text:
    The PROTECTOSEAL COMPANY, Plaintiff-Appellee, v. Charles BARANCIK, Defendant-Appellant.
    No. 72-1650.
    United States Court of Appeals, Seventh Circuit.
    Argued May 31, 1973.
    Decided Sept. 5, 1973.

      Myron Lieberman, David C. Roston, Chicago, 111., for defendant-appellant.
    Charles T. Martin, Chicago, 111., for plaintiff-appellee.
    Before PELL and STEVENS, Circuit Judges, and REYNOLDS, District Judge.

        Chief District Judge John W. Reynolds of the United States District Court for the Eastern District of Wisconsin sitting by designation.

   STEVENS, Circuit Judge.

For the first time since the enactment of the Clayton Act in 1914, this court must decide a ease arising under § 8’s prohibition against interlocking corporate directorates. In an action brought under § 16 by a corporate plaintiff, the district court entered summary judgment ordering the defendant director to resign. The issues raised by defendant’s appeal are (1) whether the corporation had standing to challenge his status ; (2) whether the statute was violated; (3) whether appellant was entitled to additional discovery; and (4) whether the relief granted was excessive.

Plaintiff corporation is engaged in the manufacture and sale of various sizes and kinds of safety containers, faucets, fittings and accessories for flammable liquids. Justrite Manufacturing Company, a competitor whose factory and sales headquarters, like the plaintiff’s, are located in the Chicago metropolitan area, manufactures and sells a competing line of products. The two companies compete for the same business. Defendant testified that Justrite “did approximately a million and a half dollars worth of business” in the items and areas of competitive overlap with the plaintiff. Plaintiff alleged — but defendant lacked sufficient information to admit or deny — that if the sales of plaintiff and Justrite were combined, their total sales would exceed 50% of the total sales in the United States of the line of safety containers and related products described in the complaint.

Defendant and his wife are directors, as well as the sole owners, of Justrite. In September of 1971, after purchasing 7,913 shares representing 16.2% of plaintiff’s outstanding stock, defendant was elected a director of plaintiff. Thereafter, presumably after receiving the advice of counsel, plaintiff made a written demand for defendant’s resignation. Defendant refused to resign and this litigation ensued.

After discovery was initiated but before it was completed, the district court granted summary judgment for plaintiff. It enjoined defendant from being a director of plaintiff or voting any of his shares for the election of directors and awarded costs, including attorney’s fees, to plaintiff.

I.

Defendant contends that plaintiff’s standing depends on the resolution of disputed issues of fact, and therefore it was error to enter summary judgment. Plaintiff’s complaint had alleged injury in the form of exposure to possible treble damage liability to third parties who might charge that plaintiff and Justrite were engaged in a conspiracy in restraint of trade, as well as injury by reason of defendant’s access to confidential information. Defendant contends that the potential liability is illusory and denies any intent to receive or utilize confidential information concerning plaintiff’s business.

We find it unnecessary to appraise these factual matters for we have no doubt that a corporation has standing to request a federal court to remove a director whose service on its board violates an Act of Congress. The corporation itself is a potential defendant in litigation which the government may initiate to enforce § 8. See United States v. W. T. Grant Co., 345 U.S. 629, 630, 634 n. 9, 73 S.Ct. 894, 97 L.Ed. 1303. Even if that were not the case, the corporation surely has sufficient interest in the legality of its directors’ tenure to justify litigation such as this. There is no merit to defendant’s standing argument; if it is illegal for him to serve on plaintiff’s board, plaintiff has a right to have him removed.

II.

Defendant contends that the undisputed facts do not establish a violation of § 8. The validity of this argument turns on the proper construction of the statute. Plaintiff argues, and it is apparently undisputed, that a price-fixing or customer allocation agreement between it and Justrite would violate § 1 of the Sherman Act. Defendant avoids this contention by arguing that, as a matter of law, § 8 is not violated unless a merger of the two companies would be illegal under § 7. Since the allegation that the two companies comprise 50% of the market is denied, and the admitted facts do not establish that a merger would be unlawful, defendant’s construction of § 8 would preclude summary judgment.

Defendant’s argument focuses on the statutory description of the nature of the competition which must exist between two corporations sharing an interlocking director before § 8’s prohibition applies. They must be “competitors, so that the elimination of competition between them would constitute a violation of the provisions of any of the antitrust laws.” Defendant emphasizes the reference to “elimination of competition,” insisting that the words connote a transaction such as a merger and pointing out that they differ from the “to substantially lessen competition” language included in § 7.

We draw a different inference from this language. Accord, United States v. Sears, Roebuck & Co., 111 F.Supp. 614 (S.D.N.Y.1953). First, we note that if Congress had merely intended to prohibit interlocks between corporations that could not lawfully merge, that intent could have been simply expressed. Similarly, if the word “agreement” in § 8 were intended to be limited to transactions covered by § 7, the clause would not end with a reference to a violation of “any of the antitrust laws.” Indeed, the word “agreement” itself encompasses more than acquisitions; it includes ongoing agreements between ostensible competitors as well. Finally, in the context of § 8, the reference to “elimination of competition by agreement,” as opposed to the reference in § 7 to a mere lessening of competition, actually has the effect of broadening the coverage of § 8; for there are obviously competitive situations in which a lessening of competition might be entirely lawful, whereas the total elimination of that competition would be a violation of one or more provisions of the antitrust laws. The latter phrase therefore describes more competitive situations than the former and gives § 8 a broader coverage than § 7.

As we read the relevant paragraph of § 8, it establishes rather simple objective criteria for judging the legality of an interlock. First, of course, is the requirement that one of the corporations have a net worth of at least $1,000,000; second, the reference to competition “between them,” which apparently contemplates a horizontal market relationship between the companies, implies that a market-wide analysis of competition is unnecessary; and third, the broad reference to an agreement which would violate any of the antitrust laws indicates that interlocks between companies that are prohibited from entering into inherently illegal agreements are covered.

We do not believe Congress intended the legality of an interlock to depend on the kind of complex evidence that may be required in a protracted case arising under § 7. On the contrary, the statute reflects a public interest in preventing directors from serving in positions which involve either a potential conflict of interest or a potential frustration of competition. We hold that the record adequately establishes a violation of § 8.

III.

It follows from our appraisal of the standing issue and our construction of § 8 that it was not error for the district court to enter summary judgment before discovery was completed. The areas of inquiry defendant sought to explore would only be relevant if its view of the law on these issues were correct.

IV.

Defendant argues that a violation of § 8 does not support the portion of the court’s order enjoining him from voting his shares for the election of directors. The district court had power to do more than enjoin the specific violation found, see, e. g., United States v. Bausch & Lomb Co., 321 U.S. 707, 724, 64 S.Ct. 805, 88 L.Ed. 1024, and we think the relief granted was warranted by the record. This conclusion is supported by the repeated approval of comparable relief in cases arising under § 7. See, e. g., Crane Co. v. Briggs Mfg. Co., 280 F.2d 747, 750 (6th Cir. 1960); Allis-Chalmers Mfg. Co., v. White Consolidated Industries, Inc., 414 F.2d 506 (3rd Cir. 1969); Vanadium Corp. of America v. Susquehanna Corporation, 203 F.Supp. 686 (D.Del.1962); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953).

