Thomas F. Bennis, Roger J. Maclean v. Carson S. Gable, Joseph S. Daddona, City of Allentown, Appellants, 823 F.2d 723 (3d Cir. 1987)

This appeal raises a number of close questions growing out of the trial of a political patronage suit brought by the plaintiffs, two Allentown, Pennsylvania, policemen, against the Mayor, the Chief of Police, and the City of Allentown. Plaintiffs' theory at trial was that the defendants had violated the plaintiffs' constitutional and federal civil rights by demoting them from detective-sergeants to patrolmen in retaliation for their support of Mayor Daddona's political opposition in the 1977 and 1981 mayoral elections. Alternatively, the plaintiffs argued that they were demoted to make room for Daddona's political supporters. Although the interests at stake were important and the evidence considerable, we conclude that the district court impermissibly trespassed upon the jury's fact-finding function when it instructed that, as a matter of law, the plaintiffs had engaged in protected first amendment activity. We therefore vacate the district court's judgment and remand for a new trial. Further, although mindful of the general rule that an appellate court will not decide questions not necessary to a determination of the case, because several of the issues raised by this appeal are almost certain to resurface in a new trial, we discuss those issues as well.

Joseph Daddona, a Democrat, was first elected mayor of the City of Allentown in 1973. As his chief of police, Daddona retained Carson Gable, then a Republican and chief of police under the former Republican administration. The plaintiffs, Thomas Bennis and Roger MacLean, were both hired as police officers in 1974, through a civil service hiring procedure.

Both plaintiffs claim to have known Daddona and Gable, and Bennis claims that his family had been neighbors and early supporters of Daddona. Bennis claims that a fallout between the families occurred sometime in 1976, and both plaintiffs allege that they supported the Republican candidate, Frank Fischl, in his successful unseating of Daddona in the 1977 mayoral election. As we shall develop further, the question of whether the plaintiffs did indeed actively support Fischl, or even whether they refused to support Daddona, was one of fact for the jury to decide.

In 1979 Bennis, along with fourteen others, applied for a promotion to the position of detective-sergeant. There were two positions available, and after reading all fifteen resumes and interviewing the six most promising candidates, a committee selected Bennis to fill one of the two available slots. MacLean also was promoted to the position of detective-sergeant in November 1981, after assisting the detective bureau in a child homicide investigation.

Daddona successfully ran in the 1981 democratic primary to regain the mayoralty, and was eventually elected in the November 1981 general election. At trial, both plaintiffs claimed to have supported Daddona's opposition in both elections. In particular, they claimed to have supported Democrat Louis Hershman in the primary election, and Republican Robert Smith in the general election. One of the major campaign issues, according to Daddona, was the lack of efficiency and low morale of the police department under Arthur Allender, who had succeeded Gable in the position of police chief in 1977.

Plaintiffs Bennis and MacLean testified that they first suspected on May 31, 1981, and early June 1981, respectively, that their alleged opposition to Daddona would have an impact upon them. Bennis testified that on May 31 Richard Zeller, an Allentown police officer, told him that the previous day Richard Gerencher, another Allentown police officer and son-in-law of Carson Gable, had been arguing with James Spang, head of security at the Allentown Fairgrounds. Apparently, Zeller overheard Gerencher tell Spang that "when Daddona comes back, heads are going to roll, your friends Bennis and MacLean are going to take a tumble."¹  MacLean testified that he became aware of the incident when Bennis told him about it a few days later.

After Daddona's 1981 election, Gable, by now a registered Democrat, reassumed his duties as chief of police. Gable testified that shortly after the election Daddona asked him to make specific recommendations as to how to improve morale in the police department, and that in response to this request he made recommendations on, inter alia, demotions, reassignments of people, changes in platoon structure, and the addition of a night patrol. Most, though not all of Gable's recommendations were accepted by Daddona and in the end, twenty-four of 126 officers on the force were affected. Of the twenty-four, six, including the plaintiffs, were demoted. Nine demotions had been recommended.

