author: STEVENS, Circuit Judge.

text:
    Max MILLER, Plaintiff-Appellant, v. SCHOOL DISTRICT NUMBER 167, COOK COUNTY, ILLINOIS, et al., Defendants-Appellees.
    No. 73-1359.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 3, 1973.
    Decided April 5, 1974.
    Rehearing Denied June 18, 1974.
    See 500 F.2d 711.

      R. W. Deffenbaugh, Springfield, Ill., Stephen J. Poliak, David Rubin, Washington, D. C., for plaintiff-appellant.
    Rodney R. McMahan, Chicago, Ill., for defendants-appellees.
    Before CUMMINGS, PELL and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

Plaintiff, a non-tenured high school teacher, claims that the school board’s decision to terminate his employment was actually motivated by disapproval of his beard and his sideburns, rather than by the admittedly sufficient reasons given to him in writing. His complaint having been dismissed on motion, the question presented on appeal is whether an allegation that a school board’s employment decision was predicated on an unfavorable reaction to the appearance of an employee makes federal judicial review of that decision necessary.

Plaintiff was employed as a junior high school mathematics teacher for two years. In February of 1971, his principal recommended that he be given a contract for the following year, but at its meeting on March 15, 1971, the school board decided not to renew his contract. He was therefore given a written “Notice of Dismissal,” containing an explanation of the board’s decision as required by the Illinois School Code. The stated reasons, if true, were both sufficient and permissible in the sense that they did not offend any constitutionally protected interest.

Thereafter, plaintiff requested “an official closed hearing”; he stated that he would be represented by counsel and by the local association at that hearing and that he expected the members of the board to prove their charges against him and to be subject to cross-examination. The board refused to schedule the kind of hearing plaintiff had requested, but did call a special meeting to give him an opportunity to address the board. At that meeting, plaintiff appeared with counsel and a court reporter. After a colloquy lasting about 40 minutes, plaintiff declined to address the board because the defendants refused to conduct the kind of hearing that his counsel insisted was appropriate; the meeting then aborted. Neither the transcript of that meeting, nor the correspondence between the parties, contains any reference to plaintiff’s manner of dress, his beard, or his sideburns.

Plaintiff promptly filed suit in federal court claiming that he had been denied procedural due process. While his complaint was pending, the Supreme Court decided Roth and Sindermann. Plaintiff then filed an amended complaint which, fairly read, asserts three different theories of recovery. First, plaintiff claims that the reasons given by the board imposed the kind of stigma upon him that required a pretermination hearing; under our decision in Shirck II, this claim must be rejected. Second, plaintiff claims that the reasons as stated by the board were untrue and that the board’s action was arbitrary in the sense that it was completely unsupported by any acceptable reason; this claim is comparable to the “substantive due process” argument which we recently rejected in Jeffries, and is therefore foreclosed by that decision.

“5. That on or about the 15th day of March, 1971, the Defendant Administrator and Defendant Members of the Board all individually and in concert with each other did deny the Plaintiff the attainment of tenure status for the year 1971-1972 and did terminate his employment as a teacher with the district without any reason, justification of any sort or basis in fact for such action; that there is in fact no lawful reason for the termination of the employment of the Plaintiff as a teacher; that said termination was arbitrary, capricious, unreasonable and discriminatory and without authority under law and is a denial of Plaintiff’s rights without due process of law contrary to the Fourteenth Amendment of the Constitution of the United States.” App. 13-14.

The third claim raises an issue which we have not yet addressed squarely. Plaintiff alleges that his dismissal was for a constitutionally impermissible reason because his “mode of dress and appearance” are “protected by the Constitution of the United States.” Although this claim was not stressed in the district court, it was considered and rejected as insufficient. The case is here on appeal from an order dismissing the amended complaint.

I.

Plaintiff first reminds us that in order to withstand a motion to dismiss, the complaint need only contain “a short and plain statement of the claim.” Fed.R.Civ.P. 8(a) (2). If the claim is legally sufficient, the office of plaintiff’s pleading is merely to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed. 80. And, of course, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 45-46, 78 S.Ct. at 102.

Our first task, therefore, is to identify the claim which plaintiff is asserting. He has correctly pointed out in his brief that there are least three different versions of the facts that might reasonably be supported by the evidence under the allegations of the amended complaint It is important to note, however, that the alternatives he describes all raise essentially the same claim. To identify that claim as accurately as possible, and with deference to the rule that we must assume that plaintiff can prove a set of facts which will support that claim, it is important to put to one side certain claims that plaintiff is not advancing. ^

He is not claiming that his mode of dress and his Vandyke beard were intended to convey a specific message comparable to that signified by the black arm bands protected by the rule of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. If that were plaintiff’s claim, it certainly would have been disclosed in the pleadings, the abortive meeting with the school board, or in the briefs or argument here. Nor is plaintiff claiming that he was dismissed for speaking out on an issue of public importance. Cf., Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972); or because of his race, religion, or political affiliation cf. Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972). Plaintiff does not suggest that his mode of appearance was connected with his racial or ethnic identity. See Justice Field’s opinion in Ho Ah Kow v. Nunan, 12 F.Cas. 252 (No. 6,546) (C.C. D.Cal.1879). Finally, plaintiff does not claim that he was deprived of equal protection of the laws by the enforcement of a rule which arbitrarily discriminated between members of different races or between males and females. Cf., Crews v. Clones, 432 F.2d 1259, 1266 (7th Cir. 1970).

Plaintiff’s claim is that his “mode of dress and appearance,” simpliciter, are protected by the Constitution, and that his dismissal was therefore impermissible.

We, of course, have no precise understanding of how plaintiff actually dresses or appears. As he notes in his brief, he may, on the one hand, wear well-pressed three-piece blue suits and have sideburns at the middle of his ears and a neatly clipped Vandyke beard; or alternatively, he may wear t-shirts and faded levies and have an unkempt beard and sideburns which substantially cover his entire face. He seems to assume that these two alternatives would raise different constitutional claims. We disagree.

We think we must assume that plaintiff’s appearance is such that he in good faith believes that it is appropriate for classroom purposes, but that the members of the school board nevertheless considered it unacceptable. We must also assume that if we were to resolve the difference of opinion between the plaintiff and the school board, we would conclude with plaintiff that his appearance and style of dress are neither offensive nor objectionable. The question we must decide is whether this is the sort of determination that federal judges have the power and duty to make.

II.

The constitutional issue has two aspects: first, whether an individual’s interest in appearing as he pleases is an interest in “liberty” within the meaning of the Due Process Clause of the Fourteenth Amendment, and second, assuming that it is, whether a refusal or discontinuance of public employment motivated by disapproval of an individual’s appearance, is a deprivation of that interest. We evaluate these two aspects separately, but our ultimate judgment rests upon an appraisal of both.

A.

Unquestionably, individual choice in matters of hair style, dress, and overall appearance can reasonably be characterized as an aspect of freedom or “liberty.” Sometimes the choice reflects a religious conviction, the expression of a political faith, a national or family heritage, or simply a personal interest in projecting a special image or character. The word “liberty” is not demeaned by construing it to include a right to appear as one pleases.

Prior to the Supreme Court’s decision in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46, decisions of this court and others had assumed that the “right to wear one’s hair at any length or in any desired manner is an ingredient of personal freedom protected by the United States Constitution.” It is difficult, and perhaps impossible, to reconcile that assumption with the underlying rationale of the Court’s holding in Ham.