Finally, defendant objects to the portion of the order directing him to pay plaintiff’s attorney’s fees. This objection is well taken. Plaintiff has not proven any pecuniary injury which would entitle it to a recovery under § 4 of the Clayton Act. That section authorizes the recovery of a reasonable attorney’s fee, but there is no such express authorization in § 16, the section under which this action was brought. We believe this case should be treated in the customary manner; plaintiff should accept the normal burden of compensating its own counsel. Of course, costs, including the costs of this appeal, should be taxed against defendant.

The order of June 30, 1972, shall be modified to eliminate the award of fees; in all other respects the order is

Affirmed.

      . “No person at the same time shall be a director in any two or more corporations, any one of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in commerce, ... if such corporations are or shall have been theretofore, by virtue of their business and location of operation, competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the provisions of any of the antitrust laws. . . .” 38 Stat. 730, 15 U.S.C. § 19.
      The first sentence of Mr. Justice Clark’s opinion for the Court in United States v. W. T. Grant Co., 345 U.S. 629, 630, 73 S. Ct. 894, 97 L.Ed. 1303, gives some indication how infrequently these cases arise.

      . “Any person, firm, corporation, or association shall be entitled to sue for and have in-junctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission.” 38 Stat. 737, 15 U.S. C. § 26.

      . Record at 50. The size of plaintiff’s business is not shown, but the allegation that it has capital, surplus and undivided profits aggregating more than $1,000,000 is admitted. Thus, the minimum size requirement described in § 8 is met.

      . Plaintiff’s board consists of seven directors ; cumulative voting of 16.2% of the shares is sufficient to elect at least one director.

      . The first paragraph of § 7 as originally enacted in 1914 provides:
      “That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.” 38 Stat. 731-732.
      Section 7, of course, has since been amended, see 15 U.S.C. § 18, but § 8 has not.


source: Caselaw Access Project

author: KILEY, Circuit Judge. PELL, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Pascual GUANA-SANCHEZ, Defendant-Appellee.
    No. 72-1784.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 23, 1973.
    Decided July 18, 1973.
    Rehearing Denied Aug. 6, 1973.
    James R. Thompson, U. S. Atty., William T. Huyck and Michael D. Stevenson, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellant.

      Joseph Beeler, Federal Defender Program, Chicago, 111., for defendant-ap-pellee.
    Before KILEY, FAIRCHILD and PELL, Circuit Judges.
   KILEY, Circuit Judge.

Defendant, Sanchez, was charged in a one count indictment with knowingly and unlawfully transporting aliens within the United States in violation of 8 U. S.C. § 1324(a)(2). After an evidentiary hearing the district court granted Sanchez’s motion to suppress evidence unlawfully seized by police. The government has appealed. We affirm.

On November 17, 1971, at approximately 2:30 a. m., Villa Park, Illinois, police officers Tenuto and Hall observed Sanchez sitting in a station wagon, about 150 to 200 feet away, in a vacant lot, with headlights and interior light shining. When the officers approached the car, Sanchez was in the driver’s seat and was reading an Illinois road map. At this time the officers observed three other males also in the car, one of them sleeping, and three shopping bags filled with “clothing or material” in the rear of the car.

The officers then began an inquiry which disclosed that Sanchez had a valid driver’s license, that his passengers were probably Mexican, and led to the further disclosure that the car was registered in Sanchez’s name and that he was not “wanted by the police.” The police then radioed for their supervising sergeant. Upon the sergeant’s arrival and, at his direction, two of Sanchez’s passengers were directed to enter a police car and were driven to a police station. Sanchez was “invited” to follow with the third passenger.

At the police station the sergeant spoke on the telephone with Captain Partin, a Chicago immigration official, who then spoke to Sanchez’s passengers. Partin directed the police to detain Sanchez and his passengers, whom Partin told the police had admitted illegal entry into the United States. The four men were locked up overnight, were picked up by immigration authorities the next morning, and Sanchez was subsequently indicted. The proceeding before us followed.

Three steps in time can be delineated from the facts before us: (1) the original interrogation ending with the determination of validity of Sanchez’s driver’s license and his ownership of the car; (2) the period beginning with the return to Sanchez of his license and of the restraint upon his movement thereafter; and, (3) the period beginning with the trip to the police station.

The district judge conducted an evidentiary hearing at which the parties stipulated that no arrest or search warrant had issued. Officer Tenuto was the only government witness. After the hearing, the district judge read his findings of fact and conclusions of law in which he decided that the police officers had a reasonable suspicion justifying their interrogation, in the first step of the police activity, but that there was no probable cause to justify their activity thereafter.

When the sergeant appeared at Sanchez’s car and appraised the situation, he said to officers Tenuto and Hall, “[l]et’s bring them into the station and check them out and see who they are, if they are wanted by anybody.” Two of the passengers were then ordered out of Sanchez’s car and into a police car for the trip to the police station. Under the circumstances we take officer Tenuto’s testimony that Sanchez was “invited” to follow to mean that he was ordered. Officer Tenuto testified that “[w]e did not have anything to bring them into the station for.” The district judge properly noted that “Sanchez was taken into custody by the . . . officers for investigation . . . [and] [t]here is no crime of ‘investigation.’ ” See Davis v. Mississippi, 394 U.S. 721, 726-727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); United States v. Foust, 461 F.2d 328, 330 (7th Cir. 1972). The police had no greater knowledge when they arrested Sanchez than they had after the end of the initial intrusion on reasonable suspicion. On the contrary, they had additional knowledge that he was most probably innocent of any connection with crime. At best they had “hunches” of criminality but that is not sufficient. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1967).

There was no showing by the evidence “. . . that the exigencies of the situation” made the warrantless arrest “imperative.” Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The police had the burden of justifying the arrest. United States v. Burhannon, 388 F.2d 961, 962 (7th Cir. 1968). And the standards for warrantless arrests “are at least as stringent” as those applicable to a magistrate’s assessment. Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). This record falls far short of the required showing.

The warrantless arrest must be judged as of the time it was made. It could not be aided by the post facto developments of immigration official Par-tin’s statement to the police that Sanchez’s passengers were probably illegal entrants into the United States, nor by reason of the warrantless search of Sanchez’s car which produced a hand gun in the glove compartment. See Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4L.Ed.2d 134 (1959).

The government’s reliance upon this court’s decision in United States v. Chai-dez-Castro, 430 F.2d 766 (7th Cir. 1970), and United States v. Madril, 445 F.2d 827 (9th Cir. 1971), is misplaced. In Chaidez-Castro there were, in support of the warrantless arrest, Texas license plates on the truck and extra Texas license plates on the floor of the cab, and “the most persuasive [fact] was the police officer’s observation of a number of faces peering from the inside of a ‘home-made’ box on the back of the truck.” In Madril the court sustained the warrantless arrest, where the initial stop was occasioned by a speeding violation and thereafter the driver was unable to produce proof of ownership as required by law. Moreover, there was an outstanding warrant for defendant which was discovered during the course of checking the status of the vehicle and its occupants.

We have considered, but need not pass upon, other points raised.

We conclude that the district court did not err in deciding that the arrest was unreasonable under the Fourth Amendment and that the evidence gained thereafter was “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Affirmed.

PELL, Circuit Judge

(dissenting).

Being of the opinion that the passengers, witnesses to a crime, should not have been suppressed as witnesses, i. e., in effect being made incompetent to testify to matters within their knowledge concerning criminal activity on the part of someone else, I respectfully dissent.

