author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Cary STOKES, Defendant-Appellant.
    No. 74-1315.
    United States Court of Appeals, Fifth Circuit.
    Jan. 20, 1975.

      Manley F. Brown, H. T. O’Neal, Jr., James D. Hudson, Macon, Ga., for defendant-appellant.
    William J. Schloth, U. S. Atty., Macon, Ga., John F. Conroy, Washington, D. C., Ronald T. Knight, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before GODBOLD and MORGAN, Circuit Judges, and JOHNSON, District Judge.
   LEWIS R. MORGAN, Circuit Judge:

Charles Cary Stokes brings this appeal from his conviction by a jury for violation of Title 18 U.S.C. § 242, which makes criminal the willful deprivation of constitutional rights by any person, acting under color of law. We affirm.

I.

At the time of the acts giving rise to his conviction, Stokes was employed as a police officer by the City of Macon, Georgia. On the night of July 10, 1973, Stokes and another Macon police officer were summoned to the lounge of a local inn where they arrested John Velpo Tucker on a charge of “plain drunk.” Tucker, a field representative for a major oil company, was a resident of Florida who had traveled to Macon on a business trip. Both before his arrest at the lounge and afterwards in the custody of the police, Tucker was obstreperous and verbally abusive to the point of threats. However, he never made any overt attempts to carry out his threats to resist arrest and to inflict injury on his custodians. After Tucker was taken to the police station for booking, Stokes shoved Tucker down a flight of stairs, struck him with his hands and a nightstick, and threw him against a wall head first. After booking, Tucker was locked in the drunk tank. Early the next morning, Tucker was taken to a Macon hospital in a coma, where he was operated on for a fractured skull. He was still in a coma at the time of Stokes’ trial six months later.

A one-count indictment charged Stokes with willfully striking and assaulting Tucker, an inhabitant of the state of Florida, and thereby willfully depriving him of the right not to be deprived of liberty without due process of law. The jury returned a verdict of guilty on January 16, 1974. Stokes was sentenced to six months imprisonment and five years probation.

II.

Stokes has argued numerous grounds for the reversal of his conviction. Most of these involve alleged errors in the trial court’s failure to instruct the jury in accordance with requests submitted by Stokes’ counsel. The trial court, of course, has no obligation to adopt the language proposed by counsel, as long as its charge, taken as a whole, correctly states the law. Locke v. United States, 166 F.2d 449, 451 (5th Cir. 1948), cert. denied, 334 U.S. 837, 68 S.Ct. 1495, 92 L.Ed. 1763 (1948).

Stokes’ primary objection is that the trial court erroneously stated the law in instructing the jury as to what constitutes a deprivation of liberty without due process. Stokes contends that the only constitutional right of which Tucker could have been deprived in this situation is his right to a courtroom trial; for a deprivation of due process to have occurred, he argues, Stokes’ actions must be found to have constituted summary punishment of Tucker. Thus he contends there was fatal error in the trial court’s instruction that a police officer’s unlawful assault of a prisoner in his custody is a deprivation of liberty without due process of law, within the purview of 18 U.S.C. § 242.

Stokes’ interpretation of § 242 and the cases construing it is an oversimplification and an understatement of the constitutional rights of which one may not willfully deprive another without incurring criminal liability. The seminal case interpreting 18 U.S.C. § 242, and upon which Stokes relies, is Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). In Screws, the sheriff of Baker County, Georgia, with the assistance of two other law enforcement officers, arrested a Negro citizen of that state. They beat their prisoner to death with fists and a blackjack. The Court was faced with a strong challenge to the constitutionality of applying § 242 (then § 20 of the Criminal Code, 18 U.S.C. § 52) to the deprivation of due process rights, on the grounds that the due process clause lacked the specificity which is constitutionally mandated for criminal statutes. To preserve the statute’s constitutionality, the Court held that § 242 requires as one element of the offense the specific intent “to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” 325 U.S. at 104, 65 S.Ct. at 1037.

Ignoring the clear holding in Screws, Stokes apparently relies upon the Court’s statement that in order to convict the defendants, “it was necessary for [the jury] to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e. g., the right to be tried by a court rather than by ordeal.” 325 U.S. at 107, 65 S.Ct. at 1038. Screws and other cases cited by Stokes, e. g., United States v. Delerme, 457 F.2d 156 (3d Cir. 1972); Koehler v. United States, 189 F.2d 711 (5th Cir. 1951); Pullen v. United States, 164 F.2d 756 (5th Cir. 1947); Crews v. United States, 160 F.2d 746 (5th Cir. 1947), did involve the right not to be subjected to summary punishment at the hands of law enforcement officers cloaked in the power of their official state position. However, there is no suggestion in any of these cases that in the factual context of police beatings and assaults the right to due process or the scope of § 242 is limited to a right not to be summarily punished or deprived of a trial by law. The argument that it is thus limited suggests that state officials can remove any beating of a prisoner, however brutal, from the realm of a constitutional violation merely by bringing the prisoner to trial, at least when the assault occurs in a pre-trial time frame.

To the contrary, Screws makes it perfectly clear that once a due process right has been defined and made specific by court decisions, that right is encompassed by § 242. Screws’ own language then negates the rationale of Stokes’ position. The real question for decision, therefore, is whether the trial court’s instructions described “a right which has been made specific ... by decisions interpreting [the Constitution].” Screws, supra, 325 U.S. at 104, 65 S.Ct. at 1037.

We are mindful of the problem faced by the Supreme Court in Screws. We deal here with a criminal statute, and those who are prosecuted under it ought not to be forced to guess at the actions which it makes criminal. There are numerous cases, however, which support the proposition that one’s right to be free from unlawful assault by state law enforcement officers when lawfully in their custody has been made a definite and specific part of the body of due process rights protected by the fourteenth amendment of the Constitution, so that a willful deprivation of that right comes within the purview of § 242.

In Lynch v. United States, 189 F.2d 476 (5th Cir. 1951), cert. denied, 342 U.S. 831, 72 S.Ct. 50, 96 L.Ed. 629, this court held that rights protected by the fourteenth amendment include: “the rights of persons under state arrest not to be deprived of their personal security (which is embraced within the word ‘liberty’) except in accord with due process of law,” and “the right to protection from injury from the officers having them in charge.” In Lynch, we affirmed a conviction under 18 U.S.C. § 242 of a sheriff and a deputy sheriff who arrested and held several Negroes, and then turned them over to a group of Ku Klux Klansmen who beat them. We held that the fourteenth amendment not only extends protection from injury at the hands of the state officers themselves, but also shelters the prisoner from the denial of protection owed him by the arresting officers when third persons seek to inflict injury. 189 F.2d at 479.

Furthermore, in United States v. Walker, 216 F.2d 683 (5th Cir. 1954), cert. denied, 348 U.S. 959, 75 S.Ct. 450, 99 L.Ed. 748, we reversed the dismissal of an indictment under § 242 which alleged that the defendant, a supervisor of a Florida prison camp, did “willfully, unlawfully, and wrongfully beat, bruise, wound, lacerate, cut, and injure the person and body” of one of his prisoners, thereby depriving him of certain Constitutional rights, “to-wit: the right to be secure in his person, and to be immune from illegal assault and battery by the defendant and by other persons under the defendant’s direction and control, and the right not to be assaulted by the said defendant and by other persons under the defendant’s control and direction, and the right and privilege not to be subjected to punishment without due process of law.” 216 F.2d 683, n. 1.