In that ease the State trial judge had refused to interrogate prospective jurors about their possible prejudice against the defendant because of his race or because he wore a beard. On the record before it, the Supreme Court therefore assumed, for the purpose of its decision, that some members of the jury might have harbored a prejudice against blacks or a prejudice against people with beards. The former assumption invalidated the defendant’s conviction; for he had a federal constitutional right not to have the State — acting through its jurors — treat him less favorably than others simply because of his race. On the other hand, such differential treatment because he wore a beard was constitutionally indistinguishable “from a host of other possible similar prejudices.” Implicitly Ham must hold either that there is no constitutional right to appear as one pleases, or at least, that a person has not been deprived of liberty simply because a State permits his appearance to prejudice his defense to criminal charges. It would, of course, be unwise to read too much into the Ham opinion, since the discussion of the second issue was not necessary to the decision. This much, however, seems quite clear: if one’s interest in appearing as he chooses is a constitutionally protected interest in liberty, it is of a much lesser magnitude than a “fixed star in our constitutional constellation.”

B.

Even if we assume for purposes of decision that an individual’s interest in selecting his own style of dress or appearance is an interest in liberty, it is nevertheless perfectly clear that every restriction on that interest is not an unconstitutional deprivation.

From the earliest days of organized society, no absolute right to an unfettered choice of appearance has ever been recognized; matters of appearance and dress have always been subjected to control and regulation, sometimes by custom and social pressure, sometimes by legal rules. A variety of reasons justify limitations on this interest. They include a concern for public health or safety, a desire to avoid specific forms of antisocial conduct, and an interest in protecting the beholder from unsightly displays. Nothing more than a desire to encourage respect for tradition, or for those who are moved by traditional ceremonies, may be sufficient in some situations. Indeed, even an interest in teaching respect for (though not necessarily agreement with) traditional manners, may lend support to some public grooming requirements. Therefore, just as the individual has an interest in a choice among different styles of appearance and behavior, and a democratic society has an interest in fostering diverse choices, so also does society have a legitimate interest in placing limits on the exercise of that choice.

Although we must assume that some impairment of the individual interest in appearing as one pleases is plainly appropriate, we may also assume that some restrictions would be so extreme that they would readily be condemned as unconstitutional deprivations. In this case, however, we are not confronted with the question whether a specific form of dress or exposure may be required or totally prohibited. Nor do we have a case such as Ham v. South Carolina, supra, in which a State’s determination of an individual’s guilt or innocence may be affected by the jury’s unfavorable reaction to his appearance. If we assume that this case does involve a deprivation of liberty, the deprivation is one which formerly would have been denigrated as nothing more than the waiver of a privilege rather than the impairment of a right.

The impairment of the individual’s interest in selecting his own life style which results from the employment decision of one local school board is much less significant than the deprivations of liberty which have been condemned in other eases. The unavailability of a teaching position in one School District is less serious, for example, than the deprivation of an opportunity to obtain an education, cf., Crews v. Clones, supra, or the complete exclusion from a profession, cf. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, or from any public employment in the state, cf., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, or even from such employment while one political party is in power, cf. Illinois State Employees Union v. Lewis, supra. If the facts are as plaintiff has alleged, he is a competent teacher and the board’s disapproval of his appearance is wholly irrational. On that hypothesis, it is not unreasonable to assume that the availability of other teaching opportunities will make it unnecessary for him to make any basic change in his chosen appearance.

“There is and can be no authority in the state to punish as criminal such practices or fashions as are indifferent in themselves, and the observance of which does not prejudice the community or interfere with the proper liberty of any of its members. No better illustration of one’s rightful liberty in this regard can be given than the fashion of wearing the hair. If the wearing of a queue can be made unlawful, so may be the wearing of curls by a lady or of a mustache by a beau, and the state may, at its discretion, fix a standard of hair-dressing to whicli all shall conform. The conclusive answer to any such legislation is, that it meddles with what is no concern of the state, and therefore invades private right.” 18 Am. Law Reg. 685, also quoted in the margin of 12 Fed.Cas. at 254.

, In sum, the constitutional interest which plaintiff seeks to vindicate is not of the first magnitude and the impairment of that interest is a relatively minor deprivation at best. The question we must decide, however, is whether plaintiff’s allegations have nevertheless raised a constitutional issue which should only be decided after an eviden-tiary hearing.

C.

We assume that this case arises out of an honest disagreement between a teacher and the members of a locally elected school board as to what mode of dress and appearance is appropriate for a junior high school classroom. Were we members of the school board, we have no hesitation in saying that we would regard dress and hair style as matters of relatively trivial importance on any scale of values used in appraising the qualifications of a teacher. But the question is not how we would act as members of a school board. The question for us to decide is whether the Federal Constitution commands us, as federal judges, to review a decision which board members have allegedly made on the basis of the plaintiff’s appearance.

If this is a task the Constitution requires us to perform, two alternative procedures are feasible. We might hold that the mere allegation that plaintiff’s appearance was a factor in the defendant’s decision is sufficient to require an evidentiary hearing. Alternatively, we may hold that unless plaintiff alleges an additional factor, such as a purpose to discriminate against a racial or political group, or perhaps a religious justification for his form of dress, we will not review a school board decision that involves nothing more than a difference of opinion on a question of style.

The first approach would lead the federal judiciary into unprecedented participation in local affairs. For if plaintiff’s theory is valid, it cuts across the entire spectrum of public employment. Any personnel decision which is arguably affected by an unfavorable reaction to the appearance of an employee, or of a job applicant, would be a potential source of constitutional litigation. If the considerations of procedural fairness involved in Board of Regents v. Roth, supra, were insufficient to persuade the Supreme Court that federal judicial review of a school board decision was warranted, the interests at stake in this case can hardly justify such a result.

When the State selects the personnel through whom it deals with the public, it undoubtedly may consider an individual’s appearance as .one of the factors affecting his suitability for a particular position. Logically, one might argue that no significance should be attached to the image projected by the appearance of a public official — a pilot should be able to land an airplane as well in dirty overalls as in a neat uniform, and a teacher should be able to explain the Pythagorean theorem as well in a t-shirt as in a three-piece suit — but the public’s reaction to an official, and a student’s reaction to his teacher, is undoubtedly affected by the image he projects.

If a school board should correctly conclude that a teacher’s style of dress or plumage, has an adverse impact on the educational process, and if that conclusion conflicts with the teacher’s interest in selecting his own life style, we have no doubt that the interest of the teacher is subordinate to the public interest. We must assume, however, that sometimes such a school board determination will be incorrect. Even on that assumption, we are persuaded that the importance of allowing school boards sufficient latitude to discharge their responsibilities effectively — and inevitably, therefore, to make mistakes from time to time — outweighs the individual interest at stake. We do not imply that diversity and individualism among members of the teaching profession is less desirable than conformity; the critical point is that each choice between conformity and diversity is itself affected by a variety of factors, and local school boards need the freedom to make diverse choices for themselves.

If such choices must be tested against a federal constitutional standard, perhaps Vandyke beards and three button suits — or possibly shaven heads and t-shirts — will be permissible for all teachers throughout the nation. In the name of maximizing the individual teacher’s freedom to appear as he pleases, such a constitutional rule would minimize the areas of choice available to local school boards in determining the impact of teacher appearance on the educational process, and on the associational interests of the children for whose education they are responsible.

Although the interest of children in associating with persons of their choice is, of course, severely limited by both their parents and the State, we should not ignore the fact that they do have a valid interest in not being compelled to associate with persons they or their parents consider objectionable. In the classroom, since their presence is compelled, they necessarily must look to the school board for protection of this interest. For this reason, it is appropriate for the school board, elected by the local community, to select the people with whom it wants the minors of the community to associate as teachers. We do not necessarily approve the decision this school board, or any school board, might make; as in the case of the content of the speech in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430, we merely hold that as long as no greater interest than that involved in this controversy is at stake, the decision is one that the school board is entitled to make.