It is not entirely clear to me as to when the district court thought the illegal police activity commenced. The majority opinion of this court construes the district court opinion as holding that the police officers had a reasonable suspicion justifying the initial interrogation. I agree, and to the extent that the district court indicated otherwise it would seem clearly wrong. Four men were parked in a vacant lot in an industrial area at 2:30 in the morning in a Chicago suburb where recent burglaries had taken place. The defendant’s story of looking for a friend’s restaurant did not check out as all restaurants in the area had been closed for several hours. The officer who testified had had past experience with illegal immigrants who had been transported into this country by automobile. The area had small factories “looking for cheap labor.” The passengers in the automobile spoke no English nor did they have any United States identification cards. One of the occupants had a card which appeared to be a Mexican Army card. Three shopping bags of clothing were in the car.

On the basis of these facts, I would have some difficulty in faulting the police conduct. See United States v. Cata-lano, 450 F.2d 985 (7th Cir. 1971). The police action was scarcely of the dragnet variety. However, this aspect of the case does not assume the significance that two other facets do.

The first of these is the extent to which the exclusionary rule should be extended. Putting the matter another way, how remote a branch of a poisoned tree is still capable of bearing tainted fruit not subject to the plucking for testimonial use? I am here, of course, assuming arguendo that the police conduct was such as to bring into play the exelu-sionary rule as to any tangible item found in the automobile or any statement that might have been made by any of the persons in the automobile. Here, however, the effect of the district court ruling is to make witnesses to a crime incompetent to testify. “The rules which disqualify witnesses who have knowledge of relevant facts and mental capacity to convey that knowledge are serious obstacles to the ascertainment of truth. For a century the course of legal evolution has been in the direction of sweeping away these obstructions.” McCormick on Evidence § 71, at 150 (1954).

A reversal of direction in this well developed trend of the law can obviously be dictated by policy considerations. I fail to find, however, such a countervailing policy here, I am not unmindful that respectable authority has held that the exclusionary rule should be carried to the present position and that the Government has conceded that if a defendant has standing, testimony of witnesses discovered during an illegal search can be excluded. Nevertheless, the rationale of the exclusionary rule in my opinion does not call for its extension to the point of excluding altogether an otherwise competent witness. In so stating, I do not suggest that the weight of his testimony could not be challenged by showing the impact of the method of discovery on the likelihood of the witness’s telling the truth, e. g., if he were under compulsion to testify because of awareness that his own involvement in a crime was known by virtue of a Fourth Amendment violation.

We do not here have a Wong Sun situation in which the excluded evidence, a verbal statement, is deemed to be equated with “physical, tangible materials obtained either during or as a direct result of an unlawful invasion.” We here have witnesses who were in plain view of officers who, at the time, were engaged in their “community earetaking functions.” Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Essentially, it appears to me, we are dealing with a question of the extent to which the exclusionary rule might reasonably be expected to have a deterrent effect on proscribed police conduct. We know that the rule is not absolute, one to be applied in all circumstances. Thus, the Supreme Court in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), held that a statement which was inadmissible against a defendant in the prosecution’s case in chief because of a Miranda violation might be used for impeachment purposes. While we here have a proposed use of witnesses in the affirmative case of the prosecution, I cannot conceive that the rationale of deterrence of police misconduct will be furthered by this extension of the rule. The “speculative possibility that impermissible police conduct will be encouraged” (401 U. S. at 225, 91 S.Ct. at 645) by making witnesses competent in the present situation appears so remote to me that a sound public policy would draw the exclusionary situation short of a mandatory incompetency.

Indeed, in those cases holding that the witness himself may be the produce of the poisoned tree and therefore not free to testify as to his knowledge of the crime, the exclusion is not absolute and recognition has been given to what might be called an “attenuation test.” Smith v. United States, supra, 344 F.2d at 547. I have some conceptual difficulty in determining how an exclusionary rule designed to control police behavior can be applied on a case-by-case basis as Smith would have us do. I am certain that police officers would have an even greater difficulty in determining whether a possible witness’s testimony was attenuated from illegality.

While Smith did not purport to overrule an earlier case of the same circuit, Smith and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), cert, denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964), nevertheless, the earlier case in which the court spoke through then Judge Burger is worthy of extensive quotation as illustrating the concepts which I believe should be applicable in the present situation.

“Courts have gone a long way in suppressing evidence but no case as yet has held that a jury should be denied the testimony of an eyewitness to a crime because of the circumstances in which his existence and identity was learned. However, in our view, the relationship between the inadmissible confessions and Holman’s testimony in the District Court months later is so attenuated that there is no rational basis for excluding it. No case has been cited to us in which the testimony of an eyewitness or factual witness has been excluded because his identity was discovered as a result of disclosures made by an accused during detention violative of Rule 5(a) Fed. R.Crim.P. . . .
“The District Judge correctly read this court’s holding in Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962), as not requiring the exclusion of Holman’s testimony. Neither the Killough holding, the Mallory holding nor any other case would warrant excluding Holman’s testimony. The fact that the source of evidence is ‘tainted’ by violation of constitutional or statutory provisions has not precluded the use of that evidence in every circumstance. .
“Here no confessions or utterances of the appellants were used against them; tangible evidence obtained from appellants, such as the victim’s watch, was suppressed along with the confessions. But a witness is not an inanimate object which like contraband narcotics, a pistol or stolen goods, ‘speak for themselves.’ The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.” 324 F.2d at 881-882. (Footnotes omitted.)

It appears to me that in the intervening ten years the exclusionary rule has been expanded so as mechanically to equate the proffer of a living witness with the proffer of inanimate eviden-tiary objects illegally seized.

What appears to me to be a recession from the underlying principles announced in Smith and Bowden followed within less than a year in McLindon v. United States, 117 U.S.App.D.C. 283, 329 F.2d 238, 241 n.2 (1964), in which the court stated it did not read Smith and Bowden as holding that testimony may never be excluded. However, in so stating, reliance was placed on cases which forbade testimony as to visual and aural observations during an unlawful search. This, it appears to me, is no support for the present matter; obviously, if seized heroin is to be excluded, a witness who was present at the seizure should not be permitted to testify to the nature and identity of the seized material. The equation is clear and all that has to be justified is that the material itself is subject to suppression.

I note that the McLindon court did not mechanically equate the proffer of a witness whose knowledge was independent of the improper conduct with the proffer of illegally seized, inanimate evi-dentiary objects. Instead, in remanding for a hearing, it laid down a case-by-case standard as follows:

“In each case the court must determine how great a part the particular manifestation of ‘individual human personality’ played in the ultimate receipt of the testimony in question. Indications in the record that mere knowledge of the witness’ identity would not inevitably guarantee that his testimony would be favorable to the prosecution; that the witness might eventually have voluntarily gone to the police even without their knowing his identity; that his testimony has remained unchanged from the start — all are relevant factors to be considered in determining the final outcome.” 329 F.2d at 241 n.2.

I find no consideration by the district court in the present case of any such factors. Rather, the rule was mechanically applied to exclude everything connected with the claimed improper conduct in a broad sweep of the broom which somehow is supposed to restrain undesirable constabulary conduct.

The rule as so expanded makes appropriate another quotation from Smith and Bowden, supra, 324 F.2d at 882:

“Mr. Justice Jackson would appear to have had something like this in mind when he expressed unwillingness to debase constitutional doctrine ‘by making of them mere technical loopholes for the escape of the guilty. The petitioners have had fair trial and fair review. The people of the State are also entitled to due process of law.’ Stein v. People of State of New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522 (1953).”

