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January 14, 1987


The opinion of the court was delivered by: TROUTMAN


 This case presents several interesting and novel issues with respect to rights secured to individuals by the Constitution and the identification of municipal policies and policy-makers for purposes of liability for civil rights violations.

 Briefly stated, the case arises from an incident that took place in Whitehall Township, Lehigh County, late in the evening of October 8, 1983. Without attempting to detail the differing versions of the incident offered by each side, it is possible to extract a reasonably accurate account of the events which gave rise to the controversy.

 Officer Leroy Oswald stopped a car driven by Gregory Goodwin after he observed the disregard of a red light. Plaintiff Linda Krisko was the owner of and a passenger in the car. She jumped out of the car, approached Officer Oswald and informed him that Goodwin was taking her to a hospital because she was suffering from an allergic reaction to food she had ingested at a nearby movie theater. Officer Oswald refused to let the car or any of its occupants leave the scene and continue to the hospital. At some point, either immediately upon being informed of the plaintiff's illness or after she allegedly collapsed as a result of it, Officer Oswald called an ambulance. Krisko was then taken to the hospital and treated. In the interval between the stop and the arrival of the ambulance, Oswald asked for and was given plaintiff's driver's license and the keys to her car.

 Several days later, Krisko arranged to meet with Whitehall Township Police Chief Frederick Conjour to discuss the incident. Krisko was accompanied by her parents. The Kriskos were dissatisfied with Oswald's handling of the situation and wanted to make their concerns known to Chief Conjour. During the meeting, Krisko's mother became very upset and was either asked to leave the office by Conjour or was literally thrown out of the office. While Conjour was escorting her parents from the office, Krisko attempted to use the telephone on his desk. When Conjour returned to the office and found Krisko using his telephone, he allegedly became enraged and snatched it from her hand before evicting her from the office.

 Defendants have moved for summary judgment as to several claims. Specifically, defendants first contend that they are entitled to judgment on the Second Amendment, Fourth Amendment, Sixth Amendment, and Eighth Amendment claims. Defendants also contend that the claim for punitive damages against Whitehall Township must fail as a matter of law and that Whitehall Township cannot be held liable for the actions of defendants Oswald and Conjour. Finally, defendants further contend that Krisko has failed to establish violations of the equal protection and due process clauses of the Fifth and Fourteenth Amendments. We will consider these contentions seriatim.

 I. Second Amendment

 Krisko's Second Amendment claim is admittedly a novel one. The Second Amendment to the Constitution provides as follows:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

 Krisko construes this provision as entitling her to the services of a well-regulated militia. Further, she contends that the Whitehall Township police force is a "militia" that is not "well-regulated".

 We decline to recognize the expansion of the Second Amendment in the manner for which the plaintiff contends. In the first instance, it is doubtful whether a police force can be termed a "militia". Second, and more important, the Second Amendment does not secure the right to a well-regulated militia in the sense that an individual is entitled to assert a claim that a state's militia is not "well-regulated". Rather, the Second Amendment secures to the several states the right to establish and equip a militia. Stevens v. United States, 440 F.2d 144 (6th Cir. 1971). Finally, the Second Amendment has consistently been held to constitute a limitation upon the power of the federal government vis-a-vis the states, not a limitation upon the states vis-a-vis their own citizens. Eckert v. City of Philadelphia, 329 F. Supp. 845 (E.D. Pa. 1971).

 For the reasons stated, we will grant defendants' motion for summary judgment as to plaintiff's ...

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