

 The Court's Findings of Fact are set forth below. The record in this case establishes that the particular officer involved has been guilty of such violations and with such frequency that they cannot be dismissed as simply isolated instances of intemperance; nor is it apparent that there is any existing remedy which has been adequate to protect the public interests involved; suits for damages are not successful, as well as being expensive, and do not seem to have preventative effect. While one must have respect and admiration for the performance of numerous police officers, this does not blunt the sensitivity of the Court in those particular instances, such as in this case, where there is a pattern of violation of those rights which the Constitution has so carefully preserved.

 We have given very careful evaluation to the particular interests and emotional involvement of the witnesses, and we have given full benefit of the presumption that police officers act properly. We make the following Findings of Fact.



 On October 7, 1972, Cyril H. Wecht with his three boys, together with a neighbor, Vigdor Kavaler, and his boys, attended the Pittsburgh Pirates-Cincinatti Reds baseball game at Three Rivers Stadium on Pittsburgh's North Side. By prearranged plans Wecht was to be picked up after the game directly opposite Gate D of the Stadium on Allegheny Avenue, where he had been picked up before. Upon coming out from the game and waiting for a period of time, Wecht observed that no cars were coming down Allegheny Avenue. He then proceeded to the intersection of Allegheny Avenue and Northshore Drive where he discovered there was a Pittsburgh Police Cruiser and Motorcycle parked in such fashion as to block traffic coming from Northshore Drive onto Allegheny Avenue in the direction that Wecht would expect his vehicle to have been approaching. At the far end of the cruiser was the defendant police officer, Richard Marsteller, who was then engaged in blocking vehicles going into Allegheny Avenue in accordance with directions given to him by his superiors.

 While there is some dispute in the testimony at this point, it is apparent that when Wecht came within about fifteen feet of the police officer they became involved in a discussion as to the necessity of blocking off that particular street. When Wecht asked the officer how anyone could get into Allegheny Avenue to pick up persons waiting for rides, the officer's answer was given in a rather rude and exasperated manner. The discussion became more heated and the officer finally said that if Wecht did not get out of the area he would be arrested. This irritated Wecht sufficiently that, perhaps not in the best of judgment but still clearly within his rights, he insisted upon staying at the corner to wait for his ride. Again he was warned that if he did not get out of the area he would be arrested and, at this point, when Wecht refused to leave, the officer placed him under physical arrest by grabbing him on the left arm and then grabbing him in such a way that he held the plaintiff's sport jacket and twisted it so as to compress the plaintiff's neck. Marsteller then dragged Wecht to the police cruiser and pushed him up against the rear of the vehicle causing Wecht to take protective action not to strike his face against the cruiser. Without releasing the plaintiff's shirt and neck, the officer continued to press Wecht to move over to the motorcycle where a call was made over the police radio and a police van soon arrived.

 At no time during the incident, while the plaintiff may have raised his voice, did he offer resistance of any kind to the defendant or threaten any type of physical bodily injury or in any way interfere with the police officer's performance of his duty, or obstruct the police officer in any manner. After the van arrived, Wecht was ordered into the van and driven to No. 9 Police Precinct, where he was required to fill out certain forms. He was then taken to the Pittsburgh Public Safety Building where he was placed in a cell and caused to remain there for approximately two hours.

 Officer Marsteller admitted that he had ordered Wecht out of the area because he maintained that Wecht was interfering with his function as a Traffic Policeman at that time. Assuming all of this to be true, there is no explanation by the officer as to the necessity for the use of physical force at the time of the arrest, nor was there any substantiating testimony for the requirement for the use of any such force.

 Henry Novak, a parking attendant, witnessed most of the confrontation between Wecht and Marsteller and while he substantiated the officer's testimony with respect to the fact that undoubtedly the discussion was an annoyance in the officer's performance of duty, he also testified that Wecht never became boisterous or loud which would have indicated any necessity for the use of force in making the arrest.

 Officer Alfred Kutschbach, who was also involved in the Wecht Incident by reason of the fact that he came to the assistance of Officer Marsteller, said that Wecht at one point put his hands on his (Kutschbach's) lapels but when he told Wecht to put his hands down he immediately dropped his hands. There was nothing in Kutschbach's testimony to indicate the necessity for the use ...

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