Of equal if not greater importance is the second significant facet of this case, that of standing. Of course, any indicted defendant is aggrieved by testimony which reflects on his guilt. Standing is something more than this human reaction. In Tane, the Second Circuit, which did apply the exclusionary rule to a witness, first considered the question of standing and determined that there was standing. In Smith, however, there seems to have been no consideration of the question. Whatever doubt there may have been as to the necessity of standing would seem to have been put to rest by the Supreme Court in Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969), where the Court stated:

“The established principle is that suppression of the product .of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”

The passengers in defendant’s automobile, all in plain view, were discovered initially during the course of what seems clearly to have been a valid investigatory stop. I cannot find any standing on the part of the defendant arising from the transportation of the passengers to the police station. They may have been aggrieved in a standing sense but it is not they who are attempting to assert a right of suppression. The fact that the passengers had been in the defendant’s automobile should not, it appears to me, create some sort of vicarious standing. The defendant’s transportation of the illegal immigrants should not be the basis of creating an immunity for him from harmful testimony. Cf. United States v. Chaidez-Castro, 430 F. 2d 766 (7th Cir. 1970). He had no proprietary interest in their bodies — or minds. I would vacate the order of suppression, reverse, and remand for a trial.

      . The government stated that officer Hall’s testimony would be substantially similar to Tenuto’s.

      . The written memorandum from which he read is not in the record,

      . When the arrest was made the police knew Sanchez owned the car and had a valid driver’s license and they had no reason to believe that he was committing or was probably connected with an offense. The police had learned by observation before the arrest that Sanchez spoke, and his passengers responded in, a language the police “did not understand” but which was probably Spanish and that the passengers were probably Mexican or Puerto Rican. But the court properly noted that there is no crime in speaking Spanish or being Mexican or Puerto Rican. See United States v. Mallides, 473 F.2d 859, 860 (9th Cir. 1973).

      . The government concedes that the testimony of witnesses discovered during an il-illegal search can be suppressed as to a person having standing to object. We think the same is true in the event of an illegal arrest. See United States v. Mal-lides, supra., 473 F.2d at p. 861.

      . See, for example, Smith v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965) ; United States v. Tane, 329 F.2d 848 (2d Cir. 1964).

      . Wong Sun v. United States, 371 U.S. 471, 484-486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).


author: PELL, Circuit Judge.

text:
    Joseph F. ELWARD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 71-1773.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 10, 1973.
    Decided July 3, 1973.
    John F. Riordan, John F. Kelly, Edward S. Macie, Chicago, 111., for plaintiff-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, 111., Scott P. Crampton, Asst. Atty. Gen., Charles R. Burnett, Atty., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

The sole issue on this appeal is whether, during the years 1961 through 1965, taxpayer Joseph Elward qualified as a “head of a household” as defined in Section 1(b)(2), 26 U.S.C. § 1(b)(2), now Section 2(b)(1), of the Internal Revenue Code of 1954. The Commissioner of Internal Revenue had disallowed Elward’s computations in his income tax returns based on the lower rates applicable to a head of household and, therefore, had assessed a deficiency against Elward in the amount of $43,098.99 plus interest. The taxpayer subsequently paid the deficiency and filed for a refund in the district court. After hearing Elward’s evidence, the court granted the Government’s motion to dismiss pursuant to Rule 41(b), Fed. R.Civ.P. This appeal followed.

Section 1(b)(2) provided in pertinent part:

“For purposes of this subtitle, an individual shall be considered a head of a household if, and only if, such individual is not married at the close of his taxable year . . . and .
(A) maintains as his home a household which constitutes for such taxable year the principal place of abode, as a member of such household, of—
(i) a son ... of the taxpayer ....
“For purposes of this paragraph . , an individual shall be considered as maintaining a household only if over half of the cost of maintaining the household during the taxable year is furnished by such individual.”

The parties agree that Elward’s status as a head of a household during the years in question depends on whether Elward’s apartment in Chicago was “the principal place of abode” of James El-ward, the taxpayer’s adult unmarried son.

I

Plaintiff taxpayer’s case at trial consisted of his testimony, his son’s testimony, and some exhibits. The trial judge, sustaining the objections of the Government, refused to admit into evidence several of the exhibits proffered by Elward.

The evidence admitted at trial established the following. Taxpayer’s son James was born in 1928 and attended school in the Chicago area until he went to Washington, D. C., to complete his college education. Subsequently, he entered military service. When he was discharged in August 1952, he returned to Chicago. In October 1952, however, unable to find job opportunities in Chicago, James went to New York City to pursue his chosen career of acting and writing for the theater. During his first two years in New York, he resided in a hotel where he paid rent at a monthly or a weekly rate. He then leased, on a multi-year basis, an unfurnished apartment having a living room, kitchenette, and bedroom. In 1961, he moved to a larger apartment; at the time of trial, June 1971, he still rented that apartment. In 1952, 1953, 1959, and 1960, James enrolled in acting classes at Columbia University.

From 1952 to 1961, taxpayer’s son returned to Chicago from three to six times each year, primarily for holidays and family occasions. The stays in Chicago lasted from a few days to a week. James spent the remainder of each year in New York, with the exception of a few months in 1953 when he performed as an actor in Washington, D. C., a six-month trip to Europe in 1958, and, in the latter part of the 1950’s, nine weeks each year in New Hampshire as a member of a summer stock company.

During the period of 1961 through 1965, the years in issue here, James returned to Chicago six or seven times annually. One third of these trips lasted only a few days and the remainder lasted five to seven days. Except for a portion of the summers of 1963 through 1965 when he was part of the summer stock company in New Hampshire and a few trips to California in connection with his work, James spent the balance of his time in New York City.

During these years, James worked mainly as a television writer. He did most of his work in his New York apartment, where he kept his typewriter, resumés, clippings, notices, files, and reference books. His business contacts, including his agents, were located in New York City. He received mail at his New York address; he maintained a checking account, a savings account, and a safety deposit box at the Chase Manhattan Bank; he opened charge accounts in New York; he was listed in the New York telephone directory; and he attended church regularly in New York. Further, James was treated by several doctors in New York City, had his annual dental checkup, and underwent an operation there.

James testified that he maintained the following connections with Chicago: he kept some clothes in “his” room at the seven-room apartment rented by his father; he had his own key to that apartment; he had a checking account at a Chicago bank; and he attended Holy Name Cathedral when he was in the city. He further stated that he had not filed New York income tax returns; that he was registered to vote in Chicago and had voted in all the major elections; and that, in 1964-65, he had received a questionnaire and a summons for jury duty from the Jury Commissioners of Cook County, Illinois. The testimony also revealed that none of James’s agents was located in Chicago, that he had no personal charge accounts there, and that he had not been listed in the Chicago telephone directory during the years 1961 through 1965.

After hearing the taxpayer’s evidence, the trial court concluded that “plaintiff has not proven that his home at 222 East Chestnut Street in Chicago was the ‘principal place of abode’ of his son James during the years 1961 through 1965.” The court found that “[t]he overwhelming portion of James Elward’s time since 1952 has been spent in places other than Chicago, principally in New York City. . . . [He] established a separate habitation and returned to Chicago only for periodic visits.” The court also declared that the pertinent legislative history “indicates that Congress did not intend to apply the head of household rates to [Joseph Elward].

