LUMBARD, Chief Judge.
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 three-judge 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.
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:
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),
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):
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).
We turn now to the question of whether plaintiff proved or offered to prove a denial by the prosecution of equal protection of the law.
Mere failure to prosecute other offenders is no basis for a finding of denial of equal protection. See United States v. Rickenbacker, 309 F.2d 462 (2 Cir. 1962). To show that unequal administration of a state statute offends the equal protection clause one must show an intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397 (1944).
In Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), the Supreme Court rejecting petitioner's contention that the selective enforcement of the West Virginia habitual offenders penalty statute was a denial of his right to equal protection said:
The Oyler case seems to indicate that the relief for denial to equal protection is limited to cases where class discrimination is proved. Compare Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942). See the Supreme Court, 1961 Term, 76 Harv.L.Rev. 54, 120-121 (1962). But in Oyler, there was no allegation by petitioner of purposeful discrimination against him as an individual. It was merely argued, from statistics, that severer penalties were sought in a minority of the multiple offender cases. This, it was contended, denied equal protection to those persons against whom the heavier penalty was enforced, 368 U.S. at 456, 82 S.Ct. at 505.
In the instant case, Moss alleged an intentional or purposeful discrimination against him as an individual. We are not convinced that the Oyler case precludes our granting relief if a plaintiff can show that a state official purposefully discriminated against him. However, Moss has made no such showing. He evoked testimony that only two persons, including himself, had been prosecuted in the Third Circuit since 1961,
Plaintiff argues that he was prepared to prove purposeful discrimination and that the rulings of Judge Blumenfeld on objections to testimony he sought to elicit prevented his doing so. He contends further that those rulings were error.
Rule 43(c) of the Federal Rules of Civil Procedure provides that if an objection to a question is sustained, the attorney may make a specific offer of what he expects to prove by the answer of the witness.
It is likely that proof that others have violated the law and have not been prosecuted could be offered with respect to almost every lesser offense proscribed by the laws of Connecticut or of any other state. If such facts alone were sufficient to make out a case under the Civil Rights Act almost every state prosecution would be subject to interference on the claim of discrimination and the offer of such proof. Clearly the Civil Rights Act was not intended to provide such a means for
We hold that Moss has failed to prove purposeful discrimination which is required in order to establish a denial of equal protection, and that he did not make any offer of proof relevant to that issue.
He has therefore established no denial of equal protection under 42 U.S.C. § 1983.