“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an expertment. We’ may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 387, 76 L.Ed. 747 (dissenting opinion) (footnote omitted),

In deciding whether the Federal Constitution commands us to review school board action allegedly predicated on plaintiff’s appearance, we must necessarily identify the source of the standards by which to test such school board decisions. If we accept the premise that the board may consider appearance and mode of dress as a factor affecting the employment decision — indeed, plaintiff seems to agree that this factor is permissible provided that it is appraised in a reasonable way — we would then be forced to decide when a grooming requirement exceeded constitutional limits and when it did not. The concept of “rationality” would be our only guideline; that concept, so often criticized in discussions of substantive due process, is, we believe, too indefinite to justify the substitution of our judgment for that of a local board on a question of manners.

We therefore hold that even if the individual interest in one’s appearance may be characterized as an interest in liberty, the denial of public employment because the employer considers the applicant’s appearance inappropriate for the position in question, does not in and of itself represent a deprivation that is forbidden by the Due Process Clause.

The judgment is Affirmed.

      . 122 Ill.Rev.Stat. § 24-11.

      . Those reasons were:
      “1. Difficulty in relating to pupils.
      2. Difficulty in relating to parents.
      3. Children expressed themselves as unable to understand your explanations and assignments.
      4. Weak in the area of class control — discipline.
      5. Performed personal work during class time rather than instructing pupils several times.
      6. Inadequate in maintaining attention of pupils.
      7. Inadequate motivation of pupils.
      8. Mastery of subject matter by class less than capability of class.
      9. Improvement in above weaknesses not sufficient for an experienced teacher after two years, to place on tenure.” App. 19-20.

      . We infer that this was the Glenwood Education Association. App. 21-22.

      . Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L. Ed.2d 570. Plaintiff’s procedural due process claim was so clearly sufficient under the law of this circuit at the time his original complaint was filed, see Roth v. Board of Regents, 446 F.2d 806 (7 Cir., 1971) and Shirck v. Thomas, 447 F.2d 1025 (7 Cir., 1971), that there was, of course, no reason for him then to advance the claims which he subsequently asserted in the amended complaint. The omission of those claims from the original complaint raises no question about plaintiff’s good faith.

      . Shirck v. Thomas, 486 F.2d 691 (7th Cir. 1973).

      . Paragraph 5 of the amended complaint reads as follows:

      . Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, (7th Cir. 1974).

      . Paragraph 12 of the amended complaint alleges :
      “12. That the reasons for dismissal set forth in Exhibit A did not constitute the actual reason for said dismissal in that the Plaintiff was dismissed for the manner in which he dressed and for the wearing of a Vandyke beard and sideburns, which mode of dress and appearance or activities are protected by the Constitution of the United States.” App. 15
      Plaintiff does not contend that the word “activities” in that allegation refers to anything other than his wearing of a Vandyke beard and sideburns. There is nothing in either the record or the briefs to suggest that he is claiming that he engaged in any other constitutionally protected activities having any relationship to the defendants’ nonre-newal decision.

      . The district court’s entire discussion of this issue is contained in a footnote reading as follows:
      “The plaintiff alludes to the alleged fact that the termination of his employment was caused by his exercise of his constitutional right to dress and groom himself as he chooses. The School Board has stated that the reason for his dismissal was based on his performance rather than the plaintiff’s mode of dress and grooming. The plaintiff has failed to present any case law to support his contention that an employee has a constitutional right to dress and groom himself in any manner he chooses irrespective of the dictates of his employer and the needs of his job. The Supreme Court has recently stated that jury bias stemming from beards and modes of dress does not reach the level of a constitutional violation. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Likewise, a dismissal from employment based on a bias as to the mode of dress is not a per se violation of an individual’s constitutional rights or the Civil Rights Act.” 354 F.Supp. 922, 925-926 (footnote).

      . At oral argument counsel for the defendants called our attention to Jablon v. Trustees of California State Colleges, 482 F.2d 997 (9th Cir. 1973) and, for the first time, advanced the argument that since plaintiff did not challenge the defendants’ decision as motivated by hostility to his appearance when he appeared before the school board on March 15, 1971, he may not assert that challenge in a civil rights suit in federal court. The Ninth Circuit requires exhaustion of State remedies which are “prospective,” in the sense that they may forestall a possible future constitutional deprivation. See Whitner v. Davis, 410 F.2d 24, 28-29 (1969); Toney v. Reagan, 467 F.2d 953, 956-957 (1972), cert. denied, sub. nom. Mabey v. Regan, 409 U.S. 1130, 93 S.Ct. 951, 35 L.Ed.2d 263. The Ninth Circuit requirement is an exception to the general rule that exhaustion is ordinarily unnecessary in § 1983 litigation; see Gibson v. Berryhill, 411 U.S. 564, 574-575, 93 S.Ct. 1689, 36 L.Ed.2d 488; see also Marshall, J„ concurring, at 581, 93 S.Ct. 1689, 36 L.Ed.2d 488. Even if we were to apply the Ninth Circuit exception in this Circuit, we are not at all sure that it would defeat plaintiff’s claim since that court has not considered the adequacy of the limited hearing the defendants offered to this plaintiff. In all events; we do not regard defendants’ belated procedural argument as jurisdictional, and therefore do not consider it because its first assertion was untimely.

      . At pages 11-12 of his brief, plaintiff states:
      “The amended complaint also averred that plaintiff had been dismissed ‘for the manner in which he dressed and for the wearing of a Vandyke beard and sideburns.’ Many different sets of facts could be proven in support of his claim: for example, that plaintiff was' dismissed (1) because he wore three-piece blue suits, with sideburns at the middle of his ears, and a neatly clipped Vandyke beard; (2) because he wore sports jackets and slacks, rather than suits, with three-inch sideburns and a half-inch Vandyke beard; or (3) because he wore t-shirts and faded levis, with sideburns which covered most of his face and an ill-trimmed Vandyke beard which covered the rest. The district court did not consider anywhere in its opinion the possibility that plaintiff might prove that he dressed as examples (1) or (2) suggest. Rather, the court read the complaint as alleging that plaintiff had a ‘constitutional right to dress and groom himself in any manner he chooses irrespective of the dictates of his employer and the needs of his job’ (App. 41). But plaintiff would only had to have made such an allegation were the third set of facts the ones he sought to prove and, plainly, no such facts were pleaded.”

      . In that case the Court carefully pointed out that the issue involved “direct primary First Amendment rights akin to ‘pure speech,’ ” and expressly noted that the problem did not relate to regulation of such matters as “the type of clothing, to hair style, or to deportment.” See 393 U.S. at 507-508, 89 S.Ct. at 737.

      . Cf., Lipp v. Board of Education of City of Chicago, 470 F.2d 802, 805-806 (7th Cir. 1972): “Plaintiff’s appellate brief also raises the issue that the rating he received was given in retaliation for the exercise of his First Amendment rights. However, his complaint alleged no facts to sustain this theory, and the allegations added on appeal cannot make up for the deficiencies in the complaint.”

      . Compare New Rider v. Board of Education of Independent School District No. 1, Pawnee County, Oklahoma, 480 F.2d 693 (10th Cir. 1973), cert. denied, 414 U.S. 1097, 94 S.Ct. 733, 38 L.Ed.2d 556 (Douglas, J., dissenting).

      . See n. 11, supra.

      . “ . . . [N]or shall any State deprive any person of life, liberty, or property, without due process of lawsee Roth, supra, 408 U.S. at 572-575.

      . Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969); Crews v. Clones, 432 F.2d 1259, supra; Arnold v. Carpenter, 459 F.2d 939, 941-942 (7th Cir. 1972); see also eases cited in n. 5 to the majority opinion in Arnold, 459 F.2d at 941.

      . The relevant paragraph of the majority opinion in Ham reads as following:
      “The third of petitioner’s proposed questions was addressed to the fact that he wore a beard. While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, Aldridge v. United States [283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054], and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner’s constitutional rights were violated when the trial judge refused to put this question. The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge’s refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation.” 409 U.S. at 527-528, 93 S.Ct. at 851.

