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Commonwealth of Pennsylvania and Richard W. Baumann v. Porter

decided. as amended august 5 1981.: July 30, 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. MCCARTHY, 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 IN NO. 79-2653 REGIS J. MCCARTHY, ET AL., APPELLANTS IN NO. 79-2684 JAMES D. PORTER, APPELLANT IN NO. 79-2685



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-1164)

Before Aldisert, Garth and Van Dusen, Circuit Judges. Argued Oct. 6, 1980. Reargued In Banc May 12, 1981. Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Hunter, Garth, Higginbotham and Sloviter, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

To the extent the injunction of the district court is directed to the members of the Borough Council it will be reversed. In all other respects the judgment of the district court will be affirmed. Because neither appended opinion commands in its entirety a majority of the members of the court, their positions are noted as follows:

Judges Higginbotham and Sloviter join in Judge Gibbons' opinion in its entirety.

Chief Judge Seitz, and Judge Adams, because of the unusual factual situation present here, join in the conclusions reached in Judge Gibbons' opinion except as to part IV(D) dealing with the Borough Council. As to the Borough Council, they join in the conclusion reached in part IV of Judge Garth's opinion.

Judges Aldisert and Hunter join in Judge Garth's opinion in its entirety.

Costs to be taxed against Appellant Baranyai in No. 79-2653.

One-half the costs to be taxed against the Appellees and one-half the costs to be taxed against Appellant McCarthy in No. 79-2684.

Costs to be taxed against Appellant Porter in No. 79-2685.

Frank L. Baranyai, a policeman, Regis J. McCarthy, Mayor, James D. Porter, Police Chief, Carl Seidl, President of the Borough Council, and six other council members, all of the Borough of Millvale, Pennsylvania appeal from a final injunction issued in an action brought by the Commonwealth of Pennsylvania and three individual plaintiffs, charging that Baranyai, with the instigation, acquiescence and ratification of the Mayor and Council, engaged in an extended pattern or practice of conduct denying persons lawfully in Millvale their constitutional rights to be free from physical violence, mistreatment, threats, harassment, illegal detention, illegal arrests, and illegal searches and seizures. Each defendant, for different reasons, contends that no injunctive relief should have been granted against him.

I

The Borough of Millvale is a small municipality in Allegheny County organized under the Pennsylvania Borough Code. 53 P.S. § 45101 et seq. That code vests in the Borough Council power to enact ordinances not inconsistent with the laws of the Commonwealth. 53 P.S. 46006(3). The Code also provides that it shall be the duty of the Mayor "(t)o preserve order in the borough, to enforce the ordinances ... (and) to exact a faithful performance of the duties of the officers appointed ...." 53 P.S. 46029(1). Borough Councils are authorized "to appoint and remove, or suspend, or reduce in rank, one or more suitable persons ... as borough policemen." 53 P.S. 46121. Moreover "(t)he borough council may designate one of said policemen as chief of police." Id. The Mayor of the Borough "shall have 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. While Section 46121 vests ultimate power of removal or suspension of policemen in the Borough Council, the Mayor may suspend any policeman for cause until the Council's next regular meeting. 53 P.S. § 46124. Thus the Mayor of a Pennsylvania borough is its chief law enforcement officer, charged with the responsibility of supervising the manner in which the police department functions, with ample authority to control the conduct both of the chief of police and of all police officers. Together, the Mayor and the Council exercise close control over Borough Police Force personnel.

53 P.S. § 46190 lists specific reasons for suspension or removal of policemen. Among those reasons are "violation of any official duty", besides the commission of a misdemeanor or a felony, "inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer." Anyone acting in an official capacity in Pennsylvania, including a policeman, commits a misdemeanor if, knowing his conduct is illegal, he subjects another to arrest, detention, search, seizure, mistreatment or other infringement of personal or property rights; or denies or impedes another in the exercise of any right, privilege, power or immunity. 18 Pa.C.S.A. § 5301.

In 1911, the Borough of Millvale passed an ordinance, No. 305, never amended nor repealed, defining disorderly conduct. (Joint Exhibit B). Disorderly persons include "(a)ll persons persisting in loitering upon the public highway or streetcorners and in front of any store, shops, places of business, place of amusement or place of worship after being requested to vacate such place or places and move on," "(a)ll habitual street or corner loafers," and "(a)ll suspicious persons or person who can give no reasonable account of themselves."

