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RESIDENT ADVISORY BD. v. RIZZO

April 1, 1980

RESIDENT ADVISORY BOARD et al.
v.
Frank L. RIZZO et al.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

In considering plaintiffs' motion to enjoin this most recent attempt to interfere with the construction of the Whitman Park townhouses as ordered by this Court, it is necessary once again to review the history of this protracted litigation. Having found that the actions of municipal and federal defendants in terminating the construction of the townhouses amounted to statutory violations, and in the case of the City of Philadelphia and then-Mayor Rizzo, Constitutional violations, this Court on November 5, 1976 entered an injunctive order, which provided in part:

 
(1) The defendants, Philadelphia Housing Authority, Redevelopment Authority for the City of Philadelphia, City of Philadelphia, Department of Housing and Urban Development, their officers, agents, and employees shall immediately take all necessary steps for the construction of the Whitman Park Townhouse Project as planned.
 
(4) All parties to this litigation are enjoined from taking any action which will interfere in any manner with the construction of the Whitman Park Townhouse Project. (E.D.Va.1976) 425 F. Supp. at 1029.

 The judgment of this Court was affirmed by the Third Circuit, with one exception. Since this Court had found no statutory or Constitutional violations on the part of defendants-intervenors, the Whitman Area Improvement Council and its successor the Whitman Council, Inc., Alice Moore, Fred Druding, and all members of Whitman Area Improvement Council, and the Whitman Council, Inc., and its Officers, Agents, Servants, Representatives and Employers, and all other persons acting in concert with them or otherwise participating in their aid (hereinafter the Whitman Council n*), the Third Circuit reversed that part of this Court's Order which enjoined the Whitman Council from interfering in any manner with the construction of the townhouses. 564 F.2d at 152. The Third Circuit stated, however, that this Court might modify its Order in the event that the Whitman Council, at some time in the future, interfered with construction of the townhouses. Id. We have now reached that time; the Whitman Council's recent threats and attempts to interfere with construction of the townhouses require this Court to enter an Order enjoining the Whitman Council and all other persons acting in concert with them from interfering with the construction of the townhouses.

 Upon the motion of the Resident Advisory Board plaintiffs, this Court on March 14, 1980 entered a temporary restraining order, to be effective on March 17, 1980, which barred the Whitman Council from interfering with the construction of the townhouses, which was scheduled to begin on March 18, 1980. The Court ordered a hearing on March 19, 1980 in connection with the motion for preliminary and permanent injunction. Specifically, the temporary restraining order barred the Whitman Council and those acting in concert with them from engaging in activities which would interfere in any way with the construction of the townhouses as ordered by this Court. In addition, the temporary restraining order, in recognition of defendants-intervenors' First Amendment rights to express their opposition to the construction of the townhouses, set forth a detailed plan for picketing and demonstrating, which barred all "picketing, demonstrations, rallies, protests or similar assemblies" within an area bounded by Delaware Avenue, Johnston Street, Third Street, and Ritner Street, except that picketing, demonstrations, etc. are permitted in a parking lot area adjacent to the site, and one informational picket is permitted at each of the ten gates in the fence surrounding the construction site.

 On March 19, 20 and 21, this Court held hearings on plaintiffs' motion for a preliminary and permanent injunction. At the hearing, the Court granted the motion of A&R Development, Inc., the project developer, and Jolly Construction Co., the general contractor, to intervene as parties plaintiff. The intervenors, along with HUD, joined plaintiffs' motion for preliminary and permanent injunction. Plaintiffs and plaintiffs-intervenors seek an injunction similar to the temporary restraining order entered by this Court, except that they request that informational pickets not be permitted. The Whitman Council argues that the temporary restraining order should be lifted, and no injunction should be entered. For the reasons hereinafter set forth, the Court will enter an injunction similar in form to the temporary restraining order.

 Plaintiffs and intervenors, in seeking injunctive relief, appear to suggest that the applicable standards are: (1) likelihood of success on the merits; (2) likelihood of irreparable harm; (3) possibility of harm to other interested persons; and (4) the public interest. Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978).

