Before LUMBARD, Chief Judge, and WATERMAN and MARSHALL, Circuit Judges.
Joseph Moss, whose prosecution for violation of the Connecticut Sunday Closing Law, Conn.Gen.Stat. § 53-300, is pending in the Connecticut courts, seeks a federal injunction against that prosecution on three grounds: (1) The Connecticut statute is unconstitutional on its face in that it constitutes an unreasonable discrimination and it is a law respecting establishment of a religion; (2) The statute is unconstitutional because it is unequally enforced; and (3) The state prosecuting attorney is, under color of law, depriving plaintiff of the constitutional right to equal protection. As to (1) and (2), plaintiff requested a threejudge statutory court which the district judge denied on the ground that plaintiff's constitutional claim was frivolous, citing McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961); Braunfield v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961); Gallagher v. Crown Kosher Super Mkt., 366 U.S. 617, 81 S. Ct. 1122, 6 L. Ed. 2d 536 (1961). As to (3), the court below held that plaintiff had not proved purposeful discrimination and entered summary judgment for the defendant. We affirm.
Moss operates a shoe store on Route 7 in Brookfield, Connecticut. He keeps the store open on Sundays and realizes onethird of his $276,000 annual gross receipts from sales on that day. On February 23, 1962, Hornig, as prosecuting attorney for the third judicial circuit in Connecticut,*fn1 filed an information against Moss for violation of the state Sunday Closing Law.*fn2 On March 30, the date when the complaint in the instant action was filed, trial was set for April 2.*fn3
Federal courts of equity have always been loathe to restrain criminal prosecutions by states, even on constitutional grounds, where all constitutional issues can be decided in the first instance as a matter of course by the state courts. Douglas v. Jeanette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943). The policy against enjoining the state proceeding is especially compelling in cases such as the instant one because it is probable that plaintiff presented no serious constitutional question which had not been decided by the Supreme Court, see Bush v. Orleans Parish School Board, 138 F.Supp. 336, 337 (E.D.La. 1956), leave to file petition for writ of mandamus denied, 351 U.S. 948, 76 S. Ct. 854, 100 L. Ed. 1472 (1956). Under these circumstances, we hold that the district court did not err in denying the request for a three-judge court under 28 U.S.C. § 2281.
However, we think the trial court was correct in reaching the merits of the claim predicated upon the Civil Rights Act, 42 U.S.C. § 1983, and in holding a hearing thereon before entering summary judgment for defendant. If we were reasonably certain that Moss would be allowed to assert "discriminatory enforcement" as a defense to the proceeding against him and that his claim regarding unconstitutionality would be decided upon review of his conviction, we would hold that Douglas v. Jeanette, supra, governs the 42 U.S.C. § 1983 action. But it has been held, see People v. Montgomery, 117 P.2d 437 (Calif.Ct.App. 1941), that "discriminatory enforcement" is not available as a defense in a criminal proceeding. It is therefore incumbent upon the federal courts, where sufficiently specific allegations are made, to make a preliminary inquiry such as was made here.
We do not find any case in which an injunction against a state prosecutor has been sought under 42 U.S.C. § 1983. Since Moss claims, in his complaint, that Hornig's "arbitrary and discriminatory enforcement of the [Sunday Closing Law] * * * against [him] * * * by arrest and prosecution is in violation of plaintiff's right to the equal protection of the laws," we must determine, first, whether the statute under which he brings his action encompasses the equal protection clause of the Fourteenth Amendment, and secondly, whether Moss has proved a denial of equal protection.
Section 1983 of 42 U.S.C. states:
"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 citizen of the United States or other person within the jurisdiction thereof 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."
Although it has occasionally been held, in other circuits, that the equal protection clause is not encompassed by 42 U.S.C. § 1983, see Bottone v. Lindsley, 170 F.2d 705 (10 Cir., 1948), cert. denied, 336 U.S. 944, 69 S. Ct. 810, 93 L. Ed. 1101 (1949); Ortega v. Ragen, 216 F.2d 561 (7 Cir. 1954), cert. denied, 349 U.S. 940, 75 S. Ct. 786, 99 L. Ed. 1268 (1955),*fn4 these courts reached their conclusion by reading 42 U.S.C. § 1983 in conjunction with the civil rights conspiracy statute, 42 U.S.C. § 1985(3), which refers to "equal protection of the laws, or of equal privileges and immunities under the laws." The latter statute is much more detailed than the former, and necessarily so, since it addresses itself, to private rather than state action, see Collins v. Hardyman, 341 U.S. 651, 661, 71 S. Ct. 937, 95 L. Ed. 1253 (1951); cf. Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883).
Taking 42 U.S.C. § 1983 by itself, there seems to be no reason to limit the scope of the "any rights, privileges, or immunities" clause to that of the "privileges or immunities of citizens" clause of the Fourteenth Amendment. The immunity from denial by the state of the equal protection of the laws is one secured by the Constitution of the United States. This view is supported by the language of Mr. Justice Stone in his separate opinion in Hague v. C.I.O., 307 U.S. 496, 526, 59 S. Ct. 954, 969, 83 L. Ed. 1423 (1939):
"[42 U.S.C. § 1983] thus includes the Fourteenth Amendment and such privileges and immunities as are secured by the due process and equal protection clauses, as well as by the privileges and immunities clause of that Amendment."
Further, in Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1944), the court considered (and rejected) a claim of denial of equal protection under both 42 U.S.C. §§ 1983 and 1985(3).*fn5 Although there is no square holding in Snowden that § 1983 encompasses the equal protection clause, we are persuaded that failure to dispose of the case on that narrow ground indicates that the Court accepted the view which Mr. Justice Stone expressed in Hague v. C.I.O., supra. See Snowden v. Hughes, 321 U.S. at 6-7, 64 S. Ct. 397, at 400, where Chief Justice Stone said that "three distinct provisions of the Fourteenth Amendment guarantee rights of persons and property," echoing the "rights * * * secured" language of § 1983.
We turn now to the question of whether plaintiff proved or offered to prove a denial by the prosecution of ...