In a slightly different procedural posture, Stokes has made an argument very similar to that of the accused prison official in Walker, namely, that his purpose or motive for beating Tucker is critical to the question of whether a § 242 offense was committed, and unless his manhandling of Tucker was done with the intent and for the purpose of inflicting punishment without benefit of a trial in a court of law, his actions do not amount to a deprivation of due process. However, as we said in Walker:

[Defendant’s] reliance, therefore, on the fact that in [United States v. Jones, 207 F.2d 785 (5th Cir. 1953)] the information stated the reasons for the alleged assault and the indictment in this case did not, will not do, for in each case the offense consists, not in the reason given by, or charged against, the offender for the unlawful action, the wilful deprivation under the color of state law of rights secured to prisoners by the Federal Constitution, but in the fact of the deliberate and wilful deprivation of such rights by the officer under such color. 216 F.2d at 684.

Another series of cases which bears on the question of whether the trial court’s instructions described “a right which has been made specific ... by decisions interpreting [the Constitution],” Screws, supra, 325 U.S. at 104, 65 S.Ct. at 1037, has been decided under 42 U.S.C. § 1983, the civil counterpart to § 242. See Baldwin v. Morgan, 251 F.2d 780, 789 (5th Cir. 1958). The § 1983 cases lend additional support to our conclusion, for they have held that an unlawful assault by police or correctional officers of a prisoner in lawful custody may be grounds for a civil cause of action for the deprivation of constitutionally protected rights. Among them are: Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973) (failure of state prison employees and correctional officers to prevent unprovoked knife assault by one inmate on another); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (assault of a pre-trial detainee by a correctional officer); Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971) (beating of a convicted federal prisoner by state jailers while in their custody to answer state criminal charges); Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970) (unreasonable and unnecessary force used by police to restrain arrested person); Wiltsie v. California Department of Corrections, 406 F.2d 515 (9th Cir. 1968) (beating of inmate in state correctional facility after conviction); Morgan v. Labiak, 368 F.2d 338 (10th Cir. 1966) (unreasonable and unnecessary force used by municipal police officers in making arrest). In all of these cases it was the unreasonable, unnecessary or unprovoked use of force alone which was the alleged deprivation of a constitutional right.

This body of case law, extending back to our decision in Lynch, supra, has made it clear that the constitutional right to due process of law includes not only the right to be tried in a court of law for alleged offenses against the state, but also a right not to be treated with unreasonable, unnecessary or unprovoked force by those charged by'the state with the duty of keeping accused and convicted offenders in custody. This aspect of due process has been made specific by court decisions and is thus within the purview of rights protected by the criminal sanctions of 18 U.S.C. § 242. There was no error in the trial court’s charge to the jury on this point.

III.

Stokes also contends that the trial court erred in instructing the jury on the element of willfulness. Again he relies on Screws, supra, which construed “willfully” as “connoting a purpose to deprive a person of a specific constitutional right.” 325 U.S. at 101, 65 S.Ct. at 1035. Stokes’ request to charge was based on the following language from Screws:

But in view of our construction of the word “willfully” the jury should have been further instructed that it was not sufficient that petitioners had a generally bad purpose. To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g., the right to be tried by a court rather than by ordeal. 325 U.S. at 107, 65 S.Ct. at 1038.

At Stokes’ trial, the court’s instructions to the jury included the following:

An act, ladies and gentlemen, is willfully done if it is done voluntarily and purposely with a specific intent to do something the law forbids, that is with bad purpose to disobey or disregard the law. The specific intent required to convict of this crime is the intent to deprive a person of a constitutional right.

The court reiterated the specific intent element in summing up its instructions. Since the trial court stated the specific intent requirement in unambiguous and correct terms, Stokes’ argument must boil down to a complaint that the trial court did not specifically instruct that “it was not sufficient that [the defendant] had a generally bad purpose.” Screws, supra at 107, 65 S.Ct. at 1038.

We cannot interpret the language from Screws which Stokes relies upon as having been intended by the Supreme Court to mandate a ritualistic charge to be used in instructing juries in § 242 cases. The significance of Screws is that it held that the specific intent to deprive a person of a constitutional right is an essential element of a § 242 offense. The trial court must state the law correctly in its instructions, and it did so in this case. The fact that it did not use the exact words from Screws that Stokes’ counsel requested is not grounds for reversal when the substance of the charge was correct and not subject to misinterpretation by the jury. Bacon v. Kansas City Southern Railway Company, 373 F.2d 515 (5th Cir. 1967).

Stokes has alleged numerous other errors in the trial court’s charge, too numerous and too insubstantial for individual discussion. Some of his alleged errors involve requests to charge which are themselves erroneous, other alleged errors overlap what we have already discussed, and others border on the frivolous. We have read and considered carefully the entirety of the charge to the jury. Viewed as a whole, as it must be on appeal, the charge is a fair and accurate statement of the law. It was not erroneous. See, e. g., Garrett v. Campbell, 360 F.2d 382 (5th Cir. 1966); Bacon v. Kansas City Southern Railway Company, 373 F.2d 515 (5th Cir. 1967).

IV.

Stokes also contends that there was prejudicial error in the trial court’s order that the names on the trial jury panel not be released until the morning of the trial, and in its ruling to exclude one of his witnesses from testifying on the grounds that her testimony was cumulative. Both of these rulings were within the discretion of the trial court and neither has been shown to be prejudicial.

As to the first, the district court’s plan for the random selection of jurors, in implementation of 28 U.S.C. § 1863, provides, “the court may at any time or from time to time order generally, or with respect to any particular term or terms of court, that these names be kept confidential in any case where in the court’s judgment the interests of justice so require.”

Stokes contends that a ruling to seal the jury panel list in a given case should not be made except pursuant to a fact-finding hearing to determine whether the interests of justice require that the names be kept confidential. However, the standard set forth in the Jury Selection Act of 1968, allowing the district court to keep jury panel names confidential “where the interests of justice so require,” is deliberately broad, we believe, in order to vest wide discretion in the trial court. Stokes has made no showing that the district court used its discretion in an arbitrary manner. Thus we can find no prejudicial error in this ruling.

As for the matter of the trial court’s ruling that the testimony of Ethel Reese, a defense witness, would be merely cumulative and that therefore she would not be allowed to take the witness stand, we note that the offer of proof shows that Miss Reese would have testified about the events and conduct of Mr. Tucker at the lounge prior to the arrival of Stokes. One of the government’s witnesses and two of defendant’s witnesses had already testified about this. Furthermore, and more importantly, what occurred at the lounge prior to Stokes’ arrival is not material to the events which occurred later at the jail and formed the basis for the government’s charge. The offer of proof does not sustain Stokes’ contention that this ruling was prejudicial.

Neither individually nor cumulatively do Stokes’ contentions of error in his trial amount to a showing that he was prejudiced by the rulings of the trial court. Therefore, the judgment of the district court is

Affirmed.

      . Title 18 U.S.C., § 242 provides:
      Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.