Gable stated his reason for recommending plaintiffs' demotions in a January 1982 memorandum to Daddona:

There is every reason to believe that their conduct, individually and collectively, has been reprehensible on duty and off. This conduct led to public criticism of the Police Bureau and created a schism of our sworn officers which can never be tolerated. Morale is at a new low, and understandably so.

With respect to two other officers, Gable stated:

These men were promoted the last week in November 1981 and together with Roger MacLean (above) was simply a last ditch effort to help friends.

As a result of their demotions, plaintiffs' salaries were reduced by five and six percent, and they lost potential overtime.

After a six-day trial, the district court instructed the jury that as a matter of law the plaintiffs had engaged in protected first amendment activity, and submitted special interrogatories on other issues. The jury then found for the plaintiffs, specifically finding that plaintiffs' "political beliefs, expressions, and associations" were a "substantial or motivating factor" in their demotions, and that the defendants had not established by a preponderance of the evidence that the plaintiffs would have been demoted even if they had not engaged in protected activity. The jury also found that the actions of the individual defendants were an official act or policy of the City of Allentown, and awarded separate damages as follows: Bennis v. City, $30,000 compensatory; Bennis v. Daddona, $30,000 compensatory and $100,000 punitive; Bennis v. Gable, $15,000 compensatory and $40,000 punitive; MacLean v. City, $18,000 compensatory; MacLean v. Daddona, $26,500 compensatory and $100,000 punitive; MacLean v. Gable, $13,500 compensatory and $40,000 punitive.

The defendants presented timely motions for directed verdicts at the close of plaintiffs' evidence and again at the close of trial, both of which were denied.²  Defendants' post-trial motions under Fed. R. Civ. P. 50(b) and Fed. R. Civ. P. 59 were similarly denied by the district court in an exhaustive memorandum opinion. Then, following the denial of the post-trial motions, the district court ordered, in another memorandum opinion, that Bennis be reinstated³  and that both plaintiffs' seniority rights be adjusted. The court also awarded $87,505.50 in attorney's fees, a figure arrived at by doubling the lodestar, at least in part because of the risk involved.II.

In the course of instructing the jury that it was the plaintiffs' burden to establish that their activity was entitled to first amendment protection, the district court correctly explained that the plaintiffs' activity was entitled to first amendment protection if "it came within the guaranty of freedom of political belief, expression and association...."⁴  See Branti v. Finkel, 445 U.S. 507, 513-17, 100 S. Ct. 1287, 1292, 63 L. Ed. 2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 355-60, 96 S. Ct. 2673, 2680-83, 49 L. Ed. 2d 547 (1976). The trial judge further charged, however:

I have concluded, Members of the Jury, as a matter of law that plaintiffs Bennis and MacLean engaged in protected first amendment activity. This activity included opposing Mayor Daddona and supporting his opponent in both 1981 and 1977 and associating with both other police officers who oppose Daddona and the prior administration.

On appeal, the defendants contend that this charge constituted error and assert, inter alia, that the nature of the plaintiffs' alleged private conversations and associations, if any, were controverted questions of fact.

As a general rule, we will review a district court's rulings on points for charge under the abuse of discretion standard. Link v. Mercedes-Benz of No. Am., Inc., 788 F.2d 918, 922 (3d Cir. 1986). Once an instruction has been given, however, our standard of review changes. At that point, we generally ask ourselves whether, viewed in light of the evidence, the charge as a whole fairly and adequately submits the issues in the case to the jury, and reverse "only if the instruction was capable of confusing and thereby misleading the jury." Id. (quoting United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984), cert. denied, 470 U.S. 1029, 105 S. Ct. 1397, 84 L. Ed. 2d 785 (1985)). On the other hand, a party who does not clearly and specifically object to a charge he believes to be erroneous waives the issue on appeal, unless the error was so "fundamental and highly prejudicial" as to constitute plain error, see Bowley v. Stotler & Co., 751 F.2d 641, 647 (3d Cir. 1985); Batka v. Liberty Mut. Fire Ins. Co., 704 F.2d 684, 690 (3d Cir. 1983) (quoting Ostrov v. Metropolitan Life Ins. Co., 379 F.2d 829, 838 n. 10 (3d Cir. 1967)), or unless the instruction was such "that the jury [was] without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice." Bowley, 751 F.2d at 647 (quoting United States v. 564.54 Acres of Land, More or Less, 576 F.2d 983, 987 (3d Cir. 1978), rev'd on other grounds, 441 U.S. 506, 99 S. Ct. 1854, 60 L. Ed. 2d 435 (1979)).

