author: WEICK, Circuit Judge.

text:
    Thomas GARRISON, Plaintiff-Appellee, Orangeville Manufacturing Company, Inc., Defendant, Cross-Plaintiff-Appellee, v. ROHM AND HAAS COMPANY, Defendant-Appellant. Thomas GARRISON, Plaintiff-Appellee, v. ORANGEVILLE MANUFACTURING COMPANY, INC., Defendant-Appellant.
    Nos. 73-1490, 73-1491.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 28, 1973.
    Decided Feb. 26, 1974.

      John P. Sandidge, Louisville, Ky., for defendants-appellants; Robert C. Hobson, Woodward, Hobson & Fulton, Louisville, Ky., on brief, for Rohm & Haas Co.; Victor W. Ewen, John G. Crutchield, Ewen, MacKenzie & Peden, Louisville, Ky., on brief, for Orangeville Manufacturing Co.
    John E. Wise, Louisville, Ky., for plaintiff-appellee; Franklin S. Yudkin, Louisville, Ky., on brief, for Thomas Garrison.
    Before WEICK and LIVELY, Circuit Judges, and JOINER, District Judge.

       The Honorable Charles W. Joiner, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.

   WEICK, Circuit Judge.

This is a products liability case in which jurisdiction was based on diversity of citizenship. The issues admittedly are governed by Kentucky law. The plaintiff, Garrison, was injured when a large carton containing sheets of Plexiglas fell off a dolly and struck him, at the plant of Rohn and Haas, in Louisville, Kentucky, where he was employed. The dolly had been manufactured by Orange-ville Manufacturing Company, according to designs, plans and specifications prepared and furnished by Rohm and Haas.

Garrison sued Orangeville and Rohm and Haas in the District Court to recover damages for the personal injuries which he sustained. In his complaint he alleged that Orangeville negligently designed, manufactured, assembled and tested the dolly; and asserted breach of express and implied warranty and “strict liability” under Section 402A of Restatement of the Law of Torts. He also alleged that Rohm and Haas was negligent in failing to furnish safe equipment for use of its employees, and that it should have discovered the defective design of the dolly and warned its employees of the danger.

The District Court dismissed Rohm and Haas on its motion on the ground that Garrison was its employee and that he had accepted benefits under the Kentucky Workmen’s Compensation Act (K.R.S. § 342.015(1)), which provides the exclusive remedy against employers. No appeal was taken from that order.

Orangeville filed a cross-claim against Rohm and Haas seeking indemnification in the event it was held liable to Garrison. By agreement between Orangeville and Rohm and Haas the issues involved in the cross-claim were deferred to await determination by the District Court in the event that, liability of Or-angeville would be imposed.

The case was tried before a jury which returned a verdict against Or-angeville in favor of plaintiff, in the amount of $37,500, on which verdict judgment was entered. The District Court then entered judgment against Rohm and Haas in favor of Orangeville on its cross-claim for indemnification, in the sum of $37,500. Both Orangeville and Rohm and Haas have appealed. We reverse both judgments.

Orangeville contends that the District Court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. The grounds of these motions were (1) that the dolly was not being used for its intended purpose at the time of Garrison’s injury; (2) that the dolly was designed by Garrison’s employer, Rohm and Haas, rather than by Orangeville, and all that Or-angeville did was to manufacture the dolly strictly in accord with the design and specifications furnished by Rohm and Haas; (3) that because the specifications were met there was no implied warranty; (4) that Orangeville owed no duty to warn as to the intended use by Rohm and Haas and such use was not inherently dangerous; and (5) that there was an intervening cause.

In its appeal Rohm and Haas contends that the Court should have directed a verdict and that it was error to render judgment against it.

Garrison was an employee of Rohm and Haas which manufactures acrylic sheet known as Plexiglas. In 1951 a company official saw a dolly-device at a convention, which device he thought might be useful for the handling of certain of his company’s products. He described the device in general terms to Roger Anderson, one of the company’s mechanical engineers. From this general description Anderson designed a model specifically suited for company use. It is a simple device, a four-wheel vehicle with a frame and a lip on the bottom of the frame, which allows Plexiglas to be transported thereon. This dolly was specifically designed to transport objects less than seventy-two inches in height.

Rohm and Haas ordered several of these dollies from the Fred Hill Company of Philadelphia, Pennsylvania. The Hill Company is a sales and service organization dealing in items for use in warehousing operations. The Hill Company in turn gave the orders to Orangeville. Orangeville is a small manufacturing company located in Pennsylvania, employing approximately forty persons. Orangeville produced the dollies in accordance with the exact specifications submitted by Rohm and Haas. Neither the Fred Hill Company nor Orangeville had any part in the design of the dolly. Originally these dollies were used in the Knoxville plant of Rohm and Haas.

Rohm and Haas later designed a second dolly to carry boxes of Plexiglas taller than seventy-two inches in height, this larger dolly having a wheel base larger than that of the dolly originally designed for use of boxes under seventy-two inches in height. Orangeville also made these larger dollies for Rohm and Haas, and these dollies have been used in the Knoxville plant of Rohm and Haas since the mid-1950’s.

Several years ago Rohm and Haas decided to begin Plexiglas production at its plant in Louisville, Kentucky. Rohm and Haas sent Don Simon, assistant supervisor of its Louisville warehouse, to its Knoxville plant for training in the handling of various sizes of boxes of Plexiglas. Bob McDearman, the Louisville warehouse supervisor and Simon’s superior, had worked at the Knoxville plant for several years and was already familiar with the dolly-capacity and uses. Simon spent several days in the Knoxville plant learning how to handle the various sheets. Simon knew of the two different dollies and of the capabilities of each.

Both large and small dollies were ordered for the Louisville plant from the Fred Hill Company, which in turn placed the orders with Orangeville.

The accident in question occurred on August 12, 1970. At that time only the regular-sized dollies had arrived at the Louisville plant. On the day of the accident neither McDearman nor Simon was expecting a shipment of Plexiglas at the Louisville plant. One of Simon’s workmen told him that a truck containing Plexiglas sheets had just arrived. Simon went to inspect the truck. He found that the truck was loaded with twelve boxes containing seventy-two-inch-size Plexiglas and two large boxes containing one hundred and four-inch Plexiglas.

Simon testified that he explained the problem to be faced in unloading the large boxes, to Garrison, Silas Toby (another employee of Rohm and Haas who was assisting with the unloading), and Winert, the truck driver for the carrier. Garrison testified that no specific explanation was made of the hazard involved in handling the larger boxes.

There is evidence that Toby and Garrison unloaded some of the seventy-two inch sheets on the dolly designed for that purpose while Simon supervised. Garrison testified that he did not assist in placing any of the smaller boxes on the dolly but he admitted that he did help wheel the dolly loaded with the smaller cartons into the warehouse. Toby and Garrison took four or five of these boxes from the truck into the warehouse where the sheets were placed upon A-frames.

At this point the men came to a large box on the truck. Simon decided that they would have to use the dollies intended for seventy-two inch boxes, to carry the one hundred and four-inch boxes. This decision was based on the fact that he had to get the truck belonging to the carrier unloaded, and he had no available means of doing so other than to use the dolly intended for the seventy-two inch boxes. Simon even testified that he would have ignored any warning that might have been placed on the dolly concerning height limitations. He knew of the hazard but felt he had no choice.

The four men (Garrison, Toby, the truck driver and Simon) succeeded in placing the one hundred and four-inch box containing the Plexiglas onto the dolly, but they did not try to move it into the warehouse. At this point Simon testified that he felt it was too dangerous to attempt to transport the overloaded dolly to the warehouse area with the limited personnel he had on hand. Simon told the other men that he was going to get additional help and that they should not try to move the dolly into the warehouse while he was gone. Simon returned shortly with three additional men. He testified that he explained once again the problem, for the benefit of the new workers. Garrison denied hearing such instructions. Simon claimed that he told all of the men there assembled not to stand behind the box or the dolly, but to support it from the sides. He claimed that all seven men were involved in moving the dolly from the truck into the warehouse. Garrison testified that only four men were involved physically in the moving of the heavily loaded dolly into the warehouse. However, there is no dispute that Garrison knew that Simon thought additional men (beyond those already on hand) were needed to transport safely the large package on the dolly.

The first large box was moved successfully and safely from the truck to the warehouse. Immediately thereafter Simon received a telephone call and had to leave the scene of the unloading. Simon issued no prohibition against unloading the large box, but he had granted authorization to unload the smaller boxes only. •

After Simon left the scene for his telephone call the truck driver wanted to search the truck for a box which was designated to be delivered elsewhere, but which had been misplaced. The truck driver, Bob Bottomly (a Rohm and Haas employee) and Garrison lifted the remaining large box onto the dolly and moved it three or four feet away from the other boxes stacked in the truck. Garrison held onto the dolly, standing behind it, while the truck driver and Bottomly went behind the large box of Plexiglas to look for the missing box. Shortly thereafter Garrison heard someone yell to him to run. He tried to move quickly away from the dolly, but was struck by the large box and the dolly-

Apparently when the truck driver and Bottomly were looking for the missing box, they stacked some of the smaller boxes on end; these boxes tipped and fell toward the large box and the dolly. It is not clear whether the toppling boxes actually fell against the large Plexiglas box, causing the accident, or whether Garrison applied too much backward force to the handle of the dolly when he heard the warning to run.