      . Compare Justice Jackson’s revelatory metaphor in Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, with the uncertain placement of the appearance interest in a vaguely described “penumbra” in Breen v. Kahl, supra, 419 F.2d at 1036. In their separate opinions in Sam, dissenting on this point, Justice Douglas and Justice Marshall described the action of the trial judge as an abuse of discretion of sufficient seriousness to warrant reversal. It is of interest to note, however, that their analyses rested on the magnitude of the jurors’ possible prejudice against beards — which might, of course, have denied the defendant his right to an impartial jury — rather than on the quality of a prejudice against beards as in any sense comparable to a constitutionally impermissible prejudice against blacks. Because of the constitutional difference between racial prejudice on the one hand, and a prejudice against beards on the other hand, the Federal Constitution foreclosed the trial judge’s discretion in the first category in a fundamentally’ different way than in the second.

      . In restaurant kitchens, for example, the law may require the chef to cover his hair. See Mun.Code of Chicago, § 130-5.

      . See, for example, Ind.Code, § 22-10-11-8, requiring protective head-gear for miners. See also Ind.Code § 9-8-9-3 requiring motorcyclists to wear protective helmets.

      . See, for example, the Illinois prohibition against indecent exposure, 38 Ill.Rev.Stat., § 11-9, which presumably is intended to arrest other antisocial behavior described therein at its incipiency.

      . Just as the offensive character of some forms of sound may justify restriction on the freedom to communicate orally, see Ko-vaks v. Cooper, 336 U.S. 77, 87, 69 S.Ct. 448, 93 L.Ed. 513 (Opinion of Reed, J.), so may the offensive character of some forms of appearance justify restricting an individual’s interest in appearing as he pleases.

      . At a memorial service for an unknown soldier, or perhaps the inauguration of a Governor, for example, the individual interest in an unfettered choice of appearance would certainly not, in itself, be sufficient to invalidate every attempt to exclude visitors attired inappropriately.

      . We do not have a case in which the sovereign insists that every citizen must wear a brown shirt to demonstrate his patriotism. Fortunately, intervention of the federal judiciary has not been required during the brief history of our Republic in order to avoid intolerable instances of required conformity like that following the Manelius’ invasion of China in 1644, or the official prohibition of beards during the reign of Peter the Great. See Crews v. Clones, supra, 432 F.2d at 1264, n. 7.

      . Consider Judge Cooley’s comment on Justice Field’s opinion in Ho Ah Kow, supra, in which he stated in part:

      . The so-called abandonment of the right-privilege distinction represents a change in appraisal of the significance — not of the essential accuracy — of Mr. Justice Holmes’ observation that a man “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). Because of the admitted importance of a First Amendment right, its impairment by interference with the exercise of a privilege may represent a deprivation of the right. But it by no means follows that every limitation on a privilege which has been influenced by the exercise of a constitutional right is necessarily a deprivation of that right.

      . In one sense the issue is whether it is more unreasonable for the school board to require a teacher to shave off his beard, or ' perhaps trim it, than it is for the teacher to sacrifice his job rather than his beard. We recognize, of course, that a requirement that va teacher shave off his beard is a more significant impairment of his interest in appearing as he pleases than a requirement that he wear a tie or a coat during school hours because it lias a greater impact on his private, after-school, life. Nevertheless, the same interest is at stake in both situations, and the difference in the amount of its “deprivation” is, we believe, one of degree rather than kind.

      . It is appropriate to observe that those who choose not to conform to tradition in matters of appearance must anticipate, as a consequence, that a number of other people may elect not to associate with them. Since the acceptance of employment, whether private or public, always entails some need to comply with an employer’s concept of the manners which are suitable to the position, including matters of speech and behavior as well as appearance and grooming, the deliberate nonconformist inevitably prejudices his own employment prospects. The “deprivation” involved here merely requires the public employee to pay the same price for nonconformity as must the private employee. Stated somewhat differently, the deprivation is a refusal to give the non-conforming public employee a preferred status as compared with his counterpart in the private sector. Plaintiff’s position in this case is therefore not supported by the holding in Lewis, supra, which protects public employees from a discharge practice not ordinarily present in the private sector. See Illinois State Employees Union v. Lewis, supra, 473 F.2d at 575.

      . Even if other employment is unavailable, it is not inconceivable that moderate tonsorial changes might be sufficient to satisfy a majority of the members of a school board. After all, a holding that a federal judicial remedy is unavailable will not mean that a teacher’s appearance interest is entirely unprotected. Since school board members are accountable to the community from which they are selected, presumably their resolution of questions of style will at least be supported by local tradition.

      . “In contrast with morals, the rules of deportment, manners, dress, and some, though not all, rules of law, occupy a relatively low place in the scale of serious importance. They may be tiresome to follow, but they do not demand great sacrifice: no great pressure is exerted to obtain conformity and no great alterations in other areas of social life would follow if they were not observed or changed.” H.L.A. Hart, The Concept of Law, 169 (1961).

      . At such a hearing if the teacher could prove that his dismissal was, in whole or in part, the consequence of his appearance, presumably the burden of explanation or justification would rest upon the defendants. We do not understand plaintiff to contend that he would be entitled to judgment simply on the basis of proof that his appearance caused his discharge. See note 11, supra.

      . Justice Brandéis’ comment on tlie importance of permitting State experimentation with untested policy is equally applicable to social and economic matters:

      . Since we could not automatically rule in favor of a teacher whenever he or she had a dispute with the school board over personal appearance appropriate for a classroom, there must be principled standards upon which we might either sustain or overrule the judgment of the school board. Gf., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 37 L.Ed.2d 446 (Brennan, J., dissenting).

      . It is one thing for us to make judgments upon the ground of rationality in spheres of our own special competence, e. g., whether certain evidence is relevant to a question being litigated, or whether a certain criminal procedure adequately protects the rights of defendants; it is quite another for us to volunteer to assess social problems generally. Cf., Mr. Justice Black, sitting as Circuit Justice in Karr v. Schmidt, 401 U.S. 1201, 1203, 91 S.Ct. 592, 593, 27 L.Ed.2d 797. “There can, of course, be honest differences of opinion as to whether any government, state or federal, should as a matter of public policy regulate the length of haircuts, but it would be difficult to prove by reason, logic, or common sense that the federal judiciary is more competent to deal with hair length than are the local school authorities and state legislatures of all our 50 states.”


source: Caselaw Access Project

author: BREITENSTEIN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Harold SMITH, Defendant-Appellant.
    No. 73-1695.
    United States Court of Appeals, Tenth Circuit.
    April 22, 1974.

      Rodney G. Snow, Asst. U. S. Atty. (C. Nelson Day, U. S. Atty., on the brief), for plaintiff-appellee.
    Craig S. Cook, Salt Lake City, Utah (Worsley, Snow & Christensen, Salt Lake City, Utah, on the brief), for defendant-appellant.
    Before BREITENSTEIN, SETH and McWILLIAMS, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

A jury found defendant-appellant Smith guilty of knowingly possessing stolen money orders in violation of 18 U.S.C. § 500. He appeals from the judgment imposing sentence. The sole question on appeal relates to the validity of a search.

Defendant had a dispute with his landlady and she ordered him to move. When he refused, she called the Salt Lake City, Utah, police department for help. Officers Platt and Vaughn responded at about 4:00 A.M. Defendant agreed to take his personal belongings and leave immediately. Defendant called the bartender at the MeraMar Bar for help in moving. At the request of the bartender, Joseph Palmasano went to the premises. Palmasano, who was only slightly acquainted with defendant, parked his Buick on the street near defendant’s Ford. About 5:00 A.M., Officer Platt was again in the area and was flagged down by the landlady. The officer testified that the landlady told him that defendant “might” have some money orders in his possession. At the trial the landlady could not remember whether she told the officer that the money orders were “stolen,” and that she did not know whether defendant had money orders with him.