 The Court has no difficulty in finding that all four of these criteria have been satisfied. Likelihood of success on the merits has long since been decided by this Court's Order to construct the townhouses, which has twice been affirmed by the Third Circuit, and as to which certiorari has twice been denied by the United States Supreme Court. See RAB v. Rizzo, 425 F. Supp. 987 (E.D.Pa.1976), aff'd in part, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S. Ct. 1457, 55 L. Ed. 2d 499 (1978); Sworob v. Harris, 451 F. Supp. 96 (E.D.Pa.1978), aff'd, 578 F.2d 1376, cert. denied, 439 U.S. 1089, 99 S. Ct. 871, 59 L. Ed. 2d 55 (1979). As to irreparable harm, this Court, when it ordered the construction of the townhouses, determined that the plaintiffs would be irreparably injured by the defendants' failure to build the houses. Any further delay in construction further prolongs and exacerbates that injury. 429 F. Supp. at 226. We have also previously determined that the public interest will be best served by the "building of 120 townhouses on a vacant site in a city which is in dire need of decent housing for low-income families." 429 F. Supp. at 226. As to the final criterion, the possibility of harm to other interested persons, we fail to see how the construction of the townhouses as planned will bring harm to anyone in a city where there is an urgent need for housing. 429 F. Supp. at 226. In the context of possible harm to other interested persons which may result from the particular injunctive relief requested at this time, the Whitman Council raises First Amendment issues. As we discuss in detail below, the injunction which we will enter permits the Whitman Council to express their views to the full extent required by the First Amendment.

 While these four criteria for a preliminary injunction are satisfied, we are not faced here with a conventional motion for a preliminary injunction seeking to preserve the status quo pending final decision on the merits. Here, preservation of the status quo means enforcement of this Court's Order for construction of the townhouses. Now that construction of the townhouses has commenced, we are faced with the situation discussed by the Third Circuit-the Whitman Council's interference with construction. The record before the Court clearly demonstrates that additional injunctive relief is now necessary to permit construction of the townhouses to proceed peacefully and safely.

 The Court finds the testimony of Adam Bantner, Jolly Company's superintendent assigned to the Whitman site, to be credible. Bantner arrived at the construction site on the morning of January 4, 1980 to inspect the site and make preliminary plans for the placement of construction trailers and equipment. When Bantner attempted to leave the site his pick-up truck's exit was impeded by a vehicle driven by a local resident, which had pulled in front of him. He was approached first by two or three people and soon after by a total of six or eight Whitman residents. (Tr. 1-43, 44). After he had identified himself in response to their questioning, he was told by a Whitman resident that he was lucky "the men wasn't home because I would have been beaten up by that time." (Tr. 1-45). Bantner was told the development "would never be built" and that "if I put a trailer (on the site) they would have blowed it up." (Tr. 1-46).

 Bantner then accompanied the Whitman residents into the home of Patricia Egger, on Porter Street, across from the Whitman site. Whitman residents in the house related the past history of continual harassment of the prior builder who was eventually driven off by local residents and who then went bankrupt, according to those addressing Bantner. (Tr. 1-49). "They told me (Bantner) they'd do the same thing to (Jolly Co.)." (Id.) Bantner was shown photos and newspaper reports of the demonstration in 1971 and told that the demonstrations forced a shut-down of construction and the withdrawal of the builder. He was also told that local residents would do the same thing to him and his company. (Tr. 1-49).

 While in the Porter Street house, Bantner was called to the telephone to speak to Fred Druding, the Whitman Council President, who told him that there would be bloodshed if Bantner's company built the development. (Tr. 1-50). He was told by Druding, "if you don't want to see bloodshed, you better stop (Jolly Co. personnel)" from coming to Philadelphia that day. (Tr. 1-51).

