Johnson v. Hackett

• Decision Date: 22 May 1968
• Docket Number: Civ. A. No. 43735.
• Citation: 284 F. Supp. 933
• Parties: Arien JOHNSON, by his mother and next friend, Jennie Johnson, on behalf of himself and all others similarly situated v. Barry HACKETT, individually and as a Police Officer of the Township of Bristol and Robert Thompson, individually and as a Police Officer of the Township of Bristol and Harry Merker, individually and as the Chief of Police of the Township of Bristol and Board of Commissioners of the Township of Bristol and The Township of Bristol.
• Court: U.S. District Court — Eastern District of Pennsylvania

284 F. Supp. 933

Arien JOHNSON, by his mother and next friend, Jennie Johnson, on behalf of himself and all others similarly situated v. Barry HACKETT, individually and as a Police Officer of the Township of Bristol and Robert Thompson, individually and as a Police Officer of the Township of Bristol

and

Harry Merker, individually and as the Chief of Police of the Township of Bristol

and

Board of Commissioners of the Township of Bristol

and

The Township of Bristol.

Civ. A. No. 43735.

United States District Court E. D. Pennsylvania.

May 22, 1968.

COPYRIGHT MATERIAL OMITTED

David H. Moskowitz, Weiss, Nelson & Moskowitz, Cornwells Heights, Pa., for plaintiff.

John J. Poserina, Jr., I. Leonard Hoffman, Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, Philadelphia, Pa., for defendant Hackett.

John W. Dean, III, Langhorne, Pa, for defendant Thompson.

Leonard B. Sokolove, Bristol, Pa., for defendants Township and Board of Commissioners.

OPINION

LUONGO, District Judge.

This is a suit¹ under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985 and 1986, seeking damages and injunctive relief against a township of the first class (Bristol Township, Bucks County), its Board of Commissioners, Chief of Police, and two of its policemen for alleged deprivation of the civil rights of Arien Johnson and other members of the Negro race residing in Bristol Township.

The Act of 1871, known as the Ku Klux Act, provides in pertinent part:

"§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any * * * person * * * 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."

"§ 1985. Conspiracy to interfere with civil rights — Preventing officer from performing duties

* * * * * *

(3) If two or more persons * * * conspire * * * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; * * * if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."

"§ 1986. Same; action for neglect to prevent

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable * * * for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; * *."

This suit is based on the following incidents charged in the complaint:

(1) On August 8, 1967 an unidentified police officer made a statement to a group of Negroes (Johnson was not in the group) in Bristol Terrace, a community in Bristol Township, that he "hated blackies". This incident was reported to the Chief of Police and to the Board of Commissioners.

(2) At about 5:00 p. m. on August 22, 1967 defendants Hackett and Thompson, Bristol Township police officers, while in uniform and on patrol in Bristol Terrace, offered to fight a group of Negroes (one of whom was Arien Johnson), and notified the group that they would return at 11:00 p. m. on that evening.

(3) At about 10:45 p. m. on August 22, 1967 in Bristol Terrace, Thompson asked one William Floyd (not otherwise identified) "Where are the night fighters?" and Hackett commented to the said Floyd "What's a dead nigger anyway?"

(4) At about 4:00 p. m. on the 23rd of August, 1967, while Hackett and Thompson were in uniform and riding in Bristol Terrace, "Hackett called Johnson `a Chinese nigger',² to which Johnson responded with a similar expression, but without racial overtones." (Complaint, par. 13). An unidentified police officer arrested Johnson for disorderly conduct. Before making the arrest, the unidentified police officer inquired of Hackett and Thompson whether either had shouted anything to provoke Johnson's response. They denied having done so and "instructed, directed, and ordered the unidentified officer to complete the arrest of Johnson * * *." (Complaint, par. 15).

Plaintiff asserts claims against Hackett and Thompson under §§ 1983 and 1985(3); against Chief of Police Merker and the Board of Commissioners under § 1986; and against Bristol Township on respondeat superior grounds. Each of the defendants has moved to dismiss the complaint for failure to state a claim under the Act of 1871. In addition, Bristol Township and the Board of Commissioners have moved to dismiss on the ground that they are not subject to suit under the Act.

I. Bristol Township and Board of Commissioners.

Bristol Township, a municipal corporation, is not a "person" subject to suit under the Act, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Under Pennsylvania law, the corporate power of townships of the first class is vested in the Board of Commissioners. 53 P.S. § 56502. As a body politic, the Board is likewise not subject to suit under the Act. Roberts v. Trapnell, 213 F.Supp. 47 (E.D.Pa.1962). No attempt has been made to sue the Commissioners individually.

The complaint will be dismissed as to Bristol Township and the Board of Commissioners.

II. Hackett and Thompson.

The claims against the police officers, Hackett and Thompson, are under § 1983 for acts committed by each allegedly depriving Johnson of constitutional rights, and under § 1985(3) for alleged conspiracy to purposefully discriminate against Johnson and other Negroes.

A. Section 1983 claim.

The essential elements of a claim under § 1983 are set forth in Basista v. Weir, 340 F.2d 74, 79 (3d Cir. 1965):

"* * * (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States."

Viewed in the light most favorable to plaintiff, the allegations of the instant complaint fail to establish either (a) that the acts of Hackett and Thompson were committed under color of law, or (b) that their conduct subjected Johnson to deprivation of rights secured to him by the Constitution and laws of the United States.

(a) Color of law.

United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), laid down the rule that

"misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law."

That the acts of the officers must be under "pretense" of law was stressed in Screws v. United States, 325 U.S. 91, p. 111, 65 S.Ct. 1031, p. 1040, 89 L.Ed. 1495 (1945), wherein it was noted that "acts of officers in the ambit of their personal pursuits are plainly excluded."

The acts complained of here were not under "pretense" of law. They were not committed in the performance of any actual or pretended duty of policemen. They were not acts these defendants could not have committed but for the cloak of the state's authority. It is not alleged that the offer to fight was in any way related to the performance of police duties. Quite to the contrary, the purely personal nature of the offer is emphasized by the allegation that, before the challenge was issued, Thompson removed his gun belt, laying aside, as it were, the symbol or "pretense" of police authority. As for the name calling, I can conceive of no more "personal pursuit." No police duty or power of which I am aware can possibly be construed as clothing an officer with the authority of law to call anyone insulting names.

What plaintiff's position boils down to is that any act committed by a police officer while on duty and in uniform is under "color of law", even if the act is wholly unrelated to the performance of any of his duties. This contention attempts to equate "clothed with the authority of state law" to "wearing a policeman's uniform." Of course they are not the same. It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law. If the officer was enabled to do what he did because of the authority of his office, even if what he did constituted an abuse of that authority, either by the excessiveness of his conduct or because the act was not actually, although apparently, authorized, the act is under "color of law." Thus, illegal arrest and search;³ abuse of persons in custody;⁴ obtaining a confession illegally;⁵ and denying use of privately owned facilities open to the public on account of race⁶ have been held to be acts under "color of law." But actions of off-duty policemen working as guards for private interests,⁷ and the swearing out of a complaint by a police official against a person who made an obscene telephone call to him⁸ were held to be personal acts not under "color of law." So also a charge of abuse of court process by a mayor of a city was held to be unrelated to the authority of his office and, therefore, not under "color of law."⁹

Plaintiff argues "color of law" action in that Hackett and Thompson participated in his arrest. The argument is based on the allegation that, after denying that they had done anything to provoke Johnson's outburst, Hackett and Thompson "directed" the...