author: WINTER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ruby Davidson WALDEN and William Luther Walden, Appellants.
    No. 72-1931.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1973.
    Decided Jan. 10, 1974.
    Frank B. Tavenner, Washington, D. C., for appellants.
    Brian P. Gettings, U. S. Atty. (K. Gregory Haynes, Asst. U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
   WINTER, Circuit Judge:

Ruby Walden and William Walden were convicted by a jury of violating the federal firearms law’s prohibitions against sales to minors and non-residents, 18 U.S.C. §§ 922(b)(1), 922(b)(3) and 924(a), and they appealed. The bulk of the government’s proof of their guilt was the product of an undercover investigation carried out in large part by several Marines at the request of a Special Investigator of the Alcohol, Tobacco and Firearms Division of the U. S. Treasury Department. Defendants sought, both by pretrial motion to suppress and at trial, to exclude the testimonial evidence produced by the Marines’ investigation on the ground that the investigation violated the Posse Comitatus Act of 1878, 18 U.S.C. § 1385, and various military regulations prohibiting use of the armed services to enforce civilian laws.

We do not think that the letter of the Act was violated. We conclude, however, that there was a violation of the regulations; but, because this case presents the first instance of which we are aware in which illegal use of military personnel in this manner has been drawn into question, we decline to impose the extraordinary remedy of an exclusionary rule at this time, or to reverse the judgments. We reserve, however, the possibility that such a rule may be called for should repeated cases involving military enforcement of civilian laws demonstrate the need for the special sanction of a judicial deterrent. We affirm the judgments entered on the convictions.

I.

William and Ruby Walden, husband and wife, both worked in a department store in Quantico, Virginia, the site of a Marine Corps’ base. Their convictions of federal firearms violations were based on the following modus opemndi, which was established by testimony of three enlisted Marines and a Treasury Agent, all of whom purported to be ordinary firearm purchasers while actually working as undercover agents. At the Waldens’ suggestion, a minor or non-resident of Virginia, ineligible under federal law to purchase a firearm, would bring a qualified purchaser to the store to sign the federal firearm transaction record. While the qualified buyer appeared as the purchaser of record, the actual purchaser selected the weapon, paid the purchase price, and took possession. The Waldens would prepare a receipt showing transfer of the weapon from the qualified purchaser to the actual buyer. In the instance where the actual buyer was a minor, the receipt was made effective as of the date that the minor achieved majority.

II.

The use of Marines as undercover investigators by the Treasury Department is counter to a Navy military regulation proscribing the use of military personnel to enforce civilian laws. Secretary of the Navy Instruction 5400.12 provides that:

[tjhroughout the United States, it is a fundamental policy to use civilian, rather than military, officials and personnel to the maximum extent possible in preserving law and order. In the Federal Government this policy is reflected by the Posse Comitatus Act (18 U.S.C. § 1385) which prohibits the use of any part of the Army or Air Force to enforce local, state, or Federal laws except as Congress may authorize. Although not expressly applicable to the Navy and Marine Corps, that act is regarded as a statement of Federal policy which is closely followed by the Department of the Navy. SECNAVINST 5400.12, p. 2 (January 17,1969).

Thus, though by its terms the Posse Comitatus Act does not make criminal the use of Marines to enforce federal laws, the Navy has adopted the restriction by self-imposed administrative regulation. Cf. United States v. Heff-ner, 420 F.2d 809 (4 Cir. 1969).

The Navy’s administrative extension of the policy of the Posse Comitatus Act does not contravene any congressional purpose to exclude Marines and other Navy personnel from the Act’s coverage. Congress omitted coverage of Naval forces presumably because the Act was a rider to an Army Appropriations Bill, and in its original form was designed to deny the use of the appropriation bill’s funds for troops which violated the Act. See Act of June 18, 1878, § 15, 20 Stat. 152 (1878) (now 18 U.S.C. § 1385), Note, Honored in the Breach: Presidential Authority to Execute the Laws with Military Force, 83 Yale Law Journal 143 n. 96 (1973). The Act applies to the Air Force because the Air Force originated as part of the Army and housekeeping legislation maintained the coverage of legislation formerly applicable only to the Army. Thus, the failure to include the Navy in the text of the Act cannot be read as congressional approval of the use of Navy personnel to enforce civilian laws.

Indeed, consideration of the legislative history of the Act and interpretative opinions reveals a policy applicable to all of the armed services. See e. g. Wrynn v. United States, 200 F.Supp. 457, 464-465 (E.D.N.Y.1961). Congressman Knott, who introduced the bill, stated:

But this amendment is designed to put a stop to the practice, which has become fearfully common of military officers of every grade answering the call of every marshal and deputy marshal to aid in the enforcement of the laws. 7 Cong.Rec. 3849 (Emphasis added).

The policy that military involvement in civilian law enforcement should be carefully restricted has deep roots in American history. Whether there should even be a standing army was a question fiercely debated among the framers of the Constitution. In the congressional debate on the Posse Comita-tus Act, several senators expressed the opinion that the Act was no more than an expression of constitutional limitations on the use of the military to enforce civil laws. See 7 Cong.Rec. 4240 (remarks of Senator Kernan); 7 Cong. Rec. 4243 (remarks of Senator Marri-mon). Recently, Chief Justice Burger, in writing for the Court, addressed the subject of the separation of military and civilian affairs.

The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities — and indeed the claims alleged in the complaint — reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment’s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation’s history or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied. Laird v. Tatum, 408 U.S. 1, 15-16, 92 S.Ct. 2318, 2327, 33 L.Ed.2d 154 (1972).

In this case, because the Secretary of the Navy Instruction, viewed alone and in the light of the Posse Comitatus Act, affords a non-constitutional standard for judging the legality of the military action, we do not find it necessary to interpret relatively unexplored sections of the Constitution in order to determine whether there might be constitutional objection to the use of the military to enforce civilian laws. Nonetheless, our interpretation of the scope and importance of the letter and spirit of the Posse Comitatus Act and the Navy regulation as standards governing primary behavior is influenced by the traditional American insistence on exclusion of the military from civilian law enforcement, which some have suggested is lodged in the Constitution. Thus, interpreting the Secretary of the Navy Instruction within this context, we are reinforced in our conclusion that the Marines in this case violated the Navy’s own regulation.

III.

Our conclusion that the use of Marines in the criminal investigation of defendants violated the Secretary of the Navy’s Instruction presents the questions of whether we should reverse the judgments appealed from and whether we should instantly or prospectively create an exclusionary rule for this and future cases as an appropriate remedy for violation of this military regulation.

In the appeals at bar, the evidence of defendant’s guilt is overwhelming. While the bulk of the evidence was obtained by violating the Instruction, there is totally lacking any evidence that there was a conscious, deliberate or willful intent on the part of the Marines or the Treasury Department’s Special Investigator to violate the Instruction or the spirit of the Posse Comitatus Act. From all that appears, the Special Investigator acted innocently albeit ill-advisedly. The Instruction provides no mechanism for its enforcement and the Act, where it is applicable, renders the transgressor liable to criminal penalties but does not provide that “[t]he criminal is to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.).

In criminal cases in which the police have violated an accused’s Fourth Amendment rights in obtaining evidence of guilt, the result of freeing the guilty has been compelled, either because the “exclusionary rule is an essential ingredient of the Fourth Amendment,” Mapp v. Ohio, 367 U.S. 643, 651, 81 S.Ct. 1684, 1689, 6 L.Ed.2d 1081 (1961), or because currently available alternative remedies for Fourth Amendment violations have proved ineffectual. See, Id., 367 U.S. at 652-653, 81 S.Ct. 1684; Bivens v. Six Unknown Fed. Narcotic Agents, 403 U. S. 388, 411, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); Wolf v. Colorado, 338 U.S. 25, 41, 69 S. Ct. 1359, 93 L.Ed. 1782 (1949) (Murphy, J., dissenting); People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, 911 (1955) (Traynor, J.) (“other remedies have completely failed to secure compliance with the constitutional provisions”).

But, putting aside the question of the effectiveness of an exclusionary rule as a deterrent to violations of the Fourth Amendment, we do not find present in this case at this time the same considerations which required an exclusionary rule in the Fourth Amendment cases or in other instances where an exclusionary rule has been fashioned and applied. First, the proscription in the Instruction against the use of Marines in ordinary civilian criminal law enforcement was until today far less clear and far less widely known than the prohibition of the Fourth Amendment against unreasonable searches or the rules of court requiring an accused to be produced before a magistrate within a designated period after apprehension. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Secondly, the Instruction expresses a policy that is for the benefit of the people as a whole, but not one that may fairly be characterized as expressly designed to protect the personal rights of defendants. Cf. United States v. Heffner, supra. Thirdly, the facts that the Instruction provides no mechanism for its own enforcement— and especially no criminal sanction for its violation — and that its legal effect was far from obvious, means that admission of the evidence of guilt does not require the court to condone “dirty business.” See McNabb v. United States, supra, 318 U.S. at 345-346, 63 S.Ct. 608; Eleuteri v. Richman, 26 N.J. 506, 512, 141 A.2d 46, 49 (1958) (Weintraub, C. J.); People v. Cahan, 44 Cal.2d 434, 445-456, 282 P.2d 905 (1955) (Traynor, J.).