In the summer of 1973 the Council hired Baranyai as a policeman. In August of 1974 the Council at a meeting attended by the Mayor, received the first of a long series of citizen complaints about Officer Baranyai's behavior in that capacity. On that occasion three persons complained of verbal abuse or harassment. (Plaintiff's Exhibit 1). Subsequent complaints of more serious misconduct by Baranyai were made, and these eventually came to the attention of Community Advocate Unit of the Attorney General's office in Pennsylvania. That office conducted an investigation which resulted in the filing of criminal charges against Baranyai in the Court of Common Pleas of Allegheny County on July 14, and July 18, 1977. Those charges were called to the attention of the Council, the Mayor, and the Chief of Police, but Baranyai, nevertheless, was continued as a policeman dealing with the public. Indeed, after it learned of the Commonwealth's decision, the Council passed a resolution supporting Baranyai's conduct.*fn1

On October 6, 1977 the Community Advocate Unit of the Attorney General's Office filed the complaint in this action, seeking preliminary and permanent injunctive relief prohibiting the defendants from subjecting residents of Millvale and others lawfully in Millvale from unconstitutional physical violence, mistreatment, threats, or harassment; from unconstitutional detention, searches, seizures, arrests and imprisonment; and from interference with the free exercise of their rights. The complaint alleges a course of conduct by Baranyai in violation of rights protected by the United States Constitution. It charges Baranyai with illegal arrests, illegal searches and seizures, excessive use of force, beatings of persons in custody, and intimidation of persons who would complain or testify against him. It alleges that the Council members, the Mayor and the Chief of Police, each of whom could exercise control over Baranyai, having full knowledge of this course of conduct, and of the danger he posed to all with whom he comes in contact during the course of his employment as a policeman, purposefully, unreasonably, and in bad faith refused to suspend, transfer, or otherwise limit his activities; publicly condoned and approved his unconstitutional actions; and in some instances intimidated or attempted to intimidate persons who would testify or complain against him.

The defendants responded to the complaint by filing a motion to dismiss. They pressed two principal grounds in support of that motion: (1) that the Commonwealth of Pennsylvania was not a proper plaintiff; and (2) that on the authority of Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976) the complaint failed to state a claim upon which any injunctive relief could be granted. On February 24, 1978 the district court denied the motion unconditionally insofar as it relied on Rizzo v. Goode. The court also denied it insofar as it contested the Commonwealth's standing as a plaintiff, provided that within 20 days the Commonwealth filed an amended complaint joining as plaintiffs individuals whose rights are claimed to have been violated. An amended complaint was filed in which four individual plaintiffs were joined, and requested class action relief. The defendants responded to the amended complaint by a motion to strike, this time contending that all persons whose rights were violated would have to be joined, that the Commonwealth could not act on behalf of non-party victims of Baranyai's actions, that the four individual plaintiffs had an adequate remedy at law, and that a class action was improper. The motion to strike was denied. Thereafter the individual plaintiffs moved for a class action certification.

This motion was denied:

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 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.

Order of September 6, 1978, 2528a. See also Commonwealth of Pa. v. Porter, 480 F. Supp. 686, 695 (W.D.Pa.1979).

A non-jury trial of the action began on April 23, 1979. The court heard testimony from 61 witnesses over 14 days, and received in evidence voluminous exhibits. The trial court made extensive findings of fact, many of which involved credibility determinations about disputes in testimony between the witnesses offered by the plaintiffs and those offered by the defendants. The court's ultimate conclusion, based upon those extensive findings, is that "Baranyai has engaged in a pattern of (sic) practice denying citizens residing in and otherwise lawfully in the Borough of Millvale, Allegheny County, their rights to be free from physical violence, mistreatment, threats, harassment, illegal detention, illegal arrest and illegal searches and seizures."*fn2 As to the Chief of Police, the court found:

The evidence indicates that despite complaints Porter never found fault with Baranyai pertaining to the charges. He took no action to discipline him after he was convicted in criminal court of malfeasance in office, he has publicly supported Baranyai in all instances, he could not give a single instance of a report of an investigation to the complainant, and he retaliated against other officers, viz: Cepek, Fisinger, Pfeifer and Snyder who testified or otherwise complained relative to Baranyai's conduct.*fn3