II

The statute refers to “principal place of abode,” not merely to “place of abode.” The emphasis is as much on “principal” as on the fact of abode. Although “principal place of abode” is obviously the crucial term for the disposition of this case, the statute unfortunately provides no definition, and few cases have hinged on the meaning of the phrase. Because of this lack of a coherent body of precedent, some judges and litigants have turned to concepts which have been more frequently analyzed. Taxpayer Elward, for example, would have had the district court evaluate his son’s connections with Chicago versus his connections with other places (primarily New York City) by using the criteria for “domicile.” Congress, however, did not adopt that term. We agree with the Tax Court’s discussion of this matter in Prendergast v. Commissioner of Internal Revenue, 57 T.C. 475, 481 (1972), presently on appeal in the Ninth Circuit Court of Appeals, wherein the court, inter alia, rejected taxpayer’s contention that “principal place of abode” is synonymous with “domicile.”

In those few cases where construction of “principal place of abode” has been crucial, the courts have relied mainly on the relevant Treasury regulation and on inferences from legislative history. The applicable regulation here is § 1.1-2, now § 1.2-2 Helpful portions of the legislative history are included in Hein v. Commissioner of Internal Revenue, 28 T.C. 826 (1957), and Reardon v. United States, 158 F.Supp. 745 (D.S.D.1958), and need not be repeated in toto here.

The Treasury regulation quoted in footnote 2 reflects the views expressed in the Committee Reports that accompanied the passage of section 12(e), Internal Revenue Code of 1939, the predecessor of section 1(b)(2) of the 1954 Internal Revenue Code. The Reports indicate that Congress’s primary purpose in enacting the head-of-household provisions was to give an unmarried taxpayer some of the income-splitting benefits of married couples where the taxpayer must maintain a home for a child and share his income in order to provide for the child or where the taxpayer has other similar, serious family responsibilities. And we note particularly the statements in H.Rep.No.586, 82d Cong., 1st Sess., pp. 8-11, 105-107, including that the taxpayer’s home “will not be considered as the principal place of abode where the child establishes a separate habitation and only returns for periodic visits.” U.S.Code Cong. & Admin. Serv.1951, p. 1893. See also S. Rep.No.781, 82d Cong., 1st Sess., pp. 8-11.

In light of the wording of the statute, the regulation, and the legislative history, we must reject the argument that physical occupancy in the household by a taxpayer’s child is insignificant and that the alleged intent of the child to return to the household is dispositive. Some case law does suggest that prolonged physical absence or the unlikelihood of return to the abode by a dependent is insufficient by itself to defeat a taxpayer’s claim to head-of-household status, see, e. g., Hein v. Commissioner of Internal Revenue, supra. Those decisions, however, do not discount the importance of physical occupancy by the person whom the taxpayer seeks to use to justify his obtaining lower tax rates; rather, they merely stress that all of the circumstances of a particular case should be considered. Further, on the weight to be accorded the factor of intent, we find the Tax Court’s discussion in Pren-dergast, supra, 57 T.C. at 481, to be persuasive :

“The son’s statement at trial that he intended to return to the petitioner’s house is not determinative of the result herein. While it is true that the statement is highly probative of domicile, since a person’s intent to make a place his home is a requisite of domicile, the same evidence is, we think, less probative of principal place of abode. . . . The strongest evidence [taxpayer] offered is the son’s declaration at trial. Because of its taxpayer-serving nature and the fact that it was made to achieve a legal result, we have discounted it heavily.”

Contrast Kaku Nagano v. McGrath, 187 F.2d 759, 764 (7th Cir. 1951).

Although we have found no tax cases involving the same factual situation presented here, two decisions are sufficiently similar to provide some guidance. In Estate of Adams v. Commissioner, CCH Tax Ct. Mem. 1098 (1967), the daughter of a deceased taxpayer, whose home during the year in question, 1962, was in Florida, lived and worked in North Carolina for two years, 1961-63. The daughter remained a registered voter of Florida, regarded her mother’s residence in Miami as her home and kept half her possessions there. She had the intention of returning there when she left the university at which she was employed and where she took some courses. After a lengthy discussion of legislative history and regulation 1.1-2(c), the Tax Court concluded that the daughter’s absence by reason of “business” should not be considered a temporary absence. “[I]t would be an unjustified extension of the Code provision to extend the head-of-household tax advantages to a taxpayer whose qualifying dependent has not only become economically independent but has also accepted full-time employment away from home for a full year at a time.” CCH Tax Ct. Mem. at 1105-06.

We also note Estate of Smithson v. United States, 30 Am.Fed.Tax R.2d 72-5481 (W.D.Wash.1972), a suit for a refund for the years 1965 and 1966 based on the alleged applicability of the lower rates for a head of household. In 1962, after his Air Force Reserves unit was released from active duty, taxpayer’s son had the option of remaining with the Air Force under various plans, one of which would have allowed him to remain in the Seattle area, where his mother resided, and the other leaving his location to the discretion of the Air Force. “Because Richard’s efforts to get a position in commercial aviation had then proved unsuccessful, he decided to make his career as a military pilot and chose the plan involving an indefinite commitment and location.” 30 Am.Fed.Tax R.2d at 72-5482. In the tax years in question, during which time the son participated in this Air Force program, he spent his 30-day annual leave with taxpayer at her Seattle home and he kept some personal belongings in one bedroom of the mother’s apartment. The district court held that taxpayer was not entitled to the head-of-household rates; the son was not “temporarily absent” from his mother’s household “due to special circumstances” within the meaning of '§ 1.1-2(c)(1); “[rjather, Richard had, prior to the years in issue, voluntarily left his mother’s household and established a separate habitation, and only returned to his mother’s household for periodic visits.” 30 Am.Fed.Tax R.2d at 72-5483.

We need only briefly mention three decisions upon which Elward relies: Hein v. Commissioner of Internal Revenue, swpra; Reardon v. United States, supra- and Smith v. Commissioner of Internal Revenue, 332 F.2d 671 (9th Cir. 1964). The first two involve the absence-for-illness example given in the regulation. We agree with the Government that those cases are so factually different as to provide no real parallel with the present case, e. g., in neither Hein nor Reardon was a determination made that the dependents had established separate habitations during the tax years in question. Further, the sanitaria to which the schizophrenic dependents had gone could be considered extensions of the taxpayers’ households. The holding in Smith, which the Internal Revenue Service has announced it will not follow, was that a taxpayer need not physically occupy the household that he furnishes to his dependent and that he can have two “homes” within the meaning of section 1(b). Thus, Smith concerns a taxpayer and not the person whom taxpayer seeks to use to justify his head-of-household status. The case has no precedential value here. See the discussion in Pren- dergast, supra, 57 T.C. at 482; cf. Biolchin v. Commissioner of Internal Revenue, 433 F.2d 301, 302 (7th Cir. 1970).

We conclude that taxpayer Elward failed to prove that he was entitled to be taxed at the reduced rates applicable to a head of a household. He neither satisfactorily established that his apartment in Chicago was James’s “principal place of abode” nor, alternatively, that James’s absences from Chicago were, in the words of the Treasury regulation, “temporary . . . due to special circumstances [,] ... [a] nonperma-nent failure to occupy the common abode. . . . ” In sum, based on our examination of the pertinent legislative history, the regulation, and the case law, we concur in the Government’s opinion that Elward pointed to no evidence suggesting that Congress intended to allow favorable rates to a taxpayer who “has simply retained an extra bedroom in his apartment and [whose] son has been living in another city for over a decade, supporting himself and pursuing his own business." It was not “reasonable to assume that . . . such other person will return to the household . . . .” Reg. § 1.1-2.

