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Commonwealth of Pennsylvania and Richard W. Baumann v. Porter

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


February 19, 1981

COMMONWEALTH OF PENNSYLVANIA AND RICHARD W. BAUMANN, JOSEPH BLUME, JAMES MAGES AND BERNARD W. PEITZ, JR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
JAMES D. PORTER, CHIEF OF POLICE; BOROUGH OF MILLVALE; FRANK L. BARANYAI, BOROUGH OF MILLVALE POLICE OFFICER; REGIS J. MC CARTHY, MAYOR OF THE BOROUGH OF MILLVALE; CARL SEIDL, PRESIDENT OF THE MILLVALE BOROUGH COUNCIL; MAURICE P. BEDEL, SR., JAMES BERAN, JOHN L. CAVANAUGH, JERRY DAWSON, JAMES H. LAWSON AND STEPHEN MIKUS, MEMBERS OF THE MILLVALE BOROUGH COUNCIL FRANK L. BARANYAI, APPELLANT ; COMMONWEALTH OF PENNSYLVANIA AND RICHARD W. BAUMANN, JOSEPH BLUME, JAMES MAGES AND BERNARD W. PEITZ, JR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED V. JAMES D. PORTER, CHIEF OF POLICE; BOROUGH OF MILLVALE; FRANK L. BARANYAI, BOROUGH OF MILLVALE POLICE OFFICER; REGIS J. MC CARTHY, MAYOR OF THE BOROUGH OF MILLVALE; CARL SEIDL, PRESIDENT OF THE MILLVALE BOROUGH COUNCIL; MAURICE P. BEDEL. SR., JAMES BERAN, JOHN L. CAVANAUGH, JERRY DAWSON, JAMES H. LAWSON AND STEPHEN MIKUS, MEMBERS OF THE MILLVALE BOROUGH COUNCIL REGIS MCCARTHY, CARL SEIDL, MAURICE P. BEDEL, SR., JAMES BERAN, JOHN L. CAVANAUGH, JERRY DAWSON, JAMES H. LAWSON AND STEPHEN MIKUS, APPELLANTS ; COMMONWEALTH OF PENNSYLVANIA AND RICHARD W. BAUMANN, JOSEPH BLUME, JAMES MAGES AND BERNARD W. PEITZ, JR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED V. JAMES D. PORTER, CHIEF OF POLICE; BOROUGH OF MILLVALE; FRANK L. BARANYAI, BOROUGH OF MILLVALE POLICE OFFICER; REGIS J. MC CARTHY, MAYOR OF THE BOROUGH OF MILLVALE; CARL SEIDL, PRESIDENT OF THE MILLVALE BOROUGH COUNCIL; MAURICE P. BEDEL, SR., JAMES BERAN, JOHN L. CAVANAUGH, JERRY DAWSON, JAMES H. LAWSON AND STEPHEN MIKUS, MEMBERS OF THE MILLVALE BOROUGH COUNCIL JAMES D. PORTER. APPELLANT

ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DATED NOVEMBER 16, 1979 (Civil Action No. 77-1164)

Author: Garth

Before: ALDISERT, GARTH and VAN DUSEN, Circuit Judges

GARTH, Circuit Judge.

This appeal requires us to decide whether the Commonwealth of Pennsylvania may maintain and bring an action under 42 U.S.C. § 1983 as an aggrieved "other person".

The Commonwealth and certain individual plaintiffs sought to enjoin the Chief of Police, a police officer, and the Mayor and members of a Borough's council because of alleged unconstitutional actions taken by Officer Baranyai against the citizens of the Borough of Millvale. The district court, having found that Baranyai had indeed committed many of the acts alleged, and that this conduct was ratified by the other defendants, enjoined all of the defendants.

Because we hold that the Commonwealth had no standing as a plaintiff in this action, and that the members of the Borough Council cannot be held liable on the record of this case and the standard elaborated in Rizzo v. Goode, 423 U.S. 362 (1976), we are obliged to reverse the district court in these respects. In reversing the district court, however, we do not disturb the district court's findings of fact with respect to Baranyai's actions or the ratification of those actions by the police chief and Mayor of Millvale. Thus, as to those defendants, we agree with the district court's rulings.