As to the Mayor, the court found:

The evidence in the case is that Mayor McCarthy instigated the police department in using broad powers under Ordinance No. 305 of 1911 to move people off the street who were doing nothing and not obstructing passage and to arrest them upon failure to move at the officer's whim.... Mayor McCarthy was in receipt of numerous complaints relative to Baranyai's conduct both in and outside council meetings but he found that all complaints were unjustified. Any investigation made was, as previously found by this court, perfunctory in nature only and consisted of asking Chief Porter or Officer Baranyai whether there was any basis for the complaint.

Mayor McCarthy has publicly stated that:

"As long as I am Mayor, I will not suspend Frank Baranyai from the Millvale Police Force." He also participated in the retaliation against other officers who testified or complained relative to Baranyai. We therefore find that he is causally linked to this pervasive pattern of violation of constitutional rights and is subject to relief under Rizzo v. Good(e), supra, that he is causally linked to police abuse and that practices in this case certainly rise to a custom or usage which is actionable under 42 U.S.C. § 1983.*fn4

As to the Council the court found:

... the evidence shows that citizens soon learned that complaints to the Borough Council were useless. The Borough Council itself has, however, taken an active part in the Baranyai affair. It twice adopted resolutions supporting Baranyai's conduct on July 12, 1977 (Plaintiff's Ex. 15) and on February 14, 1978 (Plaintiff's Ex. 12).

Notwithstanding that Baranyai was convicted on criminal charges against him and this case was filed on October 5, 1977, the Borough Council has nevertheless refused to take further action. Two members of the Borough Council who endeavored to induce it to do something about the situation and exercise its powers were voted down by a vote of 5 to 2 and were subject to personal abuse.

Beginning in 1975, the Borough Council began to get complaints about the conduct of Officer Baranyai and notwithstanding the verdict of guilty in the criminal cases and the bringing of this suit has failed to make any investigation or take any steps toward removing or suspending him. This is not a case like Rizzo depending on statistical proof. The proof here pinpoints violations by one police officer against individual citizens who have appeared on the stand and complained. The police officer is a defendant here as well as the other borough officials who are involved in this unhappy proceeding and whose actions have encouraged Baranyai in further violations ... We find this course of conduct on the part of Baranyai encouraged and supported by the other defendants in this case will continue unless some restraint is exercised by the court.*fn5

Summarizing, the Court said:

Under these circumstances we have no hesitation in finding that all the defendants in this case were causally linked to the police abuse by Officer Baranyai, that there was a pervasive pattern of support for him and his misconduct and this amounts to a custom and usage under 42 U.S.C. § 1983 and Monell, supra.*fn6

The court entered a permanent injunction the relevant provisions of which are set forth in the margin.*fn7 This appeal followed.

II

The defendants have advised us that while the appeal was pending Baranyai left the employ of the Borough of Millvale, taking a job as a policeman in another Pennsylvania community. They suggest that this development renders the entire case moot, and requires that we enter a judgment vacating the district court's judgment.*fn8 The Commonwealth disagrees. It points out that Baranyai is still functioning as a policeman, and that the pattern or practice of police misconduct which the court found he had engaged in may, if not enjoined, continue in another part of Pennsylvania. The Commonwealth is as interested in preventing police misconduct throughout Pennsylvania as in Millvale. Moreover the Commonwealth urges that the case involves not only Baranyai's abuses, but also the encouragement of those abuses by the Mayor, the Police Chief, and the Borough Council. For example, it cannot be said with certainty that those defendants will not in the future encourage the same misuse of ordinance No. 305 in which the court found they encouraged Baranyai. Finally, the Commonwealth points out that we have no assurance that absent the injunction Baranyai himself would not be rehired. In these circumstances we cannot say with assurance that there is no reasonable expectation that the alleged violations will recur, or that Baranyai's change in position has completely and irrevocably eradicated the effects of the pattern or practice the court found. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979). This is not a case like DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974) in which the interest of a single plaintiff is involved and he has achieved everything a judgment could afford him. Nor is it a case in which we are reviewing a preliminary judgment which by standards applicable to pendente lite relief might be moot. University of Texas v. Camenisch, 451 U.S. 390, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981). We review a final injunction protecting a broad class. The merits of that final injunction must be considered.