At trial and here appellee relied heavily on the testimony of Dr. Donald Cole, a mechanical engineer, who was an Associate Professor of Mechanical Engineering at the Speed Scientific School of the University of Louisville. Dr. Cole had examined the standard dolly and evaluated its safety in relation to moving a large one hundred and four-inch box. His opinion was that the dolly in question was defectively designed to carry such a load. Dr. Cole stated that, given the center of gravity of the dolly and of the one hundred and four-inch box, it would take only four or five pounds of backward force on the handle bar to topple the load backward. Dr. Cole made tests of the regular-size dolly only, with a large package. He made no tests regarding design safety for packages seventy-two inches in height or under. Accordingly, he expressed no opinion as to design safety of the dolly for its intended use. Prior to the time of his testimony, Dr. Cole did not know the intended use of the regular-size dolly which he had inspected.

In other portions of his testimony Dr. Cole stated that he found no defect in materials or workmanship in the dolly which he had inspected.

Dr. Cole suggested several features that might have prevented this accident. Among these possible safety features were a warning on the dolly itself about load limits and a bar jutting out from the dolly that would have prevented the loading of packages of over seventy-two inches in height. There was no evidence that a dolly had ever been so designed with such a bar, nor that there was one in actual use anywhere.

Evidence was also introduced at trial that Rohm and Haas had redesigned its regular dolly after the accident in order to broaden its base, to change its wheel position, and to place a warning on the dolly about the size of the cartons that could be transported safely thereon. No issue was raised on appeal about the competency of this evidence.

What Rohm and Haas did after the accident in changing its design could not impose any liability on Orangeville. Basically Garrison’s entire case was made up of charges which he could properly level against his own employer, Rohm and Haas, but he is precluded from doing so because of the Workmen’s Compensation Act of Kentucky.

The jury verdict would have to be based on unreasonable conduct by Orangeville; it was the only defendant. Dr. Cole, appellee’s expert, admitted that there was no defect in workmanship or materials in the dolly. Garrison’s grounds of recovery against Orangeville are based on defective design, failure to warn, and failure adequately to test for safety of the product. The first assertion is defective design; even if there was a defective design so far as wheel placement and center of gravity were concerned, the party responsible was not Orangeville. Rohm and Haas was the designer, not Orangeville. To hold Or-angeville liable for defective design would amount to holding a non-designer liable for design defect. Logic forbids any such result.

The only party even theoretically liable for design defect in this case in Rohm and Haas. There is a serious question whether even it could be held for design defect under applicable case law. Kentucky law on design liability was pronounced in the recent case of Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66 (Ky., decided June 15, 1973). In this case plaintiff asserted defective design of a grain auger in which plaintiff’s foot had become entangled and eventually cut off. A safety engineer testified that there were designs available which would have prevented the injury. Defendant manufacturer presented expert testimony to the effect that the auger was designed the same as those throughout the industry and that the guard design suggested by plaintiff’s expert had been found to impair the efficiency of the auger.

The Court of Appeals of Kentucky held that when design defect is asserted—

[T]he distinction between the so-called strict liability principle and negligence is of no practical significance so far as the standard of conduct required of the defendant is concerned. In either event the standard required is reasonable care.

Besides this reasonableness standard, the Court stated that a manufacturer was not an insurer that its product was incapable of producing injury. The Court relied on an annotation, Products Liability — Duty as to Design, 76 A.L.R.2d 93, 94, to support these two basic principles of design liability.

This is significant because this Court has embraced the same principle previously and cited the same annotation in Gossett v. Chrysler Corp., 359 F.2d 84 (6th Cir. 1966). The issue in Gossett was asserted negligence on the part of Chrysler in the design of a hood latch on a truck. The latch would close securely unless a safety device were manually held out of place. This apparently happened and a hood flew open, obstructing the driver’s view and causing an accident and injuries. An expert testified that proper design would require manufacture of a hood latch that could not be distorted manually. However, the expert did not testify how such a design could be achieved. Judge Cecil wrote for the Court:

It [the latch] functioned perfectly for the purpose for which it was intended. It was only when it was misused that it did not function properly. (359 F.2d at 88)

Gossett cited with approval Marker v. Universal Oil Prods. Co., 250 F.2d 603 (10th Cir. 1957), where the Tenth Circuit held:

[T]he rule is well settled that neither designer nor manufacturer has a legal duty to adopt or produce a process or product incorporating only features representing the ultimate in safety. (250 F.2d at 605)

The relevance of these cases is clear. The dolly in the case at bar, like the hood latch in Gossett, functioned perfectly for its intended purpose, namely for moving seventy-two-ineh boxes. Indeed, the regular-sized dollies had been used by Rohm and Haas for more than twenty years without incident. Moreover, Marker leaves no doubt that Rohm and Haas was not required to meet the highest possible safety standards.

The second theory asserted by plaintiff was that Orangeville failed to warn Garrison about placing large loads on the regular-size dolly. This warning presumably could have been made in the form of a sign prominently displayed on the dolly.

Under Kentucky law there is a general duty on the part of a manufacturer to warn of a danger known to the manufacturer (or supplier) but unknown to someone who the manufacturer could reasonably anticipate would use the product. Post v. American Cleaning Equip. Corp., 437 S.W.2d 516 (Ky.1968).

In the ease at bar there was no knowledge on the part of Orangeville of any hidden danger. Indeed, Orangeville did not even know of the intended use of the product other than that it was to move products.

In addition, the case of Hercules Powder Co. v. Hicks, 453 S.W.2d 583 (Ky.1970), is controlling on the warming issue. Here, Hercules manufactured dynamite which it marketed through various distributors. One such distributor was Herbert. Herbert entered into a contract to supply dynamite to the Wabassco Construction Company and also render advice to the company concerning the handling and use of the product. Early in 1966 Wabassco was engaged in dynamiting operations. After an explosion had been detonated the foremen and employees noted a “high spot.” The foreman, Staples, directed Hicks, a Wabassco employee, to “knock off” the high spot. Cox, another employee, came to help with a shovel. Hicks used a jack hammer to level the spot and an explosion occurred. Both Cox and Hicks were badly injured. The evidence presented at trial showed that Hicks and the foreman knew that such a high spot might contain unexploded dynamite. It was not clear whether Cox had such personal knowledge. The Court of Appeals cited Post, supra, as holding that there is a duty to warn of a danger of which the supplier knows but which is unknown to a likely user. The Court then stated:

The danger was personally known to Hicks. Cox’s foreman also knew the danger, and the defendants [Hercules and Herbert] had no reason to know that he would not warn Cox. Hicks and Cox needed no additional warning of it. Hence, the rationale of Eck [Eck v. E. I. DuPont DeNemours & Co., 393 F.2d 197 (7th Cir. 1968)] and Post [Post v. American Cleaning Equip. Corp., 437 S.W.2d 516 (Ky. 1968)] affords no basis for imposing upon Hercules a duty to warn in the present case. We conclude that the trial court erred in failing to direct a verdict in behalf of Hercules and again in denying Hercules’ motion for judgment n. o. v. (453 S.W.2d at 590)

In the present case there is a factual controversy over whether Garrison had actual knowledge of the danger involved, but there is absolutely no controversy over whether foreman Simon knew of the danger, as foreman Staples knew of the danger in Hercules. In Hercules, Cox was prevented from recovery against the Powder Company by reason of the foreman’s knowledge. Similarly, Garrison cannot recover against Orange-ville.

Any failure to warn must rest on Simon and Rohm and Haas. In addition, Orangeville did not even have knowledge of the intended purpose, let alone knowledge of any danger that might have been involved in the product that it made. Such knowledge of danger is the first prerequisite of a duty to warn under Post, supra.

The final theory of liability is that Orangeville failed to test the dolly to determine whether it was safe. The testing issue was raised in the initial pleading but was largely ignored in the briefs submitted to this Court.

At the conclusion of the evidence the District Judge gave the following instruction :

Now it was the duty of — it was the duty of Orangeville, when manufacturing the machine, to incorporate into the machine safety features which they knew about or in the exercise of ordinary care and reasonable judgment should have known about before distributing it for use for the purpose intended or for which it was reasonably anticipated. (App. at 593)

This instruction raises both the testing issue and the design-defect issue. To a large extent the two issues are interrelated, for thet failure to test properly could result in a design-defect going undetected.

While it may be proper to impose upon a manufacturer making goods for the general public a duty to test for safety in reasonable end-uses, we find it unreasonable to impose upon a manufacturer such a duty to test for design safety where the manufacturer is making something to particular specifications supplied by the customer. In such a situation the only thing that such a manufacturer should reasonably be expected tó test for is whether the specifications have been complied with. In situations like this the customer who submits the specifications should have the basic responsibility for testing. The customer who submits the specifications knows the intended use and the specific manner in which that use is to be carried out. In this case Orangeville did not even know the specific intended use so far as weight-loads and heights were concerned.