 All those in the Porter Street house said that they would stop the job. (Tr. 1-51). According to Bantner, they said that they could not control their young people; he was warned, "don't ever let my life depend on the Philadelphia police to stop them because they wouldn't." (Tr. 1-51, 52). Bantner was told also that human bodies would be placed under the wheels of the trucks and that residents would get on top of trucks and form human rings around the site. (Tr. 1-73). Local residents in the Porter Street house also made reference to bombs. (Tr. 1-51).

 While Bantner was in the house, Whitman residents screamed at him and shook their fingers in his face. He had never seen such hostility, and he felt so threatened that he wanted to get out of town quickly, forget the construction business and never come back to work. (Tr. 1-54, 55, 56).

 At the site on January 4th, Bantner asked a Whitman resident if he ever hurt anybody and was told, "No. Not yet." (Tr. 1-67). He was asked, "Have you ever been hit by a woman?" (Tr. 1-67). He was told, "You will." (Id.) He was also told that anything on the job will be blown up. When Bantner countered, "you wouldn't kill anybody, would you?", the answer was "Don't try us." Bantner said, "That's murder." Residents said, "don't try us." (Tr. 1-67).

 After a second phone call with Fred Druding at the Porter Street house, Bantner, feeling considerably unsettled and in great fear, told residents that he was leaving the worksite and returning to Baltimore, and advising his company to do the same. (Tr. 1-138, 142). Bantner's employer, Jolly Company's Vice-President Victor Hencken, confirmed that Bantner called him from the Porter Street house in an incoherent fashion, telling him not to come up to Philadelphia. (Tr. 1-190). Later, in a second phone conversation with Hencken, according to the latter, Bantner sounded "extremely shaken," and relayed the foregoing to him. (Tr. 1-191).

 Bantner was also told to convey the threats to his wife, and someone did call his wife on January 4, 1980 to tell her of the threats made to him. (Tr. 1-154). After the January 4, 1980 confrontation, his wife called Mrs. Patricia Egger, in whose home Bantner was questioned, and sarcastically thanked her "for (sending) her husband home safely" and "for him losing his job." (Tr. 2.6).

 On March 18, 1980, the first day of construction when the temporary restraining order was in effect, enjoining interference and threats against the builder, additional threats were made to Bantner at the site. He was asked if he had driven to the site, and if he had driven a car they were "going to burn it." (Tr. 1-57). He was told that the site "will be empty for another 10 years (b)ut you'll never be around to see it." (Tr. 1-57). The latter was said by a person standing on the property site. (Tr. 1-167).

 That Whitman residents intend to stop construction, and use any means toward that end, was confirmed by the testimony of Gertrude Hogan. Mrs. Hogan, who lives in a home adjoining the construction site, testified that, if there were no injunction, she would engage in activities similar to those in 1971 when Whitman residents halted construction of the townhouses. As the Court found in 1976 after the trial:

 
At 7:30 a.m. on March 23, 1971, approximately thirty women entered the Whitman site and gathered around a bulldozer and backhoe, blocking the operations of the contractor and refusing to leave the area when requested to do so.... On that same day, demonstrators at the Whitman site blocked a truck attempting to make a delivery to the Whitman Park Townhouse Project.... Again, on March 25, 1971, demonstrators refused to permit a bulldozer to be operated on the Whitman site. 425 F. Supp. at 998 (citations and footnotes omitted).
 
The opposition to the Whitman project took the form of mass demonstrations at the project site led by WAIC. Frequently, demonstrators would surround a piece of construction equipment and prevent the workmen from operating the equipment. Demonstrators also prevented trucks from making deliveries to the area.... Some of the demonstrators engaged in name calling, obscenities, threats, and the use of racial slurs. Other demonstrators stated that they did not want their neighborhood exposed to the type of people who would move into the proposed public housing. A few demonstrators expressed their opposition to the Whitman Park Townhouse Project on the basis that it would bring Blacks into the neighborhood and destroy the racial homogeneity of the area.... The residents and members of WAIC who opposed the Whitman Park Townhouse Project publicly stated their opposition thereto on the basis that public housing projects are unsafe, unsanitary, lead to increased crime or that the proposed residents of the Whitman project were going to receive something for nothing, which members of WAIC were unable to receive because of their higher incomes. Id. at 1006 (citations and footnotes omitted).

