Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 on the grounds that he was discharged for refusing to perform an unconstitutional act. In connection with this claim, it is important to note that plaintiff is Not seeking to vindicate prisoner Hennessey's constitutional rights. Rather, plaintiff is asserting a right personal to him; the right to refuse an order which would result in the violation of another's constitutional rights. The question presented here is whether this "right" is a "right(s), privilege(s), or immunity secured by the Constitution and laws" as required by 42 U.S.C. § 1983.
At first blush, this question would appear to be one for which there is a simple answer, buttressed by a plethora of authority. In fact, there are surprisingly few authorities on this issue, and we could locate no case which discusses the matter in any great depth. See, e.g., Parrish v. Civil Service Commission of County of Alameda, 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223 (1967) (holds that there is a right to refuse to obey an unconstitutional order; however, it is not clear from this case whether this right is secured by the United States Constitution); R. Vaughn, Public Employees and the Right to Disobey, 29 Hastings L.J. 261 (1977). Despite the absence of authority, however, we are confident that the right to refuse to violate another's federal constitutional rights is a right secured by the constitution.
We start with the proposition that no rights are created by § 1983; that section was enacted only "to ensure that an individual ha(s) a cause of action for violations of the Constitution." Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979). Therefore, any rights sought to be vindicated under § 1983 must have their source in the constitution itself.
Under the facts as alleged in the complaint, plaintiff would have been liable for a deprivation of Hennessey's constitutional rights if he had proceeded to obey the order given to him. See, e. g, Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974); Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973). To put the matter another way, plaintiff had a clear duty under the constitution to refrain from acting in a manner that would deprive Hennessey of his constitutional rights. If plaintiff is under a Duty to refrain from performing an act, then we believe that he has the concurrent Right to so act. To hold otherwise would create an unconscionable burden upon one charged with the duty to uphold another's constitutional rights.
The issue remaining is whether that right is one "secured by the Constitution." The Duty to refrain from acting in a manner which would deprive another of constitutional rights is a duty created and imposed by the constitution itself. It is logical to believe that the concurrent Right is also one which is created and secured by the constitution. Therefore, we hold that the right to refuse to perform an unconstitutional act is a right "secured by the Constitution" within the meaning of § 1983.
We believe that our conclusion is supported by strong policy considerations. Parties such as plaintiff, who are acting in the capacities of prison administrators, policemen and the like, may daily be faced with situations where they are required to act in a manner which is consonant with the constitutional rights of others who are subject to their authority. The potential for abuse in these situations scarcely needs to be mentioned. If such persons are to be Encouraged to respect the constitutional rights of others, they must at least have the minimal assurance that their actions are also protected by the constitution in those cases where they are confronted with the difficult choice of obeying an official order or violating another's constitutional rights.
The defendant has argued strenuously that the plaintiff could have obeyed the order given to him by his superiors without violating Hennessey's constitutional rights. However, at this stage of the proceedings, we are judging only the sufficiency of plaintiff's complaint and the allegations contained therein. See Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Plaintiff clearly alleges that the effectuation of the orders given to him would have deprived Hennessey of his constitutional rights, and that defendant Dooley was informed of this fact. (P P 21, 22, and 27 of Plaintiff's Complaint) In light of these allegations and the inferences flowing therefrom, we conclude that the motion to dismiss with respect to his claim must be denied.
The final question remaining for resolution is the liability of the County for the constitutional torts of its employees. Paragraph 48 of plaintiff's complaint states as plaintiff's fifth claim that "Defendant, Schuylkill County, is liable directly under the Fourteenth Amendment to the United States Constitution and the Pennsylvania Constitution (Article I, Section 1) for all claims stated in paragraphs 42 through 47 under the doctrine of Respondeat Superior." We ruled earlier that we had subject matter jurisdiction over the claim against the county defendant under the cases of Gagliardi v. Flint, 564 F.2d 112 (3d Cir. 1977) and Pitrone v. Mercadante, 572 F.2d 98 (3d Cir. 1978). We now proceed to consider whether plaintiff has stated a claim upon which relief can be granted against Schuylkill County.
The question of whether a direct cause of action may be asserted against a municipality under the fourteenth amendment is one which has not yet been determined by the Court of Appeals for this Circuit. However, in accordance with the teachings of Gagliardi and Pitrone, this court need not reach that difficult constitutional issue if there is a pendent statute law claim being asserted against the municipality, Therefore, the first question we will address is whether a valid state law claim is alleged against the County of Schuylkill under article I, section 1 of the Pennsylvania Constitution.
Article I, section 1 of the Pennsylvania Constitution provides:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.