Dr. Cole, the mechanical engineer, testified that testing would be carried out best in the working conditions, which in this case would be in Rohm and Haas’ plants. This makes practical sense and serves as yet another reason why Or-angeville should not have a duty to test in this unique factual situation. '

Moreover, there is absolutely nothing to indicate that testing by Orangeville would have indicated any defect in design for the intended use. Packages of seventy-two inches or less had been transported by Rohm and Haas on this type of dolly for more than twenty years without incident. That certainly seems to be adequate testing. The later changes that were made may have improved and increased safety features, but there is no showing in this record that the regular dolly was in any way unsafe for its intended use.

We hold that the District Court erred in not granting appellants’ motions for a directed verdict and for judgment notwithstanding the verdict. This holding requires also a reversal in the appeal of Rohm and Haas.

Appellants’ second assignment of error was the District Court’s refusal to give an instruction on contributory negligence, and that intervening cause was adequate ground to entitle appellants to a new trial. In view of our holding that a verdict should have been directed, it is not necessary for us to pass upon these issues. In both appeals the judgments of the District Court are reversed.


source: Caselaw Access Project

author: EUGENE A. WRIGHT, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Duncan John SHOCKLEY, Defendant-Appellant.
    No. 72-2950.
    United States Court of Appeals, Ninth Circuit.
    Feb. 19, 1974.

      Martha Goldin (argued), Alan Saltzman, Hollywood, Cal., for defendant-appellant.
    Robert Bonner (argued), Eric A. Novles, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before HUFSTEDLER and WRIGHT, Circuit Judges, and NIELSEN, District Judge.

       Of the Southern District of California.

   EUGENE A. WRIGHT, Circuit Judge:

Defendant appeals from a conviction for failure to report for induction as ordered, in violation of 50 U.S.C. App. § 462(a). We reverse.

On July 16, 1970, defendant Shockley was ordered to report for induction on August 4, 1970. Prior to the latter date, Shockley and his sister requested a postponement of his induction in order to have his physical acceptability reevaluated. On July 31, 1970, the local board granted his request and indefinitely postponed induction. Following further medical processing, the local board was notified on October 1, 1970, that Shockley was fully acceptable for military service.

On October 5, 1970, Shockley requested and received Selective Service Form 150 (conscientious objection) which he returned to the local board on November 17, 1970. The board examined the claim, determined that it was expedient, and refused to reclassify Shockley. He was then advised that he was still under an order to report for induction and would be notified by letter of the date and time to report. Having later been given a reporting date, he failed to report.

Shockley argues that the local board improperly rejected his claim for classification as a conscientious objector and that the induction order was, therefore invalid. The government responds that the local board was precluded from considering Shockley’s conscientious objection claim by the proviso of 32 C.F.R. § 1625.2 (1971), as interpreted in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), since the claim was made after the local board had mailed him a notice of induction. The government’s position is that Shockley’s conscientious objection claim should have been asserted through military procedures after induction and that a post-notice conscientious objection claim cannot serve as a defense for failure to report.

Section 1625.2 provides that
the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an order to report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in circumstances in the registrant’s status resulting from circumstances over which the registrant had no control.

In Ehlert the Supreme Court held that conscientious objection which crystallized after the mailing of a notice of induction was not a “change in circumstances over which the registrant had no control,” and that the local board lacked jurisdiction to reopen a classification to consider such a claim. The court concluded that the local board’s refusal to consider Ehlert’s claim under those circumstances was not a defense to failure to report.

The issue in Shockley’s case is whether § 1625.2 and Ehlert proscribe local board consideration of a post-notice conscientious objection claim when the local board has already reopened the classification on other grounds and has held the order of induction in abeyance for an indefinite period of time. Shockley would have us interpret § 1625.2 to read that once the classification as a whole has been reopened, here to consider a medical claim, the local board has jurisdiction to reconsider every aspect of the classification, including claims that themselves would not justify a reopening. We could reach this result by concluding either that consideration of the ancillary claim did not require a “reopening of the classification” or that since the order for induction was held in abeyance, the claim was no longer made “after a notice of induction had been mailed.” Under either characterization the claim would be removed from the literal proscription of § 1625.2.

The government argues that reopening the classification for medical reasons and holding the order of induction in abeyance does not give the local board jurisdiction to consider ancillary claims, but rather that the local board’s jurisdiction after reopening is limited to the issue which justified the reopening, here a medical claim. To reach this result, we could characterize the medical reopening of the classification as being limited to the medical question and as not being a general reopening of the classification. Thus, to consider the conscientious objection claim, the local board would further have to reopen the classification, violating the proscription of § 1625.2 as interpreted by Ehlert. We would also be required to conclude that although the notice of induction was held in abeyance, it had already been mailed and had a continuing, albeit unspecific, element of force, thus bringing the case within the post-induction notice situation controlled by § 1625.2

The words of the regulation alone admit reasonably of either of these conflicting interpretations. Therefore, we must look to the purposes of the regulation and adopt the interpretation that is more consistent with those purposes.

The apparent purpose of § 1625.2 is to facilitate the orderly processing of selective service classifications and inductions. See Ehlert v. United States, supra, 402 U.S. at 105, 91 S.Ct. 1319, 28 L.Ed.2d 625. By requiring claims to be raised in a timely fashion, and by facilitating the orderly transfer of authority from the local board to the Army, § 1625.2 furthers two ends. First, the administrative process involved in selective service cases, like any administrative process, is benefited by rules designed to effect the timely and orderly processing of claims. Second, and more specifically, the government’s constitutional authority to raise an army would be frustrated if in time of crisis the induction process was unduly delayed by the processing of post-notice claims. The regulation has balanced this interest with the interest in having all claims fairly heard by permitting some, but not all, post-induction notice claims to be heard by the local board prior to induction. But § 1625.2 seeks to reduce the delay inherent in post-notice claims by limiting local board jurisdiction to claims involving changes in circumstances beyond the registrant’s control.

The interests of orderly administrative processes are not as acute in Shockley’s situation as they were in Ehlert, and Shockley’s interest in a timely decision on his claim is more acute. In Ehlert, the court concluded that the delay in processing the registrant’s claim during “the brief period between notice and induction,” 402 U.S. at 102, 91 S.Ct. at 1322, was a reasonable burden on the registrant in order to avoid the necessity of having the local board stop the induction process to reconsider a case with which it was no longer dealing. In Shockley’s situation, however, the orderly administrative process had already been stopped, and the local board had already expended time and energy in reasserting authority over the case to consider the medical claim. Moreover, the “brief delay” between notice and induction in Ehlert became a more lengthy delay here while the board resolved the intervening medical claim.

Although these differences tend to support Shockley’s position that the purpose of § 1625.2 would not be advanced by its application under these circumstances, the differences alone do not exhaust the analysis. First, the increased delay in resolving Shockley’s conscientious objection claim, resulting from the abeyance of the induction order, was at the behest of Shockley himself. It was he, after all, who requested a reopening of his classification for medical reevaluation.

Second and more important, the gov- • ernment’s interest in the orderly and timely processing of registrants and inductees was not eliminated by the mere fact that the induction process was stopped to reopen the classification on medical grounds. Even though the induction process was already delayed, the government has an interest in avoiding a further delay resulting from a requirement to hear every ancillary claim which the registrant presents. Although the government’s interest in avoiding an additional delay may not be as great as the interest in avoiding the first delay, the interest is nevertheless significant. And this interest would be furthered by applying the proscription of § 1625.2 in the circumstances of this case.

If § 1625.2 were interpreted in favor of Shockley’s position, two effects deleterious to the timely processing of claims might occur. First, registrants might be encouraged to assert marginal post-notice medical claims merely as a vehicle on which to attach a claim of conscientious objection. The necessity for the local board to sort out these claims from meritorious medical claims could adversely affect the administration of all claims. Indeed, such a result might have the undesirable consequence of causing local boards to look at all post-notice medical claims with jaundiced eyes.

Second, registrants might be encouraged to withhold the assertion of conscientious objection claims until after it has been determined whether they will escape induction because quotas have already been filled. In an attempt to take two bites of the apple, which of itself would not be objectionable, registrants would prevent the local board from deciding conscientious objection claims in a timely fashion prior to notice of induction. The easiest method of preventing this practice is categorically to proscribe post-notice consideration of conscientious objection claims by the local board, regardless of whether the board reopens the classification on other grounds.

We conclude that the purpose of § 1625.2 — to effect the timely and orderly processing of claims — would be furthered by its application in this case. To be sure, that purpose would not be advanced as greatly here as it would in the Ehlert situation. Nevertheless, the purpose of § 1625.2 is significantly affected by its applicability to Shockley’s situation. Thus, the government’s interpretation is reasonable in light of the regulation’s purposes and must, therefore, be adopted. See Ehlert v. United States, supra, 402 U.S. at 105, 91 S.Ct. 1319, 28 L.Ed.2d 625. Immigration Service v. Stanisic, 395 U.S. 62, 72, 89 S.Ct. 1519, 23 L.Ed.2d 101 (1969); Thorpe v. Housing Authority, 393 U.S. 268, 276, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). We interpret § 1625.2 to proscribe local board consideration of a post-notice conscientious objection claim where, at the request of the registrant, the classification has been reopened to consider a post-induction medical claim and the order of induction has been held in abeyance.