Consideration of the trial judge’s exclusion of certain questions and exhibits does not cause us to alter our opinion. Some of the questions not permitted were phrased in leading form. Further, some of the information sought to be introduced was contained in James’s testimony, e. g., his being a registered voter in Chicago, his having a key to the apartment, and his opinion that Chicago offered few business opportunities to those interested in pursuing theatrical careers. Testimony about James’s passport was excluded because the best evidence, the passport itself, was not proffered. The exhibits regarding the son’s jury duty were excluded as unauthenticated copies of certain jury records. James’s testimony about his jury duty was properly stricken as irrelevant because his service on the jury occurred after the tax years in question. The taxpayer also failed to lay an adequate foundation for certain precinct voting records. In view of the weighty indications of James’s ties to New York, the court’s exclusion of James’s will, which apparently was offered to show that it had been executed in Chicago, was not so prejudicial as to require the reversal of the district court’s judgment.

While some of the district court’s exclusionary rulings may have been on the side of unyielding adherence to the strict wording, rather than the spirit, of the rules of evidence, which is not necessarily consistent with a trial-oriented purpose of questing for the truth, nevertheless, even if all of the proffered evidence had been admitted without qualification, the epexegetic weight thereof, in our opinion, would have been insufficient to have tipped the scales in the taxpayer’s favor. While many of the excluded items may well have reflected upon the son’s intent to consider Chicago as his home base, it is clear that he did not in final analysis treat his father’s apartment as his principal place of abode. Ties, both sentimental and mundane, with one’s native heath are not easily sundered but the mere fact of retention of certain manifestations of connection with the place of birth and rearing cannot achieve for that place a status of principal abode which it does not otherwise have.

For the reasons hereinbefore set out the judgment of the district court is affirmed.

Affirmed.

      . Our jurisdiction derives from 28 U.S.C. § 1291.
      The district court sustained the Commissioner’s determinations with respect to other claims made by the taxpayer in his complaint. Elward does not here challenge those adverse findings. The court’s findings of fact and conclusions of law may be found at 28 Am.Fed. Tax R.2d 71-5498 (N.D. Ill. 1971).

      . Section 1.1-2 read in part:
      “(e) Household. (1) In order for the taxpayer to be considered a head of a household . . . the household must actually constitute the home of the taxpayer for his taxable year.... Such home must also constitute the principal place of abode of at least one of the persons specified in such subpar-agraph (A).... The taxpayer and such other person must occupy the household for the entire taxable year of the taxpayer. . . . [S]uch other person will be considered as occupying the household for such entire taxable year notwithstanding temporary absences from the household due to special circumstances. A nonpermanent failure to occupy the common abode by reason of illness, education, business, vacation, military service, . . . shall be considered temporary absence due to special circumstances. Such absence will not prevent the taxpayer from qualifying as the head of a household if (i) it is reasonable to assume that the taxpayer or such other person will return to the household, and (ii) the taxpayer continues to maintain such household or a substantially equivalent household in anticipation of such return.”

      . Elward does not challenge the validity of the regulation. He claims that his case comes within one of the exceptions enumerated therein, namely, “[a] nonperma-nent failure to occupy the common abode by reason of . . . business . . . . ”


author: STEVENS, Circuit Judge.

text:
    Iberia HAMPTON, Administratrix, etc. Verlina Brewer, etc., and Deborah Johnson et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, COOK COUNTY, ILLINOIS and Edward V. Hanrahan et al., Defendants-Appellees. Fannie Mae CLARK, Administratrix of the Estate of Mark Clark, Deceased, Plaintiff-Appellant, v. The CITY OF CHICAGO, and Edward V. Hanrahan et al., Defendants-Appellees.
    No. 72-1277, 72-1300.
    United States Court of Appeals, Seventh Circuit.
    Argued April 6, 1973.
    Decided Aug. 24, 1973.

      Michael Deutsch, Jeffrey H. Haas, Chicago, 111., Arthur Kinoy, William J. Bender, Newark, N. J., David Scribner, New York City, Jonathan M. Hyman, Chicago, 111., for plaintiffs-appellants.
    Bernard Carey, State’s Atty., Michael J. Goldstein, Charles A. Powell, Asst. State’s Attys., Richard L. Curry, Corp. Counsel, Gayle F. Haglund, Asst. Corp. Counsel, Chicago, 111., for defendants-ap-pellees. '
    Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges.
   STEVENS, Circuit Judge.

Plaintiffs allege that 14 Chicago police officers raided an apartment at 2337 West Monroe Street at 4:15 A.M. on December 4, 1969, for the purpose of killing Mark Clark and Fred Hampton and punishing seven other residents of the apartment because they were black and had exercised their First Amendment rights as members of the Black Panther Party. They also allege that 15 other defendants conspired to imprison and prosecute seven surviving occupants without any legal basis whatsoever. In four separate complaints, containing a total of 49 counts, plaintiffs claim actual and punitive damages under the Federal Civil Rights Act and Illinois law. Accepting the allegations as true, as the law requires, the district court denied motions to dismiss filed by the fourteen participating officers, but entered a final judgment dismissing all claims against the remaining 15 defendants. Plaintiffs appeal from that judgment.

The appellees include: (1) The State’s Attorney (Hanrahan) and three Assistant State’s Attorneys (Jalovec, So-rosky and Meltreger); (2) seven police officers who participated in certain investigations after the raid; (3) the Mayor of Chicago (Daley) and the Superintendent of Police (Conlisk); and (4) the City of Chicago and the County of Cook, municipal corporations. The district court held that the prosecutors were protected by quasi-judicial immunity, that the allegations against the ap-pellee police officers, Mayor Daley and Superintendent Conlisk were insufficient, and that the City and County were not “persons” within the meaning of the federal civil rights statutes and are immune from liability on a respondeat superior theory. In three of the cases jurisdiction stems from the federal questions which are raised; in the fourth, plaintiff Brewer is a citizen of Michigan and therefore diversity jurisdiction is also asserted.

For the purposes of this appeal we must assume that all of plaintiffs’ allegations are true. The test of sufficiency is whether “. . .it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. Since different issues are raised with respect to different appellees, we consider the relevant allegations separately.

In view of the large number of claims asserted, and the fact that the district court order requires all pleadings to be amended, we limit our review, with respect to each appellee, to the question whether any sufficient claim for relief has been alleged. Since reversal as to any appellee on any theory renders the district court’s other rulings respecting that appellee subject to revision at any time prior to the conclusion of the entire trial, see Rule 54(b) Fed.R.Civ.P., it would be inappropriate to discuss the sufficiency of claims which may be amended and which need not be passed upon in order to determine this appeal.

1. Hanrahan and Jalovec. The Hampton complaint alleges that “under color of state search warrant” 14 police officers illegally entered the residence of Fred Hampton and, without provocation, fired over 90 bullets from machine guns, pistols, shotguns and carbines into the general living quarters, critically wounding Fred Hampton, who was otherwise physically abused and ultimately died. In addition, the officers allegedly stole or damaged Hampton’s personal property and destroyed evidence of their illegal conduct. These alleged acts were “perpetrated upon Fred Hampton, Chairman of the Illinois Black Panther Party, because of his beliefs, thoughts, words and associations” (|f 21) in order “to create fear and terror in the Black Community” (ff 23).