In the instant action, the plaintiffs asserted during oral argument before this court that the question of whether political activities actually occurred is "lawyer created," and does not "arise naturally from the facts of this case." According to the plaintiffs, the controverted issue at trial was not whether speech actually occurred; but rather, whether the speech which did occur was entitled to first amendment protection. They therefore argue that the defendants, " [h]aving not raised the issue at trial," waived it. The defendants, on the other hand, maintain that their current objection was fully preserved.⁵  We believe the record in this case supports the defendants' interpretation of their objection.

If taken out of context, the parties' various requested points for charge, as well as their objection to the charge actually given, do appear to contain some latent ambiguity. For example, the defendants' fifteenth point for charge requested an instruction that the plaintiffs had the burden of proving " [t]hat the [y] engaged in constitutionally protected conduct," and " [t]hat Mayor Daddona had actual knowledge that they were engaged in this protected activity." The plaintiffs opposed this charge, stating, inter alia, that " [a]s a matter of law, the Plaintiffs engaged in constitutionally protected conduct." Although the plaintiffs' counter-proposal does not appear in the record, the defendants opposed it on the ground that " [p]laintiffs must prove that each Plaintiff individually engaged in protected speech...." Finally, after the disputed charge was given, the defendants made the following objection:

You made a statement that as a matter of law the Plaintiffs had engaged in protected activity. One of the issues as far as the defense was concerned was whether they did, in fact, engage in any protected activity; whether or not that is really just an excuse for their putting forth to get past the morale problem and the matter dealing with the clique, et cetera, et cetera. So I take exception to the Court's directing that as a matter of law they did, in fact engage in protected activity when I think the question is whether engaged in protected activity at all [sic] is a Jury question.

Again, the asserted ambiguity, according to the plaintiffs, is whether the defendants were objecting to a finding that the plaintiffs' activities were protected, or whether they were objecting to a finding that the plaintiffs' alleged activities actually occurred at all.

The district court apparently understood the thrust of counsel's objection as challenging that the status of speech as protected or unprotected was a matter of law. Indeed, it is this understanding which accounts for the district court's heavy reliance upon Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983). Czurlanis merely holds that where the delivery and substance of a speech is undisputed, its status as protected or unprotected is a question of law. Czurlanis does not address the question raised here by the defendants as to what in fact was the nature of the plaintiffs' alleged conversations and activities--were they, as claimed by the plaintiffs, related to Daddona's mayoral campaign, or were they, as claimed by the defendants, related to the intimidation of police officers and undermining of the police force?

In response to defendants' objection, the trial judge stated:

There is no doubt in my mind their activity was entitled to First Amendment protection. I hedged it and explained that, and the interrogatories clearly delineate what the Jury's function is. And I decline to make any change in that ruling. I think it was a correct ruling considering my charge as a whole and considering my interrogatories.

Nevertheless, the district court's understanding can hardly be considered dispositive if the objection was sufficiently clear, see, e.g., Bowley v. Stotler & Co., 751 F.2d at 646-47, and in the context of this case we conclude that the defendants' objection was sufficient to put the district court on notice that the nature of plaintiffs' activity, if any, was a disputed issue of fact.