Ohr conclusion that the Army, rather than the local board, was the proper forum for Shockley to assert his conscientious objection claim does not end our inquiry. Although we now instruct Shockley of the proper forum, the situation as Shockley found it in 1970 was far from clear. The local board’s action on the conscientious objection claim was ambiguous with reference to whether the claim was decided on the merits. Shockley was notified that his classification had not been reopened because the board did not “specifically find there has been a change in status resulting from circumstances over which [he] had no control.” This seems to indicate that the board declined jurisdiction over the claim due to the proscription of § 1625.-2. But the minute entry of the local board indicated that the conscientious objection claim had been reviewed and rejected on the merits. See note 1, supra.

The ambiguity of the local board’s action whether it decided the conscientious objection claim on the merits coupled with the ambiguity of § 1625.2 whether the board had power to decide the claim on the merits — which we have now resolved — presented Shockley with an intolerable dilemma. If the local board lacked jurisdiction to consider the conscientious objection claim on the merits, then he could enter the Army, assert his claim, and receive judicial review by applying for a writ of habeas corpus. But judicial review would not be available through a defense in a prosecution for failure to report for induction. See Ehlert v. United States, supra.

On the other hand, if the local board did have jurisdiction to consider his conscientious objection claim on the merits, and in fact did so, judicial review would be available in a prosecution for failure to report. But since the Army looks disfavorably upon claims which have been adversely decided on the merits by the local board, Shockley would not effectively be able to assert his claim of conscientious objection if he submitted to induction and applied for discharge.

Thus, to ensure an effective forum in which to assert his conscientious objection claim, Shockley was required to choose between submitting to or refusing induction based on his evaluation whether the local board decided .his claim on the merits. Neither the local board, through an unequivocal refusal to decide the claim on the merits, nor the courts, through an unequivocal interpretation of § 1625.2 which precluded the local board from exercising jurisdiction over the merits of the claim, offered Shockley any guidance for making this determination.

Neither Ehlert v. United States, supra, nor United States v. Musser, 414 U.S. 31, 94 S.Ct. 196, 38 L.Ed.2d 190 (1973), controls in this situation, since the registrants in those cases were either not confronted with the combination of ambiguities which resulted in Shockley’s dilemma, or did not challenge their conviction on that basis. In Ehlert, the registrant might have had legitimate doubt whether a conscientious objection claim resulted in “a change in circumstances beyond the control of the registrant,” thus avoiding the proscription of § 1625.2. Therefore, Ehlert may have had legitimate doubts about the jurisdiction of the local board to hear his claim. But since the local board unequivocally refused to decide this claim on the merits, 402 U.S. at 100, 91 S.Ct. 1319, 28 L.Ed.2d 625, he could have no legitimate fear that the Army would look disfavor-ably upon his claim under § 3.6(2) of Army Regulation 635-20. Therefore, Ehlert was given reasonably clear guidance from the local board’s unequivocal action that his proper forum was in-service review.

In Musser, the court did not consider the issue whether a dilemma similar to Shockley’s was permissible, although one of the registrants, Waldron, apparently was faced with such a dilemma and could have raised the issue. Rather in Musser the registrants argued that Eh-lert controlled only those cases where the local board unequivocally refused to consider the merits of the post-notice claim. The registrants argued that where the local board did make a determination on the merits, even though the board was not required to do so under Ehlert, § 3.6(2) of Army Regulation 635-20 would preclude the Army from looking favorably upon an in-service claim. The registrants’ argument was not that they did not know where to make their claim when they refused induction, as in Shockley’s case, but rather that there was, in fact, no opportunity for making the claim in the Army. The registrants asserted that if neither the Army nor the local board would hear the claim, they would be placed in a no-man’s land without review, a situation condemned in Ehlert. 402 U.S. at 104 & n. 7, 91 S.Ct. 1319, 28 L.Ed.2d 625.

The court rejected this argument as being based on a misunderstanding of Ehlert. Ehlert “did not hold merely that a local board would be permitted to refuse reopening of a classification in such a situation, but that it was without power to reopen under such circumstances.” 414 U.S. at 37, 94 S.Ct. at 201 (citations omitted). Since the local board lacked power to decide on the merits, the court concluded, the Army could, not possibly apply § 3.6 so as to prejudice an in-service claim.

Once the court concluded that the Army could not, in fact, apply § 3.6 so as to deny the registrants an effective in-service forum, the court did not go on to consider the fact that one of the registrants, Waldron, was faced with a dilemma at the time of induction similar to Shockley’s. Even though this argument was open to Waldron, the court clearly did not consider it, and Musser does not stand as precedent against Shockley’s claim here.

The conclusion that the court did not consider the “dilemma” question is emphasized by the fact that the court considered Waldron’s argument to be the same as that asserted by Musser. But when Musser refused induction, he had an unequivocal guideline from Ehlert v. United States, 422 F.2d 332 (9th Cir. 1970), that conscientious objection was not a circumstance beyond the registrant’s control. Therefore, he was not faced with the ambiguity in the meaning of the regulation that faced Waldron, and the argument that he had insufficient notice concerning the proper forum to assert his claim was not open to him. The fact that the court did not draw this distinction between Musser’s situation and Waldron’s situation indicates that the court was not considering the dilemma with which Waldron and Shockley were faced.

Since the court did not consider the situation presented here in either Ehlert or Musser, we must determine the effect of Shockley’s dilemma on his conviction.

Congress undeniably has the power to require that claims be made, in the first instance, with particular administrative bodies and to limit the availability of judicial review of administrative action to particular judicial forums. For example, 50 U.S.C. App. § 460(b) (3) precludes pre-induction review of selective service classifications except as a defense to a criminal prosecution for failure to report. The Supreme Court has upheld this proscription as a valid congressional control of federal court jurisdiction. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Fein v. Selective Service System Local Board No. 7, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972). And Ehlert approved the requirement that post-notice conscientious objection claims be asserted in the military after induction. But once Congress created an exemption from induction, due process requires that some opportunity be afforded the registrant to assert his claim.

While it is true that Shockley was afforded a forum in which to assert his conscientious objection claim, i.e., in-service review, he was not given reasonable guidance with which to identify that forum. He was forced to guess whether judicial review of his claim would be preserved through refusal of or submission to induction. He guessed incorrectly by refusing induction, but to hold that he thereby forfeited his right to assert his conscientious objection claim would relegate that right to chance. And to affirm his conviction would be to punish him for making a reasonable, albeit mistaken, attempt to select the proper forum in which to assert his claim. Due process does not tolerate such a result.

Ordinarily, the proper remedy would be to vacate the conviction and permit Shockley to choose between submission to and refusal of induction with the knowledge that his conscientious objection claim would be preserved only through submission. But since the draft has expired, such a remedy would be pointless.

The conviction is reversed.

NIELSEN, District Judge, dissents.

      . The minutes of the local board contained the following entry: “C.O. claim reviewed under SSR 3625.2. Claim denied as it is expedient in nature.” The form letter notice to defendant informed him that his classification liad not been reopened because the board did not “specifically find there has been a change in status resulting from circumstances over which you had no control.”

      . We do not decide whether a registrant would be required to await induction to assert a post-notice conscientious objection claim where the delay was the result of the local board’s initiative in postponing induction.

      . Army Kegulation 635-20 § 3.6(2) states that in-service claims of conscientious objection will not be favorably considered if “based solely on conscientious objection claimed and denied by the Selective Service System prior to induction.”

      . See note 3, supra.


author: HEANEY, Circuit Judge. MATTHES, Senior Circuit

text:
    UNITED STATES of America, Appellee, v. David Wade THOMPSON, Appellant.
    No. 73-1650.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 15, 1974.
    Decided Feb. 19, 1974.

      David A. Gerdes, Martens, Goldsmith, May, Porter & Adam, Pierre, S. D., for appellant.
    Larry Von Wald, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

David Wade Thompson, an enrolled member of the Cheyenne River Sioux Indian Tribe, was indicted for the first degree murder of Glen Alvin Mowrer on the Cheyenne River Reservation in violation of 18 U.S.C. §§ 1111 and 1153. He was tried before a jury, found guilty of second degree murder and sentenced to a thirty-year prison term.

The defendant contends on appeal that the trial court erred by:

(1) refusing to instruct the jury on involuntary manslaughter as a lesser included offense;

(2) denying the defendant’s motion for a judgment of acquittal on the first degree murder charge;

(3) permitting an F.B.I. agent to testify as to statements made by the defendant ; and

(4) refusing to instruct the jury on self defense.