I

Beginning some time before the middle of 1974, the Mayor, Chief of Police, and Borough Council of Millvale began receiving complaints about one of the Borough's policemen, Frank L. Baranyai. These accusations about Baranyai were made by various citizens. They charged that Baranyai had violated their constitutional rights by physically abusing them in a brutal manner, by threatening and harassing them and by illegally arresting and detaining them. Subsequently, the Commonwealth and four individual plaintiffs instituted a § 1983 action*fn1 against Baranyai, his police chief, the Mayor and the members of Council.

The gravemen of the complaint was that Baranyai, by his many unlawful actions, had violated the constitutional rights of Pennsylvania citizens, some of whom resided in Millvale. Some 31 separate incidents were described. The 31 incidents included actions taken against the four named plaintiffs as well as actions taken against others. The complaint also charged that the Borough defendants, including the police chief, refused to exercise control over Baranyai's pattern of unconstitutional behavior despite their knowledge of his actions and their ability to restrict his activities. The complaint, which included class action allegations, sought injunctive relief against all the defendants.

Prior to trial, the individual plaintiffs moved for class certification. The district court denied class certification

for the reason that the Commonwealth of Pennsylvania as parens patriae is representing the citizens of the State generally in this action and if there is any further need for class action which may later appear in this case plaintiff's [sic] may move at that time for reconsideration of the same.

The non-jury trial of this action commenced on April 23, 1979 after a year of extensive discovery by the parties.*fn2 The court heard some 14 days of testimony and made some 44 Findings of Fact. Because these findings are separately set forth in the district court's opinion,*fn3 we will not recount them in detail here. It is sufficient for our purposes to note several incidents that typify the conduct found by the district court. The court found that Baranyai had brutalized and unlawfully assaulted plaintiff Mages by beating him with his fists and with a blackjack, and by threatening to shoot him with a shotgun and revolver while Mages was handcuffed and confined in the Millvale police station.

The court also found that Baranyai had struck one Richard Stefanik about the face and head with a flashlight while Stefanik was in his custody and that he had brutalized one David Burchill by beating him with a nightstick after Burchill had been handcuffed and was under Baranyai's control. Other similar incidents of assault, unlawful arrest, illegal searches, unlawful detentions, harassment, intimidations, and retaliation are catalogued by the district court in its findings that Baranyai engaged in unconstitutional conduct on a number of occasions.*fn4

The district court also found that the other defendants had knowledge of Baranyai's acts and approved of them and that their unconstitutional conduct was likely to continue unless all defendants were enjoined. On November 16, 1979 the district court entered its order which essentially enjoined all the defendants from continuing conduct such as the conduct which gave rise to this suit. A copy of the November 16, 1979 order of the district court is set forth in full in the margin.*fn5 Thereafter, two modifications of the district court's order, the last entered by a judge of this court, permitted Millvale to substitute, for the provisions of paragraph 5 of the order, Millvale's obligation as security against any future constitutional conduct by Baranyai.

II

42 U.S.C. § 1983 provides:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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.

(emphasis supplied).

As an "other person", the Commonwealth as a plaintiff brought this action against the named defendants for injunctive relief.

To this point, judicial consideration of § 1983 as a vehicle for redressing rights implicating states or their instrumentalities has focsed on the question of whether such state entities may be sued as defendants under § 1983. See, e.g., Skehan v. Bd. of Trustees of Bloomsburg State College, 590 F.2d 470, 491 (3d Cir. 1978); Ex parte Young, 209 U.S. 123 (1908); Delman v. Jordan, 415 U.S. 651 (1974); Alabama v. Pugh, 438 U.S. 781 (1978); Quern v. Jordan, 440 U.S. 332 (1979). Boviously, in this case, where the Commonwealth is not a defendant, but is rather a plaintiff, cases which analyze § 1983 in terms of defendants are of limited assistance. Thus, rather than discuss "defendant" cases, we will direct our attention to the question of whether a state may be a plaintiff or "other person" under § 1983.

Because of the posture of this case, where only the Commonwealth and certain individuals are plaintiffs, we must initially determine whether the Commonwealth of Pennsylvania has standing to seek relief in either (1) a personal or (2) a representative capacity.

A.

We turn first to the question of whether the Commonwealth in its personal capacity may sue the municipal officials named as defendants under 42 U.S.C. § 1983. To qualify as a § 1983 plaintiff, the Commonwealth must satisfy the statutory classification of being a "citizen of the United States or other person ... injured...." No claim has ever been made, nor could it be, that the Commonwealth is a "citizen of the United States". Therefore to sustain its plaintiff status, the Commonwealth must come within the rubric of an "other person" who has been injured.

