The opinion of the court was delivered by: CALDWELL
Two of the defendants, Larry K. Meminger and J. William Stover, Pennsylvania District Justices located in Franklin County, have moved to dismiss the pro se plaintiffs' civil rights complaint, claiming judicial immunity. Additionally, the plaintiffs, Timothy J. Schuler and David T. Strode, have renewed their request for injunctive relief prohibiting defendants from prosecuting them on disorderly conduct charges arising from plaintiffs' activities on the streets of Chambersburg, Pennsylvania, as self-styled "street preachers." We had preliminarily denied the request for injunctive relief in an order, dated April 25, 1986, but thereafter, in an order, dated June 27, 1986, preparatory to a renewed consideration of the request, we required the parties to brief the issue of the propriety of injunctive relief. We advised plaintiffs to marshal all the facts they believed supported such relief. The parties have briefed both motions and they are ripe for disposition.
The plaintiffs' complaint arises from their arrest on several occasions for disorderly conduct under Pennsylvania law
while they were preaching in public areas of Chambersburg. The first arrests occurred on March 29, 1986, when plaintiffs were preaching on the Chambersburg Square. Defendant Mayer, an officer on the Chambersburg police department, told Schuler that he had complaints from undisclosed members of the public and that Schuler would have to stop preaching at the volume he was using. Schuler replied that he had a constitutional right to preach. Thereafter, Mayer arrested him for disorderly conduct. He was placed in defendant Christman's police car, taken to police headquarters, and fingerprinted by defendant Phillippy. He was then arraigned before defendant, District Justice Stover who placed a condition on his bond that he refrain from making loud noises.
On the same day plaintiff Strode was informed that he would be receiving a citation in the mail for disorderly conduct. On April 22, 1986, Strode was arraigned before Stover and placed under a bond containing conditions similar to Schuler's.
On April 7, 1986, Schuler was once again preaching. Defendant Demmick, a police officer, approached him and reminded him of an agreement with Chief DeFrank that Schuler would move on after preaching in one location for thirty minutes. Schuler moved on but defendant Ott cited him for violation of his bond. Schuler moved on again and was arrested by Demmick and Officer Ott. He was arraigned before defendant Meminger and was kept in Franklin County Prison until 3:00 p.m. the next day when a sympathetic stranger posted a bond meeting the conditions required by Magistrate Meminger.
Plaintiffs then filed a second complaint which added two new defendants, District Justices John Omett and David Hawbaker, and also described a subsequent arrest. On July 4, 1986, Schuler was preaching at a band shell following the completion of a gospel concert given by the Open Door Church Choir. Officer Bernard Clapper arrested him for disorderly conduct. Plaintiff was confined in the Franklin County Prison until 2:00 p.m. on July 7, 1986.
In their brief in support of their request for injunctive relief, plaintiffs have set forth other arrests. On April 7, 1986, as well as being arrested as previously described, Schuler was given a citation for a separate offense. He was cited on May 16, 1986, and arrested on May 24, 1986. Strode was cited on May 16, 1986 and Richard Hicks, a member of Schuler's congregation, who also engaged in preaching, was arrested on May 24, 1986.
Plaintiffs have charged defendants with an attempt "to get" Timothy Schuler, pastor of the Christian Bible Church, and "the leader." They also are allegedly trying to suppress the plaintiffs' teaching of their religious beliefs. Plaintiffs point out that they have been preaching in public areas such as sidewalks and parks and have reminded defendants constantly of plaintiffs' rights under the first and fourteenth amendments. Yet there have been a number of arrests, citations, prison confinements and fines. There also appears to have been selective enforcement of the statute. Schuler has apparently been singled out by the defendants. For example, on March 29, 1986, when Schuler was arrested, Strode was only given a citation. And on May 24, 1986, Ted and Tom Strode, other members of the Church, were permitted to preach for over an hour when Timothy Schuler and Hicks were arrested, and cited, respectively.
Plaintiffs request that we enjoin the defendants from continuing with past, present and any contemplated future prosecutions. They wish to litigate the constitutionality of their arrests in this federal forum before defendants are permitted to proceed with the state criminal prosecutions.
A. The Judicial Defendants' Motion to Dismiss Based Upon ...