The policemen forced their way in without a warrant, beat the elder Smith and one of his two sons, then falsely arrested the three Smiths, a federal jury found.
Rorke must go to jail, the judge said, to serve as a lesson that under the rule of law, the police cannot "execute summary punishment."
However, Kelly imposed a sentence far below the 14- to 17-year prison term recommended under the strict federal sentencing guidelines, ruling that Rorke's conduct was out-of-character and mitigated by what Edward A. Smith Jr. did to precipitate the incident.
Kelly said he felt compelled as a "deterrent" to other police officers to impose significant prison time for the actions of Rorke, Officer Gary Vinnacombe and three other officers: Dennis Keegan, Richard Smythe and Paul Kelly.
The judge had equally tough words for Upper Darby police officials, after Capt. Anthony Saraceni, a character witness for Rorke yesterday, told Kelly the department had no policy forbidding officers from investigating incidents involving their own family.
"Well, I would suggest that you should have such a rule," Kelly said, ''and this case typifies how it protects everyone. . . . If there had been such a rule, I have no question but that Mr. Rorke would not have been on the scene that night and probably five police officers' careers would not have been ruined."
All five Upper Darby officers were convicted May 28 by a federal court jury of criminal civil rights violations in the incident at the Smiths' former home on Margate Road in the Delaware County township.
Vinnacombe and Keegan are to be sentenced today, Smythe tomorrow and Kelly on Monday.
In sentencing Rorke, the judge noted that Smith Sr. was struck and that he and another son, Bobby, were falsely arrested though neither had anything to do with the incident between Rorke's daughter and Smith Jr.
"He had the temerity to exercise his constitutional rights," said Kelly, referring to Smith Sr., who refused to let Rorke and Vinnacombe into his house without a warrant.
The judge noted that Bobby Smith was publicly humiliated by being forced to stand outside in a pair of underpants: "We can't do that in America, even if it's done by a person who is otherwise generally a good person."
Rorke, 44, told Kelly that he wished his department had prevented him from going to the Smiths' house. But he also insisted the case was mostly Monday- morning quarterbacking by federal prosecutors.
"I think those two attorneys have lost touch with reality," Rorke said, referring to Assistant U.S. Attorneys Ronald H. Levine and James J. Eisenhower. "I think they've dropped out of space somewhere. I don't think they have any idea what's going on in the world today."
John E. Riley, Rorke's attorney, said he would appeal to the Third U.S. Circuit Court of Appeals. Rorke was ordered to surrender to U.S. marshals on Jan. 21, although Kelly said he would consider arguments to allow him to remain free pending the appeal's outcome.
U.S. Attorney Michael M. Baylson, who asked Kelly to sentence Rorke within the 14- to 17-year guideline, declined comment on the sentence. He said he would decide whether to appeal Rorke's sentence - an option available to prosecutors under the guidelines - after all five former officers are sentenced.
According to trial testimony, Rorke came home from a pool tournament the night of Sept. 26 to find Vinnacombe questioning Rorke's daughter, Diane McArdle, then 22, who was nursing a swollen, bloodied lip. She told them she had become involved in a street-corner argument earlier with Smith Jr., then 18, that ended with Smith punching her in the mouth.
The daughter had confronted Smith and several other youths, accusing them of taking part in another unrelated assault that day involving her 14-year old brother, Jimmy.
Rorke grabbed a blackjack and gun and accompanied Vinnacombe to the Smiths' house to get information for an arrest warrant for Smith Jr.
Rorke contended that the Smiths assaulted him and the younger Smith violently resisted arrest. But the Smiths, backed by the testimony of seven neighbor eyewitnesses, contended Rorke and Vinnacombe forced their way into the house without a warrant and then falsely arrested the father and both sons.
The jury found that Rorke, joined by Keegan, Smythe and Kelly, then took part in beating Smith Jr. while Vinnacombe looked on.
Rorke, Vinnacombe and Keegan later testified in the Delaware County trial of Smith Sr. and Jr. on resisting arrest and assault charges. The Smiths were acquitted.
The case is a controversial one in Upper Darby, where many fellow officers and residents support Rorke and the other defendants.
"They should have been found not guilty," said Upper Darby Police Superintendent Anthony Celia.
As for Judge Kelly's suggested policy for the department, Celia added: ''That's common sense. But for an explosive situation, how do you control that? Do you think Pete Rorke would have had that in his mind?"
"They don't belong in jail," said Detective Paul Schneider at the Upper Darby police station. "They lost more from their arrest and conviction than any jail sentence imposed would do. They've lost their job, their pensions, the jobs they loved to do the most. That in itself is enough."
Donna Dougherty, the daughter of a former Philadelphia policeman and one of the neighborhood eyewitnesses whose complaints led to the federal investigation, said, "I do have sympathy for them and their families but I'm not responsible for the outcome. The police had a choice. They have yet to say they were wrong. Had they admitted that initially they wouldn't be where they are today.