The district court did not find it necessary to resolve the question of the Commonwealth's standing to sue in its personal capacity since it had held in a memorandum opinion of February 24, 1978 "that there was no showing that the Commonwealth of Pennsylvania had been injured personally by the series of events alleged in the complaint...." Commonwealth of Pennsylvania v. Porter, 480 F. Supp. 686, 694-95 (W.D. Pa. 1979). Thus, the district court, without addressing the status of the Commonwealth as an "other person", disposed of the Commonwealth's personal standing on an alternate ground: a failure to demonstrate injury. The district court's holding in this respect, however, was not critical to the continuation of the litigation because that court then allowed the action to proceed with the Commonwealth as a plaintiff under a parens partriae theory. We discuss this feature of the district court's holding in a subsequent section of this opinion.

Whether or not the Commonwealth may sue as a plaintiff under § 1983, unlike the question of whether or not it may be sued as a defendant, does not require us to address considerations of Eleventh Amendment immunity. Our task is limited to determining whether Congress intended to include states among those "other person[s]" entitled to bring actions under § 1983.

No Court of Appeals has had the occasion to address this question*fn6 but an examination of § 1983 itself and a review of the legislative history that was examined in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), leads to the conclusion that states were never deemed to fall within the class of those for whom Congress created a remedy when it enacted § 1983.*fn7

First, § 1983 itself speaks of liability for "the deprivation of any rights, privileges, or immunities" brought about "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." By its terms, the statute offers redress to those who are injured under the color of state authority. Allowing a state to bring suit against its own instrumentalities and its own officers for their alleged violations of federal rights belonging to the very state which is suing, turns the statute on its head. "Representative Bingham, the author of § 1 of the Fourteenth Amendment, for example, declared the bill's [the predecessor of § 1983] purpose to be 'the enforcement.... of the Constitution on behalf of every individual citizen of the Republic.'..." (emphasis supplied, ellipsis in original, citation to Congressional Globe omitted). Monell at 685 n.45. And the Monell court in describing the function of § 1983 quoted Representative Shellabarger describing the Act as providing "a civil remedy for... all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship" (emphasis supplied, citation to Congressional Golbe omitted). Id. at 683.

Certainly, the Commonwealth has the power to regulate conduct by its municipalities when that conduct infringes upon the constitutional rights of the Commonwealth's citizens. In addition, Congress has granted all citizens of this country a right to proceed against state and local officials, agencies, and municipalities for infringement of federally created rights. That is the obvious intendment and purport of § 1983. But Congress has not gone so far as to provide in § 1983 a similar statutory remedy of which the state can avail itself.

Thus, we are led to the conclusion that the remedy that Congress devised was explicitly designed to provide individuals, not states, with a means to secure their constitutional rights against the threat of governmental abuse.

Second, it must be remembered that here the Commonwealth seeks to enforce federal constitutional provisions and federal laws against itself because it is necessarily claiming that the violations of those provisions and laws came about under the color of its own statutes. To so hold, that the Commonwealth may sue in its personal capacity under this statute, we would be obliged to give § 1983 the tortured reading we have just described. We decline to do so.

Moreover, the Commonwealth, in pressing this suit in its personal capacity, has turned away from its own courts and its own laws in seeking to enforce these purported rights. Of course, we do not suggest for one moment that the Commonwealth could bring this action in its own courts since we have determined that by the terms of § 1983, a state is not included as a plaintiff "other person."*fn8 We observe only that it appears inappropriate and possibly disruptive of basic federal-state relations for a state to seek relief in a federal court under a federal statute not designed for such a purpose, when effective relief may be sought under its own laws in its own courts.

Having reached this conclusion we find it unnecessary to address the issue of whether the Commonwealth is an injured "other person" within the terms of the statute. We have earlier referred to the district court's conclusion that the Commonwealth could not attain plaintiff status in its personal capacity because it was not injured.See p. 10, supra. While we have no reason to disagree with that conclusion, we need not reach that issue in light of our holding that the Commonwealth cannot qualify as an "other person" under § 1983.

We turn next to whether the Commonwealth may sue under § 1983 in a representative capacity invoking the parens patriae doctrine.

B.