Hampton’s administratrix alleges that Hanrahan and Jalovec, with the 14 officers, planned the raid and agreed to use excessive and deadly force against Hampton and others in his residence. Their alleged purpose was to deprive him of his constitutional rights because of his race and his political beliefs.

The Clark complaint tersely alleges that the officers shot and killed Mark Clark without any authority of law and thereby denied him due process of law by imposing summary punishment of death upon him. It alleges that defendant Hanrahan, or his Assistant State’s Attorney, did “with specific intent, plan and execute the acts as alleged herein” (|f 16); further, that these acts were the result of a tacit understanding “to treat the deceased as they did because he was Black.”

The Johnson and Brewer complaints describe the raid in greater detail. They allege that four of the plaintiffs were wounded by gun fire and that all of them were physically and verbally abused and illegally arrested. Again the complaints allege that Hanrahan and Ja-lovec, as well as the 14 officers, “wilfully, maliciously, and with specific intent planned and executed the acts” recited in the complaints. These complaints also include a number of counts alleging state law claims of false imprisonment and malicious prosecution; these charges also involve defendants Hanra-han and Jalovec but will be discussed in Part 2 of this opinion.

As the district court correctly held, the allegations are plainly sufficient to state claims against the participating officers under the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3). It is equally clear that the allegations respecting the planning and execution of the raid by Hanrahan and Jalovec are sufficient unless their prosecutorial offices gave them immunity.

The district court erroneously relied on the Illinois Tort Immunity Act. Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.

The claim of immunity must not be confused with the defense of good faith. That defense is available to a person who, either because of his position or because of his conduct, is not immune from suit. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L. Ed.2d 288. In those situations in which immunity is properly claimed, the action is defeated at the outset. An essential purpose of the doctrine is to give the officer freedom to exercise his discretion and to perform his official duties without fear that his conduct will be called into question at an evidentiary hearing or subject him to personal liability.

The source of the immunity is found in common law doctrine recognized in federal judicial decisions. The Supreme Court has squarely held that the broad language of the Civil Rights Act of 1871 did not abolish this protection for legislators “acting in a field where legislators traditionally have power to act,” Tenney v. Brandhove, 341 U. S. 367, 379, 71 S.Ct. 783, 789, 95 L.Ed. 1019, or for judges for acts “within their judicial jurisdiction even when the judge is accused of acting maliciously and corruptly. . . . ” Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1217, 1218, 18 L.Ed.2d 288. With respect to legislators and judges, it is clear that the doctrine may not be circumvented by allegations of improper motive; rather, the availability of immunity depends on the character of the conduct under attack.

The scope of immunity enjoyed by a state prosecutor has not yet been defined by the Supreme Court. We are nevertheless confident that at least some of his traditional functions must be immune from suit under § 1983. See Littleton v. Berbling, 468 F.2d 389, and cases cited at page 409 (7th Cir. 1972). In view of the overriding importance of federal law, the area of his protection cannot be either limited or expanded by a state’s statutory definition of his authority or responsibility; we therefore do not pause to review the respective parties’ analyses of the relevant Illinois statute. Nor do we attach any weight in analyzing the immunity question to the numerous ways in which the pleadings characterize the motivation of the prosecutor as wrongful — ranging from “sadistic” or “racial” to the more familiar “malicious” or “discriminatory.” The immunity doctrine would be of little value if such characterization of his motive could force the prosecutor to stand trial.

Prosecutorial conduct which traditionally has been treated as immune is often described as “quasi-judicial” as opposed to investigatory activities normally performed by laymen, such as police officers.- Judge Ely’s exposition of the distinction in Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) properly focuses on the character of the defendant’s conduct, rather than his alleged motivation:

“We believe, however, that when a prosecuting attorney acts in some ea-pacity other than his quasi-judicial capacity, then the reason for his immunity — integral relationship between his acts and the judicial process— ceases to exist. If he acts in the role of a policeman, then why should he not be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws? See Monroe v. Pape, supra, 365 U.S. 167, at 187, 81 S.Ct. 473, 5 L.Ed.2d 492; see also Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182, L.R.A.1916F, 399 (1916), cited in Yaselli [Yaselli v. Goff] 12 F.2d 396 at 405, 2 Cir. To us, it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one, and not the other.” Id. at 536-537.

The conduct of Hanrahan and Jalovec in planning the raid may be described in various ways. At one extreme the complaints may be read to charge that they deliberately planned to have the police officers kill Hampton and Clark. Even without the allegation of improper political or racial motivation, it is plain that no immunity would apply under that reading. Regardless of his motives, the prosecutor certainly may not order subordinates to kill or to punish a free citizen without trial. Notwithstanding the tone of these complaints, however, appellants have not urged this extreme reading on the court; we therefore do not so interpret the allegations.

At the other extreme, defendants Hanrahan and Jalovec argue that they are charged with nothing more than the drafting of a search warrant which the raiding officers executed, an act which should be accepted as a traditional duty of the Attorney for the County. But we are persuaded that the “planning” allegations cannot fairly be read so narrowly. At the very least they charge that Hanrahan and Jalovec planned a raid in order to obtain evidence of criminal activity. Defendants argue that evidence gathering is so closely related to the presentation of evidence at trial that it should also be clothed with immunity. We find this argument unpersuasive. Even though defensible if conducted in good faith with probable cause, the State’s Attorney’s alleged participation in the planning and execution of a raid of this character has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.

The district court erred in holding that the immunity doctrine requires dismissal, without trial, of plaintiffs’ charges against defendants Hanrahan and Jalovec.

2. Mulchrone, Ervanian, Meade, Ku-kowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger. The Johnson and Brewer complaints also allege that nine appellees, including seven police officers and two additional Assistant State’s Attorneys, joined with Hanrahan and Jalovec and the 14 participating officers in an extensive conspiracy to cause the false arrest and imprisonment of the surviving plaintiffs, the institution of an unfounded prosecution, and the concealment of the truth from the public.

Several of the plaintiffs were arrested on December 4, 1969, charged with attempted murder and aggravated battery, and imprisoned until December 21, 1969; their prosecutions were continued until May 8, 1970. They allege that there was no legal basis for the arrests, the charges, or the imprisonment. Quite plainly, if the allegations are true, § 1983 authorizes relief against each person who, acting under color of state law, is responsible for these wrongs. Moreover, the conspiracy which they allege is also actionable under § 1985(3). We are satisfied that the post-raid charges against Hanrahan, Jalovec and the 14 police officers are sufficient under both § 1983 and § 1985(3). The sufficiency of the charges against the other defendants is less clear.

The complaints charge that these defendants took certain action designed to conceal the fact that there was no basis for arresting, holding or prosecuting the plaintiffs, and that the continuing concealment aggravated plaintiffs’ injuries. Thus, Mulchrone and Ervanian, Supervising Officers of the Internal Inspections Division of the Chicago Police Department, allegedly limited the scope of their investigations in order to prevent information contradiciting the participating officers’ version of the raid from coming to light. Defendant Meade prepared a set of questions and answers for the officers that would avoid a fair test of their veracity. Defendants Sorosky and Meltreger helped to edit these questions and answers. Defendants Sadunas and Koludrovic gave false testimony at the coroner’s inquest. Sadunas allegedly gave testimony before the grand jury which he knew to be false. Defendants Purtell and Sadunas allegedly filed an incomplete and erroneous firearms report — again to corroborate the official, but false, version of the raid.