Defendant refused the officer’s request for permission to search his car. The officer left and from a nearby observation point, and with the use of binoculars, watched defendant’s movements. After about three minutes, the officer saw defendant leave his car with his hands across the front of his body, apparently holding something under his shirt. Defendant walked to a parked car which turned out to be Palmasano’s and emptied what he was holding under his shirt into the left front seat of that car. Palmasano was not in the car at the time. Officer Platt radioed for help and Officer Vaughn responded. At Platt’s direction Vaughn looked into the front seat of the Buick and saw and seized a brown sack. Examination of the sack disclosed the money orders. Defendant was then arrested for possession of the money orders.

Defendant filed a Rule 41, F.R.Crim. P., motion to suppress the seized money orders. The motion was neither heard nor ruled on before trial. When it was orally renewed at trial, the court denied it on the basis of the statements of counsel without taking any evidence on the issue.

The threshold question is the standing of defendant to attack the seizure of the money orders. They were taken from an unoccupied ear which did not belong to the defendant and which was parked on a public street. The indictment charges the possession of the money orders so seized.

Jones v. United States, 362 U.S. 257, 262-265, 80 S.Ct. 725, 4 L.Ed.2d 697, suggests three alternatives which may be used to establish standing, (1) substantial proprietary or possessory interest in the thing seized, (2) a similar interest in the premises searched, and (3) legitimate presence on the premises searched. Of these, only (1) has application here. Defendant says that he has “automatic” standing to contest the seizure because evidence of a possessory interest at the time of seizure both convicts and confers standing. The rationale of the “automatic” standing rule was that a defendant was put in a dilemma when he had to show possession to have standing and that possession would convict of the charged offense. This rationale was removed by Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed.2d 1247, which holds that a defendant’s testimony in support of a motion to suppress may not thereafter be admitted against him on the trial of the issue of guilt.

The government relies on Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208. There the government’s case did not depend on possession at the time of seizure. The Court held that the defendants lacked standing because at a preliminary hearing they failed to show possession at the time of search and seizure. In Brown the Court expressly reserved for future consideration in a proper case the question of the effect of Simmons on the continued vitality of the “automatic” standing rule of Jones. Ibid, at 228, 93 S.Ct. 1565.

The Fourth Amendment rights on which defendant relies are personal rights which may not be asserted vicariously. Ibid, at 230, 93 S.Ct. 1565. The reservation in Brown of the “automatic” standing question means to us that one who attacks a search must assert and establish a personal right protected by the Fourth Amendment and that when such an assertion is contested, “a full hearing on standing,” Ibid, at 229, 93 S.Ct. 1565, must be held.

In the instant case, there was no hearing on the motion to suppress. When it was renewed at trial, the court impatiently denied the government request to call a witness, ordered defense counsel to “tell me how they got the evidence,” ignored the prosecution statement of disagreement with the defense, and then denied the motion without bothering to say anything about standing. The result was that the defendant had no opportunity to challenge the search and seizure in a proceeding independent of the trial to determine guilt. The statements of counsel are no substitute for a hearing. They showed a factual dispute. Such a dispute is determined on the receipt and consideration of evidence, not comments of counsel.

Everything considered, we are convinced that the only satisfactory disposition of this appeal is a reversal and remand for a new trial at which an evidentiary hearing is held on the motion to suppress, with due regard to the holdings in Jones and Simmons and to the question reserved in Brown.

The judgment is reversed and the case is remanded for a new trial in the light of this opinion.


author: PER CURIAM.

text:
    MATLOCK TRUCK BODY AND TRAILER CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1599.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1974.
    Decided April 26, 1974.
    Thomas Nelms, III, Nashville, Tenn., for petitioner; John T. Conners, Jr., Boult, Cummings, Conners & Berry, Nashville, Tenn., on brief.
    Charles I. Cohen, N. L. R. B., for respondent; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Attys., N. L. R. B., Washington, D. C., on brief.

      Before CELEBREZZE and MILLER, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   PER CURIAM.

In this petition for review of the Board’s decision in a case involving the National Labor Relations Act, the petitioner, Matlock Truck Body and Trailer Corporation, contends that the Board illegally sustained the Union’s challenges to the ballots of several workmen taking part in the election.

Among the ballots so challenged were those of Bobby Lamb and Sandra Lamb, husband and wife, who did janitorial work on a contract basis. They worked fifty per cent of their time in the plant and the remainder in the office. Their normal work hours were from 6:00 p. m. to 9:30 p. m., Monday through Friday. Occasionally, they worked weekends, but made adjustment therefor by taking time off during the week — arriving early or late. They do not punch a clock as do all production and maintenance employees. No deductions for federal income tax or social security are withheld or paid by the company. They did not fill out application blanks, and do not receive any of the company’s benefits.

Based on these facts, the Board considered that the Lambs did not enjoy a community of interest with unit employees and, therefore, challenged their votes. We agree with the holding of the Board.

The ballot of Bennie Wilson was challenged by the Board. In order to be eligible to vote, he would have to have been employed in the voting unit on both the payroll eligiblity date — June 10, 1972, and the election date — July 13, 1973. “The test for determining eligibility is the individual’s actual status on the eligibility date and election date.” Westchester Plastics of Ohio, Inc. v. N. L. R. B., 401 F.2d 903, 907 (C.A. 6).

Wilson had been employed in the Manufacturing Department until he quit his job on March 20, 1972. On May 2, he was reemplcyed in the Service Department — a department not included in the voting unit. Approximately on May 31, 1972, he requested a transfer back to the Manufacturing Department. A payroll change notice shows that he was transferred to Manufacturing with no change in pay, and was not assigned a new dock number until the end of July. The Company explained that although the transfer of Wilson was effective June 6, it was decided that he would not be “physically moved” to Manufacturing until he completed the work he was then performing in the Service Department on a special order job. Copies of Wilson’s time-cards indicated that he used the separate Service Department clock and cards through Monday, June 12, when he was told he should report to Manufacturing. Following instructions, on Tuesday, June 13, he began using the Manufacturing time clock. Manufacturing employees use one time-card per week, clocking in and out one time each day. On the other hand, service personnel use a new time-card each day, checking in and out on each job performed and writing each job number on the time-card.

The Board found that the transfer of Wilson was not effective until June 13, a date subsequent to the payroll eligibility date. As stated by Respondent:

“Before the Board, the Company explained that although the transfer of Wilson was effective June 6, it was decided that he would not be ‘physically moved’ to manufacturing until he completed the work he was then performing in the service department on a special order job. ‘Convenience’ was the reason cited for continuing to utilize the service department timeclock. No explanation was tendered as ■ to why his name was not placed on the eligibility list.
“Based on these facts the Board concluded that the transfer of Wilson' was not effective until June 13, 1972 — a date subsequent to the payroll eligibility date. The Board noted that although the Company’s payroll change was dated June 6, ‘Wilson’s job location and duties did not change until June 13, 1972.’ The Board also noted that while Wilson’s work between June 6 and June 13 could be considered ‘manufacturing’ work, he and other employees had performed such work in the past while they were attached to the service department. The Board therefore concluded that despite the apparent payroll change Wilson did not in fact join the manufacturing department until after June 13.
“The Board’s conclusion is within its discretion in such matters. The evidence here — Wilson’s location, job duties and use of the service department timeclock, as well as the Company’s own failure to include Wilson on the eligibility list — amply support the Board’s determination. The Company’s claim that the Board in its decision has effectively imposed ‘geographical restrictions’ not mentioned in the original stipulation is unfounded. The Board has merely looked to Wilson’s workplace as one piece of evidence bearing on the issue of which department Wilson belonged to.”