More important than any of the foregoing is the fact that this case is the first instance to our knowledge in which military personnel have been used as the principal investigators of civilian crimes in violation of the Instruction. We are not aware from the reported decisions of other courts that there has been any other violation, let alone widespread or repeated violations.

Even though we sustain defendants’ convictions, we have no reason to fear that others will be sought or obtained in violation of the Instruction now that we have expressed our view of its scope and effect. Nor is there reason to doubt that the military, now that we have declared the effect of the Instruction, will fail to take steps to provide a mechanism to enforce it.

For all of these reasons, we therefore decline to reverse defendants’ convictions or to impose the extraordinary remedy of an exclusionary rule at this time. Should there be evidence of widespread or repeated violations in any future case, or ineffectiveness of enforcement by the military, we will consider ourselves free to consider whether adoption of an exclusionary rule is required as a future deterrent.

Affirmed.

      . The parties dispute whether one of the undereover agents was still a Marine at the time of the three sales involved in this ease. In light of our disposition of the ease, it is not necessary to resolve this factual question.

      . The term “posse comitatus” is defined as “[t]he power or force of the county. The entire population above the age of 15, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace, in pursuing and arresting felons, etc. 1 Bl.Comm. 343; Com. v. Martin, 7 Pa. Dist.R. [219] 224.” Black’s Law Dictionary 1324 (rev’d 4 ed. 1968).

      . “[W]hoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise, to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.” 18 U.S.C. § 1385.

      . Secretary of the Navy Instruction 5400.12 was issued on January 17, 1969. Thus, it was promulgated after Deputy Secretary of Defense Paul Nitze issued DoD Directive 3025.12 on June 8, 1968, and before Deputy Secretary of Defense David Packard can-celled and replaced the 1968 DoD Directive with a new DoD Directive, dated August 19, 1971, having the same number. The two DoD Directives have a very similar format and much of the later is a verbatim copy of the earlier. However, the following part of the earlier Directive, relevant to this case, was not carried forward;
      The Posse Comitatus Act (18 U.S.C. § 1385) prohibits the use of any part of the Army or Air Force to execute local, state or Federal laws except as Congress may authorize. Although the Navy and Marine Corps are not expressly included within its provisions, the act is regarded as national policy applicable to all military services of the United States. (Emphasis added). DoD Directive 3025.12 (June 8, 1968) 32 C.F.R. § 187.4(b) (1971), superseded by DoD Directive 3025.12 (August 19, 1971), 32 C.F.R. § 215.4 (1973).
      However, the material in the part of the 1971 Directive in which this language was omitted was worded substantially differently from its predecessor and contained significant new material. The implication of an intentional change in policy for the Navy and Marines is no stronger than the implication that the omission was simple inadvertance. The general thrust of the Directive —limiting use of the armed forces in civilian affairs and requiring high level authorization for the few exceptions — makes the implication of non-deliberate omission almost conclusive.
      Furthermore, the hypothesis that the Department of Defense may have intended a change in policy by omitting the language extending the Posse Comitatus Act to the Navy in the second DoD Directive is rendered untenable by the continued effectivness of the Secretary of the Navy Instruction. The second DoD Directive concluded by stating in division XII on Implementation that:
      A. Military department, JCS, and Defense agency directives, instructions, or plans for the use of military resources in the event of civil disturbances will be reviewed and revised as necessary within 60 days from the date of this directive: (1) to agree with the provisions of this directive, and (2) to conform with the policies and guidance promulgated by the DoD Executive Agent.
      B. Implementing directives, instructions, or plans revised or developed by DoD components under assignment herein will be furnished to the DoD Executive Agent for review. (Emphasis added). (Not printed in Federal Register or Code of Federal Regulations).
      In light of the command that subordinate agencies in the Department of Defense revise their regulations to conform with the DoD Directive, the Secretary of the Navy would have amended Instruction 5400.12 by deleting the language extending the Posse Comitatus Act to the Navy if any change in policy had been intended.

      . When a separate Department of the Air Force was created from the Army, Congress provided that statutes, sucli as the Posse Comitatus Act, continued to apply to the Air Force despite the transfer. See National Security Act of 1947, §§ 207(a), 208(a), 305(a), ch. 243, 61 Stat. 502 (1947). Then, in 1956, when Congress revised, codified, and enacted into law Title 10 of the United States Code, the language of the Posse Comitatus Act was restated — though without substantive change — and the words “Air Force” were included in the text. See Act o£ August 10, 1956, §§ 18(a), 49(a), 53, ch. 1041, 70A Stat. 1, 626, 640, 646 (1956) (10 U.S.C. § 15 repealed and replaced by 18 U.S.C. § 1385).

      . See Sparks, National Development 1877-1885, 23 The American Nation, A History 127 (Posse Comitatus Act reflected “the inherited antipathy of the American to the use of troops for civil purposes”) cited with approval in Wrynn v. United States, 200 F. Supp. 457, 465 (E.D.N.Y.1961).

      . See, e. g. Article I, § 8; Article IV, § 4; Third Amendment.

      . While a violation of lawful general orders or regulations is normally an offense under Article 92 of the Uniform Code of Military Justice and thus cognizable in the courts martial, the military regulation involved here “requires implementation by subordinate commanders to give it effect as a code of conduct” and thus “will not qualify as a general order for the purpose of an Article 92 prosecution.” United States v. Scott, 22 U. S.C.M.A. 25, 46 C.M.R. 25, 27 (1972) ; United States v. Nardell, 21 U.S.C.M.A. 327, 329, 45 C.M.R. 101, 103 (1972). See United States v. Woodrum, 29 U.S.C.M.A. 529, 43 C.M.R. 369 (1971) ; United States v. Tassos, 18 U.S.C.M.A. 12, 39 C.M.R. 12 (1968). Thus, the remedy of naval or marine discipline is probably unavailable. In any event, military regulations could not affect the Treasury Department’s Special Investigator who was the one who enlisted the prosecu-torial services of the Marines.

      . See n. 3, supra.

      . See Bivens, supra, 403 U.S. at 411-427, 91 S.Ct. 1999 (Burger, C. J., dissenting) ; Oakes, Studying the Exclusionary Rule in Search and Seizure, 37 U. of Chi.L.Rev. 665 (1970).

      . In this connection, it should be remembered that Congress has the exi>ress power “[t]o provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections, and repel Invasions . . . ,” Const. Art. I, § S, as well as the obligation to "guarantee to every State a Republican Form of Government [to] protect each . . . against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence,” Const. Art. IV, § 4. Congress has responded by the enactment of 10 U.S.C. § 331:
      Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal Service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
      Thus, the Constitution recognizes that in certain circumstances, military preservation and enforcement of civilian law is appropriate ; the policy consideration underlying the Posse Comitatus Act is not absolute.

      . Cf. Burns v. State, 473 S.W.2d 19 (Tex. Cr.App.1971) (no violation of Posse Comitatus Act).


source: Caselaw Access Project

author: HUFSTEDLER, Circuit Judge: BRUCE R. THOMPSON, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. James Edward STRICKLER, Appellant.
    No. 73-1656.
    United States Court of Appeals, Ninth Circuit.
    Jan. 11, 1974.
    Richard H. Levin, Paul A. Turner (argued) Los Angeles, Cal., for appellant.
    U. S. Atty. William D. Keller, Eric A. Nobles, Vincent M. Von Der Ahe, Asst. U. S. Attys. (argued) Los Angeles, Cal., for appellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and THOMPSON, District Judge.

      District of Nevada, sitting by designation.

   OPINION

HUFSTEDLER, Circuit Judge:

Strickler appeals from his conviction for offenses relating to the distribution of cocaine. (21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2.) We reverse for error in denying Strickler’s motion to suppress a hand gun and an inculpatory statement. Evaluation of the two seizures, both of which occurred after three police patrol cars had surrounded Strickler’s parked automobile and one officer, with gun drawn, had approached Strickler and ordered him to raise his hands, requires discussion of two issues: (1) Did the police conduct in approaching Striekler’s automobile constitute an arrest or was it merely an investigatory detention within the meaning of Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams (1972) 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; (2) before the officers confronted Strickler, were the facts known to them sufficient to justify their detention of him?

In November 1972, undercover state police began negotiating with several of Strickler’s codefendants to purchase cocaine. Delivery of the cocaine was eventually set for the morning of December 12, 1972, at the residence of codefendant McDaniel, on Cherrywood Street, south of the intersection of Cherrywood and Rodeo Road.

On December 12, the McDaniel residence was placed under surveillance. Officer Stevens, who was participating in the stakeout at a location approximately 150 yards from the Cherrywood-Rodeo Road intersection, testified that he saw a black-over-tan 1968 Cadillac traveling westbound on Rodeo Road at 2:45 p.m. The vehicle entered the Cherrywood-Rodeo Road intersection, slowed, and pulled over toward the north curb of Rodeo Road. Officer Stevens observed three people in the car, but he could not determine whether they were men or women. During the five or six seconds in which he could see the car, Stevens noticed that the occupants turned their heads in a southwesterly direction, that is, in the direction of the McDaniel residence. Stevens saw no one get into or out of the Cadillac.