III

All of the defendants contend that the trial court erred in refusing to dismiss the Commonwealth as a plaintiff. At first blush one may wonder why, since there are individual plaintiffs in the case in any event, so much time, effort and space has been devoted to this issue. What the defendants are seeking, however, is a result which will, without reaching the merits of most of the case, bring about an effective dismantling of the injunction. They argue that the individual plaintiffs were not designated as class representatives, and thus that any injunction could only run to plaintiffs' individual benefit, not to the benefit of others who in the future may happen to encounter Officer Baranyai, the Millvale police department, and other Millvale municipal officials. Thus, the defendants hope, our review will be confined to evidence of Baranyai's actions regarding the four named plaintiffs, and of support, encouragement or ratification by the remaining defendants in those specific instances. Even if we should reject defendants' challenge to the sufficiency of the evidence respecting the four named plaintiffs, defendants would have us direct the modification of the decree so that it protects only those plaintiffs, while Baranyai, the Mayor, the Chief of Police and the Council remain free of the threat of contempt in their dealings with other persons. They would, of course, be bound, by virtue of non-mutual collateral estoppel, by the determination that certain of their conduct is unconstitutional. Enforcement of the decree on a collateral estoppel basis would, however, require a plenary suit by a new plaintiff. Moreover, even if a more general injunction were authorized, the defendants could hope that policing its enforcement in the future would be less effective without the resources of the Commonwealth.

We are not impressed by the procedural subtleties to which we are asked to resort for the purpose of dismantling the injunction. The individual plaintiffs sought and the defendants successfully opposed class action certification. Before we could accept the position that absent the Commonwealth as a plaintiff, the decrees must be dismantled because of the absence of class certification, we would have to consider whether in what is plainly a Rule 23(b)(2) type action, any prejudice resulted to the defendants from the failure to make such a certification. None has been called to our attention. Moreover we would also have to consider whether, assuming the Commonwealth should have been dismissed, the court erred in yielding to the defendants' opposition to class certification. Certainly it comes with little grace for the defendants to urge as a ground for reversal the very absence of class action certification which they insisted upon in the trial court. We need not, however, explore these engaging possibilities. They arise only if we accept the defendants' basic premise that the Commonwealth is an improper plaintiff. We do not.

At the outset, a straw man at which there has been a good deal of tilting can be set to one side. That is the question whether the Commonwealth is a "person within the jurisdiction" of the United States within the meaning of 42 U.S.C. § 1983, or a "person" whose life, liberty or property is protected by Section 1 of the fourteenth amendment. The fourteenth amendment is a limitation upon the states in the interest of individuals, and section 1983 was enacted to facilitate vindication of such individual interests.*fn9 The question is not whether either the fourteenth amendment or section 1983 protects the Commonwealth neither does*fn10 but whether the Commonwealth is an appropriate plaintiff in an action seeking to prevent the infliction of constitutional violations on the persons the amendment and the statute do protect. If the Commonwealth is an appropriate plaintiff, there is subject matter jurisdiction in the district court, without regard to jurisdictional amount, under Federal Question Jurisdictional Amendments, Act of Dec. 1, 1980, Pub.L. 96-486, § 2(a)(b), 94 Stat. 2369, amending, 28 U.S.C. § 1331, since that statute applies to any civil action pending on December 1, 1980. See 28 U.S.C. § 1653. Thus we need not concern ourselves with the now obsolete question whether the Commonwealth could qualify as a plaintiff under 28 U.S.C. § 1343(3). The sole question is whether it is an appropriate plaintiff. The Commonwealth urges that it is suing as parens patriae both in its own behalf as a sovereign and as a representative plaintiff on behalf of persons in Millvale and elsewhere in Pennsylvania.