On the afternoon of October 13, 1972, the defendant and his father, Max Thompson, left the home of the defendant’s parents, located about thirty miles southwest of Mobridge, South Dakota, to visit his grandmother. The defendant placed a .22 caliber rifle in the car so that “if we got over there and seen an animal, badger or skunk trying to break in, we could destroy it.” On their re-turri home a few hours later, Max Thompson observed some of Mowrer’s cattle in the “south pasture” and asked the defendant to drive the cattle “out of there.” Use of the south pasture had been a continual source of friction between Max Thompson and Glen Mowrer. While the defendant was chasing the cattle out of the pasture, Glen Mowrer and two of his children were herding other cattle along a road north of the pasture. Mowrer intended to place these cattle in the pasture. When Mowrer saw that the defendant was chasing his cattle out of the pasture, he left those he was herding and confronted the defendant. A heated exchange resulted. The defendant then returned to his parent’s home and reported the incident to his father. The defendant and his father drove back to the pasture. As they got out of the ear at a' gate leading into the pasture, Max Thompson removed the rifle and put it near the barbed wire fence. Max Thompson then stationed himself in a position to keep Mowrer from opening the gate. Mowrer and Max Thompson argued about putting the cattle in the south pasture, and at one point as the two physically scuffled, the defendant intervened. He hit Mowrer, picked up the gun, pointed it at Mowrer and told him to “get the law.”

Mowrer went back to where his children were now holding the cattle. Soon thereafter, Terry Ducheneaux, Mowrer’s brother-in-law, arrived and Mowrer returned to the gate. He and Max Thompson argued again when Mowrer attempted to open the gate and Max Thompson tried to prevent him from doing so.

While the two argued, the defendant mounted a horse with the rifle in his hand and rode toward the cattle being held by Mowrer’s children. The defendant testified about the subsequent events as follows:

Q. Go ahead. You jumped on the horse, and what happened ?
A. I started up the road at a lope. I made it as far as the edge of the bridge and that was when [Mowrer] caught up to me. He came up out of a ditch on the south side. And when he started cross-ways, he pulled his horse to a walk and started across the road.
He said, “You are not going to turn these cattle around.” I told him they are not going through that gate. He said they were and I told him no, they are not. And I said, “Over my dead body.” By that time he was about four feet in front of me. And he was still coming up. So I just raised this gun, so he stopped. And he said, “Go ahead and shoot, you son of a bitch, shoot.” And then he didn’t move. He sort of raised in his saddle up. And then I shot him.
Q. Why did you pull that trigger?
A. Reflex action. It was just an accident. I didn’t mean to shoot him,

Mowrer was killed by this shot.

INVOLUNTARY MANSLAUGHTER INSTRUCTION

The trial court instructed the jury on first degree murder, second degree murder and voluntary manslaughter. The court refused to instruct the jury on involuntary manslaughter, stating:

* * * i don’t think that anything stated by way of evidence would bring the lesser included offense of involuntary manslaughter in the picture at all.

We view this as error.

A defendant is entitled to an instruction on a lesser included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i. e., a charge may be demanded by either the prosecution or defense. United States v. Grant, 489 F.2d 27 (8th Cir., 1973); United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971).

It is conceded by the government that all but the third condition was met in this case. It argues that the trial court properly held that there was no evidence to justify a conviction of involuntary manslaughter. It reasons from Shaffer v. United States, 308 F.2d 654 (5th Cir. 1962), that the defendant’s handling of the gun necessarily involved an assault on Mowrer with a dangerous weapon, a felonious act, and that, therefore, the jury could not conclude that the defendant killed Mowrer in the commission of a “lawful” act or in the commission of “un unlawful act not amounting to a felony.”

We reject this reasoning. Section 1153 of Title 18 of the United States Code provides that the offense of assault with a dangerous weapon is to be defined in accordance with the laws of the state in which the alleged crime was committed. The Cheyenne River Indian Reservation lies within South Dakota. Assault with a dangerous weapon under the applicable South Dakota statute requires intent to injure” or “to do bodily harm.” Such intent, of course, can be found by the trier of fact from the objective circumstances, including the “visible conduct of the actor.” It may be found in the face of a denial by a defendant of such an intent, but it need not be. A defendant is entitled to have his testimony — that he did not intend to injure or to do bodily harm— considered by the jury.

In this case then, it was for the jury to determine whether the defendant intended to do bodily harm or to injure Mowrer. The court’s instructions effectively took this option from the jury, and it follows that it was error to reject the defendant’s request for the involuntary manslaughter instruction. Had the involuntary manslaughter instruction been given, the jury could have weighed all of the evidence, including the defendant’s statement, in determining his intent. The failure to give the instruction effectively precluded the jury from considering the defendant’s statement that the pulling of the trigger was accidental. We, therefore, have no alternative but to reverse the judgment and remand this matter to the District Court for a new trial.

Because this case may be retried and an appeal may result therefrom, we briefly discuss the remaining issues.

MOTION FOR JUDGMENT OF ACQUITTAL

The trial court did not err in denying the defendant’s motion for a judgment of acquittal on the first degree murder charge. The evidence was sufficient to submit the question of premeditation to the jury.

STATEMENTS TO F.B.I. AGENT AND SELF DEFENSE INSTRUCTION

We are convinced that the statements of the defendant to Special Agent Milton B. Kuhl were made voluntarily. There is no evidence of mental or physical coercion. In fact, the defendant’s statements were not made in response to any interrogation by Agent Kuhl. The defendant was effectively advised of his rights and he knowingly and understanding declined to exercise them. See, Hughes v. Swenson, 452 F.2d 866 (8th Cir. 1971).

There was no evidence on which to submit the issue of self defense to the jury.

Reversed and remanded for action consistent with this opinion.

MATTHES, Senior Circuit

Judge (dissenting).

With due deference, I am unable to agree that the court should have instructed on the lesser included offense of involuntary manslaughter. I base my conclusion upon the lack of any evidence to warrant submission of that issue. Just recently, we enunciated again the principle that before a party is entitled to an instruction upon a lesser included offense, “ ‘the proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.’ ” United States v. Thompson, 490 F.2d 1218 (8th Cir. 1974).

My reading of the record leads me to conclude that the jury was justified in finding that appellant acted wilfully in killing Mowrer. It is undisputed that the deceased was not armed at any time during the heated argument and altercation between the parties. Conversely, appellant was armed with a loaded rifle which appellant deliberately aimed at the deceased, after the latter defied appellant to shoot him. The only contradictory testimony was the appellant’s self-serving statement that he pulled the trigger as the result of “reflex action. It was just an accident. I didn’t mean to shoot h'im.”

As Judge Heaney points out, the court submitted second degree murder and voluntary manslaughter. Thus, although appellant could have been found guilty of voluntary manslaughter which requires only a finding of intent but not of malice, the jury chose to decide that appellant was motivated by intent and malice in killing the deceased.

I am conscious that the district court imposed a rather heavy penalty upon the appellant, but that factor should not dictate reversal for another trial.

      . 18 U.S.C. § 1112 provides in part:
      (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
      Voluntary — Upon a sudden quarrel or heat of passion.
      Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

      . The Shaffer Court, in discussing assault with a dangerous weapon under 18 U.S.C. § 113, stated:
      The only possible question is whether there is sufficient evidence to support the finding that the defendant had the requisite “intent to do bodily harm” to his guard or the other prisoners. This is not to be measured by the secret motive of the actor or some undisclosed purpose merely to frighten, not to hurt. This is to be judged objectively from the visible conduct of the actor and what one in the position of the victim might reasonably conclude. The present ability of the defendant to fire the gun, the fact that he pumped a shell into the chamber, flourished the apparently loaded gun in the presence of the others, and threatened some or all that he would shoot unless they did his bidding was quite ample for the trier to conclude that' unless the threat alone was enough, the defendant intended bodily harm.
      Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962), cert. denied, 373 U.S. 939, 83 S.Ct. 1544, 10 L.Ed.2d 694 (1963).

      . If the government is correct in its interpretation of Shaffer, we refuse to follow that decision.

      . 18 U.S.C. § 1153 provides in part:
      * * * As used in this section, the offenses of * *. * assault with a dangerous weapon, * * * shall be defined and punished in accordance with the laws of the State in’ which such offense was committed.

      . — Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault or any assault and battery upon the person of another with any sharp or dangerous weapon or who, without such- cause shoots, or attempts to shoot at another, with any kind of firearm, air gun, or any other means, with intent to injure any person although without intent to kill such person is punishable by imprisonment in the state penitentiary not exceeding five years or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars or by both such fine and imprisonment.
      S.D.C.L. § 22-18-11 (1967).


author: LIVELY, Circuit Judge.

text:
    NATIONAL STEEL CORPORATION, a corporation, Plaintiff-AppelleeAppellant, (73-1687) v. BUCKEYE STEAMSHIP COMPANY (KINSMAN MARINE TRANSIT COMPANY), a corporation, Defendant-Cross Complainant-Appellant, (73-1686) and BIBBY LINE, LTD., a corporation, Defendant-Appellee.
    Nos. 73-1686, 73-1687.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 6, 1973.
    Decided Feb. 13, 1974.