Shortly after the car had disappeared from view, Officer Stevens saw a woman, later identified as appellant’s wife, Velma Strickler, walking from the intersection area toward the McDaniel residence. Stevens had been informed by one of the police undercover agents that a woman was going to make the cocaine delivery to the McDaniel residence. As he was watching her, Officer Stevens saw a car that appeared to be the Cadillac he had seen moments earlier. The Cadillac drove eastward, in light traffic, through the intersection and continued on out of sight. Stevens then radioed his observations to other mobile units in the area.

Officer Ripley received the radio communication and proceeded toward the Cherrywood-Rodeo Road intersection until he saw a 1968 Cadillac, which fit the broadcast description, parking on Rodeo, east of Cherrywood. Two persons were in the vehicle, a man in the driver’s seat (appellant Strickler) and a man in the rear seat (codefendant Parham); both men were looking in the direction of the McDaniel residence on Cherrywood.

Officer Ripley watched the two men in the ear for approximately 30 minutes, at which time he received directions on his police .radio from an unidentified source to “approach” the occupants of the Cadillac. Police cars then drove to the front and rear of the Cadillac. Officer Ripley drove a third squad car to the side of the Cadillac, and the officer riding with him pointed a gun at the occupants of Strickler’s car and ordered them to raise their hands. Officer Ripley left the patrol car, went to the driver’s side of the Cadillac, and inspected the interior of the vehicle. He saw a revolver near Strickler’s foot. Ripley then ordered Strickler out of the car, handcuffed him, and formally advised him that he was under arrest for possession of the gun found in the automobile. Strickler and Parham were taken handcuffed to the McDaniel residence, where the other codefendants had just been placed under arrest. Strickler was there overheard saying to Parham, “Foolproof, huh!”

In Adams v. Williams (1972) 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the Supreme Court upheld the seizure of the occupant of a parked car based on less than probable cause. The Court thus made explicit what had been merely implied in Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 — forcible street encounters may be initiated by the police if “reasonable” within the meaning of the Fourth Amendment. The Supreme Court, however, also made it clear that the propriety of some forms of police conduct, even though they might be labeled “stops” or “investigatory detentions” by the police, would continue to be evaluated under a probable cause standard. (See 407 U.S. at 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612.)

To decide the case at bench, we need not prescribe precisely the point at which police action which detains a suspect ceases to be a nonarrest seizure and becomes an arrest; for we simply cannot equate an armed approach to a surrounded vehicle whose occupants have been commanded to raise their hands with the “brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information” which was authorized in Williams. (407 U.S. at 146, 92 S.Ct. 1921, 32 L.Ed.2d 612.) The restriction of Strickler’s “liberty of movement” was complete when he was encircled by police and confronted with official orders made at gunpoint. (See Henry v. United States (1959) 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134; United States v. Selby (9th Cir. 1969) 407 F.2d 241, 242; Jackson v. United States (8th Cir. 1969) 408 F.2d 1165, 1168.) No significant, new restraint was added when Officer Ripley, a few moments later, handcuffed Strickler and formally pronounced him “under arrest.” Thus, the arrest was completed before Officer Ripley reached the window of the Cadillac. (Cf. Rios v. United States (1960) 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Henry v. United States, supra; Plazola v. United States (9th Cir. 1961) 291 F.2d 56; Bailey v. United States (1967) 128 U.S. App.D.C. 354, 389 F.2d 305, 307-308.)

The constitutionality of the police conduct, therefore, depends upon whether, at the moment the police surrounded Strickler’s automobile and leveled a gun at him, the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that Striekler had committed or was committing a criminal offense. (See Beck v. Ohio (1964) 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; Henry v. United States, supra, 361 U.S. at 102, 80 S.Ct. 168, 4 L.Ed.2d 134.)

The Government failed to carry its burden of proving that probable cause to arrest existed. Before his arrest, the police had no information which implicated Strickler in any way in the cocaine negotiations. No one testified that Velma Strickler had been seen in the Cadillac, or that the Cadillac was connected with the cocaine. The arrest was based solely upon Strickler’s proximity to a residence where cocaine was being delivered and his participation in some ambiguous driving and observing activity. Conduct less innocuous has been held insufficient to constitute probable cause. (E. g., Sibron v. New York (1968) 392 U.S. 40, 62-63, 88 S.Ct. 1889, 20 L.Ed.2d 917; United States v. Di Re (1948) 332 U.S. 581, 592, 68 S.Ct. 222, 92 L.Ed. 210.)

The revolver found in the Cadillac and the inculpatory statement made by Strickler, accordingly, were products of an illegal arrest; and both should have been suppressed. (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.)

Because we have concluded that the officers’ conduct before Officer Ripley-reached the Cadillac was an arrest and not an investigatory detention, we have no occasion to decide whether the circumstances would have justified a mere investigatory stop. (See generally United States v. Mallides (9th Cir. 1973) 473 F.2d 859.)

Reversed.

BRUCE R. THOMPSON, District Judge:

I respectfully dissent. The Court’s carefully reasoned decision is unassailable if the facts are correct. My problems are twofold. In the first place, this was a court trial. There was no pre-trial hearing on the motion to suppress. The admissibility of the evidence found inadmissible by this Court was determined on the basis of the evidence offered to prove guilt. In other words, the issue of probable cause to make an arrest was never tried. This Court has extrapolated from the transcript what it believes the officers knew about Appellant Strickler prior to the arrest. There was other evidence to prove his guilt. Such a determination cannot be properly made on this record.

Secondly, the lawfulness of the arrest of Strickler cannot be separated from a determination of the lawfulness of the arrest of Parham. The two were in the vehicle together. Parham was far more deeply involved in the transactions leading to the indictment. Here, again, it cannot be determined from the trial transcript just what the officers knew or had reasonable cause to believe about Parham’s involvement as probable cause to support the arrest of Parham. If there was probable cause to arrest Par-ham, the mode of arrest, that is, surrounding the automobile and approaching with drawn firearms, was appropriate under all the circumstances disclosed by the evidence. The officers were not required to ignore Strickler, the other occupant of the vehicle, and give him a free hand to shoot them down. The pistol was in plain view between Strickler’s feet and justified his arrest, assuming the arrest of Parham was supported by probable cause.

Accordingly, it is my conclusion that the appropriate disposition of this appeal is to remand the case to the District Court for a determination of the existence of probable cause to arrest Strickler and Parham, and if there was probable cause to arrest either, the conviction should be affirmed. Cf. United States v. Brown, 475 F.2d 91 (9th Cir. 1973).

      . In Williams the initial “stop” approved by the Court was made by a single police officer who, without drawing his gun, approached an automobile which had been pointed out to him by an informer, tapped on the window, and asked the occupant, Robert Williams, to open the door. (407 U.S. at 144-145, 92 S.Ct. 1921, 32 L.Ed.2d 612.)

      . Compare Terry v. Ohio, supra at 19 n. 16, 98 S.Ct. 1868, 20 L.Ed.2d 889, with Adams v. Williams, supra at 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612.


author: SEITZ, Chief Judge.

text:
    UNITED STATES of America v. ONE 1966 VOLKSWAGEN 2-DOOR SEDAN SERIAL NUMBER NR-116243839, Gregory Robert, registered owner of the defendant, Appellant.
    No. 73-1223.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 28, 1973:
    Decided Dec. 28, 1973.
    As Amended Jan. 16, 1974.

      Herbert J. Stem, U. S. Atty., for the D. New Jersey, Bernard S. Davis, Asst. U. S. Atty., Newark, N.J., for appellee.
    Camden Regional Legal Services, Inc., Camden, N.J., for appellant; Allen S. Zeller, Camden, N.J., of counsel.
    Before SEITZ, Chief Judge, and HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

This appeal arises from the seizure and attempted forfeiture of a vehicle pursuant to 49 U.S.C. §§ 781, 782 (1970). The vehicle’s owner appeals from the dismissal of his counterclaim seeking damages for loss of use of the vehicle from its seizure by the United States until its return to him.

Late in 1971, a Camden, New Jersey bank was firebombed. An eyewitness saw a person run from the bank, enter a red Volkswagen and speed away from the scene. Later the same day, the Camden Police Department located a red, 1966 Volkswagen at the residence of Gregory Robert, the registered owner of the car and appellant in this action. Believing Robert’s Volkswagen to be the automobile used in the firebombing, the Camden police seized it for evidentiary purposes. The Internal Revenue Service adopted this seizure and took immediate •possession of the Volkswagen. The IRS predicated its action on the theory that the vehicle had been used to transport the firebomb used in the bank fire and, as the carrier of contraband, should be forfeited to the United States under 49 U.S.C. § 782 (1970). The IRS moveR the ear to a federal storage facility pending the initiation of the forfeiture proceedings.