      . On this point, the substance of the court’s instructions was as follows:
      What do we mean, ladies and gentlemen, by liberty and due process of law? As stated before, the Fourteenth Amendment to the Constitution provides that no state shall deprive any person of his liberty without due process of law. The liberty of the individual which the Constitution thus secures and protects is not an absolute and unqualified freedom or privilege to do as one pleases at all times and under all circumstances, but is always subject to reasonable restraints, including, of course, such restraints as are imposed by law.

        The prisoner named in this indictment, that is Mr. Tucker, in common with the defendant and all other persons living under the protection of our Constitution had the legal right at all times not to be deprivct*1 without due process of law of any li’.c. 'V secured or protected by the Consti- •: tS -' or the laws of the United States.
      It is undisputed, ladies and gentlemen, fhat the prisoner in question was lawfully arrested out at the motel in question prior to the time and place of the alleged offense that is charged in this indictment, and he thus had already been deprived of certain of his liberties with due process of law, namely, his liberty to be free of arrest and to come and go without the restraint that resulted from his arrest. The prisoner had nonetheless other liberties of which he had not been deprived, among which was the liberty to be free from unlawful attacks upon the physical integrity of his person. It has always been the policy of the law to protect the physical integrity of every person from unauthorized violation or interference. So the prisoner here, even while lawfully under arrest, had the right, under the Constitution, not to be deprived of this remaining liberty involving the physical integrity of his person without due process of law.

      . Stokes also relies upon Screws’ statement that “The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.” 325 U.S. at 108-109, 65 S.Ct. at 1039. This is certainly true, for as the context of the quote demonstrates, such an action must be done under the color of law in order to rise to the level of a constitutional violation. Furthermore, the use of force must be unreasonable and unnecessary in order to constitute a deprivation of federally protected rights. Stokes does not contest that his actions were under color of law.

      . Nine required features of each United States district court’s plan for random jury selection are set out in 28 U.S.C. § 1863(b), which provides: “Among other things, such plan shall ... (8) fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.”

      . See n. 4, supra.


source: Caselaw Access Project

author: COLEMAN, Circuit Judge. PER CURIAM:

license: Public Domain

text:
    Melvin PERRY and next friend, Phyllis Brown, Plaintiffs-Appellants, v. Clarence JONES et al., Defendants-Appellees.
    No. 74-1363.
    United States Court of Appeals, Fifth Circuit.
    Jan. 20, 1975.
    Rehearing Denied Feb. 13, 1975.

      Laurance L. Priddy, Fort Worth, Tex., for plaintiffs-appellants.
    John L. Hill, Atty. Gen., Austin, Tex., John B. Tolle, Asst. Dist. Atty., Henry Wade, Crim. Dist. Atty., Dallas, Tex., Joseph G. Werner, Asst. City Atty., John H. Hagler, Asst. Dist. Atty., Dallas, Tex., for defendants-appellees.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge.

In November, 1971, an armed robbery took place in the Oak Cliff area of Dallas, Texas. The next month, one Edward Campbell was arrested as a principal in this robbery. The following June, two of the robbery victims (females) identified Melvin Perry as a participant in the robbery. Dallas Police Officer H. G. Johnstone, assigned to investigate the case, then issued a “prosecution report” on Perry. This prosecution report, which contains a suspect’s name, description, the crime charged, etc., was the customary first step toward an arrest warrant from a Dallas County Justice of the Peace Court. Based on the prosecution report, the district attorney caused a complaint to be filed. A warrant for the arrest of Melvin Perry was directed to the Dallas County Sheriff’s Department from the Justice of the Peace Court.

Perry is a high school graduate, had never been in trouble with the law, and was steadily employed. Upon learning that the authorities in Dallas were looking for him, Perry went to the Dallas County Sheriff’s Department to find out why. Acting on the arrest warrant, Deputies O. G. Smith and M. A. Gafford promptly arrested Perry and put him in jail. He remained there for six days, never taken before a magistrate or given the opportunity to post bail.

Jim .Kitching, the deputy sheriff in charge of the jail where Perry was incarcerated, testified that at the time of Perry’s arrest, it was possible for a suspect to be arrested by the Sheriff’s Department without the knowledge of the Dallas Police Department. He stated that executed arrest warrants are always returned to the Justice of the Peace Court which issued them and added that only when the Dallas Police Department attaches an “offense report” to the arrest warrant will that Department be notified by the Sheriff’s Office that their suspect has been arrested and is in the county jail.

No offense report accompanied Melvin Perry’s arrest warrant, and it was not until appellant had been in jail for seven days that the Dallas Police Department, through the efforts of Officer Johnstone, determined that appellant and one Melvin Fears were both in the county jail for the same crime, and that appellant was not a suspect. Perry was released July 11, 1972.

As could have been anticipated, this unhappy sequence of events caused a lawsuit. Through his mother as next friend, Perry sued the Sheriff of Dallas County, the Chief of Police of the City of Dallas, Policeman Harlen Glen John-stone, and Deputy Sheriffs Kitching, Smith, and Gafford. The cause of action was based upon 42 U.S.C., §§ 1983 and 1985 (violation of federally guaranteed constitutional rights).

Appellant testified that while incarcerated he was kept in a racially segregated and overcrowded area of the county jail, was approached homosexually, did a lot of fighting, was hit in the head by a thrown shoe, was never taken before a magistrate, and was never given the opportunity to post bond.

The District Court directed verdicts for the Chief of Police, for Policeman Johnstone, and for Deputies Smith and Gafford. The liability, if any, of Sheriff Jones and Deputy Sheriff Kitching went to the jury:

Eight special issues were submitted to the jury. It could agree as to only two of them and they were answered out of sequence.

The jury could not agree on whether the Sheriff and his Deputies knew or reasonably ought to have known that Perry in reasonable probability would be attacked or assaulted while in jail. It could not agree on whether Perry had, in fact, been so attacked or assaulted. Nevertheless, it did agree from a preponderance of the evidence that Perry had sustained no injuries from such assault or attack.

The negative response to the third special issue made it unnecessary to decide (in the form submitted) whether the Sheriff or his Deputies had been negligent, but the jury went ahead, anyway, and agreed that the negligence of these officials, if any, was not the proximate cause of any injuries sustained by the plaintiff. Perry had not notified his jailors of the alleged assaults, and the jury declined to decide whether this was negligence on his part. In any event, the jury did unanimously agree that Perry had not been injured by assault or attack. It also agreed (unnecessarily in view of the first finding) that the negligence of the officers was not the proximate cause of any injuries Perry might have sustained.

The District Court denied plaintiff’s motion for a mistrial. On the ground that the unanimous findings of the jury decided the entire case, the Court then entered judgment for all defendants.

Perry contends on appeal that:

1. The trial court erred in ruling that failure to take an arrestee before a magistrate to set bail, as required by Texas law, does not present a federal question.
2. The trial court erred in not proceeding on appellant’s state law pendent jurisdiction claim of false arrest and failing to take appellant before a magistrate upon his arrest.
3. The trial court erred (a) in failing to submit issues to the jury concerning appellant’s lost wages, mental suffering, and attorney’s fees, and (b) in holding that the jury’s answers to two of eight special issues was determinative of the entire case.

