(D.C. Civil Action No. 68-2332). APPEAL FROM THE UNITED STATES DISTRICT COURT ' FOR THE EASTERN DISTRICT OF PENNSYLVANIA '.
Aldisert, Gibbons and Hunter, Circuit Judges.
The issue presented for resolution is whether the district court erred in denying appellants' request for injunctive and declaratory relief which sought to prohibit city policemen in Chester, Pennsylvania, from participation in partisan political activity. Appellants contend that because fifteen percent of the police force in their community are committeemen for a major political party, their presence at the polls on election day is contrary to the First and Fourteenth Amendments, and results in intimidation of voting rights contrary to federal statutes.
Appellants, Chester residents and voters, filed this class action on October 22, 1968, seeking declaratory and injunctive relief against members of the police department, requiring them to disengage from partisan political activity on behalf of the Republican Party. They introduced evidence that twelve to fourteen members of the police force have been elected to the non-paying position of Republican Party committeeman, and, in that capacity, work at the polls for Republican Party candidates. Eight to ten other members of the force serve these committeemen as political workers. These officers are usually present at the polls on election day. They take this day off from work, and go uncompensated for this time unless they credit it against vacation time, or compensatory time which they have earned by working overtime. While working as committeemen, these policemen are non-uniformed.
Following testimony and argument, the district court dismissed the complaint. This court vacated the district court's order, noting that merely because the district court denied appellants' request for a preliminary injunction, the court erred in dismissing the entire complaint. We remanded the cause with directions to proceed with a final hearing and decision. 415 F.2d 272 (3d Cir. 1969). On remand, the parties stipulated that further evidence was unnecessary, and requested that final adjudication be made on the record adduced at the prior hearing. The court found that appellants failed to establish that the activities of the officers as Republican Party committeemen interfered with anyone's right to vote, and denied appellants' motions for a permanent injunction and declaratory relief, 331 F. Supp. 1350 (E.D.Pa. 1971), and it is from that denial that this appeal emanates.
Appellants present three contentions:
1) that partisan political activity by a "significant number of the municipality's policemen" on behalf of the Republican Party violates the equal protection clause of the Fourteenth Amendment;
2) that this activity violates those sections of the Civil Rights Acts prohibiting intimidation of voters (42 U.S.C. §§ 1971(b), 1983, 1985(3)); and
3) that this activity violates First Amendment rights of free political expression.
Appellants offer what seems to be a two-pronged argument that the presence of policemen at the polls on election day in the capacity of Republican committeemen violates the equal protection clause. First, they allege that merely because a citizen of the city of Chester happens to be known by a policeman-committeeman to be of a different political affiliation, he will be dealt with more severely, and otherwise discriminated against, in his encounters with the police. Appellants argue:
A major part of police work is not tracking down felons, but sorting out and ameliorating day-to-day problems in which the policeman has great discretion. When a policeman-politician is confronted with boisterous, arguing neighbors, a driver who made an illegal U-turn, a domestic squabble, and other fairly common situations, will he take into consideration whether the person(s) he is dealing with are "loyal" Republicans or adversary Democrats? And especially on an election day can it be presumed that improper political activity will be checked by these policemen-politicians? The likelihood of unequal protection of the law is not only likely but certain. Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1896).
Yet, although appellants term the occurrence of such situations a certainty, a scrutiny of the record yields not one iota of evidence, neither the most meager testimony nor the slightest intimation, that anyone in the city was treated in a discriminatory fashion because he was a member of the Democratic Party or any other party. Therefore, this aspect of ...