Several months later Robert received a notice stating that unless he made a claim to the Volkswagen it would be summarily forfeited to the United States. Thereafter, Robert filed a Claim and Cost Bond with the IRS. This prevented the administrative forfeiture and sale of the vehicle and necessitated a judicial forfeiture proceeding. 19 U.S.C. § 1608 (1970). Subsequently, the United States filed a complaint in the district court seeking to have the Volkswagen forfeited. Robert filed an answer and a counterclaim. In his answer he claimed comnlete innocence of any involvement in the alleged illegal use of his car. Furthermore, he denied that he had any knowledge of the use of the car in the firebombing or that he had granted permission for anyone to use his car in an unlawful manner. The counterclaim sought damages for the loss of the use of the car from the date of its seizure. In its answer to the counterclaim the United States stated as a separate defense that the counterclaim failed to state a claim upon which relief could be granted.

Robert then submitted a list of interrogatories to the government. Upon receiving answers indicating that the United States had no knowledge or information that would connect him with the commission of the alleged offense, Robert moved for partial summary judgment on the issues raised by the complaint. The district court, without an opinion, granted Robert’s motion for summary judgment on the issues raised by the complaint and ordered the return of the Volkswagen and cost bond. In the same order, the court dismissed Robert’s counterclaim for damages.

Robert has taken this appeal from the dismissal of the counterclaim. The United States has chosen not to appeal that portion of the order mandating the return of the Volkswagen. The only issue before this court, therefore, is whether it was error for the district court to dismiss Robert’s counterclaim for damages for the loss of the use of his car.

The district judge ordered the dismissal of the counterclaim without any hint as to his reasoning for doing so. As a result, we are now considerably handicapped by not knowing the grounds upon which he relied. The threshold question for us to determine, therefore, is whether we are warranted in proceeding to review the decision below. The rule has long been settled that where a decision of a lower court is correct, it must be affirmed on appeal even though the lower court gave an improper reason for its action. United States v. Rose, 346 F.2d 985, 989 (3d Cir. 1965), cert, denied sub nom. Aetna Ins. Co. v. United States, 382 U.S. 979, 86 S.Ct. 551, 15 L.Ed.2d 469 (1966). A more difficult problem is presented, however, where, as here, the lower court has assigned no reasons whatever for its decision.

Of course, it is axiomatic that an appellate court is not designed to perform the functions of a trial court having original jurisdiction and must, of necessity, limit its consideration of the questions involved to the record on appeal. In the interests of judicial economy, however, the federal courts have generally held that absent knowledge of the specific grounds upon which the trial court acted, the appellate court would rule on the merits of the case where a full understanding of the issues presented to the lower court may be garnered from the record. We are not faced with such a case here. On the record before us it is not clear what issues were argued to the district court, much less the specific grounds for the order dismissing Robert’s counterclaim.

The arguments presented in this appeal raise difficult constitutional questions with respect to the forfeiture statutes. However, broad considerations of the appropriate exercise of judicial power demand that appellate courts avoid the determination of constitutional questions whenever fairly possible. In the present case the constitutional issues could be avoided if the dispute was properly disposable on nonconstitutional grounds.

It is Robert’s contention that for the period of time from seizure until the release of the vehicle by order of the district court, he was deprived of his property without due process of law and without just compensation in violation of his Fifth Amendment rights. He contends that because of these constitutional violations, the government should pay him damages for the loss of the use of his ear. The government, on the other hand, denies that there has been any violation of appellant’s constitutional rights. The government also advances several nonconstitutional arguments for dismissal.

First, the government contends that Robert is precluded from asserting his counterclaim since he did not file an administrative petition for remission and mitigation of the seizure of his ear. Second, the government contends that there is no statutory or other basis upon which damages may be assessed against the United States where the claimant has had his seized property returned to him. Third, the government asserts that no cause of action for damages exists merely upon a claim that the owner of a seized vehicle was innocent; the government contends that the guilt or innocence of the vehicle itself in the conveyance of the contraband article is the determining factor.

We do not have any indication which, if any, of the above arguments were accepted by the district court. Further, the record is devoid of the factual development that is essential for us to make an independent determination of these issues. Consequently, to decide this appeal on the present record, we would have to choose between making a possibly unnecessary constitutional ruling or making possibly unnecessary constitutional ruling or making possibly erroneous factual assumptions to support a ruling on other grounds. We are not willing to take either course. We vacate the order and remand the case for reconsideration by the district court. We do so fully cognizant that the case must be heard by a different judge because the trial judge is now deceased.

The order of the district court dismissing appellant’s counterclaim is vacated, and the case remanded for further proceedings in accordance with this opinion.

      . On the remand hereinafter directed, the jurisdictional basis of the counterclaim should be explicitly developed.


author: BARNES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Terrence P.(aul) URBANIS, Defendant-Appellant.
    No. 73-2238.
    United States Court of Appeals, Ninth Circuit.
    Jan. 2, 1974.
    Certiorari Denied April 15, 1974.
    See 94 S.Ct. 1952.
    Charles M. Sevilla, Federal Defenders of San Diego, John J. Cleary, San Diego, Cal. (argued), for defendant-appellant.

      Harry D. Steward, U. S. Atty., David Curnow, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
    Before BARNES, HUFSTEDLER, and CHOY, Circuit Judges.
   OPINION

BARNES, Circuit Judge:

On February 14, 1973, appellant carrying a .38 calibre Smith and Wesson revolver (stated by appellant to have been unloaded), entered the Wells-Fargo Bank, 500 Broadway Street, San Diego, and presented a withdrawal slip to a teller, on the back of which was written: “Be cool and calm. No alarms, Bills only. Let’s not get anyone hurt.” First thinking the proceedings were a joke, the teller quickly decided it was not, when appellant put his hand inside his coat to simulate a gun. Appellant produced a bag for the paper money, and the teller placed small bills in and on the bag. The appellant requested “Your twenties and hundreds, too.” Appellant left the bank with about $800, of which $28 was “bait money” in marked bills. Pictures were taken of appellant during the robbery, and later shown to bank employees and his apartment manager, all of whom identified him as the robber.

Appellant told the F.B.I. he had chosen the Wells-Fargo Bank after a careful two weeks search. He first considered robbing a Bank of America branch, a Security Pacific Bank branch and a United California Bank branch — all in San Diego — but for one reason or another thought the Wells-Fargo branch more vulnerable.

Appellant walked out of the bank, through Woolworth’s Store from 5th Street (one block), where his automobile was parked. He immediately drove to an ocean beach, and disposed of the bag used in the robbery. He went to his apartment, paid the rent, bought some groceries, put some money in his wallet, and hid the rest in a lamp in his apartment. That same day appellant gave the apartment manager five one dollar bills for a five dollar bill. Later one of the dollar bills was found to have been part of the marked bait money.

At no time did appellant deny the robbing of the bank, or the use of the gun. His sole defense was insanity.

Counsel for defendant urges five alleged errors — the government compresses them to four.

I. On voir dire examination of the jury, the trial judge refused to ask prospective jurors whether or not any of them or their families had undergone psychiatric treatment or counseling. We perceive no error in the refusal of the district court to ask the prospective jurors this question. We are aware, as was the district court, of the sensitive nature of enquiries into the jurors’ experiences with psychiatric treatment. The district court’s probing by other questions adequately explored the area.

After the court was ready to have the jury sworn, the matter was again raised by counsel for defendant, the court additionally asked if any jurors, “by reason of their past experiences, would tend to be other than completely impartial with respect to this particular case — to this particular charge — or to this particular asserted defense (of insanity) in this case.” (R.T. at 202).

II. The judge had previously asked all jurors whether any had “expressed an adverse opinion about the defendant or any defendant who asserted the defense of insanity.” He then asked the jurors if there way any juror who does not feel that psychiatry is a valid branch of the field of medical science. At this point prospective Juror Stone did or said something which does not appear in the record of the trial. Counsel for defendant stated that Stone “laughed, or gave a gesture and laughed.” Juror Stone immediately stated, “My sincere apologies, your Hon- or.” The court stated, “All right.” (R. T. at 175). As it developed, Juror Stone never sat on the jury. (R.T. at 201-204; C.T. at 78). The record discloses that Stone’s name was not drawn under the Arizona system in which jurors are picked by lot from the group of prospective jurors who have undergone voir dire.

Both sides concede the trial court “has a broad discretion as to the questions to be asked prospective jurors.” Appellant relies heavily on Silverthorne v. United States, 400 F.2d 627, 638-639 (9th Cir. 1968). The trial court’s questioning of the jury in this case does not in the slightest resemble the questioning (or lack of it), in the Silverthorne case. A “snicker” here (as counsel for appellant described it on appeal, but not on the record), does not necessarily or with certainty show bias. It may show nervousness or amusement. A psychiatrist himself might have “snickered” at the form of the question asked. We certainly cannot find there was plain error in this minor incident.

III. The sufficiency of the evidence to establish defendant’s sanity depends entirely on whom the trier of fact decides should be believed. This rule is particularly apt when expert witnesses differ in their opinions. Appellant insists that he thinks he had the better expert (a Dr. Feighner), than had the government (a Dr. Robuck). There is in this argument no basis for an appellate court to disturb a jury verdict. The dispute is a matter for the trier of facts to determine. United States v. Handy, 454 F.2d 885 (9th Cir. 1971); Holm v. United States, 325 F.2d 44 (9th Cir. 1963).