During the course of the trial, the defendants consistently maintained that they were unaware of any political activity by the plaintiffs, and that the plaintiffs' assertion of political activity was "just an excuse" for having been demoted. Indeed, at one point Daddona even testified that, " [i]f anything, I would have assumed they were supporting me." Rather, the defendants' theory of the case was that the plaintiffs were members of a disruptive "clique," and that as far as the defendants were concerned the only "activities" in which the plaintiffs had engaged involved destroying morale by threatening and intimidating fellow officers. For example, the defendants presented the testimony of Officer Donald Layton, who testified that Bennis had threatened to "get even" with him for having filed a grievance relating to overtime, and that both Bennis and MacLean were members of a clique, the reputation of which "wasn't very good." Similarly, the plaintiffs presented evidence which appears to undercut their own assertion of having engaged in political activity. According to Bennis, the extent of the plaintiffs' political activity was severely restricted by the City's Code of Ethics:

I could not campaign actively. I couldn't take out any petitions, or I couldn't be around the polls handing out literature, make telephone calls or things of that nature. I couldn't actively take part in anything.

When asked what it was he could do, Bennis replied, " [e]xactly what I did, just speak my mind."

Although we recognize that most of this testimony also went to the issue of whether the defendants knew of the plaintiffs' alleged activities, the testimony was also relevant to the defendants' theory that the plaintiffs' assertion of political activity was "just an excuse." Viewed from this perspective, even the plaintiffs' characterization of the defendants' objection would have preserved the issue now on appeal: even assuming that some type of activity did occur, there was a question of fact as to whether that activity was of a political nature or whether that activity was totally unrelated to politics.

Questions of fact can only be properly decided by a jury. The court's instruction, however, impermissibly "took from the jury the overriding issue" as to the nature of the activity which the plaintiffs claimed substantially motivated the defendants in demoting them. Chalonec v. Mathiasen's Tanker Indus., Inc., 287 F.2d 929, 931 (3d Cir. 1961). See Dimick v. Schiedt, 293 U.S. 474, 485-86, 55 S. Ct. 296, 300-01, 79 L. Ed. 603 (1935); Russell v. Baccuss, 707 F.2d 1289, 1293 (11th Cir. 1983); County of Maricopa v. Maberry, 555 F.2d 207, 216-17 (9th Cir. 1977). This relieved the plaintiffs of their burden of persuasion in an unfair way: it left no room for the jury to believe anything but that Bennis and MacLean had engaged in some kind of activity, and that the nature of this activity was political. See United States v. Argentine, 814 F.2d 783, 787 (1st Cir. 1987). Only after the jury had determined the nature and substance of the plaintiffs' alleged activity could the court decide its status as protected or unprotected. See Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983).⁶  By instructing the jury that as a matter of law "plaintiffs Bennis and MacLean engaged in protected First Amendment activity," and that " [t]his activity included opposing Mayor Daddona and supporting his opponent in both 1981 and 1977 and associating with both other police officers who oppose Daddona and the prior administration," the district court assumed as verity questions of fact which were for the jury alone to find without any intrusion into the fact-finding process by the trial court: did the plaintiffs in fact oppose Daddona both in 1981 and 1977 and support his opponent, and did they in fact associate with other police officers in opposing Daddona and the prior administration?

Moreover, on the facts of this case we cannot ignore the inexorable link between knowledge of the plaintiffs' activities and the activities themselves. Given the plaintiffs' admittedly limited ability to do any active campaigning because of the City's Code of Ethics, and the defendants' vehement denials of any awareness of any political activities on the plaintiffs' part, absent the challenged district court's charge, the jury might well have concluded that the defendants never knew of plaintiffs' alleged political activities because the plaintiffs never engaged in any. Rather, the jury might have concluded that the only "activities" the plaintiffs had engaged in were those suggested by the defendants. Once the district court instructed the jury "as a matter of law that [p]laintiffs Bennis and MacLean engaged in First Amendment activity," however, the jury reasonably could have concluded that it need not focus on and sift the evidence pertaining to the defendants' knowledge. It would hardly be surprising if the jury concluded that because the court in effect stated that the plaintiffs had been truthful in asserting that they expressed their views as openly as they believed possible, the defendants must have known of those activities. From this stream of reasoning everything else naturally flowed--including a finding that plaintiffs' activities were a substantial or motivating factor in their demotions.