We think that as to the Chief of Police and Officer Johnstone the directed verdicts were properly granted. The Dallas Chief of Police had no knowledge of Perry’s arrest. He did not direct it or participate in it. He did not have Perry in his custody. In other words, he was in no way responsible for anything that happened to Perry. Policeman Johnstone obtained and reduced to writing the statements of witnesses who identified Perry as an armed robber. This was in the line of duty. He did not file the complaint. This was done by another officer, after reference to and clearance by the District Attorney’s Office.

Nor are the remaining defendants, Sheriff Jones and his Deputies, guilty of false arrest. When appellant identified himself to deputies holding a warrant for his arrest, their duty was to arrest him, Greenwell v. United States, 1964, 119 U.S.App.D.C. 43, 336 F.2d 962, cert. denied, 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807. A police officer who arrests someone with probable cause or a valid warrant is not liable for false arrest simply because the innocence of the suspect is later established, Anderson v. Nosser, 5 Cir., 1971, 438 F.2d 183, modified en banc, 456 F.2d 835 (1972), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972).

In Kulyk v. United States, 5 Cir., 1969, 414 F.2d 139, 141-142, we held that “[t]he right under the federal rules to be promptly taken before a magistrate has not been given constitutional status and has not been applied to persons in state custody”. See, also, Edwards v. Holman, 5 Cir., 1965, 342 F.2d 679, cert. denied, 384 U.S. 1017, 86 S.Ct. 1934, 16 L.Ed.2d 1039. Further, even though the failure to take Perry before a magistrate violates Texas law, it does not rise to the status of a denial of due process, Anderson v. Nosser, supra. See, also, Scarbrough v. Dutton, 5 Cir., 1968, 393 F.2d 6; Baxter v. Rhay, 9 Cir., 1959, 268 F.2d 40.

As to the matters discussed to this point in this opinion the judgment of the District Court is affirmed.

This leaves only the question of whether the District Court, as a matter of pendent jurisdiction, should have submitted Perry’s false imprisonment claims to the jury.

Article 15.17 of the Vernon’s Ann. Texas Code of Criminal Procedure requires that an arrested person shall without unnecessary delay be taken before some magistrate of the county in which the arrest takes place; this duty is to be performed by the person making the arrest, or he shall have it done.

It appears to be the law of Texas that a failure of the arresting officer in this regard may give rise to an action for false imprisonment, see Moore v. State, 149 Tex.Cr.App. 229, 193 S.W.2d 204 (1946); Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214 (1943); King v. Roberts, 49 S.W.2d 991 (1932), affirmed, 125 Tex. 623, 84 S.W.2d 718.

Deputies Smith and Gafford arrested Perry but they did not take him before a magistrate, nor did they have it done by others. Likewise, Sheriff Jones and Jailor Kitching allowed Perry to remain in jail without the benefit of the right.

Accordingly, Perry’s complaint stated a cause of action against these four defendants for false imprisonment.

The District Court declined to submit this aspect of the case to the jury. We think this was error, see Anderson v. Nosser, supra, 438 F.2d at 196 and 456 F.2d at 838; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). This case is not like Lazier v. Weitzenfeld (5 Cir., 1975), 505 F.2d 896, in which there was no factual basis for an alleged violation of federally guaranteed constitutional rights.

To this extent the judgment of the District Court is vacated and remanded for further proceedings not inconsistent herewith.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied for the reason that the District Court on remand may more effectively evaluate the argument presented by the petition for rehearing in the light of all the facts in the case, including appellant’s argument that he was not afforded an opportunity to furnish bail.


author: ROSENN, Circuit Judge. GIBBONS, Circuit Judge

text:
    Elsie A. DiGREGORIO, Administratrix of the Estate of Daniel S. DiGregorio, Deceased, Appellant, v. FIRST REDISCOUNT CORPORATION.
    No. 74-1118.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 13, 1974.
    Decided Dec. 19, 1974.

      James E. Beasley, Beasley, Hewson, Casey, Kraft & Colleran, Philadelphia, Pa., for appellant.
    William Prickett, Prickett, Ward, Burt & Saunders, Wilmington, Del., for appellee.
    Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal questions the appropriateness of a sanction dismissing an action for failure to comply with the discovery provisions of the Federal Rules of Civil Procedure and with a specific court order.

I.

Plaintiff, Elsie A. DiGregorio, Pennsylvania administratrix of the estate of Daniel S. DiGregorio, deceased, appeals from dismissal of her action in the District Court of Delaware on December 11, 1973. She instituted this action on March 28, 1973 to recover damages under the Pennsylvania Survival and Wrongful Death Statutes. The complaint alleged that the defendant, a Delaware corporation, is the successor to Micro Switch, Inc., an Illinois corporation, and that on or about March 29, 1972, the plaintiff’s decedent “suffered severe and painful injury and death as a result of an unreasonably dangerous and defective micro switch which had been manufactured by Micro Switch, Inc.”

Defendant filed its answer on April 23, 1973, pleading ignorance to all the allegations in the complaint except those relating to the defendant, and on April 24, 1973, filed interrogatories. The following day, defendant served notice to take plaintiff’s deposition on Monday, June 18, 1973. On May 3, 1973, defendant served a request for production within thirty days of decedent’s federal income tax returns for the years 1968 to 1972, inclusive. On Friday, June 15, 1973, twenty-two days after the answers or objections to the interrogatories were due, defendant’s counsel telephoned plaintiff’s Philadelphia counsel to inquire about the answers to the interrogatories and was informed that a copy of unexecuted, unsworn answers would be mailed to him. He received the answers the next day (Saturday) and, on the following Monday, proceeded with the scheduled deposition.

Shortly thereafter, on June 20, 1973, defendant moved under rule 37 of the Federal Rules of Civil Procedure for an order compelling complete and responsive answers to the interrogatories. Defendant filed a brief in support of its motion on June 29, 1973, but was unable to reach agreement on a briefing schedule with plaintiff’s local Delaware counsel, who disclaimed authority to agree to the proposed schedule and referred defendant’s counsel to plaintiff’s Philadelphia counsel who actually was handling the matter. Defendant’s counsel objected to dealing directly with out-of-state counsel and requested the district court to call a conference to set a briefing schedule. An associate of plaintiff’s Philadelphia counsel, personally unfamiliar with the case, attended the conference on August 13, 1973, and advised the court that he was unable to Understand why a brief had not been submitted since a prepared draft was in the file. The district court fixed a briefing schedule by order, and oral argument on the motion finally was heard on August 30, 1973.

In a memorandum and order of September 5, 1973, the district court found:

(1) Plaintiff’s failure to answer interrogatories 1, 2, 6, 36 and 56 was unjustified.
(2) Plaintiff failed to object to interrogatories 13, 20, 21, 24, 25, 27, 42, 43, 46 and 65, and plaintiff’s answers to these interrogatories were “inadequate or unresponsive to the questions asked.”
(3) All plaintiff’s answers failed to conform to the requirements of rule 19 of the Civil Rules of the United States District Court for the District of Delaware.
(4) Plaintiff’s opposition to the motion to compel adequate answers was unjustified.

The district court therefore directed plaintiff on or before September 25, 1973, to file complete and responsive answers to defendant’s interrogatories and to pay defendant’s expenses of $400.00, including an attorney’s fee, incurred in obtaining the order.