The Company also alleged that the Board agent conducting the election acted improperly with respect to employee Fred Terry when the latter presented himself to vote; and the Company Union engaged in coercive activity. As previously noted, in order to be eligible to vote in the election, an employee must have been employed by the Company on June 10, 1972, and July 13, 1973. The Board agent explained the June 10th vote, stating that Terry’s vote would be challenged, and also told him that “most likely you are not eligible to vote and your vote won’t count anyway.” Evidence revealed that Terry was employed by the Company on June 8, 1973, and that his name was inadvertently left off the eligibility list because his employment papers did not reach the personnel office until after the list had been prepared. This whole episode regarding Terry’s right to vote is most questionable. A Board agent generally has the obligation to offer a challenged ballot to every person who thinks he is eligible to vote, and whose claim is not frivolous on its face.

Terry had told the Board agent that he had been employed only two or three weeks. This afforded the Board agent no grounds for thinking Terry was eligible as a voter; and the Board agent, relying on Terry’s assertion that he had been employed only two or three weeks, afforded no grounds for believing that Terry was eligible, and the Board agent’s statement that Terry was not eligible was predicated on Terry’s assertion.

There may have been some mistake in all of the foregoing with reference to Terry’s right to vote. The challenged voting procedure was not explained to Terry by the Board agent, but noting Terry’s contradictory testimony and the fact that the Company observer testified that Terry had been employed only two or three weeks, according to Terry’s own statement, and that the Board agent had actually explained the challenged ballot procedure to him, the Board did not credit Terry’s account. Moreover, if it be assumed that Terry was improperly denied an opportunity to cast a .challenged ballot, the result of the election showed that Terry’s ballot would have made no difference in the outcome of the election.

We have considered • the contention that the Company suffered Union coercion in the election. Isolated threats or coercion by the Union or its adherents are not sufficient to warrant setting an election aside. Unions and employers cannot prevent misdeeds or misstatements by persons over whom they have no control. It is our view that the employees had a fair opportunity to express and did express their free and untrammeled desires in the election in question.

Property destruction of a somewhat minor nature was wrought on the cars of employees who were active in the cause of Union organization or against the cause. Alleged threats during the campaign are not reasons to set aside the election, as there is no evidence that any of these incidents prevented any of the employees from voting their free choice.

The Court holds that the findings by the Board are supported by substantial evidence on the record considered as a whole. The Board’s cross-petition for enforcement is hereby granted.


author: IRVING R. KAUFMAN, Chief Judge:

text:
    OSCAR L. ARONSEN, INC., Plaintiff-Appellant, v. Norman Philip COMPTON, et al., Defendants-Appellees.
    No. 748, Docket 73-2209.
    United States Court of Appeals, Second Circuit.
    Argued March 28, 1974.
    Decided April 9, 1974.
    Charles S. Haight, Jr., New York City (Haight, Gardner, Poor & Havens, New York City, on the brief), for plaintiff-appellant.
    Brendan J. Connolly, New York City (Mendes & Mount, New York City, on the brief), for defendants-appellees.
    Before KAUFMAN, Chief Judge, SMITH and ANDERSON, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

A phrase may be clear and unambiguous in one setting; fuzzy and imprecise in another. “Words,” Justice Holmes once said, “[are like] the skin of a living thought and may vary greatly in col- or and content according to the circumstances and time in which [they are] used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918). In this instance, the factual context clarifies, not beclouds, the language of a marine insurance policy we are called upon to interpret. Accordingly, we have little difficulty in affirming the sound construction of the terms of policy coverage adopted by the court below.

Oscar L. Aronsen, Inc. (Aronsen) was charterer of the vessel M/V Megara, which was stranded, with cargo on board, in the Sulu Sea on August 17, 1966. The ship was refloated and towed to Manila for survey of damages and trans-shipment of cargo. The owner, Acres Shipping Co., declined, however, to repair the vessel and it was eventually sold for scrap.

On June 2, 1967, Aronsen submitted a claim for $250,000, the face amount of his two Anticipated Charter Profit policies, to the marine insurance underwriters in London. Payment was declined on the ground that Aronsen’s policies did not cover the type of damage suffered by the M/V Megara. Aronsen then brought suit against the underwriters in the Southern District of New York to recover $250,000, the amount it claimed was due under the policies. On January 4, 1971, Aronsen moved for summary judgment, but its motion was denied. Thereafter, following a trial before Judge Lumbard, sitting by designation, without a jury, judgment was rendered for the defendants, and the complaint was dismissed.

At trial, the issue presented was a narrow one. The parties agreed that Aronsen’s policies insured against the total loss of the chartered vessel, but did not cover a partial loss. It was undisputed, moreover, that total loss was comprised of three principal categories: (1) an actual total loss; (2) a constructive total loss — where the expense of recovering and repairing the vessel exceeds its insured value; (3) a compromised total loss — where a claim for constructive total loss is settled by agreement between the insured and the underwriters. In determining whether a compromised total loss had occurred, the parties further agreed that the settlement reached between the owner of the M/V Megara and the underwriters of the owner’s Hull and Machinery policies would be dispositive of the charterer’s claim under the Anticipated Charter Profits policies. Accordingly, since Acres Shipping Co. did submit and subsequently settle a claim with the hull underwriters, the decision below turned on whether this settlement was in discharge of a claim for constructive total loss or for a claim of partial loss of the M/V Megara.

The only testimony introduced at trial was Aronsen’s deposition of Richard Rutherford, Adjuster of Claims, and Manager, Lloyd’s Underwriters’ Claims Office, who had negotiated on behalf of the hull underwriters with the representatives of Acres Shipping. Through Rutherford’s deposition and the documentary exhibits introduced in evidence, a clear description of the negotiations surrounding the settlement under the Hull and Machinery insurance policies emerges.

Acres Shipping initially submitted a claim, on February 11, 1967, for a constructive total loss, based on the repair cost estimate of its marine superintendent, N. Soutos. This claim was immediately rejected by the underwriters on the strength of a repair estimate, prepared by their agent, substantially below the insured value of the M/Y Megara. Thereafter, on February 23, Richard Arnold & Son, representing Acres Shipping, tendered a claim for either a constructive total loss or, in the alternative, a partial loss based on unrepaired damage, requesting at the same time an immediate payment of £60,000 on account. Arnold was promptly informed by Rutherford that the underwriters adamantly refused to negotiate unless and until Acres Shipping withdrew its claim for a constructive total loss. Thus, on February 24, Arnold cabled the shipowner in pertinent part as follows:

Underwriters further state that if the shipowner is prepared to withdraw his right to claim CTL [constructive total loss] (should this be ultimately proved which is doubtful) and elect to treat claim as a partial loss then they will be willing to make an offer in full and final settlement of unrepaired damage claim ....
The choice is yours. Either elect for partial loss and obtain early payment of unrepaired damage or elect for CTL and await settlement until claim proved to satisfaction of underwriters which could take six months or more.

The shipowner responded to this choice in the following telegram to Arnold dated February 27:

Please inform our underwriters of Megara that if they will be agreeable to make us a satisfactory offer for settlement of unrepaired damage claim we shall withdraw our claim for constructive total loss and treat this matter as partial loss. (emphasis added)
Accordingly, in light of this exchange of telegrams, it is not surprising that the final settlement agreement, concluded March 2, 1967, explicitly stated that the sum agreed upon was “in full and final settlement of all claims for unrepaired damage . . . .” — in short, a settlement of the shipowner’s partial loss claim.

Despite the clarity of this agreement, Aronsen argued below, and once again on appeal, that the settlement reached between the shipowner and hull underwriters was a compromised total loss, rather than a compromised partial loss, thereby supporting recovery under the Anticipated Charter Profits policies. Appellant’s rationale is a simple one: whenever an owner proffers a claim for constructive total loss, whether or not in combination with a claim in the alternative for a partial loss, and submits figures which, if proved, would substantiate a constructive total loss, then a compromised total loss results if subsequent negotiations produce a settlement. In a thorough opinion, reported at 370 F. Supp. 421 (S.D.N.Y.1973), Judge Lum-bard rejected Aronsen’s contention on the ground that it strained credulity to assert that any claim submitted by the shipowner for a constructive total loss, no matter how frivolous, unsubstantiated, and self-serving for bargaining purposes, would produce a compromised total loss, so long as the shipowner received some compensation on his claim. Certainly the facts here adequately support Judge Lumbard’s conclusion.