      Fenton F. Harrison, Buffalo, N. Y., for Kinsman Marine Transit Co.; Lee C. Hinslea, Harrison, Gruber & Gaughan, Buffalo, and Victor G. Hanson, Detroit, Mich., on brief.
    John Arthur Hamilton, Detroit, Mich., for Bibby Line, Ltd.; Foster, Meadows & Ballard, Detroit, Mich., on brief.
    Thomas O. Murphy, Cleveland, Ohio, for National Steel Corp.; Henry B. Bruner, Johnson, Branand & Jaeger, Cleveland, Ohio, Robert A Jenkins, Scholl, Jenkins, Robinson & Stieg, Detroit, Mich., on brief.
    Before CELEBREZZE and LIVELY, Circuit Judges, and WILSON, District Judge.

       The Honorable Frank W. Wilson, Chief Judge, United States District Court for the Eastern District of Tennessee, sitting by designation.

   LIVELY, Circuit Judge.

This admiralty case arose out of a collision between the Great Lakes freighters James E. Ferris and Ernest T. Weir which took place in the St. Clair River below Port Huron, Michigan. The collision took place in an area of the river where the British ship Toronto City was maneuvering. The facts are fully set forth in the opinion of Senior District Judge Talbot Smith, which is reported at 369 F.Supp. 498 (E.D.Mich. 1973), and will not be repeated here. On appeal a great deal of time in argument and space in the briefs has been devoted to disputing the factual findings of the district court and seeking to have this court determine the weight of the evidence. In his comprehensive opinion, Judge Smith made this statement:

We observe, before getting into our findings and conclusions, that the record is a mass of contradictions. Witnesses differ as to the times of critical occurrences, the locations thereof, the distances between the vessels themselves, and between the vessels and shore locations. Messages as-sertedly sent are not received and, when received, vary between the parties as to their content. In view of the pre-dawn darkness, the fact that many of the observations made involved estimates from running and range lights, as well as shore lights and structures, plus the lack of synchronization between timepieces on the various vessels, as well as the stress and strain of the crisis ultimately presented, the variances in the various accounts are not entirely unexpected. In this situation we have relied strongly on certain physical facts and upon our observations and appraisals of the attitudes and de-meanors of witnesses, as well as of the content and reasonableness of their various assertions.

The findings of the district judge who has the opportunity to , see and hear the witnesses in an admiralty case will not be set aside unless clearly erroneous. Federal Insurance Co. v. S.S. Royalton, 312 F.2d 671 (6th Cir. 1963). We have reviewed the evidence heard by the district court and conclude that its findings are not clearly erroneous. Rather they are supported by competent evidence of strong probative force. The district court held the Ferris to be solely at fault. We affirm.

In its brief on appeal, the Ferris states that it “is prepared to accept the findings of the court below that she was navigating the St. Clair River at an excessive speed under the circumstances and failed to timely check before approaching the gap astern of the TORONTO CITY.” It is asserted, however, that the fault of the Ferris in failing to check her speed was minor in comparison to the faults of the Weir and the Toronto City. This does not comport with our view of the collision, nor that of the district court.

If the Toronto City took longer to make her turn than the Ferris had expected and if this delay created reasonable apprehension in the minds of those in charge of the Ferris about its ability to pass under the stern of the Toronto City and then complete a port-to-port passing with the Weir, the Ferris had an increased responsibility to advise the other two ships of its apprehension. Nevertheless, the Ferris continued to come toward the turning Toronto City at an excessive speed and never attempted to warn the Toronto City that its slow turn was creating a hazard, either by sounding a danger signal or by radio contact. Furthermore, after the Ferris had momentarily lost sight of the Weir because of the swing of the Toronto City between them and then regained visual contact, it confirmed its previous port-to-port passing agreement with the Weir by returning a one-whistle blast signal without in any way indicating that danger of a collision existed. If there were “special circumstances” as contended by the Ferris, these circumstances and their possible results were much more obvious to her than to either of the other two ships. Yet she elected to continue as before. If she had alerted the other two ships to her danger, one or both might have been able to take steps which would have remedied the situation.

The Ferris seeks to have us hold that the movements of the Weir were negligent and that the district court erred as a matter of law in finding the Weir free of fault. The Ferris would have us require the Weir to back her engines and come to a complete stop if necessary and blow a danger signal, primarily because she (the Weir) was up-bound and therefore the burdened vessel. This argument loses sight of the fact that the Weir at all times was downstream from the place where the Toronto City was making her turn and, in fact, never reached the Toronto City. The collision between the Ferris and the Weir took place approximately one ship’s length (500-600 feet) downstream from the place where the Toronto City was making her turn. The Weir checked her speed twice after learning of the turning maneuver contemplated by the Toronto City and the election of the Ferris to pass under her stern, and also changed her course several times to move closer to the Canadian shore which lay on her starboard side. At the time of the collision the Weir was less than 100 feet off the end of the C & O dock on the Canadian side and was making bare steerageway through the water. Since the Ferris had never advised the Weir that she was embarrassed by the movements of the Toronto City, but had reaffirmed a passing agreement with the Weir as she (the Ferris) passed under the stern of the Toronto City there would be no justification for requiring the Weir either to back her engines or sound a danger signal. By the time there was any reasonable expectation of a collision in the minds of those in charge of the Weir, it was too late to avoid it by either of these steps.

A ship to whom an existing danger is as clearly and immediately obvious as to another vessel cannot rely on the failure of the other vessel to sound a danger signal as a basis of contributory fault. The Queen City, 189 F. 653 (E.D.Mich.1910), affirmed sub nom. Cambria Steamship Co. v. Pittsburgh Steamship Co., 212 F. 674 (6th Cir. 1914). A case which is similar to the present one in many respects is Lake Erie Transportation Co. v. Gilchrist Transportation Co., 142 F. 89 (6th Cir. 1906). There the collision was almost avoided and the glancing blow would not have occurred if either ship had succeeded in moving a few feet further to its side of the channel. The downbound ship which failed to avoid the collision by maneuvering sought to put the blame on the other ship for not stopping. This court held that the upbound ship was not bound to anticipate that the vessel it was meeting would fail to comply with her agreement. So long as there was a reasonable opportunity for the down-bound vessel to clear, the upbound vessel had a right to assume that she would do so. This rule should be particularly applicable in the present case where the Ferris, though privileged, confirmed the passing arrangement with the Weir at a time after the Ferris admitted having some concern about the turn of the Toronto City.

The appellant says that the two cases discussed in the previous paragraph, which were relied upon by the district court, are not in point, and that the court should have followed The George Presley, 111 F. 555 (6th Cir. 1901), and The Mary C. Elphicke v. Pittsburgh Steamship Co., 123 F. 405 (6th Cir. 1903). The George Presley involved a collision between the upbound Yakima and the second vessel in a three-vessel tow being pulled by the Presley. The Yakima was held to have contributed to the collision because she held to her course and tried to pass as previously agreed even though she realized that the tow was out of control and not turning properly. That case is easily distinguished from our present one because there was no evidence upon which it could be held that the master of the Weir either did or should have realized that there was danger of a collision with the Ferris in time to have prevented it. Even if such apprehension had occurred on the Weir it would have been dispelled when the Ferris repeated its agreement to pass port to port, since the slow movement of the Toronto City is the only thing alleged by the Ferris to have created a condition of peril. In The Mary C. Elphicke v. Pittsburgh Steamship Co., supra, there was a port-to-port passing agreement in broad daylight in a channel 1,000 feet wide. After the agreement both ships continued at full speed. The court found that the up-bound vessel had plenty of room and time in which to avoid the collision after the danger began to be apparent to her. She realized that the downbound vessel was out of her proper place and refused to vary her own course. In these circumstances the upbound vessel was held to have contributed to the collision. In the instant case, of course, the Weir did vary her course to starboard at least twice after entering into the passing agreement and her bow was pointed toward the Canadian shore at the time of collision.

Appellant also cites American Steamship Co. v. Interlake Steamship Co., 208 F.2d 439 (2d Cir. 1953), for the proposition that the upbound vessel should be held to have contributed to the collision for failing to avail herself of her ability to hold back and keep out of the way of the downbound vessel. That case concerned a collision which took place in the St. Clair River not far from the location of the collision in this case. However, the court found specifically that the up-bound vessel could have moved closer to the Canadian shore without danger and instead that she moved to the left and continued her left swing right up to the point of collision. In the present case, it is undisputed that the Weir was “digging for the Canadian shore” and she certainly never moved to the left at any time between her passing agreement with the Ferris and the collision. Also cited is Morrow Steamship Co. v. The Daniel J. Morrell, 90 F.Supp. 300 (E.D.Mich.1949), affirmed sub nom. Cambria Steamship Co. v. Morrow Steamship Co., 182 F.2d 347 (6th Cir. 1950). In that case it was held that an upbound vessel in the Detroit River on a port-to-port passing agreement contributed to a collision with a downbound vessel by not sounding a danger signal although a setting for a collision confronted her master. Thqre the master of the upbound vessel testified that he relied on the original passing agreement and kept his course and speed even when he became aware of the fact that the downbound vessel was making a maneuver which would occupy most of the channel and that this created a danger of collision. Of course, in the present case, the Weir had checked her speed and altered her course to starboard as a precaution prior to the time that there was any warning that a setting for a collision confronted her. The district court was justified in finding that neither the failure of the Weir to sound a danger signal nor to come to a complete stop contributed to the collision.