 In any event, whatever the motivation for the opposition, there is no doubt that the Whitman residents are determined to interfere with the construction. (Tr. 1-272; 1-292, 293; 2.74; 2.115; 2.150, 151).

 On the basis of this record, we find that members of the Whitman Council and persons acting in concert with them have interfered with construction and intend to continue to interfere with construction by threats, physical violence, intimidation, and coercion directed toward those engaged in construction, and by using similar means to prevent the delivery of equipment and construction materials to the site. The evidence presented at the hearing of March 19-21, 1980 is in itself sufficient to support these findings. The Court has, nonetheless, considered the prior record in this case, showing similar and related offenses committed in the past as evidence of a pattern of conduct relevant to the issue before this Court. As Mr. Justice Brennan has written in Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. 189, 205, 208-209, 93 S. Ct. 2686, 2695, 2697, 37 L. Ed. 2d 548 (1973):

 
This is merely an application of the well-settled evidentiary principle that "the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent." 2 J. Wigmore, Evidence 200 (3d ed. 1940). "Evidence that similar and related offenses were committed ... tend(s) to show a consistent pattern of conduct highly relevant to the issue of intent." Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S. Ct. 766, 769, 93 L. Ed. 919 (1949). Similarly, a finding of illicit intent as to a meaningful portion of the item under consideration has substantial probative value on the question of illicit intent as to the remainder. See, for example, the cases cited in 2 Wigmore, supra, at 301-302. And "(t)he foregoing principles are equally as applicable to civil cases as to criminal cases ..." Id., at 300. See also C. McCormick, Evidence 329 (1954).

 We have found an injunction to be required by the Whitman Council's demonstrated interference with the construction of the townhouses as ordered by this Court. A court has broad equitable powers to order an effective remedy and to ensure its implementation. Hills v. Gautreaux, 425 U.S. 284, 293-94, 96 S. Ct. 1538, 1544, 47 L. Ed. 2d 792 (1976); Swann v. Charlotte-Mecklenburg Board of Ed., 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). Furthermore, a court has inherent powers to protect and effectuate its prior judgment. Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958); Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955); United States v. State of Washington, 459 F. Supp. 1020, 1115 (D.Wash.1978). An injunction seeks not only to eliminate past wrongdoing, but also to prevent its recurrence. United States v. W. T. Grant Co., 345 U.S. 629, 632-33, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953); Swift & Co. v. United States, 276 U.S. 311, 326, 48 S. Ct. 311, 314, 72 L. Ed. 587 (1928); Seibert v. Sperry Rand Corp., 586 F.2d 949, 951 (2d Cir. 1978). Finally, neither private persons nor government officials can nullify this Court's ruling that the Constitutional violations found herein require the construction of the townhouses as planned. Cooper v. Aaron, supra, 358 U.S. at 17-18, 78 S. Ct. at 1409; see also RAB v. Rizzo, 463 F. Supp. at 700.

 The Whitman Council argues that an injunction similar to the temporary restraining order unjustifiably limits their First Amendment rights. Most of the actions enjoined, e.g. harming persons or property and interfering with deliveries, have no First Amendment implications. Concerns relating to freedom of expression arise only in connection with that portion of the injunction which bars picketing and demonstrations in a defined area surrounding the construction site with two exceptions: (1) demonstrations are permitted in a parking lot area adjacent to the site; and (2) one informational picket is permitted to stand beside each of the ten gates in the fence surrounding the site.

 It has long been recognized that the First Amendment permits reasonable regulation of the time, place and manner of picketing or other forms of expression in order to further significant governmental interests. Cox v. New Hampshire, 312 U.S. 569, 575-76, 61 S. Ct. 762, 765, 85 L. Ed. 1049 (1941). The Supreme Court has consistently upheld reasonable "time, place and manner" restrictions. Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (ban on wilful making, on grounds adjacent to a school, of any noise which disturbs the good order of the school session); Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966) (ban on demonstrations in vicinity of jail); Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949) (limitation on the use of sound trucks).

