The opinion of the court was delivered by: LUONGO
This is a suit
under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985 and 1986, seeking damages and injunctive relief against a township of the first class (Bristol Township, Bucks County), its Board of Commissioners, Chief of Police, and two of its policemen for alleged deprivation of the civil rights of Arien Johnson and other members of the Negro race residing in Bristol Township.
The Act of 1871, known as the Ku Klux Act, provides in pertinent part:
"§ 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 * * * person * * * 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."
"§ 1985. Conspiracy to interfere with civil rights - Preventing officer from performing duties
(3) If two or more persons * * * conspire * * * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; * * * if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."
"§ 1986. Same; action for neglect to prevent
This suit is based on the following incidents charged in the complaint:
(1) On August 8, 1967 an unidentified police officer made a statement to a group of Negroes (Johnson was not in the group) in Bristol Terrace, a community in Bristol Township, that he "hated blackies". This incident was reported to the Chief of Police and to the Board of Commissioners.
(2) At about 5:00 p.m. on August 22, 1967 defendants Hackett and Thompson, Bristol Township police officers, while in uniform and on patrol in Bristol Terrace, offered to fight a group of Negroes (one of whom was Arien Johnson), and notified the group that they would return at 11:00 p.m. on that evening.
(3) At about 10:45 p.m. on August 22, 1967 in Bristol Terrace, Thompson asked one William Floyd (not otherwise identified) "Where are the night fighters?" and Hackett commented to the said Floyd "What's a dead nigger anyway?"
(4) At about 4:00 p.m. on the 23rd of August, 1967, while Hackett and Thompson were in uniform and riding in Bristol Terrace, "Hackett called Johnson 'a Chinese nigger',
to which Johnson responded with a similar expression, but without racial overtones." (Complaint, par. 13). An unidentified police officer arrested Johnson for disorderly conduct. Before making the arrest, the unidentified police officer inquired of Hackett and Thompson whether either had shouted anything to provoke Johnson's response. They denied having done so and "instructed, directed, and ordered the unidentified officer to complete the arrest of Johnson * * *." (Complaint, par. 15).
Plaintiff asserts claims against Hackett and Thompson under §§ 1983 and 1985(3); against Chief of Police Merker and the Board of Commissioners under § 1986; and against Bristol Township on respondeat superior grounds. Each of the defendants has moved to dismiss the complaint for failure to state a claim under the Act of 1871. In addition, Bristol Township and the Board of Commissioners have moved to dismiss on the ground that they are not subject to suit under the Act.
I. Bristol Township and Board of Commissioners.
Bristol Township, a municipal corporation, is not a "person" subject to suit under the Act, Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Under Pennsylvania law, the corporate power of townships of the first class is vested in the Board of Commissioners. 53 P.S. § 56502. As a body politic, the Board is likewise not subject to suit under the Act. Roberts v. ...