Weiner, 230 Pa. Super. Ct. at 247-50, 326 A.2d at 897-98.
Plaintiffs, however, have submitted evidence contradicting defendants' version of the facts. The mayor is thus not entitled to summary judgment with respect to the merits of plaintiffs' claims. Plaintiffs may attempt to prove at trial that they were peacefully exercising their first amendment rights and that the mayor used his official position to prevent them from doing so. Losch, 736 F.2d at 908-09.
Mayor Saraullo has also invoked the defense of qualified immunity, under which "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). The inquiry is an objective one; a defendant's subjective state of mind is not relevant. Id. at 815-19, 102 S. Ct. 2736-39. The defendant has the burden of pleading and proving qualified immunity. Id. at 815, 102 S. Ct. at 2736.
In Losch, the Third Circuit interpreted Harlow to require that courts "look not to the clarity of the violation allegedly perpetrated, but at the clarity of the law at issue." Klitzman, Klitzman & Gallagher v. Krut, 591 F. Supp. 258, 265 (D.N.J.) (interpreting Losch), aff'd, 744 F.2d 955 (3d Cir. 1984). The plaintiff in Losch claimed defendants had brought criminal charges against him in retaliation for his exercise of first amendment rights. Defendants invoked the defense of qualified immunity. The Third Circuit held that the sole inquiry relevant to the qualified immunity issue was "whether Losch had clearly established rights to petition the government in the manner that he did and to be free of malicious prosecution for that exercise." Losch, 736 F.2d at 910. Because the law is clear that a citizen may not be penalized for exercising first amendment rights nor arrested without probable cause, the court rejected defendants' claim to qualified immunity. According to the court, the question of whether defendants acted reasonably and in good faith in filing charges against plaintiff pertained only to their defense on the merits of plaintiff's § 1983 claim, not to the issue of qualified immunity. Id.
Under the circumscribed analysis mandated by Losch, Mayor Saraullo is not shielded by the qualified immunity defense. As the Losch court held, the law protecting citizens from an official's use of his position to "launch a private vendetta" or to penalize the exercise of constitutional rights is clearly established. Id. In determining whether the mayor is entitled to qualified immunity I cannot, according to the Third Circuit, consider whether he could reasonably have believed that his actions did not violate plaintiffs' rights. Id.
The mayor's motion for summary judgment must therefore be denied.
D. Claims Against the Borough
The Borough of Darby seeks summary judgment on the ground that plaintiffs have not shown their rights were infringed pursuant to an official policy or custom. According to the Supreme Court, "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978). "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S. Ct. at 2037.
Plaintiffs allege that the Borough is liable because defendants used Darby Ordinance § 106-11 to infringe their rights. Plaintiffs are correct that a municipality can be sued for actions implementing a municipal ordinance. Id. at 690, 98 S. Ct. at 2035. As noted earlier in this opinion, however, it is questionable whether § 106-11 could reasonably be applied to plaintiffs' use of sound equipment. If an ordinance is manifestly inapplicable, the mere fact that officials cite the ordinance in support of their actions should not be a sufficient ground for imposing liability on the municipality. See Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984), cert. denied, 472 U.S. 1016, 105 S. Ct. 3476, 87 L. Ed. 2d 612 (1985).
In this case, however, the ordinance is not the only possible basis for municipal liability. A municipality is also liable for the acts of an official "whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694, 98 S. Ct. at 2037, 56 L. Ed. 2d 611. Mayor Saraullo is such an official. As our court of appeals has stated, "the Mayor of a Pennsylvania borough is its chief law enforcement officer." Commonwealth of Pennsylvania v. Porter, 659 F.2d 306, 310 (3d Cir. 1981), cert. denied, 458 U.S. 1121, 102 S. Ct. 3509, 73 L. Ed. 2d 1383 (1982). As such, he is responsible to "preserve order in the borough, [and] to enforce the ordinances." 53 P.S. § 46029(1). He has "full charge and control of the chief of police and the police force, and he shall direct the time during which, the place where and the manner in which, the chief of police and the police force shall perform their duties." Id. § 46121. See also Deposition of Louis Saraullo at 4.
The mayor had the final authority to determine whether and to what extent plaintiffs would be permitted to use sound equipment in the Borough of Darby. He also had the power to direct how police would deal with plaintiffs' activities. The Borough is therefore liable for any violation of plaintiffs' constitutional rights which may have resulted from the mayor's exercise of his authority. See, e.g., McKinley v. City of Eloy, 705 F.2d 1110, 1116-17 (9th Cir. 1983); Berdin v. Duggan, 701 F.2d 909, 913-14 (11th Cir.), cert. denied, 464 U.S. 893, 104 S. Ct. 239, 78 L. Ed. 2d 230 (1983); Black v. Stephens, 662 F.2d 181, 191 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 102 S. Ct. 1646, 71 L. Ed. 2d 876 (1982).
I recognize that the Third Circuit has held that a municipal "policy cannot ordinarily be inferred from a single instance of illegality." Losch v. Borough of Parkesburg, 736 F.2d 903, 911 (3d Cir. 1984). In Losch, however, the challenged decision was made by the chief of police, who cannot be said to act for the municipality in the sense that the mayor does. See Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir. 1983), cert. denied, 467 U.S. 1215, 104 S. Ct. 2656, 81 L. Ed. 2d 363 (1984). The official acts of the mayor, as the ultimate executive authority in the Borough, in themselves represent municipal policy. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (2d Cir. 1980). The Borough is responsible for the consequences of those acts. Because there is a genuine issue of fact as to whether plaintiffs' rights were violated, the Borough is not entitled to summary judgment.
Defendants have suggested that I abstain from adjudicating this matter. Defendants' memorandum of law does not discuss the basis for their suggestion, and I will reject it. The only form of abstention relevant to this case is that set forth in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L.Ed 971 (1941). Pullman abstention "may be invoked where there is an unsettled question of state law, the resolution of which would affect the decision of a federal constitutional issue, either by obviating the need to decide it or by changing the light in which it must be viewed." Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 746 (3d Cir.), cert. denied, 456 U.S. 990, 102 S. Ct. 2270, 73 L. Ed. 2d 1285 (1982).
The "unsettled question of state law" in this case is whether Darby Ordinance § 106-11 applies to plaintiffs' conduct. In my view, however, the question is not open to much dispute. The ordinance is clearly designed to regulate commercial use of sound equipment, not the type of political activities in which plaintiffs were engaged. Even if the ordinance applies, significant constitutional questions remain to be decided. The benefits of abstention in this case are dubious at best. See Black United Fund of New Jersey v. Kean, 593 F. Supp. 1567, 1571 (D.N.J. 1984), rev'd on other grounds, 763 F.2d 156 (3d Cir. 1985). On the other hand, the costs of abstention can be especially significant in a case involving first amendment rights. See id. (citing Baggett v. Bullitt, 377 U.S. 360, 379, 84 S. Ct. 1316, 1326, 12 L. Ed. 2d 377 (1964); Procunier v. Martinez, 416 U.S. 396, 404, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224 (1974)). I conclude that abstention is not appropriate in this case.
Summary judgment will be entered in favor of the Darby Police Department, which plaintiffs concede is not an entity subject to suit. As to the remaining defendants, there are genuine issues of material fact to be resolved at trial. Their motions for summary judgment will therefore be denied.
This 20th day of September, 1985, it is ORDERED that:
1. The Motions of Defendants the Borough of Darby and the Honorable Louis Saraullo for Summary Judgment are DENIED.
2. The Motion of Defendant The Police Department of the Borough of Darby, Pennsylvania for Summary Judgment is GRANTED.