Aronsen urges preliminarily that any ambiguity in the coverage of a marine insurance policy must be resolved in favor of the insured. See, e. g. Allen N. Spooner & Son v. Connecticut Fire Insurance Co., 314 F.2d 753, 755 (2d Cir.), cert. denied, 375 U.S. 819, 84 S.Ct. 56, 11 L.Ed.2d 54 (1963); Henjes v. Aetna Ins. Co., 132 F.2d 715, 719 (2d Cir.), cert. denied, 319 U.S. 760, 63 S.Ct. 1316, 87 L.Ed 1711 (1943). Although we do not disagree, we find no ambiguity whatsoever in characterizing the settlement between the shipowner and the hull underwriters as one in respect to a claim for partial loss and, therefore, not within the coverage provisions of Aron-sen’s Anticipated Charter Profits policies.

Aronsen strenuously contends, however, that a line of English cases, primarily Street v. Royal Exchange Assurance, 19 Com.Cas. 339 (C.A.1914), sustains its view that a settlement concluded after submission of alternative claims of constructive total loss, on the one hand, and partial loss, on the other, must be construed as a compromised total loss. Indeed, we consider Street particularly illuminating on this question, although, unfortunately for appellant, not in its favor.

Street involved an action brought by an insurance underwriter to recover on a policy of reinsurance. Like Aronsen in this case, the plaintiff in Street could only recover on its reinsurance policy if t-he settlement which it had reached with the shipowner could properly be characterized as a compromised total loss. The shipowner had in fact commenced suit against the underwriter claiming in the alternative a constructive total loss or a partial loss. Before that action came to trial, a settlement was effected and it was based on this agreement that the underwriter unsuccessfully sought collection on its reinsurance policy.

The principal opinion in Street, written by Lord Reading, contained the following description of the settlement agreement signed by the shipowner and Street:

There is no statement in those terms that the settlement was in respect of the claim for a constructive total loss; neither is there any statement that it was a settlement in respect of the claim for a partial loss. The terms of settlement do not mention either the one or the other.

Street v. Royal Exchange Assurance, supra, 19 Com.Cas. at 342. Because of this ambiguity in the settlement agreement, the court, in Street, was unable “to say with certainty, from the terms of the document itself, that this compromise was in respect of a claim for constructive total loss [or, it seems fair to say, a compromise in respect of a claim for partial loss].” Id. at 344-345. The court chose to resolve this uncertainty in favor of the plaintiff underwriters by concluding that “the claim for constructive loss having been made, and that claim having disappeared as a result of the agreement of compromise, it cannot be said that there has been no settlement of a compromised [total] loss . . . .’’Id. at 346-347.

In contrast to Street, we do not face the ambiguity which required the Street court to generalize about the proper characterization of an undifferentiated settlement of alternative claims. Here, not only the exchange of telegrams between the shipowner and its representative, but the settlement agreement itself clearly define the scope of the compromise as one in “full and final settlement of all claims for unrepaired damage [i. e., partial loss].” Accordingly, since Street teaches that the court need not go beyond the language of the agreement, where that language precisely describes the basis for settlement, we must conclude that the settlement at issue in this case resulted in a compromised partial loss.

In sum, we are of the view that the proper barometer for gauging the bona fide nature of the shipowner’s initial claim for constructive total loss is his willingness to press that claim until settlement. .Where the owner chooses to abandon his constructive total loss claim as a predicate to negotiation, the charterer, like the hull underwriters and the shipowner himself, is bound by that election. We therefore affirm.

      . Under such policies the charterer of a vessel is insured against the loss of the profits that he anticipates realizing from use of the vessel during the insured period — in this instance, August 9, 1966 to August 9, 1967.

      . Personal jurisdiction over the defendant underwriters was based on their consent.

      . Judge Metzner’s brief memorandum opinion, 68 Civ. 904 (S.D.N.Y. May 12, 1971), denying summary judgment, is not reported.

      . A fourth category, an “arranged total loss,” was also covered by the policies, but is in no way relevant to Aronsen’s claim.

      . We note that the defendant underwriters were not involved in underwriting the owner’s Hull and Machinery insurance policies.

      . The insured value of the M/V Megara was £140,000. On the basis of Soutos’s estimate, Acres Shipping Co. calculated the total repair cost to be £142,539 or £2,539 in excess of the vessel’s insured value. Relying on their representative, on the other hand, the underwriters computed the total repair costs to be approximately £100,000, or £40,000 less than the vessel’s insured value.

      . The parties agree that, for purposes of this ease, English law provides the best guidance on the determination of what constitutes a compromised total loss.

      . We note that the shipowner’s decision to forego his constructive total loss claim in this instance was costly to it as well as to Aronsen, the charterer. By so doing, Acres Shipping was unable to collect on two additional marine insurance policies, for Increased Value and Freight, totalling £34,000, coverage under which was limited to the total loss of the insured vessel.


author: BARRETT, Circuit Judge. LEWIS, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gilberto NEVAREZ-ALCANTAR, Defendant-Appellant.
    No. 73-1707.
    United States Court of Appeals, Tenth Circuit.
    April 23, 1974.

      Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief) for plaintiff-appellee.
    Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
    Before LEWIS, Chief Judge, DUR-FEE, Judge, Court of Claims , and BARRETT, Circuit Judge.

       Honorable James R. Durfee, sitting by designation.

   BARRETT, Circuit Judge.

Gilberto Nevarez-Alcantar appeals his conviction of possession of heroin with

the intent to distribute in violation of 21 U.S.C.A. § 841(a) (l).

On April 12, 1973, Alcantar was riding as a passenger on a bus from El Paso, Texas, to San Francisco, California. While en route he became so intoxicated that he was forced to debus at Lordsburg, New Mexico. Alcantar left the bus with a locked suitcase. Shortly thereafter, at approximately 12:20 a. m., in the belief that he had arrived in San Francisco, Alcantar approached two Lordsburg police officers and requested that they drive him to an address which they immediately realized was not in Lordsburg.

Upon questioning by the officers, Al-cantar identified himself by producing an Alien Registration Receipt Card; stating his address as San Francisco, California; and displaying a Republic of Mexico driver’s license, issued one month previously, which listed his address of residence as Zaragoza, Chihuahua, Mexico. Each of the identification cards contained his photo. After arresting Alcantar for drunkenness, and after determining that he was a Spanish speaking alien, the officers took him to the United States Border Patrol office in Lordsburg.

At the Border Patrol office, Alcantar was questioned further by Agent Ash-ton. Alcantar was in possession of his suitcase during the interrogation. After questioning Alcantar, Ashton was not satisfied with his identification, inasmuch as the Alien Registration Card indicated that he was residing in the United States, whereas the driver’s license stated a residence in Mexico. Ashton and the Lordsburg officers thereupon forcibly opened Alcantar’s locked suitcase, in search of further identification. Upon opening the suitcase, Ashton discovered 13 % ounces of heroin. Alcantar was subsequently charged under 21 U.S. C.A. § 841(a)(1).

Prior to his trial before the court, having waived a jury, Alcantar moved to suppress the heroin seized from his suitcase. Alcantar contended that the seizure which resulted from the search was: (1) without a warrant; (2) without probable cause; (3) without his consent; and (4) unreasonable when the terms and prohibitions of the Fourth Amendment are considered.