Finally, we also believe that the district court's basic error spilled over into and infected jury interrogatories one through four and six through nine, each of which either began " [d]o you find that the political beliefs, expressions, or associations of plaintiff...." or ended "... even in the absence of ... protected First Amendment activity."⁷  These instructions again assumed that plaintiffs engaged in political activities. Had the jury been free of the constrictive instruction relating to plaintiffs' claimed political activity, the jury might have believed that Bennis and MacLean's assertions of political activity were made of whole cloth. Once the court instructed that these activities occurred, however, the jury was severely limited in favor of rejecting the defendants' theory of the case and accepting the plaintiffs'. Accordingly, although we conclude that in light of the testimony counsel's objection was sufficient to preserve the defendants' appeal, even if counsel's objection had not sufficiently preserved the issue on appeal, the error in this case was fundamental and highly prejudicial, and the jury was without adequate guidance on a fundamental question so that our failure to consider the error would result in a miscarriage of justice. See Bowley, 751 F.2d at 647; 564.54 Acres of Land, 576 F.2d at 987; Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 486 (3d Cir. 1965) (where it is apparent that counsel's failure properly to protect his client's interest by timely objection may have resulted in miscarriage of justice, error will be reviewed.), cert. denied, 382 U.S. 987, 86 S. Ct. 549, 15 L. Ed. 2d 475 (1966).

Although our conclusion that the district court committed reversible error in its instruction on protected activity makes it unnecessary for us to reach many of the issues raised by the defendants, some of these issues are almost certain to recur on remand in the district court. Therefore, we will briefly address those issues.⁸ A.

In its charge to the jury the district court not only ruled that as a matter of law plaintiffs' protected activity included speech and association, but that " [p]laintiffs also have the right not to be demoted in order to enable defendants to promote persons who support Daddona." This, argue the defendants, constituted error in two respects: (1) the plaintiffs only had the right not to be discharged, and not the right not to be demoted; and (2) the charge permitted a finding against the defendants even if the plaintiffs engaged in no political activity; it would have been enough to find that the plaintiffs were "bumped" to make room for political supporters. We reject these assertions of error.

In Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), the Supreme Court held that where a government benefit is conditioned upon forfeiture of a constitutional right, the district court must use a balancing test to determine the constitutionality of the denial of the benefit. Then, in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), the Court applied Pickering to discharges for political reasons and concluded that the interest of employees in not being discharged for exercising first amendment rights outweighed the interest of the government in efficiency. According to the defendants here, a Pickering balance in favor of the plaintiffs in a case involving only demotion and not discharge would constitute an unwarranted extension of Elrod and Branti. We disagree.

Although Pickering, Elrod, and Branti each involved dismissals from employment, the rationale of each dealt with the constitutionality of action adversely affecting an interest in employment in retaliation for an exercise of first amendment rights. As we read those cases, the constitutional violation is not in the harshness of the sanction applied, but in the imposition of any disciplinary action for the exercise of permissible free speech.⁹  "The first amendment is implicated whenever a government employee is disciplined for his speech." Waters v. Chaffin, 684 F.2d 833, 837 n. 9 (11th Cir. 1982) (demotion and transfer). See Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir. 1984) (transfer and refusal to promote); Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983) (suspension).