Having received neither the answers compelled by the district court nor payment for the expenses awarded on the motion, defendant moved on September 27, 1973, for dismissal of plaintiff’s action under rule 37 or other appropriate sanctions. On October 29, 1973, two days before argument on the motion for sanctions, the district court received a check for defendant’s expenses payable to the order of the clerk. Since the order of September 5, 1973 required payment directly to defendant or its counsel, the check was returned and payment was not made until the hearing.

At the close of the hearing, the district court concluded “on the record and argument that no justification had been shown for failure of the plaintiff and her attorneys to abide by the Rules of Federal Civil Procedure or this Court’s order of September 5 and that sanctions appeared justified under Rule 37(b)(2).” The district court noted that “plaintiff’s attorneys did not realize the seriousness of their failure to follow the discovery rules and orders of this Court.” Rather than immediately dismiss the action, however, the district court gave plaintiff another opportunity to bring herself into compliance with the September 5 order and the rules of discovery. Convinced that noncompliance was more the fault of her attorneys than the plaintiff, the district court communicated with plaintiff personally in the form of an order to show cause sent directly to her and to the attorneys who had introduced her to Philadelphia counsel in this matter. Another hearing was set to consider the order to show cause and defendant’s motion for sanctions. The district court contemplated that, at that hearing, plaintiff might agree to removal of her present counsel as an alternative to the more severe sanction of dismissal.

Although plaintiff personally did not attend the hearing, which took place on November 21, counsel submitted her affidavit to the effect that she was aware of the purpose of the present hearing; that she had been advised that the district court “probably would” dismiss her action; that she knew she could consult with or employ other counsel; and that she was unable to further answer any of defendant’s interrogatories. The district court concluded that, “plaintiff and her attorneys at three separate hearings having been afforded the opportunity to fulfill her obligations without success, injustice would result to the defendant by any further prolongation of this matter.” Accordingly, plaintiff’s action was dismissed. We affirm.

II.

Plaintiff’s contentions on appeal ignore the full extent of misconduct which prompted the district court to dismiss her action. Plaintiff acknowledges that answers to numerous interrogatories were found incomplete or unresponsive by the district court. However, plaintiff does not address each such answer. Moreover, only in a letter submitted after briefs were filed in this court, does plaintiff make any effort to explain why sworn answers have not been filed.

Plaintiff first contends that she was excused from further answering interrogatories 46 and 65 because counsel for defendant reviewed certain of the decedent’s income tax returns at plaintiff’s deposition. Interrogatory 46 sought to elicit the amount of insurance premiums paid by the decedent and the frequency of their payment. Interrogatory 65 called for copies or outlines of the decedent’s last five tax returns. Plaintiff answered these interrogatories “See income tax returns” and “Will be supplied,” respectively.

We note preliminarily that furnishing of the tax returns may not constitute adequate response to interrogatory 46. Assuming arguendo that it did, however, plaintiff’s position lacks foundation in the record. Not only did plaintiff elect to answer certain interrogatories by supplying decedent’s tax returns, but these returns were also the subject of a separate request for production. Even under plaintiff’s version of the facts, the returns were made available to defendant sixteen days after their production was required and twenty-two days after the interrogatory answers were due. Moreover, the record does not support plaintiff’s implied assertion that all the requested returns were produced and, in fact, the record seéms to support a contrary conclusion.

What plaintiff fails to apprehend is that, after the district court’s order of September 5, the argument that returns already had been_ supplied lost all significance. The district court found, appropriately we believe, that the tax returns never had been produced and that interrogatories 46 and 65 had not been answered adequately. At that point it was incumbent upon plaintiff to supply copies of the returns, whether or not plaintiff herself believed they previously had been supplied, and to make any further response necessary to a complete and responsive answer to the interrogatories. Clearly inaction was not a proper response to the district court’s order.

Plaintiff next contends that her answers to interrogatories 20, 21, 42 and 43 were as complete as circumstances permitted. . Interrogatories 20 and 21 were multipart questions seeking details of the deceased’s employment during the ten years prior to his death. The part of interrogatory 20 relating to the decedent’s salary was answered, “Income tax returns have been supplied,” an obviously inaccurate statement when made even under plaintiff’s view of the facts. In answer to interrogatory 21, relating to self-employment, plaintiff “estimated” that, on the basis of decedent’s 1970 tax return, decedent earned approximately $35,000.00 from betting activities. We agree with the district court that the answers to these interrogatories were inadequate and unresponsive.

Interrogatories 42 and 43 called for the amount of gifts made by decedent to his heirs at law during the five years prior to his death. Although plaintiff states in her brief on this appeal- that her son, one of the heirs at law, “was present during meetings at which attempts were made to answer the defendant’s interrogatories,” interrogatory 42 was answered without reference to amount and interrogatory 43 was answered, “Presently unknown.” These answers do not evince a bona fide attempt to make adequate responses.

Interrogatory 36 inquiring into the marital relationship between plaintiff and the deceased was answered, “This question does not seem to be any business of the defendant’s [sic].” Plaintiff now contends that any noncompliance on her part was cured by her affidavit filed shortly before the suit was dismissed. In the affidavit plaintiff purportedly withdrew this highly inappropriate answer and substituted the word “no.”

Even if we assume that plaintiff’s initial response to interrogatory 36 constituted a proper objection, that objection was overruled by the district court in its order of September 5, 1973. Plaintiff nonetheless failed to answer interrogatory 36 during the twenty-day period set forth in the district court’s order. Nor had plaintiff answered the interrogatory by the time of oral argument on defendant’s motion for sanctions. Not until the day of the final hearing did plaintiff undertake to comply with the district court’s order in this one respect. Plaintiff has not complied, however, with the district court’s direction to recast, execute in sworn form, and file a complete and responsive set of interrogatory answers. Were interrogatory 36 the only one at issue, we might take a different view. However, plaintiff’s conduct with respect to interrogatory 36 is just one instance in the pattern of intransigence which has characterized plaintiff’s actions during discovery.

Concerning interrogatories 24 and 25, plaintiff contends that, taking her answers together with her testimony at deposition, she “supplied defendant with all the information she possessed concerning past injuries her husband had sustained, and the physicians he had consulted to treat those injuries.” Plaintiff’s assertion that written interrogatories may be answered through testimony during oral deposition illustrates a fundamental misapprehension concerning the timing and purpose of discovery. Plaintiff’s answers to defendant’s interrogatories were due three weeks before plaintiff’s deposition and were to expedite the proceedings and aid defendant’s counsel in the deposition. Plaintiff’s testimony on deposition, rather than curing, actually highlights the inadequacies of the answers given to the written interrogatories. Moreover, even if the oral testimony is considered, we are satisfied that the district court was justified in compelling further response.

Interrogatory 26 asked whether the deceased had been hospitalized for any illnesses or injuries during his lifetime. Interrogatory 27 sought to determine whether any of these illnesses or injuries had affected the deceased permanently. Although plaintiff listed two occasions of hospitalization in interrogatory 26, she answered interrogatory 27 merely with the word “inapplicable.” On appeal, plaintiff contends for the first time that the answer “inapplicable” “clearly [means] that no answer applied since her husband suffered no injuries or disease which had had any permanent effect.” We view the plaintiff’s interpretation of this cryptic response as strained and obviously not “clear.” We are intrigued by plaintiff’s imperviousness to all suggestion that she recast and complete her answers. We are dismayed by the reliance of plaintiff’s counsel on his own construction of the answers as sufficient grounds for noncompliance with the district court’s order. Cf. Diapulse Corp. v. Curtis Publishing Co., 374 F.2d 442, 446 (2d Cir. 1967).