The most recent Supreme Court decision to discuss parens patriae is Hawaii v. Standard Oil, 405 U.S. 251 (1972). In that case the Court denied parens patriae standing to the State of Hawaii which had sought damages under the Clayton Act for harm to its general economy charging a violation of the antitrust laws. In tracing the development of the doctrine the court stated:

The concept of parens patriae is derived from the English constitutional system. As the system developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the "royal prerogative." These powers and duties were said to be exercised by the King in his capacity as "father of the country." Traditionally, the term was used to refer to the King's power as guardian of persons under legal disabilities to act for themselves.... In the United States, the "royal prerogative" and the "parens patriae" function of the King passed to the States.

(Footnotes and citations omitted.) Id. at 257.

The Court went on to explain that in the United States the nature of the parens patriae suit has been greatly expanded. It reviewed those cases in which parens patriae was properly invoked to prevent or repair harm to a state's "quasi-sovereign interest." E.g., New York v. New Jersey, 256 U.S. 296 (1921) (holding that New York could sue to enjoin the discharge of sewage into New York harbor); Pennsylvania v. West Virginia, 262 U.S. 553 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); Noth Dakota v. Minnesota, 263 U.S. 365 (123) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream). See Hawaii v. Standard Oil, supra, at 258.

The concept of parens patriae has also been addressed in this Circuit. This court's decision in Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11 (3d Cir. 1975), limited the state's right to bring parens patriae suits to two situations: either (1) where suit was brought "to protect [the State's] proprietary interests or (2) where suit was brought to protect 'quasi-sovereign' interests, such as the health, comfort and welfare of its citizens and general economy of the state." Id. at 22. Since, in the present case, unlike flood Insurers, the Commonwealth has not alleged any harm to its own proprietary interests, the presence of parens patriae standing must turn on whether the Commonwealth has asserted a "quasi-sovereign" interest.

flood Insurers defined a quasi-sovereign interest as "an interest of the State existing separate and apart from those injuries suffered individually by the State's citizens." Id. "What must be at stake is the State's independent interest, which generally arises from either (1) the State itself having suffered injury... or (2) the general public having suffered an injury so that no one individual has legal standing to sue. Under either circumstance, the sine qua non for the State, which sues in its parens patriae capacity, is that damage has occurred to its interest apart from the interests of particular individuals who may have been affected." Id. at 22.

Here the Commonwealth's interest has not been damaged apart from the interests of the particular aggrieved individuals. Yet, the Commonwealth here seeks relief that can only be sought, and indeed is being sought, by the individuals themselves.*fn9 It cannot, therefore, sue in its capacity as parens patriae, for its seeks "redress for injury to private parties, who being the real parties in interest, could themselves have prosecuted their own... claims." Id.

C.

Thus, we have concluded, contrary to the district court, that the Commonwealth cannot as a matter of law maintain this action to vindicate the rights of individual citizens as it had neither standing in its personal right, nor parens partraie standing. The district court therefore erred in proving relief for the Commonwealth predicated upon the Commonwealth's action which it brought as a plaintiff. Had the Commonwealth persisted in its original complaint, which named only the Commonwealth as a plaintiff, there would be no further need for discussion or decision, as the action would have failed. However, as we have recognized, the Commonwealth amended its complaint to add four individual plaintiffs whose actions continue.*fn10 Because there is no question as to the individual plaintiffs' standing to seek redress for the constitutional violations which they alleged and which the district court found, we must examine the extent to which, and against whom, they are entitled to relief.

III

The claims made by the three remaining individual plaintiffs*fn11 may be categorized as follows. As against police officer Baranyai, himself: the plaintiffs' claim that he had directly violated their constitutional rights by the unlawful actions to which they had been subjected. For instance, finding (12) recites:

[Finding of Fact] (12) On November 16, 1974, defendant Baranyai brutalized and unlawfully assaulted and mistreated James Mages by beating him about the shoulders, arms, head and face with his fists and blackjack, by beating Mages' head against the wall, and by threatening to shoot him with a shotgun and revolver, all of which occurred while Mages was handcuffed and confined in the Millvale Police Station. We find that Mages was handcuffed during the time that the incident arose as the result of [the] unlawful arrest of one Walter Brightenbaugh without warrant.

480 F. Supp. 688-89.

As against the Mayor and Chief of Police: the individual plaintiffs assert that with full knowledge of Baranyai's activities, these individuals did not correct or supervise Baranyai's conduct and indeed they encouraged and ratified Baranyai's actions.

As against the individual members of the Council: the individual plaintiffs claim that the actions of Baranyai received support and ratification.

Because each of these claims are subject to varying legal standards and evidence, we are obliged to discuss them separately.