Both the Weir and the Ferris have sought to hold the Toronto City responsible, either solely or contributorily, for the collision. However, under the findings of fact which we have accepted, the Toronto City was free of fault.

The judgment of the district court is affirmed. The appellant Buckeye Steamship Company will pay the costs in No. 73-1686, and the appellant National Steel Corporation will pay the costs in No. 73-1687.


author: CRAVEN, Circuit Judge:

text:
    George B. STREET, Appellant, v. Officer Leo SURDYKA, Baltimore City Police Department, et al., Appellees.
    No. 73-1843.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1973.
    Decided Feb. 21, 1974.

      Alexander R. Martick, Baltimore, Md., for appellant.
    Robert C. Verderaime, Baltimore, Md., (Verderaime & DuBois, Baltimore, Md., on brief) for appellees.
    Before CRAVEN, RUSSELL and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

In the district court George B. Street sought to recover damages from a Baltimore police officer and two police cadets, alleging that they arrested him in violation of the fourth amendment. Plaintiff brought his claim under 42 U.S.C. § 1983 by analogy to the common law tort of false arrest.

While off duty on December 17, 1967, the police cadets, Andrews and Ullah, were in an automobile that nearly collided with Street’s taxi in a Baltimore intersection. Street then stopped abruptly to pick up a passenger, and the cadets decided to see what was wrong and inquire if assistance was needed. When Street saw the two men approaching his cab, he pulled away from the curb and almost struck cadet Andrews. The cadets returned to their ear and followed him. Andrews approached the cab once more when it stopped at a traffic light, but Street again drove away. Finally the cadets hailed Officer Surdyka’s patrol car. Cadet Ullah reported the incident, and Officer Surdyka arrested Street. At the station house Officer Surdyka started to write a charge of attempted assault with a motor vehicle, but the desk sergeant objected, suggesting a charge of disorderly conduct instead. This difficulty over the charge recurred ten days later at Street’s trial in Baltimore municipal court. Upon finding no evidence of disorderly conduct, the judge suggested a charge of “assault by attempting to strike with a motor vehicle.” The charge was changed and Street was acquitted. Over two years later, Street filed this suit against Andrews, Ullah, and Officer Surdyka. The district judge entered summary judgment for the cadets, and a jury returned a verdict for Officer Surdyka. Plaintiff appealed both adverse judgments. We affirm.

JURY VERDICT

In his attack on the jury verdict, Street objects to the jury instructions on Maryland law. He contends the arrest was illegal because Maryland law prohibits warrantless arrests for misdemeanors committed outside the arresting officer’s presence. Under this theory of the case, Street argues that the trial judge should have directed a verdict in his favor because Officer Surdyka had him booked for disorderly conduct, a misdemeanor under Maryland law. He also disagrees with the court’s instruction that attempting to strike someone with an automobile could constitute a felony in Maryland. We do not reach these questions because we decline to tie section 1983 to the technicalities of state law.

Maryland, like many other states, follows the common law rules on warrantless arrest. An officer needs no warrant to make an arrest if he has probable cause to believe a felony has been committed, but probable cause is not enough to authorize warrantless arrest for a misdemeanor. The misdemeanor must also have been committed in the officer’s presence. Robinson v. State, 4 Md.App. 515, 243 A.2d 879 (1968). If Officer Surdyka violated this Maryland law, he may be liable to plaintiff in an action under the common law of false arrest or false imprisonment. But section 1983 does not provide a remedy for common law torts. Instead it creates a federal cause of action against those acting under color of state law who cause a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983. In many cases the same conduct will violate both state law and the federal Constitution, but certainly not all violations of state law rise to the level of constitutional tort. See Ouzts v. Maryland National Insurance Co., 470 F.2d 790 (9th Cir. 1972); cf. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). In Ralph v. Pepersack, 335 F.2d 128 (4th Cir. 1964), cert. denied, 380 U.S. 925, 85 S.Ct. 907, 13 L.Ed.2d 811 (1965), this court considered the relationship of arrest law to the Constitution. A state prisoner argued that his confession should be inadmissible because it resulted from a possibly illegal arrest for “investigation” in the District of Columbia. Affirming a denial of habeas corpus, the court said:

There is significant distinction between police action which is unlawful because violative of constitutional provisions and police action which merely fails to accord with statute, rule or some other nonconstitutional mandate. The protection against arrest without probable cause, as well as that against unreasonable searches and seizures, stems directly from the Fourth Amendment. There is no such constitutional prohibition against arrests for investigation where probable cause exists. Certainly not every official impropriety gives rise to a finding that due process has been denied.

Id. at 136. In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Supreme Court construed the reach of the “under color of law” formula that appears in section 1983 and the criminal statute now codified as 18 U.S.C. § 242. Justice Douglas wrote:

But there is no warrant for treating the question in state law terms. The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under “color of any law.”

Id. at 108, 65 S.Ct. at 1038. We believe this statement is equally applicable t.o plaintiff’s attempt to use Maryland law in this case. Even if Officer Surdyka violated Maryland arrest law, he cannot be liable under section 1983 unless he also violated the federal constitutional law governing warrantless arrests.

The constitutional restrictions on arrest are derived from the fourth amendment’s prohibition of unreasonable seizures. Because the Supreme Court has interpreted the fourth amendment in light of the law that existed when the Bill of Rights was adopted, see, e. g., Carroll v. United States, 267 U.S. 132, 149-151, 45 S.Ct. 280, 69 L.Ed. 543 (1925), it might be argued that the fourth amendment incorporates the common law’s restrictions on warrantless arrests for misdemeanors. But the Supreme Court has never given constitutional force to this element of the common law rule. In Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900), the Court applied the common law rule but hinted that its restrictions could be relaxed by statute. Subsequent cases have focused entirely on the requirement of probable cause. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). We do not think the fourth amendment should now be interpreted to prohibit warrantless arrests for misdemeanors committed outside an officer’s presence. The difference between felonies and misdemeanors is no longer as significant as it was at common law. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Maryland courts have criticized the continued use of the common law rule as impractical and illogical, and have invited the state legislature to adopt new rules. Robinson v. State, 4 Md.App. 515, 243 A.2d 879 (1968). Classifications based on other criteria could be both rational and practical. For example, Congress has authorized warrantless arrests upon probable cause for any violation of the federal laws pertaining to narcotics or marihuana. 26 U.S.C. § 7607. We are most reluctant to adopt a constitutional interpretation that would impede reform in this area. The fourth amendment protects individuals from unfounded arrests by requiring reasonable grounds to believe a crime has been committed. The states are free to impose greater restrictions on arrests, but their citizens do not thereby acquire a greater federal right. Accordingly, there is no cause of action for “false arrest’’ under section 1983 unless the arresting officer lacked probable cause.

In this case the trial judge instructed the jury that Officer Surdyka would have violated plaintiff’s constitutional rights if he lacked “probable cause to believe that a misdemeanor was being committed in his presence or that a felony had been committed.” Although this instruction erroneously gave Street the benefit of the common law restriction on misdemeanor arrests, he cannot complain of an error that operated in his favor.

Plaintiff also objects to the admission of evidence tending to show that Officer Surdyka had grounds to believe that Street had attempted to strike Andrews with a motor vehicle. Street contends that since he was charged with disorderly conduct the court should not have considered another basis for arrest. Our decision on the main issue disposes of this argument as well, since the specific charge against Street would have significance only if we pegged his constitutional rights to the misdemeanor arrest rule. Cf. Lawton v. Dacey, 352 F.2d 61 (1st Cir. 1965).

Finally, plaintiff insists that the judge erred in instructing the jury that “mere negligence” could not sustain the civil rights claim, and requiring instead a finding that Officer Surdyka acted “intentionally or with reckless, gross, and culpable negligence.” (Emphasis added). We disagree. In Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970), we held that “gross and culpable negligence” could support a section 1983 action against a policeman who recklessly wounded the plaintiff, but we took pains to note that the plaintiff’s claim did not involve “simple negligence or inadvertence.” Id. at 1232. The instruction given in this case was thus substantially in line with the language of Jenkins.

Here, however, the instruction went' beyond our holding in Jenkins. There we used the gross and culpable negligence standard to establish the deprivation of a constitutional right. Construing the plaintiff’s claim as a suit for arbitrary interference by police, we held that gross and culpable negligence was the functional equivalent of arbitrariness. Then, without deciding whether there is an independent requirement of intent in section 1983 actions, we noted that if there were such a requirement, gross and culpable negligence would satisfy it. Here the district judge added just such an intent requirement to the plaintiff’s burden of proving that the defendant had deprived him of a constitutional right. He instructed the jury:

If you should find that the Defendant arrested Plaintiff illegally under the applicable law described, and thus deprived the Plaintiff of his Constitutional rights, it is necessary that you further consider Defendant’s state of mind. Mere negligence is not sufficient to sustain the claim under the Civil Rights Act. Defendant’s activity must have been intentional or reckless, characterized by gross or culpable negligence.