III.

Rule 37(b)(2) of the Federal Rules of Civil Procedure authorizes the imposition of sanctions, including dismissal of an action, against a party who fails to comply with a discovery order. The choice of an appropriate sanction generally is committed to the sound discretion of the district court. See Mangano v. American Radiator & Standard Sanitary Corp., 438 F.2d 1187 (3d Cir. 1971) (per curiam). The district court’s discretion, however, is not without bounds. In Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, the Supreme Court held that a district court may not dismiss an action for noncompliance with a discovery order “when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner.” 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255 (1958).

Plaintiff asserts on this appeal that dismissal of her action was an abuse of discretion since she was “unable” to supply further answers to the defendant’s interrogatories. In light of this inability, she contends, the district court’s choice of sanctions was limited as a matter of law to those less severe than dismissal.

As we pointed out in some detail above, we are unconvinced that plaintiff was unable to comply with the district court’s order of September 5. Rather we perceive a pattern of conduct in flagrant disregard both of the general rules of discovery and of a specific court order. Cf. Diapulse Corp. v. Curtis Publishing Co., supra, 374 F.2d at 446. Despite a court order and three hearings, plaintiff has yet to file sworn answers to defendant’s interrogatories. Moreover, plaintiff’s untimely answers, which were mailed to defendant’s counsel, remain unamended and unfiled in the face of the court order.

Plaintiff nevertheless contends that, since the district court did not make a specific finding of willfulness, dismissal was inappropriate. Although we do not decide whether under other circumstances a finding of willfulness may be necessary, we decline to require such a finding where, as here, willfulness is “mirrored in the record.” Norman v. Young, 422 F.2d 470, 474 (10th Cir. 1970).

Because dismissal is the most severe sanction available to a district court under rule 37, we are ever reluctant to affirm its invocation.

[I]ts use must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited. However, where one party has acted in willful and deliberate disregard of reasonable and necessary court orders and the efficient administration of justice, the application of even so stringent a sanction is fully justified and should not be disturbed.

Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (2d Cir. 1964). We are satisfied that the district court did not impose dismissal precipitately or rashly. Cf. Diapulse Corp. v. Curtis Publishing Co., supra, 374 F.2d at 446-447. It displayed great concern for plaintiff and patience with her counsel. It carefully weighed plaintiff’s interests and the necessity for efficient administration of justice. Because of the dismissal’s effect on plaintiff’s claims, the district court was careful to notify plaintiff directly of the conduct of her case and of the impending dismissal. The district court did not dismiss the action until plaintiff personally had been afforded an opportunity to be heard and by affidavit had approved the conduct of her attorneys.

Under the circumstances which confronted the district court in this case, we are also satisfied that dismissal did not constitute mere punishment and hence a denial of due process. Compare Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897) with Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909). Of course, all sanctions by their very nature involve an element of punishment. Their function is to encourage adherence to discovery procedures. Only where the sanction invoked is more stern than reasonably necessary does a denial of due process result. Here “the element of punishment does not rise to the level of reprisal as in Hovey.” Norman v. Young, supra, 422 F.2d at 474. Dismissal “was not vindictive but was compelled by [plaintiff’s] conduct, in order to protect the statutorily-created right of discovery and the constitutionally-guarded due process rights of [the defendant].” Id.

We find no abuse of judicial discretion. The judgment of the district court will be affirmed.

The clerk is directed to transmit a copy of the majority and dissenting opinions to the plaintiff personally.

GIBBONS, Circuit Judge

(dissenting).

Rule 37(b)(2) Fed.R.Civ.Proc. provides four separate sanctions for the failure of a party to obey a court order to provide or permit discovery. These sanctions are:

“(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established . . . .”
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; ”
“(C) An order striking out pleadings or parts thereof, or staying further proceedings ... or rendering a judgment by default against the disobedient party; ”
“(D) [A]n order treating as a contempt of court the failure to obey any orders . . . .”

Facially, the Rule imposes on the district court an obligation to exercise some reasoned discretion with respect to the alternative sanctions. In this case the district court did not consider alternatives (A), (B) or (D). It acted on the motion seeking relief only under Rule 37(b)(2)(C). Even under subsection (2)(C) the Court was obliged to exercise some reasoned discretion between the alternatives of striking out a pleading or part thereof, staying the proceedings, or rendering a default judgment. Without discussing the alternatives, and thus apparently without considering them, it chose to grant the defendant’s motion for the most severe sanction available under the Rule, dismissal with prejudice. I have no doubt that some sanction was appropriate, but I cannot vote to affirm when the exercise of reasoned discretion plainly required by the Rule is not disclosed in the district court’s opinion. Moreover, I doubt if on the present record the court, had it discussed the alternatives and chosen the ultimate sanction, could be affirmed.

The Rule 37(b)(2)(C) sanction is available in two cases only; where the party refuses to obey an order to provide or to permit discovery. Thus failure to obey an order to make discovery in a certain form, as by retyping the interrogatories and the answers on the same paper, does not even fall within the Rule though other santions might be appropriate. Nor does Rule 37(b) apply by its terms to the disobedience of an order to pay counsel fees within a certain time to the successful attorney directly rather than to the Clerk. In this case there is no contention that the order deals with permitting discovery. The workmen’s compensation file which is said to contain additional information could have been discovered by other means which were not availed of. The attorney for the defendant did not want to discover the file himself; he wanted the plaintiff to examine it and answer interrogatories. We are dealing, then, with a failure of the party to provide discovery by examining that file and answering interrogatories based on the information contained therein.

In Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), the Supreme Court draws a clear distinction between all the other sanctions set forth in Rule 37(b) and the ultimate sanction of dismissal with prejudice. The Court said:

“The provisions of Rule 37 which are here involved must be read in light of the provisions of the Fifth Amendment that no person shall be deprived of property without due process of law, and more particularly against the opinions of this Court in Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, and Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530. These decisions establish that there are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording the party the opportunity for a hearing on the merits of his cause.” 357 U.S. at 209, 78 S.Ct. at 1094.

Mindful of the due process limitations, the Rogers Court construed Rule 37(b)(2)(C) as requiring willfulness, bad faith, or fault of the party before the ultimate sanction of dismissal with prejudice could be imposed. Since Rogers, Rule 37(b)(2)(C) has generally been interpreted as requiring a finding of willfulness or conscious disregard of the order. See cases collected in 4A J. Moore, Federal Practice, ¶ 37.03[2.-5] at 37-67 to 37-70 (1974 ed.); Federal Rules Digest, § 37b.244 at 272 (1973). Where counsel in a sincere, though mistaken belief has withheld his client’s papers, or where there has been a refusal to answer questions upon a claim of privilege that has been rejected, appellate courts have refrained from applying the ultimate sanction of a default judgment. See, e. g., Haney v. Woodward & Lothrop, Inc., 330 F.2d 940 (4th Cir. 1964). See also United States v. Costello, 222 F.2d 656 (2d Cir. 1955). This circuit has predicated such a sanction only upon a finding of inexcusable failure to comply with the order. Mangano v. American Radiator & Standard San. Corp., 438 F.2d 1187 (3d Cir. 1971).

