Edward M. v. O'Neill

SPAETH, Judge,

dissenting:

I agree with the majority that Judge DANDRIDGE should not have issued an injunction sua sponte. I also agree with the majority that Judge McDEYITT was correct in refusing to grant class action certification. However, I disagree with the majority’s reversal of Judge DANDRIDGE’s orders granting the petitions to expunge the fingerprints and photographs of juveniles Vander Clayborne and Ronalds Forrest.

*551As the majority recognizes, “At the time Directive 95 was implemented there was no express statutory authority permitting the Philadelphia Police Department to fingerprint and photograph juveniles.” At 630. The statute permitting the police to fingerprint and photograph juveniles, 42 Pa.C.S.A. § 6308(c)(1), was not enacted until February 29, 1980, and was not effective until sixty days thereafter. Clayborne and Forrest were fingerprinted and photographed on March 16, 1979, and April 2, 1979, respectively. Since at that time the police had no express statutory authority to fingerprint and photograph them, we must inquire whether they had any implied statutory authority.

When Clayborne and Forrest were fingerprinted and photographed, the only statute authorizing fingerprinting and photographing of any persons at all was the Act of April 27, 1927, P.L. 414, § 3, as amended, 19 P.S. § 1403, which provided:

The Pennsylvania State Police, the persons in charge of State penal institutions, the wardens or keepers of jails, prisons, and workhouses within this Commonwealth, and all police officers within the several political subdivisions of this Commonwealth, shall have the authority to take, or cause to be taken, the fingerprints or photographs of any person in custody, charged with the commission of crime, or who they have reason to believe is a fugitive from justice or a habitual criminal, except persons charged with a violation of “The Vehicle Code” which is punishable upon conviction in a summary proceeding unless they have reason to believe the person is a fugitive from justice or a habitual criminal; and it shall be the duty of the chiefs of bureaus of all cities within this Commonwealth to furnish daily, to the Pennsylvania State Police, copies of the fingerprints and, if possible, photographs, of all persons arrested within their jurisdiction charged with the commission of felony, or who they have reason to believe are fugitives from justice or habitual criminals, such fingerprints to be taken on forms furnished or approved by the *552Pennsylvania State Police. It shall be the duty of the Pennsylvania State Police, immediately upon the receipt of such records, to compare them with those already in their files, and, if they find that any person arrested has a previous criminal record or is a fugitive from justice, forthwith to inform the arresting officer, or the officer having the prisoner in charge, of such fact. (Emphasis added.)

This statute did not impliedly authorize the promulgation of Police Directive 95, and the consequent fingerprinting and photographing of Clayborne and Forrest, because as juveniles Clayborne and Forrest were not “person[s] . . . charged with the commission of crime.” Juveniles are not charged with the commission of a “crime” but of a “delinquent act.” 42 Pa.C.S.A. § 6302. The Juvenile Act makes clear that an adjudication under its provisions does not constitute a conviction of crime.

The only case related to the issue of fingerprinting juveniles is Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa. 1978), where the court held that the Pennsylvania Juvenile Code, Act of Dec. 6, 1972, P.L. 1464, No. 333, 11 P.S. § 50-101 et seq., did not prohibit a prison administrator from fingerprinting juveniles upon their admission to prison and sending their fingerprints to federal, state, and local authorities. This case represented no authority for fingerprinting and photographing juveniles upon arrest

Since the police had no express or implied statutory authority to fingerprint and photograph Clayborne and Forrest, the proper remedy was to expunge their fingerprints and photographs. See e. g., Commonwealth v. Fredericks, 235 Pa. Super. 78, 93, 340 A.2d 498 (1975) (fingerprints obtained following illegal arrest subject to expunction). See also Menard v. Saxbe, 498 F.2d 1017 (D.C.Cir.1974); Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa.1968).

I should therefore affirm the orders granting appellees’ petitions for expungement.