“The psychiatric testimony, presented by both sides, was in conflict. The jury could properly weigh the opinions of both psychiatrists and resolve that conflict. In reviewing their determination, we must view the evidence and all reasonable inferences in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This standard of review extends to the issue of sanity and the credibility of the experts. United States v. Handy, 454 F.2d 885, 888 (9th Cir.), cert, denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972).”

United States v. Chavez-Ortiz, 488 F.2d 175 (9th Cir. 1973).

United States v. Cooper, 465 F.2d 451 (9th Cir. 1972) is relied on by appellant. But there the government offered no expert evidence on the issue of sanity (R. T. at 452), despite the evidence defendant had been under the influence of a heavy intake of Valium.

IV. Error in one instruction mentioning “reasonable doubt” is urged. This is a problem discussed in United States v. Cummings, 468 F.2d 274 (9th Cir. 1972) where Judge Duniway criticized and condemned the instruction given in that case (and here), but found it was not plain error, and would not reverse Cummings’ conviction.

The criticized instruction is: “If the accused be proved guilty, say so. If not proved guilty, say so.” The principal objection is that, just as haste sometimes makes waste, so does a shortened sentence sometimes leave out something it should contain. The proper statement would be: “If the accused be proved guilty beyond a reasonable doubt, say so. If not so proved guilty, say so.” Cf. United States v. Cummings, supra, at 281.

Likewise, this court has suggested both in Cummings, supra, and elsewhere, that after the word “question” in the first paragraph (of the three paragraphs that are usually given together) there should be inserted the words: “arising in the most important of their affairs and . . . ”

This court has seriously thought that restraint on our part, and perhaps some delay, in holding the effect of the erroneous instruction to be plain error requiring reversal, would warn and enlighten the district courts, and eliminate the use of such criticized instruction from the district courts in this circuit. We have not met with much success.

The case now before us, urges counsel for appellant, is such “a close” case that we should now reverse the defendant’s conviction. We do not consider this a close case; the only issue in dispute was the defendant’s sanity. We consider it a fact case based on conflicting expert testimony. We believe it was correctly decided. We do not propose to use it in an effort to convert judges to a more careful consideration of the Cummings’ holding. Guilty felons may sometimes be freed because of the necessity to educate police officers. Thus far, the same rule does not apply to the education of district court judges, and we hope it never need be.

V. Finally, appellant asserts the testimony of Dr. Robuck should have been stricken because of alleged improprieties of government counsel. The trial court did not so view the matter, or find such improprieties existed, nor do we.

Finding no error, we affirm.


author: FRIENDLY, Circuit Judge:

text:
    The VULCAN SOCIETY OF the NEW YORK CITY FIRE DEPARTMENT, INC., et al., Plaintiffs-Appellees-Appel-lants, v. CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK et al., Defendants-Appellants-Appellees, Nicholas M. Cianciotto et al., Intervenors-Defendants-Appellants-Appellees.
    Nos. 414, 415, Dockets 73-2287, 73-2317.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 15, 1973.
    Decided Nov. 21, 1973.

      Maurice N. Nessen, New York City, Nickerson, Kramer, Lowenstein, Nessen & Kamin and Thomas H. Moreland, for plaintiffs-appellees-appellants. Jack Greenberg, Jeffry A. Mintz, William R. Robinson, Deborah M. Greenberg, Puerto Rican Legal Defense & Education Fund, Inc., Ceasar A. Perales, Herbert Teitelbaum and Kenneth Kimer-ling, New York City, of counsel.
    Nina G. Goldstein, New York City (Norman Redlich, Corp. Counsel, City of New York; Stanley Buehsbaum, Paula J. Omansky and Frances Loren, New York City, of counsel), for defendants-appellants-appellees.
    Thomas J. Dillon, Manhasset, N. Y., for intervenors-defendants-appellants-appellees.
    Edward M. Edenbaum, New York City, for Richard J. Vizzini as President, Uniformed Firefighters Association of Greater New York, amicus curiae.
    Joel Field, New York City, for David McCormack as President, Uniformed Fire Officers Association, Local 854 I.A.F.F., AFL-CIO, amicus curiae.
    David I. Caplan, New York City, for Jewish Rights Council, amicus curiae.

      Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   FRIENDLY, Circuit Judge:

As in Chance v. Board of Examiners, 458 F.2d 1167 (2 Cir. 1972), and Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Comm’n, 482 F.2d 1333 (2 Cir. 1973), we are confronted with a claim that a city has unintentionally discriminated with respect to the employment of minority group members. Here, as in Chcmce, the city is New York; the alleged discrimination is with respect to persons allowed to qualify for the entering grade in the Fire Department. The action was brought under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3).

I.

Plaintiffs, five minority individuals who had applied for employment with the Fire Department and two organizations representing minority firefighters, brought this suit as a class action in the District Court for the Southern District of New York. Their complaint alleged that the procedures used to select New York City firemen discriminated against blacks and Hispanics in violation of the equal protection clause of the Fourteenth Amendment. The defendants were the Civil Service Commission of the City of New York, the City’s Department of Personnel, the chairman of the Commission and director of the Department, two members of the Commission, and then Fire Commissioner Lowery, hereafter referred to as the municipal defendants. Attacking on a broad front, plaintiffs first sought injunctive relief to prevent the Fire Department from making any more appointments based on an eligibility list reflecting performance on Exam 0159, a written civil service examination given on September 18, 1971. In addition, they sought to block further use of various other screening measures, including the Department’s minimum height requirement, a requirement that every fireman have a high school or high school equivalency diploma, and the bar, arising from the combined effect of § 487a-3.0(b) of chapter 19 of the Administrative Code of New York City and § III-4.3.2(b) of the Rules and Regulations of its Civil Service Commission, against any applicant who had been convicted of a felony or of petty larceny.

At a hearing on plaintiffs’ application for a preliminary injunction, Judge Weinfeld took evidence on the alleged discriminatory impact of the written examination and on the question whether the test was sufficiently related to a fireman’s job to survive constitutional attack. At the conclusion of the seven-day hearing, he suggested that the parties agree to treat the hearing as a final trial on the merits of the case under F. R.Civ.P. 65(a)(2). Both parties agreed, but the plaintiffs requested that several points, including the automatic disqualification issues, be left open. Judge Weinfeld subsequently ruled that any further evidence on these points would have to be submitted before the court’s decision was handed down, and that the decision would be final as to all issues in the case except for the challenge to the Fire Department’s promotional examination, which would be left open for later consideration.

On June 12, in a comprehensive opinion, the district judge, 360 F.Supp. 1265, ruled that the written examination had a discriminatory impact and that it was not sufficiently job-related to justify its use. He enjoined further reliance on the challenged eligibility list, without prejudice to the parties’ applying for interim relief which would permit appointments from the list on a quota basis until a new examination could be given and a new eligibility list established. Because the injunctive relief would benefit all persons similarly situated, Judge Weinfeld declined plaintiffs’ request that he designate a class. As to the automatic disqualification issues, he ruled that it was unnecessary to consider those questions, stating:

This disposition makes it unnecessary to consider the other grounds urged by plaintiffs in support of their claim, particularly since little evidence was adduced with respect thereto upon the hearing. The submissions as to these matters were included in post trial briefs or affidavits and in some instances raise issues of fact, the resolution of which would require reopening of the trial.

He added there was serious doubt whether the plaintiffs had standing to raise either the criminal conviction bar or the high school diploma requirement, since it appeared from the complaint that none of the named plaintiffs was subject to exclusion for those reasons.

Two months later, after having allowed intervention by non-minority candidates who had qualified under Exam 0159 but had not yet been appointed, the district court issued an order granting interim relief. The order instructed that in making future appointments from the challenged eligibility list, defendants would be required to hire one minority applicant for every three non-minority applicants hired. In an accompanying memorandum, the court further directed the municipal defendants “to exert every good faith effort to accelerate the establishment of a new list.” The defendants, intervenors, and plaintiffs all appealed from various portions of the district court’s decision and order. We denied an application by the defendants and intervenors for a stay but brought the appeal here on an expedited basis. As is usual in cases of this sort, we have had a number of amicus briefs filed on behalf of various individuals and organizations. However useful amicus briefs may be on an issue of first impression in this circuit, see Chance, supra, 458 F.2d at 1169 & n.5, they only add to our burdens when the controlling principles have been established and the parties are so capably represented as here.

II.

Under Chance and Bridgeport Guardians our analysis must be three-pronged. Was Judge Weinfeld “clearly erroneous” in finding that Exam 0159 had had a “racially disproportionate impact” ? If not, did he err in concluding that the City had not made the requisite showing that Exam 0159 was sufficiently job-related; that is, did the City fail to prove that the disproportionate impact was simply the result of a proper test demonstrating lesser ability of black and Hispanic candidates to perform the job satisfactorily? If the district court was correct on that point also, we reach the third issue, the propriety of the relief.