The district court concluded that plaintiff had failed to make a good faith effort to secure the additional information required by its order because the additional information, though not within plaintiff’s personal knowledge, could have been obtained by examination of a workmen’s compensation claim file which was available to her attorney. There is no question but that a party cannot refuse to provide discovery with respect to information not in his personal knowledge but reasonably available to him. But the refusal to provide this information appears on this record to have been based upon her attorney’s legal advice that if she were to undertake discovery by viewing the workmen’s compensation file she would, under Pennsylvania law in a wrongful death action, open the door to proof of contributory negligence on the decedent’s part which would otherwise be barred by that State’s Dead Man’s Statute. (Appendix at 163a). The court found this explanation “incomprehensible.” (Appendix at 212a). The court did not find that the plaintiff’s attorney asserted this belief on the effect of Pennsylvania Law, or that plaintiff followed his advice in this respect, in bad faith. I, too, find the view of the plaintiff’s attorney as to the effect of the Pennsylvania Dead Man’s Statute “incomprehensible.” But that is not the standard of Rule 37(b)(2)(C), as interpreted in Rogers, for the imposition of the sanction of dismissal. Plaintiff’s attorney based his actions on an apparently mistaken legal position in an effort to protect his client’s cause of action from a defense of contributory negligence. His poor judgment seems to have been compounded by a breakdown in communications between Philadelphia and Wilmington counsel. The record does not support the kind of finding required by Rogers, which in any event was not made.

I would vacate the judgment dismissing the complaint and remand for consideration of the alternative sanctions available under Rule 37(b)(2).

      . Plaintiff claims that her decedent, while at work, was sucked into a large pasting machine when the micro switch, a component manufactured by defendant’s predecessor, allegedly failed to operate.

      . Defendant contended that plaintiff had not complied with rule 33 of the Federal Rules of Civil Procedure which provides in part:
      (a) . . .
      Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
      (b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.

      . Rule 19 provides:
      When answering interrogatories the party served shall first state the interrogatory propounded with the numerical number assigned by the propounder and then state the answer. All interrogatories and answers thereto should be deemed to be continuing, unless otherwise ordered by the Court.

      . Plaintiff makes no attempt to explain her failure to answer all or part of interrogatories 1, 2, 6, 13, and 56 as ordered by the district court.

      . Even the unsworn answers were never filed by plaintiff. A copy of these answers appended to defendant’s motion to compel complete and responsive answers was the only copy available to the district court.
      Plaintiff’s Philadelphia counsel, in a letter of August 20, 1974 addressed to this court, attempts to place responsibility for his failure to file sworn answers upon a secretary formerly in his employ.

      . At the deposition during which the tax returns allegedly were produced, counsel for the plaintiff stated: “That is correct [that the returns have not been supplied], and I will send them to you later, in that case.”

      . Although plaintiff refers to interrogatory 23 interrogatory 24. in her brief, we believe she intended to refer to

      . Rule 37(b)(2) provides in part:
      If a party . . fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule . . ., the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
      ******
      (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part there-

      . The petitioner in Rogers failed to comply with a production order because the records sought were protected from disclosure by the Swiss penal code and a specific directive of the Swiss Federal Attorney. The petitioner subsequently made persistent efforts, with substantial success, to obtain permission from the Swiss authorities to disclose many of the records requested. Accordingly, the district court specifically found that the petitioner acted in good faith.
      of, or rendering a judgment by default against the disobedient party.
      Fed.R.Civ.P. 37(b)(2).

      . Assuming application of the Pennsylvania Dead Man’s Statute, 28 P.S. §§ 322, 325 to a diversity case tried in Delaware, the attorney’s contention would seem to be foreclosed by Dennick v. Schweiwer, 381 Pa. 200, 113 A.2d 318 (1955).


author: ALDISERT, Circuit Judge. ADAMS, Circuit Judge

text:
    UNITED STATES of America v. Emanuel "Bubbles” DANIELS et al. Appeal of Robert BATTLES.
    No. 74-1221.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 10, 1974.
    Decided Dec. 30, 1974.
    Ronald A. Berlin, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., James A. Villanova, Henry G. Barr, Kathleen Kelly Curtin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.

      Before ALDISERT, ADAMS and RO-SENN, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

The major question in this appeal from sentence for bank robbery, 18 U.S.C. § 2113(a) and (d), is whether the trial court improperly admitted identification testimony of a police officer.

A jury found appellant Battles and two co-defendants, Emanuel Daniels and Willie Thomas, guilty of robbing the Noble Manor office of the Pittsburgh National Bank on October 2, 1973. Following the daylight robbery by three individuals wearing ski masks, a regional police alarm sounded to which Pittsburgh Police Sergeant William Armstrong responded. The search focused on a blue Cadillac occupied by three black males. Shortly after 2:00 p.m., the police observed the automobile and a vigorous chase, in which Sergeant Armstrong participated, ensued. Armstrong turned onto Fulton Street and stopped head to head with the fleeing Cadillac, effectively blocking its progress. At this time certain of the car’s occupants were shooting at pursuing police. An armed black male emerged from the passenger side of the Cadillac and ran along the sidewalk to the left of Armstrong’s police car. As the suspect came abreast, he fired a shot at Armstrong and made good his escape.

On the same day Armstrong was shown an array of police photographs, including front and side views of Battles. He made no identification from the photographs.

Police conducted a lineup on November 13, 1973, and Armstrong identified Battles as the man who emerged from the Cadillac and shot at him. At the subsequent trial, the sole identification testimony implicating Battles with the robbery was that of Sergeant Armstrong. Battles did not testify.

Appellant made a timely motion to suppress Armstrong’s identification testimony, alleging, inter alia, that the lineup procedure did not comport with the requirements of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The trial court ruled:

Now, as to Mr. Battles, the motion to suppress the identification testimony is denied. * * * I further find that Mr. Battles’ rights under the principles set forth in the Wade case were not prejudiced by the failure of his counsel to see the lineup forms on the morning of the lineup. He has had ample opportunity to have seen them since. There is nothing to indicate that they have been changed since then.
I find that the lineup conformed with the criteria set down by the Supreme Court in the Wade case, and it was free of undue suggestiveness.
I further find that the two police officers, Sergeant Armstrong and Sergeant Salerno, have an independent basis for their identification of the Defendant Battles, and that testimony will not be suppressed.

Appellant advances the contention that the lineup failed to meet the Wade requirements because, although his counsel was physically present in the viewing room, counsel was denied an opportunity to examine the results of the viewing by those witnesses who attended the lineup. His counsel was informed that the results would be made available to him the next day at the preliminary examination.

Appellant urges us to invoke the rule of People v. Williams, 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942 (1971), in which a conviction was reversed because defense counsel was denied permission to accompany Gomes, an identifying witness at a lineup, outside the viewing room for the purpose of making the identification. The California court held that Williams “was entitled to have his attorney present when Gomes made his identification.” 92 Cal.Rptr. at 9, 478 P.2d at 945. Because “the prosecution made no showing that the in-court identification by Gomes had an origin independent of the lineup,” ibid., its admission into evidence was a violation of Wade. I do not reach the question whether this court would accept the Williams rule because here the trial court made a specific finding that Sergeant Armstrong had a basis for his in-court identification independent of the lineup procedure. For reasons set forth in a separate concurring opinion, Judges Adams and Rosenn find it necessary to consider the applicability of Williams.