 Limitations on the areas in which the Whitman Council may demonstrate and picket is a reasonable "place and manner" restriction in furtherance of an important governmental objective-decent housing for low and moderate income families, which has heretofore been denied them in violation of the Constitution and laws of the United States. As we have pointed out, such restrictions are necessary to permit construction to proceed peacefully. At the same time, the injunction permits ample opportunity for the Whitman Council and its members to express their views. An informational picket may stand to the side of each of the ten gates and speak for sixty seconds to anyone entering the gate. Furthermore, an unlimited number of pickets or demonstrators are permitted to congregate in the large parking lot area adjacent to the site. Anyone demonstrating on this parking lot would be fully visible and audible to persons on the construction site. (Tr. 2.124-125).

 This Court on March 17, 1978 issued a Memorandum embodying the agreement of the parties, which provided in part: "The City of Philadelphia shall provide such police protection as is needed to insure the completion of the 120 townhouses." Chief Inspector George Fencl, supervisor of the Civil Affairs Unit of the Philadelphia Police Department, testified as to the necessity for such restrictions on picketing and demonstrations in light of the responsibility of the police to provide protection and prevent violence. Fencl testified that he had considered "what an appropriate plan would be for the discharge of the obligations of the City of Philadelphia to provide security for the Whitman Park Project." (Tr. 3.9). In doing so, he consulted with the Police Commissioner and Deputy Commissioner, the United States Marshal and his Deputy, and members of the City Solicitor's staff. (Id.) Fencl considered it necessary to limit picketing and demonstrating in order to assure tranquility in the Whitman area and to enable construction to proceed peacefully, while permitting residents to "express their views" and "vent their feelings." (Tr. 3.41-.42). The plan proposed by Fencl would have permitted two informational pickets at each of the ten gates-one picket in favor of constructing the townhouses and the other opposed. (Tr. 3.22). The injunction which will be entered by this Court will limit the Whitman Council and those acting in concert with them to one informational picket at each gate. Although to date there have been no groups other than the Whitman Council picketing or demonstrating at the site, in the event others intend to picket in favor of the construction they will likewise be limited to one informational picket at each of the gates.

 Plaintiffs and plaintiffs-intervenors seek the removal of all informational pickets from the gates on the ground that they will interfere with constructions. In the event the picketing as provided by the Court's Order causes any interference with construction, the Court will consider at that time whether its Order should be modified.

 This Memorandum is in lieu of Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a).

 ORDER

 AND NOW, this 1st day of April, 1980, the Court, for the reasons set forth in the Memorandum of this Court dated April 1, 1980, hereby ORDERS that the Whitman Area Improvement Council and its successor the Whitman Council, Inc., Alice Moore, Fred Druding, and all members of the Whitman Area Improvement Council and the Whitman Council, Inc., its officers, agents, servants and representatives and employees, and all other persons acting in concert with them or otherwise participating in their aid (hereinafter "Whitman Council") are ENJOINED until such time as construction of the 120 townhouses is completed and all of the houses are occupied, from:

 1. Picketing, protesting, rallying, demonstrating or similarly assembling in the Whitman Construction Site Area (that area enclosed by the dotted line on the plan attached hereto) except as follows:

 
a. At each gate (designated by "X" within the "Whitman Park" area on the attached plan), there may be no more than one informational picket who shall remain in an area outside the passageway as designated by the United States Marshal or his Deputy at the Site. Such informational picket shall not obstruct, block or impede passage to or from the Whitman Construction Site (designated as shaded area marked "Whitman Park" on the attached plan), but may peacefully converse with persons entering or leaving the Whitman Construction Site, provided that such conversation be limited to sixty seconds in duration, and provided that persons who do not wish to stop or converse with the picket may freely pass.
 
b. All other picketing, demonstrations, rallies, protests, or similar assemblies shall be confined to the barricaded sidewalk area on the east side of Front Street, between Oregon Avenue and ...

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