The municipal defendants do not here challenge the findings of racially disproportionate impact, but the .intervenors do. The basic facts are these: Roughly 11.5% of the 14,168 applicants who entered the examination halls were black or Hispanic. Yet minority members comprised only 5.6% of those who had passed the written, physical and medical examinations at the time of the hearing. Non-minority candidates thus survived the screening process at a rate more than twice that of minority candidates. Perhaps even more important, 18.4% of the whites who took the examination ranked in the top 4000 and survived the physical while the comparable figure for minority candidates was 6.-6%, a disparity of 2.8 to 1.

In challenging these statistics, the in-tervenors attack the reliability of the two ethnicity surveys by which the figures were gathered. The first was conducted by the Vulcan Society, an organization representing black firemen. The Society posted in front of the examination halls observers who counted the minority candidates as they entered. The Fire Department itself conducted the second survey, a “sight survey” of those candidates who passed all stages of the selection process and were deemed “finally qualified.” While the rather crude procedures of physical observation used in the surveys doubtless led to error in some cases, it is hard to believe that survey errors could have accounted for the striking racial imbalance that the results indicated. Indeed, it is arguable that the statistics probably underestimate the disparity between the percentage of minority candidates who took the examination and the percentage who qualified for appointment, since in the initial survey the Society instructed its observers to register candidates as minority members only when they were certain the candidates were black or Hispanic, but there is no indication that the Fire Department was similarly conservative in its survey of the candidates who qualified.

The intervenors also criticize the plaintiffs’ comparison of the number of minority candidates who took the written examination with the number who finally qualified for appointment as a means of proving the racially disproportionate impact of the written test. The comparison was invalid, they claim, because minority members might have been disproportionately eliminated by either the physical or medical examinations, rather than by the written test. In theory this is true, and since there is no claim that the physical and medical examinations were biased, such a result would vitiate plaintiffs’ constitutional claim. But plaintiffs’ statistical expert produced an analysis showing that on the hypothesis that the written examination did not discriminate against minority applicants, the non-minority candidates must have passed the physical and medical examinations at. a rate almost three times that of the minority candidates, a result he properly regarded as extremely unlikely.

The intervenors point to several other factors which they claim may undercut the validity of plaintiffs’ statistics, but none of them casts serious doubt on the court’s finding. They contend first that a substantial number of minority candidates may have done well on the written examination but been prevented from becoming “finally qualified” by the diploma or height requirement or the criminal conviction bar. Yet since the factors requiring automatic disqualification were publicized prior to the administration of the examination, it seems unlikely that a substantial number of candidates took the written test in the face of certain rejection. Second, the intervenors point to the large number of candidates who passed the written test but did not appear for their medical or physical examinations; however, there is no reason to suppose that minority candidates were significantly overrepresented among the “no-shows.” Finally, the intervenors claim that the “character review” procedure may have been responsible for eliminating a large number of minority candidates. This claim is frivolous, as it appears that only four candidates had been eliminated by the character review screening process at the time of the hearing.

It may well be that the cited figures and other more peripheral data relied on by the district judge did not prove a racially disproportionate impact with complete mathematical certainty. But there is no requirement that they should. “Certainty generally is illusion, and repose is not the destiny of man.” We must not forget the limited office of the finding that black and Hispanic candidates did significantly worse in the examination than others. That does not at all decide the case; it simply places on the defendants a burden of justification which they should not be unwilling to assume.

III.

In Castro v. Beecher, supra, 459 F.2d at 732, the First Circuit stated that

The public employer must, we think, in order to justify the use of a means of selection shown to have a racially disproportionate impact, demonstrate that the means is in fact substantially related to job performance.

Judge Coffin later referred to the defendants’ obligation to “come forward with convincing facts establishing a fit between the qualification and the job.” Id. We do not consider that this court’s references to “a heavy burden” in Chance, supra, 458 F.2d at 1176, and Bridgeport Guardians, supra, 482 F.2d at 1337, meant anything more. The point we were endeavoring to underscore is that a showing of a racially disproportionate impact puts on the municipal or state defendants not simply a burden of going forward but a burden of persuasion. This may indeed prove to be “heavy” because plaintiffs are likely to produce experts who will find numerous grounds for criticizing the examinations, whether legitimately or not. But if the public employer succeeds in convincing the court that the examination was “substantially related to job performance,” an injunction should not issue simply because he has not proved this to the hilt.

We shall first consider the written examination. No one now challenges Judge Weinfeld’s conclusion that Questions 81-100, entitled “City Government and Current Events,” were not job related. Taking this as a given, appellants advance two major contentions: One is that the judge found nothing else wrong with the written examination, with the consequence that if he erred in insisting on a competitive physical, the only relief required would be to regrade the examination on the basis of the first 80 questions. The alternative contention is that if he found more to be wrong, he was in error. We reject both.

Although the judge placed particular emphasis on the unrelatedness of the civic affairs questions, this was not the limit of his criticism of the written examination. He sustained plaintiffs’ contention that defendants failed to perform an adequate job analysis in preparing the examination and said that “The record compels the conclusion that the procedures employed by defendants to construct Exam 0159 did not measure up to professionally accepted standards concerning content validity.” He added that “Even if defendants were not required to conform precisely to all the requirements of a professional job analysis, it is clear that the methods actually employed were below those found unsatisfactory in Chance . . . .” Turning to defendants’ contention that a faulty method of developing the examination should not be fatal if the result is satisfactory, he said that “Even if this contention is accepted, under these circumstances only the most convincing testimony as to job-relatedness could succeed in discharging their [defendants’] burden,” but that “The testimony of defendants’ expert . . . not only failed to meet this burden but even acknowledged the presence of a major flaw in the examination which is in itself fatal.” The “major flaw” that the court pointed to was the inclusion of the twenty civics questions, but we do not think the mention of this serious defect indicated that, in the judge’s view, the rest of the examination was without substantial flaws.

Cases like this one have led the courts deep into the jargon of psychological testing. Plaintiffs insist that the only satisfactory examinations are those which have been subjected to “predictive validation” or “concurrent validation,” preferably the former. The district court defined these terms as follows: “Predictive validation consists of a comparison between the examination scores and the subsequent job performance of those applicants who are hired”; “Concurrent validation requires the administration of the examination to a group of current employees and a comparison between their relative scores and relative performance on the job.” The judge wisely declined to insist on either. The Fourteenth Amendment no more enacted a particular theory of psychological testing than it did Mr. Herbert Spencer’s Social Statics. Experience teaches that the preferred method of today may be the rejected one of tomorrow. What is required is simply that an examination must be “shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849 at 853, 28 L.Ed.2d 158 (1971); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.14, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To be sure, an impressive showing of predictive validation may-end the inquiry then and there, and one of concurrent validation may come close to doing so; thus these methods may well be preferable in that sense. But these two schemes have their own difficulties, and the failure to use one of them is not fatal, at least from a constitutional standpoint, as long as the examination is properly job-related.

The intervenors argue that the judge confused “construct validation” with “content validation” and thereby erred in finding Exam 0159 insufficiently job-related. We do not think the judge was confused. He characterized “content validation” in accordance with both prior case law and the leading authorities in the field:

An examination has content validity if the content of the examination matches the content of the job. For a test to be content valid, the aptitudes and skills required for successful examination performance must be those aptitudes and skills required for successful job performance.

See Bridgeport Guardians, supra, 482 F.2d at 1338. A simple example of an examination having content validity would be a typing test for applicants for a job as a typist. Although the court had no occasion to discuss “construct validity,” that method is plainly distinguishable from “content validity.” As noted in Bridgeport Guardians, supra, 482 F.2d at 1337-1338, “construct validity” requires identification of general mental and psychological traits believed necessary to successful performance of the job in question. The qualifying examination must then be fashioned to test for the presence of these general traits. To design a “construct valid” test for typists, the examiners would first determine that a typist’s job requires, for instance, the ability to concentrate, perseverance, and attention to detail. Assuming that the identification of necessary traits was accurate, an examination that properly tested for those traits would have construct validity.

Instead of burying himself in a question-by-question analysis of Exam 0159 to determine if the test had construct or content validity, the judge noted that it was critical to each of the validation schemes that the examination be carefully prepared with a keen awareness of the need to design questions to test for particular traits or abilities that had been determined to be relevant to the job. As we read his opinion, the judge developed a sort of sliding scale for evaluating the examination, wherein the poorer the quality of the test preparation, the greater must be the showing that the examination was properly job-related, and vice versa. This was the point he made in saying that a showing of poor preparation of an examination entails the need of “the most convincing testimony as to job-relatedness.” The judge’s approach makes excellent sense to us. If an examination has been badly prepared, the chance that it will turn out to be job-related is small. Per contra, careful preparation gives ground for an inference, rebuttable to be sure, that success has been achieved. A principle of this sort is useful in lessening the burden of judicial examination-reading and the risk that a court will fall into error in umpiring a battle of experts who speak a language it does not fully understand. See Chance, supra, 458 F. 2d at 1173.