A.

The defendants challenge the findings of fact made by the district court.*fn12 We have reviewed these findings in light of the evidence, and we cannot say that they are clearly erroneous, Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972). Indeed, our review of the record reveals that the findings with respect to Baranyai, the Mayor, and the police chief are more than amply supported by the evidence.

We note, for example, that the district court judge accurately depicted the evidence which led to his findings and to his granting of injunctive relief against Chief of Police Porter when he addressed Porter's acts of commission and omission. He found that Porter, despite having received complaints about Baranyai, never found fault with him. Nor had Porter sought to discipline Baranyai after Baranyai had been convicted in Criminal Court of malfeasance in office. Significantly, he found that Porter had retaliated against other fellow police officers who had testified or complained about Baranyai's conduct and that in all instances, Porter had publicly supported Baranyai. Other instances of support for Baranyai and of turning a deaf ear and blind eye to Baranyai's excesses are discussed in more detail in the district court's opinion, 480 F. Supp. at 691, 693, 701. We are satisfied that the evidence supports these findings.

Similarly, the evidence supports the findings made with respect to Mayor McCarthy's support of Baranyai and his lack of affirmative action to either suspend Baranyai, or to take any other action within his power which might have resulted in curbing Baranyai's behavior. He, too, participated in retaliating against fellow officers who complained about Baranyai and although the Mayor had undertaken to investigate the complaints that were registered about Baranyai's conduct, the record supports the district court's finding that in most cases no report was made to the Council.

We are therefore satisfied that as respects Baranyai, in light of the evidence and the district court's findings, no legal barrier prevents relief being afforded to those plaintiffs whose rights he violated.

With respect to Chief of Police Porter, and to Mayor McCarthy, both of whom are, in effect, one step removed, other considerations become relevant.

To obtain relief against the police chief and Mayor, the requirements of Rizzo v. Goode, supra, must be satisfied. Thus, the officials' misconduct cannot be merely a failure to act. Such officials must have played an affirmative role in the deprivation of the plaintiffs' rights, i.e. there must be a causal link between the actions of the responsible officials named and the challenged misconduct. Id. at 375-77. As this court observed in Lewis v. Hyland, 554 F.2d 93 (3d Cir.) cert. denied 434 U.S. 931 (1977), Rizzo "was aimed at the failure of plaintiffs to prove the existence of an unconstitutional policy or plan adopted and enforced by the official defendants. Throughout, the Court emphasized the complete absence of any causal link between the individual police officers' conduct and the responsible authorities. Mere invocation of the words 'pattern' or 'plan' did not suffice without this causal link." Id. at 98.

Here, however, unlike either Rizzo or Lewis, the district court has made findings, which are not clearly erroneous, that there was a causal connection between Baranyai's pervasive pattern of constitutional misconduct and the Mayor's and police chief's ratification of those actions. The district court expressly found:

We further find that the Mayor and Chief of Police, defendant Porter, have to a large extent aided, abetted, confirmed and ratified the conduct of the defendant Baranyai and in many cases have instigated the conduct complained of and have threatened and harassed citizens who were bold enough to make complaints as to this course of action.

480 F. Supp. at 693. This finding, as we have noted, is amply supported by the record and more than suffices to satisfy the requirements established by Rizzo and Lewis .

Such is not the case, however, with respect to the past and present members of the Millvale Borough Council. The district court refers only to two official acts of the Council as demonstrating that it "has... taken an active part in the Baranyai affair." Id . at 702.

The first act to which the district court referred is the Council's adoption of a resolution on July 12, 1977 (Plaintiff's Ex. 15) which the district court characterized as "supporting Baranyai". The second act of the Council, to which the district court made reference, occurred on February 14, 1978 (Plaintiff's Ex. 12) when the Council adopted another resolution which the district court read as providing support to Baranyai. The conclusions drawn from these resolutions and from "the evidence" led the district court to hold that: (1) complaints to the Borough Council were useless and (2) that the Council had "failed to make any investigation or take any steps towards removing or suspending" Baranyai. 480 F. Supp. at 702.

We have examined the resolutions and we have reviewed the evidence and do not read the record in the same manner as the district court. For example, as we read the record, it does not reveal intentional acts (such as retaliation against witnesses) taken by the defendant Council members to further Baranyai's unlawful conduct. It appears to us that the "support" to which Finding of Fact (41)*fn13 is addressed, refers not to support of illegal acts, but rather to "support" of Baranyai as a person.