The defendants also assert that Elrod and Branti should not be extended to cover plaintiffs who were not demoted for political opposition; but rather, were demoted simply to make room for political supporters. The problem with this assertion, however, is that an alternative view of a demotion to make positions available for political supporters is that the demotion thus reflects a failure to support. A citizen's right not to support a candidate is every bit as protected as his right to support one. See Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252-53, 82 L. Ed. 2d 462 (1984) ("Freedom of association ... plainly presupposes a freedom not to associate."). The defendants' citation to Avery v. Jennings, 786 F.2d 233 (6th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 3276, 91 L. Ed. 2d 566 (1986), is, as the defendants even appear to concede, inapposite. In Avery, the selected persons filled vacancies; they did not replace persons already holding positions.

Finally, the defendants cite generally to this court's divided in banc judgment in Horn v. Kean, 796 F.2d 668 (3d Cir. 1986) (in banc), in which some of the court criticized the Elrod/Branti rule, and interpreted it narrowly to apply only to public employees and not to independent contractors. The police, however, are public employees. Further, to the extent that Horn criticizes Elrod/Branti, and implies that the two cases should be interpreted narrowly, that criticism failed to attract a majority of the court. See id. at 679 (Seitz, J., concurring, and Garth, J. with whom Higginbotham, J., joined concurring); id. at 680 (Gibbons, J., with whom Sloviter, Mansmann, and Stapleton joined dissenting). Therefore, we conclude that the district court properly charged that the defendants could be found liable if they demoted the plaintiffs to fill positions for Daddona's political supporters.

The defendants also assert that it was error for the district court to charge that the plaintiffs' burden was to prove that politics was a "substantial or motivating factor" in their demotions. Instead, the defendants suggest that the appropriate charge would have been "substantial motivating" factor, or perhaps "substantial" factor with "motivating" as a defined alternative usage. According to the defendants, " [w]hen used in the disjunctive, the term [s] 'substantial' and 'motivating' provide the jury with an ambiguous standard and, depending upon the definition which the jury assigns to these terms, significantly lessens the appellees' burden of proof."

The defendants concede, however, that the "substantial or motivating factor" test is derived from the Supreme Court's opinion in Mount Healthy School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977). Further, this Circuit has frequently indicated that the standard is "substantial or motivating." See Johnson v. Lincoln University, 776 F.2d 443, 454 (3d Cir. 1985); Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir. 1983). We therefore decline to explore the nuances of the "substantial or motivating factor" language, and upset this well-established standard.¹⁰ 

The defendants next make two related arguments based essentially upon what they perceive to have been, at the time of their actions, the unsettled state of the law with respect to political patronage. According to the defendants, the unsettled state of the law made a grant of qualified immunity appropriate and any award of punitive damages inappropriate.

Government officials are entitled to a qualified immunity from liability for damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1980). Borrowing heavily from their argument that the district court impermissibly expanded the Elrod/Branti rule, the defendants stress that while Elrod, supra, and Branti, supra, dealt with dismissal, the plaintiffs were only demoted; that Robb v. City of Philadelphia, supra, in which we reversed the district court and held a transfer to be protected, was not decided until 1984; that Delong, 621 F.2d at 623, suggested confining Elrod/Branti to "the substantial equivalent of dismissal;" and that Horn v. Kean, supra, gave this court trouble in applying the Pickering balancing test to an independent contractor. Although we agree with the defendants that the rule of Elrod/Branti is of comparatively recent vintage, and that its application has from time to time produced unpalatable consequences, we cannot, in good conscience, conclude that in 1982 a reasonably active politician would not have believed that it would be impermissible to demote an employee in retaliation for his political speech and/or associations.

In People of Three Mile Island v. Nuclear Reg. Comm'rs, 747 F.2d 139 (3d Cir. 1984), this court addressed the issue of analogous precedent in the context of ascertaining "clearly established" law for purposes of the qualified immunity defense, and rejected a requirement of strict factual identity in favor of a more balanced approach:

The [Supreme] Court in Harlow [v. Fitzgerald, 457 U.S. 800, 814, 102 S. Ct. 2727, 2736, 73 L. Ed. 2d 396 (1982) ] suggested that there must be some factual correlation [between applicable precedents and the case at issue], because an official may not be required "to anticipate subsequent legal developments" nor know that "the law forbade conduct not previously identified as unlawful." ... Some courts have required a relatively strict factual identity.... Other courts have insisted that officials know and apply general legal principles in appropriate factual situations. Although officials need not "predic [t] the future course of constitutional law," ... they are required to relate established law to analogous factual settings....

