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April 20, 1977


The opinion of the court was delivered by: TROUTMAN




 The plaintiff, Barry Lee Hausman, is a citizen of the Commonwealth of Pennsylvania, residing at R.D. #1, Breinigsville, Pennsylvania. The defendants are Pennsylvania State Police officers engaged in law enforcement activities on behalf of the Commonwealth of Pennsylvania.

 Plaintiff seeks damages for personal injuries under and pursuant to the provisions of 42 U.S.C. § 1983 which provides as follows:

"§ 1983. Civil action for deprivation of rights
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

 Jurisdiction is vested in this Court under the provisions of 28 U.S.C. § 1331.



 Alleging a deprivation of his constitutional rights guaranteed under 42 U.S.C. § 1983, the plaintiff originally alleged (1) that he was arrested by the defendants without probable cause and (2) that excessive force was used in the making of the said arrest, said excessive force resulting in the injuries for which he seeks compensation and damages. In the course of the trial it clearly appeared that there was probable cause for the arrest, said cause of action was abandoned and the trial proceeded on the plaintiff's contention that excessive force was used and exerted by the defendants in arresting the plaintiff on the morning of May 24, 1975, at or about 12:30 A.M.

 It is well established that freedom from unreasonable interference by police officers is constitutionally guaranteed. Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970). Misconduct on the part of public police officers to the extent that it infringes on constitutionally-protected rights gives rise to a civil rights action for deprivation of rights under color of state law. Huggins v. White, 321 F. Supp. 732 (S.D. N.Y. 1970). If a police officer makes an arrest using excessive force, his action is sufficiently cloaked with official authority to satisfy the limitation of this section, and he may be held liable for civil damages to the person he arrested. Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F.2d 358 (D.C. Cir. 1971).

 Under 42 U.S.C. § 1983, a citizen has a right to recover damages from a police officer for an arrest that was effected through the use of excessive force.

 The courts have held that a police officer can make a lawful arrest which is accompanied by excessive force. Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972). If a police officer makes a lawful arrest but uses excessive force in making that arrest he may be held liable for damages under § 1983 of the Civil Rights Act. When a police officer uses force which far exceeds that which is reasonable and necessary under the circumstances to make the arrest and also violates standards of decency more or less universally accepted, that conduct clearly stands beyond the pale of that permitted and the officer may be liable for damages to his arrestee. Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972).

 When a police officer makes a lawful arrest but uses excessive force in making that arrest, the citizen has a right to resist that unlawful arrest and unlawful use of force. Basista v. Weir, 340 F.2d 74 (3d Cir. 1965). The courts have held that if a person receives a beating due to his resisting an unlawful arrest, the police are liable for damages to that person under § 1983. MacDonald v. Musick, 425 F.2d 373 (9th Cir. 1970). Also, if a police officer uses more force than is necessary to defend himself from someone he is arresting he is liable for damages to that person under § 1983. Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972). The courts have held that all that is required to impose liability under § 1983 is proof that defendant's acts were intentional. Howell v. Cataldi, supra. Therefore, it is noted that strict tort law liability is not controlling under actions brought under § 1983.

 Under Pennsylvania law, a peace officer is permitted to use force against one who resists an arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest. 18 P.S. § 508.

 In Jones v. Marshall, 528 F.2d 132, 142 (2nd Cir.1975), the Court stated that in interpreting § 1983, "the states must be given some leeway in the administration of their system of justice, at least insofar as determining the scope of such an unsettled rule as an arresting officer's privilege for the use of deadly force." In that case, the Court found no liability where a police officer, without firing a warning shot, fatally wounded an unarmed suspect fleeing a stolen car.

 Indeed, such leeway has been applied by the Court in Redding v. Medica, 411 F. Supp. 272 (W.D.Pa. 1976) wherein the Court found that no excessive force was used where plaintiffs attempted to resist arrest and the injuries resulted from the attempt to subdue them. In Redding, plaintiff Canon Redding struck defendant Medica and another officer with a sea bag. When the officers attempted to take plaintiff Canon Redding into custody, plaintiff Kenneth Redding interfered with the arrest and wrestled defendant Medica to the ground. Plaintiff Canon Redding then physically resisted arrest. Both plaintiffs were subsequently struck with blackjacks by defendants.

 Other courts have, as well, held that an officer may use a reasonable degree of force without incurring liability under § 1983. In Lamb v. Cartwright, 393 F. Supp. 1081 (E.D.Tex. 1975), the Court found no liability where the plaintiff never actually struck defendant. There, the plaintiff merely pulled away and made movements with his hands that the officer interpreted as threatening. The Court held that defendant's response in striking plaintiff with his fist and knocking him to the ground was reasonable under the circumstances and did not constitute use of excessive force. See also Jackson v. Wenzel, 282 F. Supp. 357 (E.D. Wisc. 1968); Thomas v. Young, 282 F. Supp. 52 (E.D.Wisc. 1968).

 Similarly, the Court in Conklin v. Barfield, 334 F. Supp. 475 (W.D. Mo. 1971) found there was no excessive force used by a police officer who struck plaintiff in the nose, knocking him to the ground when plaintiff merely attempted to strike defendant. There, the Court held that:

Conklin, 334 F. Supp. at 479.

 Guided by the body of law applicable to the issues here involved, we shall proceed to find the facts as determined by the evidence. That certain arrests were made at the time in question and that convictions as to certain of the charges may or may not have followed is irrelevant to our determination of the facts and of the crucial question involved, i.e., whether Officer Ralph D. Fiorenza used excessive force in arresting the plaintiff. *fn1"

 In reaching our findings and conclusions, we note the following very candid statement made by the exceptionally able counsel for the plaintiff:

"Distasteful as it may be for a Judge, who certainly by his very office represents law and order, to make a finding of fact that a State Policeman, who in our community also represents the image of law and order, told an untruth under oath, I would point out to the Court just as Judges in State and Federal Courts point out to juries, you should wipe from your mind any sympathy that you may have for the police officer and consider that as a man in Court he is entitled to no more or less credibility because of his badge than any other man who sits in the witness stand under oath."
See page 12 of plaintiff's Memorandum of Law.

 Aware of the admonishment of counsel, we proceed to our findings of fact:

 1. The plaintiff, Barry Lee Hausman, is an adult individual residing in Breinigsville, Lehigh County, Pennsylvania, together with his mother, father and sister.

 2. The said Hausman residence consists of the second floor of an apartment building across the street from the Breinigsville Hotel.

 3. At various times prior to 12:00 midnight on the evening of May 23, 1975, there were various noises erupting from the Breinigsville Hotel and the parking area of the hotel adjacent to the Hausman residence and side yard. In addition to the noises from within and without the bar, one Dale Gore was, at least on one ...

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