In considering the Commonwealth's sovereign interests, it is well to start with an occasionally neglected fundamental. The fourteenth amendment is the supreme law of the land in all of Pennsylvania. All executive officers of Pennsylvania, including the Attorney General, have taken the oath prescribed by Article IV, Section 6, Clause 3 to uphold that amendment. See 71 P.S. § 761; Pa.Const. Art. 6 § 3. By virtue of the supremacy clause, the Commonwealth has the same interest in compliance with the standard of conduct laid down in the fourteenth amendment as it has in compliance with standards of conduct enacted by the Pennsylvania legislature. The Commonwealth is vitally interested in the prevention of lawless exercises of the powers its laws confer upon police officers hired by its subdivisions. Moreover, the Commonwealth is, with respect to local government, a total sovereign which has delegated limited functions to entities such as the Borough of Millvale. See, e. g., In re Gagliardi's Appeal, 401 Pa. 141, 163 A.2d 418 (1960); Golding v. Tp. of New Britain, 33 Pa.Cmwlth. 635, 382 A.2d 509 (1978). Misconduct of local government officials both interferes with the proper discharge of those functions which the Commonwealth has delegated, and risks undermining public confidence in the instrumentalities to which it made the delegation. Additionally, patterns or practices of misconduct by local officials in violation of constitutional rights interferes with the performance of the obligation of executive officers of the Commonwealth to uphold and enforce those rights. If those executive officers cannot take steps to prevent the future occurrence of such violations by injunction, a burden of post-event enforcement by investigation and prosecution will be imposed upon the Commonwealth, which will divert its resources of staff and money from other tasks. The Commonwealth is also vitally interested in safeguarding the health and safety of individuals in its territory.*fn11 The Commonwealth's interest in prevention of physical abuse which may cause serious personal injury is no different in kind from the Commonwealth's interest in preventing poisoning by toxic waste or maiming by unsafe automobiles. In each instance the cost, ultimately, is borne by the Commonweal. Finally, failure to prevent future occurrences of violations of constitutional rights undermines the fiscal status of the Commonwealth's municipal creatures by exposing them to liabilities which can only be satisfied from tax revenues.*fn12

In Pennsylvania, the Attorney General is the officer responsible for vindicating the sovereign interests referred to in the preceding paragraph. 71 P.S. §§ 244, 294(b), repealed, Commonwealth Attorneys Act of Oct. 15, 1980, No. 1980-164 (effective Jan. 20, 1981), replaced with, id §§ 201(a), 204(c). During oral argument before the full court the Deputy Attorney General representing the Commonwealth pointed to several reasons why, in vindicating them, it should not be forced to rely upon the happenstance of suits by individual victims of constitutional violations. First, many individual victims may be unable to show the likelihood of future violations of their rights, and will be relegated to damage actions only. Typical of such a potential victim is the one-time visitor to Millvale. Second, the burden of going forward with investigation and litigation of any action seeking injunctive relief against a pattern or practice of police misconduct is substantial, and is not likely to be within the resources available to the typical victims of such misconduct. Absent such resources an individual plaintiff may not be recognized by the court as an adequate class representative even if willing to sue. See generally Kaye & Sinex, The Financial Aspect of Adequate Representation Under Rule 23(a)(4): A Prerequisite To Class Certification?, 31 U. Miami L.Rev. 651 (1977). Thus, reliance on private enforcement is not likely to vindicate the Commonwealth's interests. Finally, in police misconduct cases the very real fear of intimidation and retribution is a significant deterrent to vigorous private enforcement actions.*fn13 Without the support of law enforcement at the state level, the Commonwealth could not anticipate that individual plaintiffs would have exposed themselves to that risk in order to vindicate the interests of the public.

Summarizing, then, the Commonwealth is in this suit advancing significant sovereign interests of its own in the prevention of future violations of constitutional rights of its citizens, in circumstances in which it cannot reasonably anticipate that private enforcement will achieve the protection of those sovereign interests. Any description of a parens patriae remedy, even the narrowest, includes the state of facts alleged in the Commonwealth's complaint.