As we understand Lewis and Rizzo, the Council members' actions, unlike those of Porter and McCarthy, fell within the category of actions that under Lewis do not constitute grounds for injunctive relief. Lewis held that a "mere 'failure to act [by responsible authorities] in the face of a statistical pattern' was found to provide no basis for injunctive relief," 554 F.2d at 98 (emphasis and bracketed material in original, footnote omitted). And while we do not face inaction in the face of a statistical pattern in this case, Lewis also held that no evidence of the essential causal link existed where there was no more than "an unforunate insensitivity on the part of responsible officials toward reports of abuses...." Id . at 101.

Thus, while the evidence reveals that the Mayor and police chief actively supported and indeed encouraged Baranyai's conduct, the Council members' official actions constitute no more than inaction and insensitivity.*fn14 The Council resolutions did no more than "give Officer Baranyai [the council's] support[,] [p]rovided that [it] is agreeable with the Borough Solicitor upon his review of the facts of the charges." (Pl. Ex. 15). Seven months later the Council passed a "motion to continue to support Office Frank Baranyai," (Pl. Ex. 12) after he had been convicted of three misdemeanor counts in a state criminal prosecution based on many of the same incidents underlying the district court decision in this case.

This evidence does not satisfy the threshold requirements of Rizzo and Lewis. Nor in our review of the record have we discovered other evidence which is sufficient to warrant treating the Council members in the same fashion as the other defendants.

In this connection, we are in addition troubled by the change in composition of the Borough Council. The record discloses that only one of the Council members (Lawson) named as a defendant was in office at the time of argument, and he tried to have Baranyai removed as a police officer. His term has since expired. Two Council member defendants had completed their service in 1977, and two new Council members are not named as defendants. As we read the record, therefore, none of the seven named Council members would be appropriate defendants in an action seeking injunctive relief unless they had been reelected -- a subject upon which the record is silent. Thus, to the extent that the plaintiffs have the burden of proving that injunctive relief is appropriate as to the named defendants, they have not met this burden. Indeed, Lewis held when "none of the incidents proved... occurred under the regimes of the incumbent 'responsible authorities,'" that "any link between responsible officials and the incidents of abuse is necessarily more attenuated...." 554 F.2d at 101 (emphasis supplied).Accordingly, as to the members of the Council, we are satisfied that, measured by this record, the Rizzo and Lewis standards have not been met. The injunction to the extent it is imposed on these defendants must be vacated.

This leaves for consideration the scope of the injunction itself, and the question of whether in light of our rulings, further proceedings are necessary.

IV

We have held thus far that the Commonwealth was not a proper party and that as a plaintiff to this action the Commonwealth should have been dismissed. In that respect, we will reverse the district court which ruled otherwise.

We have also held that the district court's Findings of Fact with respect to defendant Baranyai and with respect to Chief of Police Porter and Mayor McCarthy are not clearly erroneous and are supported by the record. We have found no error in those findings nor in the liability determinations which follow from those findings. Accordingly, in these respects, we will affirm the district court.

Having determined, however, that the evidence against the Borough Council members does not meet the test for liability established by Rizzo, we will reverse the district court's determination of liability as to the Council members and will direct that the district court's injunction be vacated insofar as it enjoins the Council members.

The district court had refused to certify a class because it deemed the Commonwealth's status sufficient to represent all the citizens of Pennsylvania. Thus, it was that the district court found:

[Finding of Fact] (4) Individual plaintiffs are citizens of the United States and the Commonwealth of Pennsylvania and bring this action on their own behalf and on behalf of all persons residing in or otherwise lawfully in the Borough of Millvale and all persons who will in the future reside in or lawfully be in the Borough of Millvale. The court, however, refused to certify a class action, relying on the Commonwealth to represent the class.

480 F. Supp. at 688.

However, we have held in this opinion that the Commonwealth is not a proper party. This holding, together with our determination that the individual Council members may not be enjoined, raises a number of questions with respect to the district court's injunction.

First, the district court in framing paragraph 4 enjoined all defendants from "further engaging in [unconstitutional] conduct... or participating in violations of this injunction by Baranyai." Obviously, the district court intended this injunction to operate against the Borough Council members. But, as we have held, not only does the record fail to support this injunction, more significantly the membership of the Council is no longer the same. These circumstances raise serious questions apart from issues of overbreadth, as to the implementation of this portion of the decree.