The court’s findings with respect to the construction of the examination were as follows:

The only witness who testified concerning the construction of Exam 0159 was Edward Scheinkman, not a Fire Department official, but Assistant Chief of the division of The Department of Personnel charged with responsibility for its preparation. Mr. Scheinkman began preparing the examination by gathering together the file on the previous examination, the former notice of examination, the class specifications (a very cursory description of the job contained in the notice of examination) and a magazine published by the Department. He contacted Chief Hartnett, who was then in charge of the Training Division of the Department, to inquire as to the Department’s view of the areas of knowledge which should be included in the examination. Hartnett suggested that the subjects covered in the last test should be covered again, with the addition of a section on City government and current events. Somewhat significantly, Fire Commissioner Lowery, with his years of experience as a fire fighter and as an administrator, was not consulted as to the content of the written examination. Scheinkman testified that he never performed any job analyses, did not know of any which were used in the preparation of Exam 0159 and that none were made while he was in the division which prepared examinations for the job of firemen.

Appellants do not seriously assert that these findings are clearly erroneous, and our examination of the record convinces us they are far from being so.

The judge was also warranted in rejecting the testimony of defendants’ expert, Forbes McCann, that, except for the twenty civics questions, Scheinkman had achieved the miracle of stumbling into an examination that bore “a demonstrable relationship to successful performance of the jobs” without having formulated an adequate analysis of just what the jobs were or what traits they demanded.

It is arguable that McCann’s testimony proved the opposite of what he contended. Like Scheinkman, he insisted that the purpose of the test was to examine for the ability to learn to become a fireman in the probationary training school, not for the ability to perform the tasks required of a fireman. Performance on a written multiple-choice examination may well correlate quite highly with the ability to learn certain skills but not with the ability to perform them on the job. On the other hand, the defendants could respond that since the probationary training school is a necessary element in becoming a good fireman, the Department is justified in weeding out applicants who cannot benefit sufficiently from the training to be there afforded.

We prefer not to enter this morass, since there were ample grounds for rejecting McCann’s testimony even if his premise were to be accepted. We cite a few: His assertion that ability to comprehend written materials was the most important single factor in a fireman’s job is at war with common sense. His defense of the mathematics questions, despite his concession that very few firemen occupy jobs that require calculating skills, on the ground that there were only six or seven such questions on the test, ignored two important factors: One was that the scores on the examination were so closely bunched that a difference of only a few points could mean the difference of several thousand places on the eligibility list. The other was that since many other questions either were plainly invalid or too easy to have any differentiating effect, the six or seven mathematics questions actually constituted about 20% of the resolving power of the test. The court was abundantly justified in accepting the criticism of this test by plaintiffs’ experts and rejecting the defense.

IV.

The defendants and the intervenors ask us to set aside Judge Weinfeld’s finding that Exam 0159 was insufficiently job-related because of the absence of a competitive, as distinguished from a merely qualifying, physical examination. We decline to do so.

We can speedily reject the first ground of attack, namely, the absence of evidence that the minority group candidates would do better than whites on a competitive physical examination. This misinterprets Judge Weinfeld’s opinion. He did not hold that the use of a merely qualifying physical in itself necessarily or even probably worked against the minorities ; what he held was that the absence of a competitive physical in the selection process for a largely physical vocation was additional evidence of the lack "of job-relatedness of the selection procedure considered as a whole.

We likewise reject the claim that there was insufficient evidence to support this finding. Several witnesses testified to the high physical demands of a fireman’s job. The Department had conducted competitive physical examinations from 1919 to 1968, and Fire Commissioner Lowery and Fire Chief O’Hagen expressed a strong and well-reasoned preference' for the practice. While Captain Meyers supported the use of a qualifying physical, he conceded what indeed must be obvious even to judges, namely, that many of a fireman’s duties are very strenuous and that the work requires substantial dexterity. The only truly contrary opinion was McCann’s, and the court was warranted in considering his reasons to be unpersuasive. It is true that some of a fireman’s duties, e. g., inspection, may require little or no physical prowess and that, as was urged by counsel for the in-tervenors, the intellectual content of a fireman’s work may have increased far beyond that familiar in our youth. But that does not mean that no significant physical content remains.

We stress the limited nature of our holding. We do not read Judge Weinfeld as having said that if a written examination were sufficiently job-related, a competitive physical would always be constitutionally required, although he obviously would view such a physical with favor. There are considerations of cost and convenience that militate against giving a competitive physical to an extremely large group, including some who will rank so low on a proper written examination that even an Olympic score on a competitive physical would not put them within hiring range. Plaintiffs say these difficulties can be readily overcome, but they do not tell us how. In any event, there is no need to decide the question at this time. ' All that we regard the judge as having held, and all that we now approve, is that, in combination with the defects in preparation and content of Exam 0159 which we have described, the use of a merely qualifying physical examination rendered the Fire Department’s selection procedures insufficiently job-related to withstand constitutional attack.

V.

All parties object to the interim relief directed by the trial judge. What we have said sufficiently disposes of the objections of the municipal defendants and the intervenors based on the contention that the only defect in Exam 0159 was the 20 civics questions and that therefore the court should have done no more than to order that the examination be regraded. There remain the challenges to the court’s use of an interim quota system and to the ratio of minority to non-minority candidates that the court selected. As in Bridgeport Guardians, supra, 482 F.2d at 1340, we approach the use of a quota system “somewhat gingerly” and approve this course only because no other method was available for affording appropriate relief without impairing essential city services. As to the ratio chosen, the intervenors argue that the proper ratio should be 7 majority candidates to 1 minority candidate, and the plaintiffs contend that the ratio should be 1:1.

The argument for the 7:1 figure is that the ratio of whites to minority members who took the examination was 8:1 and that only a slight adjustment in that figure is needed to take account of improper disparities in appointments already made. Arguing against this and in support of a 1:1 ratio, plaintiffs urge that the nature of Exam 0159 and its predecessors had discouraged minority members from taking the examination ; that although there was no specific evidence as to the discriminatory effect of previous examinations, on which Exam 0159 was patterned in considerable measure, this could be gleaned, sufficiently for the purpose of framing relief, from the fact that only 5% of the New York City Fire Department consisted of minority members as against a 32% city-wide minority population in the eligible age group; and that at most the district court’s 3:1 ratio up to June 30, 1974 would bring the percentage of minority firemen up to only 6.7%.

It is quite true that the judge’s 3:1 ratio does not purport to rest on any scientific basis. But neither does the plaintiffs’ proposal, and the inter-venors’ figure does not take account of factors the judge was permitted to consider. In arriving at a ratio midway between what would have been appropriate on the basis of correcting the inequities of Exam 0159 alone and the plaintiffs' demands for much more extensive relief, the judge took appropriate account both of the resentment of non-minority individuals against quotas of any sort and of the need of getting started to redress past wrongs. See Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965); United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 413 (2 Cir.), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). As the Supreme Court has stated, “The framing of decrees should take place in the District rather than in Appellate Courts.” International Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20 (1947); Chance, supra, 458 F.2d at 1178. A case like this, involving interim relief expected to be required for less than a year and reflecting the wisdom of a widely experienced and highly respected judge, should be almost the last to attract appellate intervention.

VI.

We turn now to the portion of plaintiffs’ cross-appeal concerning the judge’s failure to act on their complaints concerning the requirements for a minimum height and a high school or high school equivalency diploma, and the bar against applicants convicted of a felony or of petty larceny. Plaintiffs urge that all three automatic disqualifications operate more harshly on blacks and/or Hispanics than on whites and therefore require a showing of job-relatedness.

The refusal to rule on the minimum height requirement, despite the fact that one of the plaintiffs would have been barred thereby, seems to have been the result of a misunderstanding. The preliminary injunction sought by the plaintiffs was addressed to the eligibility list prepared as a result of Exam 0159, and the testimony had been confined to the racial effect and the job-relatedness of the written and physical examinations. It was altogether appropriate for the judge to seek agreement of the parties that he might rule on these issues as on final hearings and, having obtained this, to make a disposition of them. But, in the absence of an agreement by plaintiffs’ counsel to abandon the minimum height issue, which was squarely raised as to one of the plaintiffs, the judge was obliged to rule on the question either one way or the other. Plaintiffs’ counsel denies having given such consent, and we find none. Accordingly, we remand for disposition, with a hearing if necessary, on this portion of the complaint.

Plaintiffs’ position on the diploma requirement and conviction bar is not so strong since none of them were affected by these provisions. But, here again, the judge’s commendable desire to get at the heart of the complaint seems to have created a bit of a procedural impasse. He was entirely right in thinking it unnecessary, from the plaintiffs’ standpoint, for him to decide on class action designation in order to pass upon the issues raised in regard to Exam 0159. If the examination procedures were found unconstitutional as regards the named plaintiffs, they were equally so as regards all eligible blacks and Hispanics, and it would be unthinkable that the municipal defendants would insist on other actions being brought. But the correct decision of that point did not relieve the judge from deciding whether plaintiffs should be allowed to represent all blacks and Hispanics who might qualify as firemen but for the requirements here considered, even though the individual plaintiffs were not personally affected by them.