Actions by a government for the prevention of harm to interests shared by all members of the community are no strangers to the federal law of remedies. The United States has been a frequent parens patriae plaintiff. In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 (1895); United States v. Lassiter, 203 F. Supp. 20 (W.D.La.) (4 judge court), aff'd per curiam, 371 U.S. 10, 83 S. Ct. 21, 9 L. Ed. 2d 47 (1962); Fla-East Coast Ry. v. United States, 348 F.2d 682 (5th Cir. 1965); United States v. City of Jackson, 318 F.2d 1 (5th Cir. 1963); United States v. Original Knights of the KKK, 250 F. Supp. 330 (E.D.La.1965) (3 judge court); United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y.1970); United States v. City of Shreveport, 210 F. Supp. 36 (W.D.La.1962); United States v. City of Montgomery, 201 F. Supp. 590 (M.D.Ala.1962); United States v. U.S. Klans, 194 F. Supp. 897 (M.D.Ala.1961). In all these cases the United States sued in a parens patriae capacity to enjoin burdens upon interstate commerce.*fn14 Most involved burdens imposed by local law or custom, and which resulted in the violation of federal civil rights. Often such suits are authorized by federal statute such as 28 U.S.C. § 518(b). See United States v. California, 332 U.S. 19, 27, 67 S. Ct. 1658, 1662, 91 L. Ed. 1889 (1946). The presence or absence of an authorizing statute, however, bears not on the standing of the United States, an Article III issue, but on federal separation of powers concerns which are not implicated in this case. The federal sovereign interests supporting the settled standing of the United States to bring such actions are no different in kind from the sovereign interests which the Commonwealth seeks to vindicate.

Parens patriae actions by the states are also familiar federal court remedies of long standing. See, e. g., Pennsylvania v. New Jersey, 426 U.S. 660, 665, 96 S. Ct. 2333, 2335, 49 L. Ed. 2d 124 (1976) (reviewing cases); Hawaii v. Standard Oil Co., 405 U.S. 251, 257-59 & n.12, 92 S. Ct. 885, 888-89 & n.12, 31 L. Ed. 2d 184 (1972) (reviewing cases); Georgia v. Pennsylvania R.R., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051 (1945) (antitrust); Missouri v. Illinois, 180 U.S. 208, 21 S. Ct. 331, 45 L. Ed. 497 (1901) (interstate pollution). The federal courts must take care, of course, that state parens patriae suits are not resorted to as devices for the vindication of private rights that would not otherwise be within federal subject matter jurisdiction.*fn15 There are no such concerns here, however, because claims for injunctive relief for violations of constitutional rights are unquestionably within the district court's subject matter jurisdiction. Thus those cases stressing the importance of some form of strict scrutiny of the states' separate sovereign interest in order to avoid enlargement of our subject matter jurisdiction are not relevant. Even if they were, however, the sovereign interests we have identified above survive such scrutiny.

Courts in this circuit have long recognized that the Commonwealth may bring a parens patriae action in the United States District Courts to enforce the fourteenth amendment. See, e. g., Commonwealth of Pa. v. Brown, 260 F. Supp. 323, 338 (E.D.Pa.1966), vacated and remanded on other grounds, 373 F.2d 771 (3d Cir. 1967) (en banc), on remand, 270 F. Supp. 782 (E.D.Pa.1967), affirmed, 392 F.2d 120 (3d Cir.) (en banc), cert. denied, 391 U.S. 921, 88 S. Ct. 1811, 20 L. Ed. 2d 657 (1968) (Commonwealth suit to desegregate Girard College); Commonwealth v. Flaherty, 404 F. Supp. 1022 (W.D.Pa.1975) (suit to redress employment discrimination by city and police officials); Commonwealth v. Glickman, 370 F. Supp. 724 (W.D.Pa.1974) (suit to redress employment discrimination by city officials). The defendants urge, however, that those cases are inconsistent with and were overruled by this court's decision in Commonwealth of Pa. v. National Ass'n of Flood Ins., 520 F.2d 11 (3d Cir. 1975). Reliance on this case is misplaced for several reasons. In the first place the Commonwealth was in that case attempting as parens patriae to advance the interests of Pennsylvania flood victims against instrumentalities of the United States. It has been settled since Massachusetts v. Mellon, 262 U.S. 447, 486, 43 S. Ct. 597, 600, 67 L. Ed. 1078 (1923) that a state may not attempt as parens patriae to enforce rights of its citizens "in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status." Thus the holding in National Ass'n of Flood Ins. is no more than an application of that settled rule. Moreover, apart from the nature of the defendants involved, that decision is simply an application of the rule to which we referred above that parens patriae suits may not be used as a means to enlarge a federal court's subject matter jurisdiction over private claims which could not otherwise have been entertained. In that instance, failure to meet the administrative agency review requirement in 28 U.S.C. § 2675(a) precluded the claim. Thus the holding in National Ass'n of Flood Ins. in no way bears upon the standing of Pennsylvania to seek injunctive relief in a federal court against violations of the fourteenth amendment. To the extent that any of the language in that case might be construed to support a different conclusion, it should be deemed overruled by this en banc decision.*fn16