We adopt this second approach--requiring some but not precise factual correspondence and demanding that officials apply general, well developed legal principles.... While we cannot expect executive officials to anticipate the evolution of constitutional law, neither can we be faithful to the purposes of immunity by permitting such officials one liability-free violation of a constitutional or statutory requirement.... Moreover, requiring officials to consider the legal implications of their actions should have a salutary effect.

Id. at 144-45 (citations omitted). Clearly, if retaliatory discharges, transfers, letters of reprimand, and demotions accompanied by transfers were all illegal as of 1982, it cannot be said that under our standard retaliatory demotions by themselves were not also clearly illegal. Indeed, this must particularly be the case where, as here, the demotions involved cuts in pay and the equivalent of a verbal reprimand through statements made to the newspapers. Accordingly, although the long history of political patronage, its popularization, and its legitimation in this country, perhaps makes the question a closer one, see Elrod, 427 U.S. at 353, 96 S. Ct. at 2679-80, we conclude that as of 1982 the law was "clearly established" that a public employee could not be demoted in retaliation for exercising his rights under the first amendment.¹¹ 2.

Punitive damages are available in actions brought pursuant to 42 U.S.C. § 1983 not only where there was a malicious intent or evil motive, but also where the defendants acted with a "reckless or callous disregard of, or indifference to, the rights and safety of others." Smith v. Wade, 461 U.S. 30, 33, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632 (1983).¹²  In what the plaintiffs have correctly characterized as essentially a "rehash" of the defendants' qualified immunity argument, supra, the defendants assert that " [w]ith the law on first amendment protected activity in such a state of flux, it is inconceivable that plaintiffs' reductions in rank, even if politically motivated, could be considered a reckless or callous disregard of any right." As we have already concluded, however, although a close question-especially in light of this nation's long history of rewarding political victors with the spoils of office--the law on first amendment protected activity was not in such a state of flux that the defendants can be said to have been reasonably unaware that they could not demote the plaintiffs in retaliation for their alleged activities. Accordingly, although the amount of the punitive damages actually awarded may well have been excessive,¹³  we conclude that the district court did not err in submitting the issue of punitive damages to the jury.¹⁴ D.

In awarding counsel fees to plaintiffs' counsel under 42 U.S.C. § 1988, the district court multiplied the lodestar by a factor of two in order to reflect the risk of loss, a practice that has been upheld in this circuit. See Hall v. Borough of Roselle, 747 F.2d 838, 842-43 (3d Cir. 1984). The Supreme Court recently requested reargument on this precise issue in Commonwealth v. Delaware Valley Citizens Counsel for Clean Air, --- U.S. ----, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986), however, and reargument was heard on October 15, 1986. We do not decide this issue on this appeal because we expect that the Supreme Court's pronouncement will soon be forthcoming. On remand, however, we suggest that the district court hold resolution of the issue in abeyance until Delaware Valley is decided.^* 

In conclusion, we hold that the district court impermissibly invaded the province of the jury when it instructed the jury that the plaintiffs had engaged in certain protected first amendment activities as a matter of law. Although the status of plaintiffs' alleged activities as protected or unprotected may have been a question of law, it was solely for the jury to decide whether or not such activities occurred, as well as the nature of those activities. Further, on the record before us we conclude that the testimony on the issue was sufficiently controverted and the objection to the charge adequate to make review by this court appropriate.

Accordingly, the judgment of the district court will be vacated and the case remanded for further proceedings consistent with this opinion.