Second, the first segment of paragraph 5 of the injunctive order apparently enjoins all of the defendants from employing Baranyai. This segment obviously suffers from the same defect as paragraph 4 insofar as it pertains to the Council member defendants. Moreover, because the Pennsylvania Borough Code apparently vests the authority in the Borough Council to remove borough policemen, only the current members of the Council, who are not named as defendants, have the capacity to comply if indeed the individual members, as disinct from the Council as an entity, may so act.*fn15

The second segment of paragraph 5 which enjoins Baranyai from serving as other than an unarmed desk policeman appears to be inconsistent with the earlier direction that he not be employed at all. It can however, depending upon its punctuation, be read consistently so as to provide that all the defendants are enjoined from employing Baranyai as other than an unarmed desk officer, and Baranyai is enjoined from serving as other than an unarmed desk officer. In favoring this latter construction which avoids an improbable internal inconsistency, another question is raised as to the Council members authority to assign or reassign police officers to particular duties under the Pennsylvania Borough Code. Whatever the correct interpretation may be, it is unquestionable however, that the injunctive order must involve the exercise of the Mayor's delegable powers under the Pennsylvania Code and the assignment to particular duties by the Mayor and/or police chief. This in turn implicates the constitutional principles referred to by the district court in its discussion of "Remedies", 480 F. Supp. 703-04. The district court held the injunctive relief which it provided would not interfere with the daily internal workings of the police department in accordance with the teachings of Rizzo, 480 F. Supp. 704. However, the district court reached that conclusion only after it had found all the defendants liable and therefore subject to injunction. As we have pointed out, however, the defendant members of the Council may not be enjoined, thereby casting some doubt on what injunction would have been imposed had the district court not found them liable.

Third, in addition to the problems presented by the terms of the district court's injunction and the circumstance that the Council members are outside its operation, another substantial issue must be considered. Our ruling that the Commonwealth should have been dismissed leaves open the question whether the three individual plaintiffs are entitled to the relief they seek without class certification and if not, whether a class should be certified.

We are mindful of the arguments made by the plaintiffs that the district court's injunction can be sustained and enforced without the need to certify a class. However, it has been recognized that enforcement in such a situation would be problematic.*fn16 Indeed, at oral argument, counsel for the individual plaintiffs conceded that "it would be premature for this Court to issue a decree or either affirm or modify the lower Court's ruling without considering the question of whether there is a proper class." (Tr. at 72.)

At the time that the plaintiffs made their argument, however, they could not have anticipated our rulings that the Commonwealth had no standing and that the members of the Council could not be enjoined on this record. Because of the interrelationship of these factors, it appears to us that additional proceedings before the district court must be had.

It is for the district court in the first instance to resolve the question of whether a class should be certified and if so, its contours. It is also for the district court to reconsider in light of our rulings and discussion, the form that its injunctive order should now take. In light of these considerations, we are exceedingly reluctant to formulate a remedy at this level. Since we must in any event remand to the district court to implement the rulings we have made and since it appears advisable to have the district court deal with all the issues remaining open, and to frame the injunctive order on an appropriate record, it is that court which should consider these issues in the first instance.

In conducting these proceedings, if the district court deems that it requires supplemental hearings and a supplemental evidentiary record, it is free to order them in its discretion. We do no more than identify the areas where we are either unable to resolve the issues presented or believe it inappropriate for us to do so. In identifying these concerns, we expressly decline to indicate our views as to how they should be resolved.

Additionally, even though we have ordered the dismissal of the members of the Borough Council, as defendants in this action, because the present record does not support relief against them, we recognize that in the proceedings which the district court will now be obliged to hold, it may be necessary for the district court to require actions to be taken by the Council. Nothing that we have said with respect to the named Council members and the unavailability of injunctive relief against them on this record, will prevent the district court from fashioning adequate relief with respect to proper parties, see, e.g ., n.15, supra, if in its findings and discretion it holds such relief to be appropriate. Nor do we restrict the plaintiffs from either seeking to supplement to record or from attempting to restructure their action in light of this opinion, subject always to the district court's discretion.

In the interim, to preserve the status quo, the injunction, to the extent that it is still viable and as it is presently modified,*fn17 will be continued and will remain in effect until such time as the district court enters its final order and injunction with this opinion.

V

Accordingly, the district court's order having been affirmed in part and reversed in part, the case will be remanded to the district court for further proceedings consistent herewith.


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