We have held above that the traditional federal law remedy of a parens patriae action is generally available to the states for the enforcement of the fourteenth amendment in appropriate cases. Even were that remedy unavailable, however, there is another reason such a remedy must be recognized in Pennsylvania. At the time the Commonwealth brought this action, Pennsylvania's Administrative Code authorized the Department of Justice "to take such steps, and adopt such means, as may be reasonably necessary to enforce the laws of the Commonwealth." 71 P.S. § 294(b).*fn17 In Commonwealth v. Gibney, 21 Pa. D. & C.2d 5 (Chester Com. P. 1959) the Commonwealth brought an action to enjoin the proprietor of a public park from excluding Blacks. The defendants objected that only an individual plaintiff could bring such an action. The court held, however, that the Commonwealth had the same standing to seek injunctive relief as was recognized for the United States in In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 (1895). 21 D.&C.2d at 9-10. Thus Pennsylvania law recognizes the availability of parens patriae relief even when individual relief might also be available.*fn18 That Pennsylvania law remedy is available in a federal district court proceeding in vindication of civil rights by virtue of Section 3 of the Civil Rights Act of 1866, 42 U.S.C. § 1988.*fn19

The Commonwealth also argues that even if its parens patriae standing as a plaintiff were not recognized, it should in any event be recognized as an adequate class representative of the class of persons in Millvale who in the past have been and in the future may be subjected to violations of constitutional rights by Millvale policemen. There is considerable merit to this contention, particularly in an action which appears to fall within Fed.R.Civ.P. 23(b)(2), for the interest in injunctive relief is common to the class. The trial court's failure to certify the action as a class action is not fatal to recognition of the Commonwealth's representative standing in such a case, since the same record has been made as would have been made had a Rule 23(b)(2) class been certified.*fn20 See Pasadena City Bd. of Education v. Spangler, 427 U.S. 424, 430-31, 96 S. Ct. 2697, 2702, 49 L. Ed. 2d 599 (1976). (United States may continue action for injunctive relief even when no class has been certified and claims of individual plaintiffs are moot). It is not necessary to rest our recognition of the Commonwealth's standing as a plaintiff on this ground, however, since, as we have held above, both federal law and state law applicable by virtue of 42 U.S.C. § 1988, recognize the Commonwealth's parens patriae plaintiff status.

One final consideration, not advanced by the defendants in so many words, but suggested at least obliquely as a reason for dismissing the Commonwealth's complaint, is the availability of injunctive or other relief in the Commonwealth's own courts. Somehow, the suggestion goes, it was unseemly for the Attorney General to resort to a federal forum in preference to a Pennsylvania state court. We do not know, and have no legitimate reasoning for inquiring why the Attorney General chose to bring an action for the vindication of federally protected rights in a federal forum. Congress has provided for federal question subject matter jurisdiction, and has not excluded the Commonwealth from resort to it. None of the familiar rhetoric of "equity, comity and federalism", which is advanced so often in support of federal door closing devices when the state is resisting relief in favor of private plaintiffs, has any application to cases in which the state, acting through one of its highest executive officers, seeks the aid of a federal court in assisting it in the discharge of its freely acknowledged duty to enforce the provisions of the federal constitution. Closing the doors of a federal court upon the Commonwealth as a plaintiff would be a perversion of principles of federalism.

Thus we find no merit in the defendants' contention that the Commonwealth's complaint should have been dismissed, and that therefore the injunction should be modified to eliminate all class-wide relief.

IV

Each defendant also contends that in subjecting him to an injunction the court erred, either in making findings of fact which are clearly erroneous, in admitting or excluding evidence, or in fashioning injunctive relief. We ...


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