After a pre-trial evidentiary hearing the Court denied the motion to suppress, holding, inter alia: (1) that Alcantar was still intoxicated while being interviewed at the Border Patrol office; (2) that he did not consent to the search of his suitcase; (3) that he was arrested for intoxication; (4) that the search could therefore not be justified as incident to arrest; (5) that there was no danger that Alcantar could reach into the locked suitcase and grab a weapon or destroy any evidence; (6) that the search of the suitcase was not in any sense an inventory of Alcantar’s personal property; (7) that the search was solely an effort to find more information establishing Aleantar’s “identity”; and (8) that the officers had probable cause to search the suitcase for more information concerning Alcantar’s identity.

On appeal, Alcantar contends that the Court erred in denying his motion to suppress. We hold that the trial court did not err.

Alcantar does not contend that the officers did not have probable cause to search the suitcase for further identification. Rather, he argues that under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a search, absent exigent circumstances, cannot be made without a search warrant. Further, he relies on United States v. Baca, 417 F.2d 103 (10th Cir. 1969), for the rule that one claiming to be exempt from the warrant requirement has the burden of establishing his exemptions.

The Fourth Amendment prohibits only an unreasonable search undertaken without a search warrant. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A border patrol agent may interrogate and search without a warrant, under 8 U.S.C.A. § 1357(a)(1) and (e):

(a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant;—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States; . ******
(c) Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for exclusion from the United States under this chapter which would be disclosed by such search.

Agent Ashton was not only expressly authorized to interrogate Alcantar, but, under the circumstances, he and the Lordsburg officers also had probable cause to search his locked suitcase for further identification. We agree with the following finding of the trial court:

The officers had reasonable cause to inquire further as to the contradiction between the residence shown on the driver’s license and his claim as to residence in the United States. They were justified in seeking further information to determine whether the defendant had violated any of the conditions of the Alien Registration Card so that it would not at that time be valid authority for the defendant to be in the United States. Particularly the fact that the card was five years old, whereas the Mexican driver’s license had been issued one month before would give cause to inquire as to the defendant’s present right to be in the United States under the authority of the Alien Registration Card.

It is fundamental that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, supra, at p. 22, 88 S.Ct. at p. 1880. And, under appropriate circumstances, police officers have a duty to approach, temporarily detain and question persons as to possible crimes, and investigate suspicious behavior, even though there are insufficient grounds for arrest. United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971).

In determining probable cause “practical considerations of everyday life” must prevail. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Romero, 484 F.2d 1324 (10th Cir. 1973). Probable cause exists where the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a prudent man into believing that an offense has been or is being committed. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973); Taylor v. United States, 334 F.2d 386 (10th Cir. 1964).

If the enforcement officers have probable cause to believe, as they did in the instant case, that the law is being violated in their presence (illegal entry into the United States), they may conduct a search of the person and portable personal effects in his immediate possession if it is impracticable to secure a warrant in those cases where the warrant is otherwise required. United States v. One 1957 Ford Ranchero Pickup Truck, 265 F.2d 21 (10th Cir. 1959). In our judgment Agent Ashton and the Lordsburg police officers were confronted with facts and circumstances generating the basis for probable cause rather than bare suspicion. The issue, then, is whether, under the facts and circumstances, the search of Alcantar’s suitcase, absent a search warrant, was viola-tive of the Fourth Amendment. We hold that it was not.

The trial court ruled that the officers had probable cause to search Alcantar’s suitcase without a search warrant for more information concerning Alcantar’s “identity” in view of the fact that although Alcantar claimed to be a resident of San Francisco (consistent with his Alien Registration Card), his Mexican driver’s license, issued only one month prior thereto, listed his residence as Zar-agoza, Chihuahua, Mexico. Other information in the form of documents in the suitcase may have disclosed that Alcan-tar had illegally entered the United States.

Mr. Justice White, in his dissenting opinion in Almeida-Sanehez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), observed that:

The judgment of Congress obviously was that there are circumstances in which it is reasonably necessary, in the enforcement of the immigration laws, to search vehicles and other private property for aliens, without warrant or probable cause, and at locations other than at the border.
413 U.S. at 293, 93 S.Ct. at 2549.

A logical nexus, we submit, involves a reasonable search of all personal effects on the person or in the possession of the person of Alcantar in light of the facts and circumstances confronting Agent Ashton and the Lordsburg police officers, i. e., that Alcantar was forced to depart the bus at Lordsburg because of his intoxicated condition; that he left the bus in possession of a ticket evidencing boarding at El Paso, Texas, enroute to San Francisco, California; that Al-cantar did not speak English and did speak Spanish; that the Alien Registration Receipt Card and the driver’s license exhibited to Agent Ashton gave rise to probable cause to search for other information in order to determine whether Alcantar was illegally in the United States; and that Alcantar was in possession of a suitcase which constitutes “personal effects in the possession of any person seeking admission to the United States” as expressed in 8 U.S.C. A. § 1357(c), supra.

Interpretive of the broad authority granted Border Patrol officials under the governing statutes above referred to, we observe that Mr. Justice Powell, in his concurring opinion in Almeida-San-chez, supra, indicated that “roving patrols” would be constitutionally permissible under a broad search warrant which he opined would be justified and feasible as “ . . . . incidental to ■ the protection of the border and draw a large measure of justification from the Government’s extraordinary responsibilities and powers with respect to the border.” 413 U.S. 266 at 279, 93 S.Ct. at 2542. Congress intended that Service officers and employees shall exercise broad authority in conducting investigations necessary to protect all persons legally residing in the United States against the illegal entrance of aliens and the illegal importation of narcotics and other contraband.

The record evidences that two Lords-burg police officers acted in concert with Agent Ashton in forcibly opening the suitcase in Alcantar’s possession. In United States v. Simpson, 453 F.2d 1028 (10th Cir. 1972), cert. denied 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972), we held that incident to a lawful arrest a search may be conducted without a warrant of all portable personal effects on the person, or in the immediate possession of the person arrested, and that the discovery during such a search of objects or fruits which do not relate to the cause of arrest, but which provide grounds for prosecution of a crime unrelated to that for which the arrest was effected, does not invalidate the search. This holding found support, further buttressing the trial court’s ruling here, in the recent opinions rendered by the United States Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973), and Gus-tafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Both of these cases involved valid arrests for traffic violations. In the course of searches of the persons in each case, the arresting officers discovered narcotics which led to independent prosecutions. The Supreme Court upheld the searches and convictions, based upon the rule that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment, and that such a search may be made of the person of the arrestee and the area within his control.

We acknowledge that in Simpson, Robinson and Gustafson, the arresting officers proceeded on their own volition immediately following the arrests to conduct the subject searches, whereas in the instant case the Lordsburg police officers did not conduct the search of Alcantar’s suitcase at the time he was arrested for drunkenness and in fact did so some ten to fifteen minutes later at the Border Patrol office in concert with Agent Ashton, apparently upon Ashton’s suggestion. We do not believe that these circumstances are of such material variance from those in Simpson, Robinson and Gustafson to create a challenge to the rule applied in those cases upholding the searches as incident to a lawful arrest. In any event, we concur with the trial court’s finding that probable cause did exist in the case at bar justifying the warrantless suitcase search.

Affirmed.

LEWIS, Chief Judge

(concurring in the result).

It appears clear to me that the search and seizure which we here consider were justified as an incident to a lawful federal custodial arrest under the mandate of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and that it is thus unnecessary to explore the subjective reasons of the searching federal officer to establish probable cause. Nor does the fact that the search had a brief lag in time after arrest have Fourth Amendment significance. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. Under Robinson it is the lawfulness of the custodial arrest that is critical and, once established, the search requires no further justification. In Robinson the contraband was contained within a package and here it was contained within a carried suitcase. Both required opening.

      . 21 U.S.C.A. § 841(a)(1) provides in part:
      (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      (1) To manufacture, distribute, or dispense, or possess with intent to ... distribute, or dispense, a controlled substance ; or .