The complaints allege that as a direct result of the conspiracy, the unfounded prosecution was continued until May 8, 1970, and plaintiffs incurred expenses in preparing their defense. The conspiracy charge is somewhat tenuous since it merely alleges that “some or all” of the defendants participated, and the causal connection between the conduct of several appellees and the alleged injury to plaintiffs is doubtful at best. Nevertheless, serious allegations of conspiracy have been made, and matters such as the extent of injury and causal connection raise questions for the trier of fact. Since we cannot say with certainty that there is no possibility that any set of facts which might be proved in support of the allegations would entitle one or more of the plaintiffs to some relief, it was error for the district court to enter judgment finally disposing of the claims against these defendants.

If the alleged conspiracy did exist, as we must assume at this stage of the case, and if it did prolong a completely unfounded prosecution, plaintiffs are entitled to relief against each conspirator. The vague allegation that “some or all” of the defendants were participants does not justify requiring them all to stand trial. But if some are in fact liable, it would be unjust to permit a final judgment to exonerate all before trial, or even discovery, has commenced. We therefore conclude that even if the charges against certain of the defendants may have been properly dismissed because the allegations were deficient, it was error to enter final judgment in favor of Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger at this stage of the case.

3. Daley and Conlisk. In the Johnson and Brewer complaints, plaintiffs claim that Mayor Daley and Superintendent Conlisk are liable pursuant to 42 U.S.C. § 1986 for the consequences of the alleged conspiracy. The charge, in essence, is that they had the power and authority to prevent a violation of § 1985(3) by the other defendants and failed to do so. Liability under § 1986, however, is dependent on proof of actual knowledge by a defendant of the wrongful conduct of his subordinates. In their brief, plaintiffs summarize the critical charges against Daley and Conlisk by stating that the complaints allege “that due to their positions of authority and responsibility, [they] knew of the conspiracy against the plaintiffs.” Brief for Appellants at 43. We agree with the district court that those allegations are insufficient.

4. City of Chicago and County of Cook. The several claims against the City and the County under the Civil Rights Act were properly dismissed because these defendants are not “persons” within the meaning of the statute. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). That decision makes it clear, however, that the district court had jurisdiction over Brewer’s state law claims against the County and presumably the City as well, on the basis of diversity of citizenship. 411 U.S. at 714-722, 93 S.Ct. 1785.

Those claims, asserted in Counts 13, 14 and 15 of the Brewer complaint, allege common law torts of assault and battery, false imprisonment, and malicious prosecution. The district court held that these claims against the County are barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat. Ch. 85, § 1-101 et seq. The district court relied primarily on Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65 (2d Dist.1969). Subsequent to the decision of the district court, that case was overruled sub silentio by Arnolt v. Highland Park, 52 Ill.2d 27, 282 N.E.2d 144 (1972). See Krieger v. Carpentersville, 8 Ill.App.3d 243, 289 N.E.2d 481, 484 (2d Dist.1972). As we read those eases, it now seems quite clear that the Illinois statute does not immunize municipal corporations from liability if their agents are guilty of wilful and wanton misconduct. The allegations in the Brewer complaint against the City of Chicago and Cook County are therefore sufficient.

The district court dismissed parallel state law claims in the Johnson complaint on the same grounds. However, there was no diversity of citizenship in that case, and this court ruled in Wojtas v. Village of Niles, 334 F.2d 797 (7th Cir. 1964), that the doctrine of pendent jurisdiction does not permit joinder of claims against a new party. Therefore, the dismissal of the state law claims in the Johnson complaint should be for want of jurisdiction, and the lower court’s order is appropriately modified.

Insofar as the district court’s order of February 3, 1972, dismissed the charges against the City of Chicago and the County of Cook, it is reversed with respect to the Brewer complaint and affirmed as modified with respect to the Johnson complaint; insofar as it dismissed the charges against Mayor Daley and Superintendent Conlisk, it is affirmed ; insofar as it dismissed the charges against defendants Hanrahan, Jalovec, Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sa-dunas, Sorosky and Meltreger, it is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

      . With respect to the motions to strike and dismiss of defendants James Davis, Daniel Groth, Edward Garmody, John Ciszewski, Ray Broderick, George Jones, John Marusich, Lynwood Harris, Fred Howard, William Corbett, William Kelly, Philip Joseph, Joseph Gorman and Robert Hughes, the district court stated: “These police officers of the City of Chicago were detailed and/or on detached service with the Office of the Cook County State’s Attorney as State’s Attorney’s police or detail. This group of policemen is charged in all four of the consolidated complaints with actual on-tliescene participation in the raid on the Monroe Street apartment occupied by Fred A. Hampton, Mark Clark, Verlina Brewer, Deborah Johnson, Ronald Satchel, Harold Bell, Blair Anderson, Brenda Harris and Louis Truelock. Plaintiffs charge illegal and forced entry of the apartment and the unjustifiable use of excessive and deadly force by these officers acting under color of law. In the various complaints these policemen are charged with killing Fred Hampton in the presence of his fiance, Deborah Johnson, with killing Mark Clark, with wounding plaintiffs Satchel, Anderson and Harris, and with physically and verbally abusing and illegally arresting plaintiffs Brewer, Johnson, Satchel, Bell, Anderson, Harris and Truelock. They are also charged with conspiracy and conspiracy in connection with alleged and malicious prosecutions [sic]. These allegations and others are set forth in detail in the various complaints. As to certain of the allegations made in the complaints against these defendants, the court is of the opinion that there are questions of fact and of law that cannot be resolved except upon trial.” 339 F.Supp. 695, 700-701 (N.D.Ill.1972).

      . The district court consolidated the four cases. His order of dismissal directed the plaintiffs to file amended complaints against the 14 participating officers and expressly determined that there was no just reason for delay in entering final judgment in favor of the 15 appellees; the order is therefore appealable. The appeals have been consolidated in this court.

      . John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, Charles Koludrovic and John Sadunas.

      . Despite the City’s suggestion to the contrary, we must ignore what it describes as “several contradictory facts made a matter of public record” in the state criminal prosecution of defendant Hanrahan; cited at page four of the City’s brief as People v. Hanrahan, Circ. Ct. of Cook County No. 71 Cr. 1791. A finding in favor of defendants in that case is clearly no bar to this action since none of these plaintiffs is a party to that judgment.

      . Satchel, Anderson, Harris and Brewer.

      . Ill.Rev.Stat.1969, Ch. 85, § 1 — 101 et seq.

      . “Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Fd. 646 (1872). This immunity applies even when the judge is accused, of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. I-Iis errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Id. at 553-554, 87 S.Ct. at 1217-1218.

      . See Ill.Rev.Stat. Ch. 14, § 5.

      . The purpose of their review was allegedly to make certain that the officers would not give testimony inconsistent with previous official statements about the incident. The alleged conduct of Assistant State’s Attorneys Sorosky and Meltreger clearly exceeded the scope of their quasi-judicial immunity. For, in substance, plaintiffs allege the deliberate preparation of perjured testimony.

      . Section 1986 provides :
      “Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.”

      . It also cited Fustin v. Board of Education of Community Unit District No. 2, 101 Ill. App.2d 113, 242 N.E.2d 308 (5th Dist.1968), and Woodman v. Litchfield Community School District, No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780 (5th Dist.1968).