We doubt that this independent state of mind requirement is appropriate in a suit based on unconstitutional arrest. In a case decided after Jenkins we held that officers may defend such actions by showing good faith and reasonable belief in the validity of the arrest. Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973). This defense, though conceptually different from an independent requirement of intent, serves essentially the same function. Both measure the defendant’s state of mind. And in arrest cases, both standards guard against the chance that a policeman will suffer liability for a good-faith mistake in applying the technical rules of probable cause. Because the Hill v. Rowland defense is tailored to serve this purpose, we prefer it over the more general standard employed below.

In this case, however, the district judge gave both the negligence instruction and an instruction on the Hill v. Rowland defense. Because he charged the jury that Officer Surdyká would not be liable if he acted in good faith and upon probable cause, use of the negligence instruction, though inappropriate, was not reversible error.

SUMMARY JUDGMENT

It is considerably more difficult to affirm the summary judgment entered for the cadets. If the motion for summary judgment was granted on the ground that the cadets were not acting under color of state law, we think it was error. The evidence before the trial judge tended to show that the cadets could have been acting under state authority. Andrews and Ullah were paid employees of the Baltimore Police Department. They participated in Street’s arrest and accompanied him and Officer Surdyka to the police station for booking, discussed the charging decision with the desk officer, and subsequently gave their superior officer a written report of the incident. They apparently did everything except perform the actual arrest, and it is not clear that they lacked authority to do that. If we accept their contention that they had no arrest authority, it still does not follow that they could not have been acting under color of state law. Even private citizens can take on the color of state law when they participate in police'action or when the state sanctions their exercise of police authority. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973); Potts v. Wright, 357 F.Supp. 215, 218-219 (E.D. Pa.1973).

Generally, summary judgment can be affirmed on appeal only if the evidence available to the trial judge at the time he ruled on the motion established that there was no genuine issue of material fact. Poller v. CBS, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Fed.R.Civ.P. 56(c); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2716 (1973). This case is extraordinary, however, in that the facts material to the cadets’ liability were fully developed in the subsequent trial against Officer Surdyka. Street described the entire sequence of his encounters with the cadets, and both cadets testified to the chain of events that led to Street’s arrest. The uncontro-verted facts in the record establish that Street was not entitled to recover damages from the cadets. The jury verdict absolved Officer Surdyka from liability on the same set of facts. The only issue that could lead to a different result between different officers participating in a single arrest is the individual officer’s good faith and reasonable belief in the validity of the arrest. Nothing in this record suggests that the cadets acted in bad faith. The most unfavorable testimony on this issue is Street’s allegation that he thought they were eager to act like policemen. But even Street’s testimony supports their belief that he had almost run over Andrews. He agreed with the cadets’ testimony that he had almost collided with their car in the intersection, and that he pulled out from the curb as the cadets came toward his cab. He denied, of course, that he intended to run over them, and he and the cadets disagreed over how close he came to striking Andrews. But even his version shows that the cadets were quite reasonable in their belief that he had tried to strike them. Obviously it is the better practice to submit issues of good faith and reasonable belief to a jury. That it was not done here is regrettable because the identical question was submitted with respect to Officer Surdyka, and the jury trial would have scarcely been extended by submission of Street’s case against the cadets. We stop short of holding that Street is collaterally es-topped by the jury verdict in favor of Officer Surdyka. Instead the basis of our decision is that the uncontroverted evidence in the record at the time of entry of summary judgment, as embellished and explained by Street’s -subsequent testimony, convinces us that Street is not entitled to recovery and that a remand for trial against the cadets would be to no avail.

Affirmed.

      . Although plaintiff’s brief alludes to a state law claim for false arrest and false imprisonment, he did not plead a pendent cause of action under state law, and the case was submitted to the jury under section 1983 alone.

      . The Supreme Court applied the common law arrest rule in Carroll v. United States, 267 U.S. 132, 156-160, 45 S.Ct. 280, 69 L.Ed. 543 (1925), Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900), and Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458 (1885), but none of these cases established constitutional doctrine.

      . The United States Reports contain two remarks to the effect that the common law rule of arrest states the constitutional standard. Coolidge v. New Hampshire, 403 U.S. 443, 511 n. 1, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (White, J., concurring and dissenting); Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). In both cases it is clear from the context that mention of the Constitution relates to the requirement of probable cause rather than to the restriction on misdemeanor arrests. The offenses in both cases were felonies. The opinion in Henry is devoted entirely to developing a definition of probable cause. Mr. Justice White’s contention in Coolidge is that the Court’s holding is even more restrictive than the common law rule, because it “suggests that warrantless, probable-cause arrests may not be made in the home absent exigent circumstances.” 403 U.S. at 512 n. 1, 91 S.Ct. at 2061.

      . For example, at English common law, conviction for a felony occasioned “total forfeiture of the offender’s lands or goods or both.” Kurtz v. Moffitt, 115 U.S. 487, 499, 6 S.Ct. 148, 152, 29 L.Ed. 458 (1885).

      . In Robinson the Maryland Court of Appeals wrote:
      It is clear that the common law differentiation between felonies and misdemeanors is not practical in application today. Nor can the Maryland system of differentiation be logically supported. In many instances there is no correlation between the designation of the offense as a felony or misdemeanor and the seriousness of the crime or the severity of the punishment permitted. . . . [P]eace officers in Maryland frequently find themselves under a handicap due to the unusual distinctions between felonies and misdemeanors.
      243 A.2d at 884-885.

      . For some time 26 U.S.C. § 7607 has authorized warrantless arrests for all narcotics law violations, but until recently all federal narcotics violations were felonies. Act of July 18, 1956, ch. 629, § 103, 70 Stat. 568, repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, § 1101(b)(4)(A), 84 Stat. 1292. In the Comprehensive Drug Abuse Prevention and Control Act of 1970, Congress created a class of civil offenses and misdemeanors. See 21 U.S.C. § 872. Consequently, federal customs officers may now make warrantless arrests for narcotics misdemeanors on probable cause. See also United States v. Grosso, 225 F.Supp. 161, 168-170 (W.D.Pa.1964) (Pennsylvania statute authorizing warrant-less arrests for misdemeanor offenses involving “gaming devices” is constitutional).

      . This conclusion is not undermined by occasional references to state law in cases challenging the validity of state arrests. In Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), four members of the Court posited that a California statute would govern the validity of a California arrest, but they evaluated the arrest under federal standards as well. Moreover, the cases they cited to support the use of state law involved the validity of federal arrests in the absence of federal statutory standards. The use of state law in such cases seems clearly to be based on nonconstitutional considerations. See United States v. Di Re, 332 U.S. 581, 587-591, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Lathers v. United States, 396 F.2d 524 (5th Cir. 1968). Nor have prior cases in the Fourth Circuit held that violation of state law renders an arrest unconstitutional. United States v. Gearhart, 326 F.2d 412 (4th Cir. 1968), was a federal prosecution based on evidence seized by state officers. And in Shorey v. Warden, 401 F.2d 474 (4th Cir.), cert. denied, 393 U.S. 915, 89 S.Ct. 241, 21 L.Ed.2d 201 (1968), and Morris v. Boles, 386 F.2d 395 (4th Cir. 1967), cert. denied, 390 U.S. 1043, 88 S.Ct. 1640, 20 L.Ed.2d 304 (1968), the court discussed state law but actually applied a federal constitutional standard. Moreover, Gearhart, Shore]/, and Morris all concerned searches incident to arrests. There may be a difference between using state law to determine the constitutionality of an arrest under section 1983 and using it to evaluate an arrest for the purposes of the incident search doctrine. In the latter instance, the state seeks to validate an otherwise unconstitutional search by tying it to a valid arrest. It may be that an arrest, though constitutional under federal standards, cannot serve as the basis for an incident search if it is illegal under state law. Cf. Ralph v. Pepersack, 335 F.2d 128, 135 (4th Cir. 1964), cert. denied, 380 U.S. 925, 85 S.Ct. 907, 13 L.Ed.2d 811 (1965).

      . There is, of course, no similar need to use a negligence concept to fill out the contours of the right to be free from unconstitutional arrests. In a case like this one, the plaintiff establishes the deprivation of a constitutional right by showing that the arrest was not based upon probable cause. Then the officers may defend by showing their good faith and reasonable belief in the validity of the arrest. Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973).

      . The instruction used below was worded in terms of “probable cause” instead of the “reasonable belief” language we used in Hill v. Rowland. The difference in the two standards is significant, but the Hill v. Rowland formula is more favorable to policemen than the standard used here. It- follows, therefore, that use of the “probable cause” standard does not furnish grounds for setting aside the verdict rendered for Officer Surdyka.

      . The district judge did not assign any reasons for his decision to enter summary judgment. The defendants’ motion is ambiguous, asserting simply that the cadets “did not make any arrest,” but the memorandum filed in support of the motion argues primarily that they were not acting under color of state law.