We do not find that the cases cited by plaintiffs, either under § 1983 or under Title VII of the Civil Rights Act, e. g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5 Cir. 1969); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8 Cir. 1970); Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5 Cir.), cert, denied, 400 U.S. 951, 91 S.Ct. 241, 27 L. Ed.2d 257 (1970); and Castro v. Beecher, supra, mandate an answer of that question in their favor. Indeed, Castro v. Beecher, supra, 459 F.2d at 732 & n.8, seems to point the other way. We therefore prefer not to decide the issue but rather to remand this also to the district court. If the court determines not to accord class action designation, it should consider whether plaintiffs should not be allowed to amend their complaint to join additional persons who would be affected by the diploma requirement and the conviction bar. If we may be pardoned for speaking practically, we cannot understand why the municipal defendants should resist such an amendment. Much work has already been done on these points. It is evident that they will be raised sooner or later, and the City’s interests would seem to be served by having them determined sooner rather than run the risk that a new and otherwise unobjectionable selection procedure might be invalidated on one of these grounds. In saying this we are in no way intimating a view that the diploma requirement or the conviction bar is invalid; we say only that it is in everyone’s interest that questions about them should be promptly resolved.

The judgment is affirmed except that the cause is remanded for further proceedings on the issues discussed in Part VI of this opinion. Plaintiffs may recover costs against the municipal defendants.

      . In 1972, Congress extended Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17, to include states and municipalities, 86 Stat. 103 (1972). The legislative history made it clear, however, that Congress did not intend thereby to limit plaintiffs’ rights to bring suits against state and municipal officers under 42 U.S.C. § 1983. See H.R.Rep.No.92-238, 92d Cong., 2d Sess. (1971), reprinted in 1972 U.S.Code Cong. & Admin.News, pp. 2137, 2154; Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Comm’n, supra, 482 F.2d at 1334 n. 1.

      . Plaintiffs also challenged the defendants’ recruitment program, the scheduling and location of qualifying examinations, the character review process, the absence of a competitive physical examination, the absence of a city residency requirement, the Fire Department’s promotional examination and the promotional merit point system. Each of these practices, plaintiffs charged in their complaint, is discriminatory in impact and not sufficiently job-related to survive constitutional attack. None of these points is directly raised on appeal, although, as will appear below, the district court relied in part on the absence of a competitive physical examination in finding that the qualifying examination process was not adequately job-related. Plaintiffs apparently did not challenge the bar created by the Rules and Regulations against persons dishonorably discharged from the armed forces of the United States, § III^.3.2(b).

      . The order i>ermitted the Fire Department to make a maximum of 152 appointments from list 0159 every two months, until June 30, 1974. If any further relief were needed, the defendants were instructed to apply to the court at that time.

      . This phrase, used by Judge Coffin in Castro v. Beecher, 459 F.2d 725, 732 (1 Cir. 1972), seems preferable to “discrimination” or even “de facto discrimination,” since these terms have acquired a pejorative connotation not warranted in the initial phase of the inquiry. The first endeavor is to ascertain whether the challenged procedure has liad disparate effects on particular racial groups. Discrimination in the invidious sense exists only if such effects are not the result of job-related tests.

      . There was evidence that those not ranking in the top 4000 had olny a marginal chance of appointment.

      . Holmes, The Path of the Law, 10 Harv.L. Rev. 457, 461 (1897).

      . In addition to the example cited in Judge Weinfeld’s opinion, another good illustration is Question 99:
      The New York State Legislature recently passed a welfare requirement that has been challenged in the courts. This requirement provides that
      (A) people wbo seek welfare must be residents of the State for a year
      (B) everyone on welfare must take a job
      (C) drug addicts must give up their habit before they can receive any money
      (D) people who receive welfare must promise to vote in State elections.
      All four answers are plausible; we fail to understand the relevance of jncking the right one to becoming a good fireman.

      . In discussing the need for an adequate job analysis, the court noted that “There is no dispute between the parties that a thorough knowledge of the job to be tested is necessary in order to construct a content valid examination. Without this knowledge it is impossible to determine whether the content of the examination is sufficiently related to the job to justify its use.” The court looked to the Guidelines on Employee Selection Procedures promulgated by the Equal Employment Opportunity Commission to support its conclusion that the absence of a proper job analysis is of great weight in evaluating the job-relatedness of a qualifying examination. While these Guidelines are not binding on the courts, they have been relied or as a helpful summary of professional testing standards in both § 1983 and Title VII cases. See Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 28 D.Ed.2d 158 (1971) ; Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Comm’n, 482 F.2d 1333, 1337 & n. 6 (2 Cir. 1973) ; United States v. Georgia Power Co., 474 F.2d 906, 913 (5 Cir. 1973) ; cf. United States v. Jacksonville Terminal Co., 451 F.2d 418, 456 (5 Cir. 1971), cert, denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.E’d. 2d 815 (1972) ; Moody v. Albermarle Paper Co., 474 F.2d 134, 138-139 (4 Cir. 1973).

      . Although these cases were decided under Title VII of the Civil Rights Act of 1964, the Constitution scarcely requires more. The Court in McDonnell Douglas Corp., supra, implicitly recognized that there is no significant distinction in the general job-relatedness requirement under either Title VII or § 19S3, as it cited cases decided under botli provisions in support of the. proposition quoted in text.

      . For example, both concurrent and predictive validation are available, only when the examination has been used before, which raises a serious problem of security. In addition, predictive validation requires that the initial sample group be chosen without reference to any potentially discriminatory screening devices. It is only after some period of time that the sample group can he evaluated for job performance, and their performance on the job compared with their performance on the proposed qualification examination. If, after this expensive and time-consuming procedure, the qualification examination proves to be invalid, or of limited validity, the entire process must begin again with another samjde group. While concurrent validation- is less cumbersome, it is also less trustworthy, since the performance of experienced employees on a proposed qualification examination may be of limited use in attempting to project the performance of new applicants. on the job from their performance on the qualifying test. For one thing, highly motivated emjdoyees may do well on an examination after becoming acquainted with the job, while they would have done poorly prior to being hired. In addition, both schemes rely on some mode of evaluating the current employee’s performance, such as supervisory ratings, which are in themselves imprecise, subjective, and subject to possible bins. Finally, a test that is'highly predictive for one group may be valueless as a predictor of job performance for another. See Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1658-68 (1969). The proposed solution for this problem, “differential validation,” see 29 C.F.R. § 1607.5(b) (5), raises “almost insurmountable difficulties.” Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1129 (1971).

      . The danger of distortion in this regard is particularly acute, since performance in the probationary school is also evaluated by means of a written examination. Thus, there is a distinct possibility that a claim that the qualifying examination tests for ability to learn in the probationary school is in fact no more than a claim that performance on the written qualifying examination predicts with reasonable accuracy performance on the written probationary examination. Without evidence that the second examination is job-related, such a demonstration is barren indeed.

      . We cite as an example the 20 questions in Part II of the examination which were intended to test vocabulary. More than 95% of both a sample group of high scorers and a sample group of low scorers on the examination got the same six vocabulary questions right. Another two words were correctly identified by more than 90% of the low scorers and close to 100% of the high scorers. Therefore, practically speaking, only twelve words had any effect on the outcome. Those included “attest,” “destitute,” “luminous,” “apex,” “raze,” “deficit,” and “irate.” It is hard to understand how the ability to find the closest analogue to most of these words is a good test of the ability to fight fires or, for that matter, to absorb written materials about this in a probationary training school.
      Common sense also suggests many flaws in the physics-mathematics series. One example is Question 63, which we reproduce below:
      63. In what direction does the force of gravity pull the 20 lb. weight placed on the board in diagram 631

      A higli school physics student would know the correct answer is (C), but the wrong answer (A) might be more useful for a fireman on the job. The preceding question seems equally without job relationship; while it may be of some value for a fireman to know that “A ball rolling along level ground will slow down and come to a stop,” we cannot ai>preciate the importance of his knowing whether the force that accomplishes this is called velocity, momentum, friction or equilibrium.

      . The municipal defendants liad suggested that if there were to be a quota system, the ratio should be 2:1. However, they do not aj)peal from the judge’s choice of a 3:1 ratio.

      . The defendants claim that the district court ruled in their favor on the minimum height requirement and that the issue is now res judicata against the plaintiffs. The language of the court’s opinion, however, clearly indicates that the court did not dispose of any of the automatic disqualification issues, but merely deemed it “unnecessary to consider” those claims.

      . See Bailey v. Patterson, 323 F.2d 201, 207-208 (5 Cir. 1963) ; United States v. Hall, 472 F.2d 261, 266 (5 Cir. 1972).

      . These cases are distinguishable because in each of them the employer was allegedly discriminating against black employees or applicants on a basis applicable to blacks generally. Although the discrimination in these cases might not have directly affected the plaintiffs at the time of the suit, they were permitted to object to the employer’s discriminatory practices in general on the ground that those practices could well affect them in the future. Ilere, by contrast, the plaintiffs do not possess the very characteristics — a criminal conviction or lack of a diploma — that are alleged as the basis of the employer’s discrimination. The Parham case, 433 F.2d at 427-428, involved in part a challenge to a high school diploma requirement, but the court pointed out first that since Parham was a high school graduate, he was not discriminated against on this ground, and second, that there was insufficient evidence on the record to rule that the requirement discriminated against blacks.