Wade teaches that defects in lineup procedures do not result in a “per se rule of exclusion of [in-] courtroom identification,” 388 U.S. at 240, 87 S.Ct. at 1939, and instructs that the identification will be admissible if the Government “establishes] by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 U.S. 52, 79 n. 18, [84 S.Ct. 1594, 12 L.Ed.2d 678].” 388 U.S. at 240, 87 S.Ct. at 1939 (footnote omitted).

Appellant has challenged the district court’s standards for finding an independent basis for Sergeant Armstrong’s identification. My independent review of the record of both the suppression hearing and the trial convinces me that the district court’s determination was not error.

At trial, describing the daylight Fulton Street incident, Sergeant Armstrong said that he “concentrated” on the person who emerged from the Cadillac; that “ . . .1 was taking particular note of his face, and that is what I did, and that is how I made an identification of the individual”; that this person was fifteen feet away when Armstrong first saw him, “two hood lengths of automobiles and probably two or three feet between us”; that he was “within six or seven feet” when he shot at Armstrong, and that Armstrong actually saw him at the point he fired and observed him for a total period of thirty seconds.

Further, the record discloses this exchange:

Q. Was he pointing the weapon before he got parallel to your vehicle while approaching your vehicle?
A. He had it in front of him in his hand. I was interested in him, whether I could identify him.

N.T. 125.

We are instructed that “the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

Although these factors delineate a “totality of circumstances” associated with a confrontation procedure deemed suggestive, I am persuaded that even if applied to Sergeant Armstrong’s observations made in hot pursuit of the bank robbers, his identification testimony passes this severe test. Accordingly, I find no error in Judge Teitelbaum’s conclusion that the in-court identification of Battles had a basis independent of the lineup.

We have considered the other contentions raised by appellant and find them to be without merit.

The judgment of the district court will be affirmed.

ADAMS, Circuit Judge

(concurring):

I concur in the judgment of the Court. However, I would affirm the district court only after consideration of the legitimacy of the lineup procedure employed in this case, since I believe such an analysis is required by United States v. Wade and Gilbert v. California.

At the trial of Robert Battles and two codefendants for bank robbery, the major issue with regard to Battles was identity; Battles took the position that he had not participated in the robbery. The only identification testimony linking Battles with the crime was that of Sergeant Armstrong of the Pittsburgh Police Department. At trial, the sergeant unqualifiedly identified Battles as the man who, just after the robbery, shot at him and then escaped. The police officer also testified that he had previously selected Battles from a lineup conducted six weeks after the bank robbery and approximately three months before trial. Accordingly, the reference to the lineup by Armstrong could reasonably have been taken by the jury as corroborative of the police officer’s recollection, and therefore of some significance in light of the key issue in the case.

At the lineup Battles’ attorney requested permission to see the identification cards marked by the persons present to observe the lineup, but this request was denied. The defendant claims that, as a result, his right to effective assistanee of counsel was curtailed and the lineup was invalid under the precepts of Wade and Gilbert. At a pretrial hearing on defendant’s motion to suppress, the district court stated that the lineup procedure was valid and the court also found that the sergeant had a basis independent of the lineup for his in-court identification of Battles.

Wade held that where a lineup is conducted in violation of a defendant’s Sixth Amendment right to counsel, no identification testimony by witnesses present at the lineup may be introduced at trial unless it can be shown by “clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” Gilbert held that introduction at trial of testimony that the witness had earlier identified the defendant at an illegal lineup constitutes a per se violation of exclusionary principles, and that a new trial omitting mention of the lineup identification was mandated.

In the present case evidence of the lineup identification was presented at trial. Thus, under Gilbert, if that lineup had been held in derogation of Battles’ constitutional rights, allusion at trial to the lineup proceedings would require reversal, although, since the district court had concluded that the sergeant had an independent recollection of Battles, the policeman would not have been precluded from giving identification testimony that derived from unrelated sources.

Unlike Judge Aldisert, I do not believe that Sergeant Armstrong’s independent basis enabling him to identify the defendant may be used to vindicate the introduction of the lineup testimony if such lineup violated Wade and Gilbert. Since the lineup did comprise part of the prosecutor’s evidence, we may affirm Battles’ conviction, that turned to a considerable extent on the identification issue, only if we conclude that the circumstances of the lineup here did not deprive the defendant of his .constitutionally protected right to the assistance of counsel.

In support of his position that the lineup here violated the principles of Wade and Gilbert, defendant cites People v. Williams. In Williams, a post indictment lineup was conducted in the presence of the defendant’s attorney. After the witness had observed the lineup, but before he manifested any recognition of the suspects, police led the witness outside the presence of the attorney to make his oral identification. The California Supreme Court held such procedure impermissible, pointing out that the rationale supporting Wade and Gilbert was:

[T]o enable an accused to detect any unfairness in his confrontation with the witness, and to [be sure] that he will be aware of any suggestion by law enforcement officers, intentional or unintentional, at the time the witness makes his identification. It is not the moment of viewing alone, but rather the whole “procedure by which [a suspect] is identified” that counsel must be able to effectively reconstruct at trial.

Where defendant’s attorney was excluded from the critical scene when the witness announced “that’s the man,” the California court held that the lineup did not provide adequate safeguards against improper witness suggestion.

The lineup procedure may be divided into three phases: (1) presentation of suspects, (2) recognition by viewers, and (3) manifestation by the viewers of the identification or lack of identification. Each in its own fashion is subject to abuse. The claim here, as in Williams, is not that the circumstances surrounding the presentation of the suspects at the lineup were unduly suggestive. Rather, the argument is directed to the potential for abuse inherent in the recognition and voting processes.

In contrast to Williams, however, where the defendant’s attorney was prohibited from attending the third, or manifestation, portion of the identification procedure, here there are crucial factual differences. In the present case, the circumstances of the lineup were carefully controlled to minimize unfairness or suggestion in the presentation of the suspects as well as in the recognition and voting phases. Moreover, all significant acts of identification and voting took place in the attorney’s presence.

Testimony at the suppression hearing disclosed that at the lineup, and in the presence of defendant’s attorney:

Witnesses were seated, isolated from one another, around the viewing room;
Before the suspects came on to the lineup platform, neither the police personnel conducting the lineup nor the witnesses knew the positions suspects would take or the numbers they would wear;
No talking was permitted between witnesses or with police officers during the lineup;
In contrast to the oral identification in Williams, identifications were made by-marking on paper ballots, and a record thus exists of identifications;
Ballots were marked before any communication was permitted.

The issue presented on this appeal is whether defendant’s counsel may, as a matter of constitutional right, see the marked ballots at the time they are given to the lineup officials. Although the attorney was denied permission at the lineup to see the marked ballots, and although the better course would seem to indicate that defense attorneys see the ballots in such situations, it would not appear that the refusal creates error of constitutional dimension. No allegation is made of irregularities in the presentation or recognition phases of the lineup procedure. Nor is any suggestion made that the ballots in question were altered between the time of the lineup and the following day when they were made available to the attorney.

Under this particular set of facts, and in the absence of any showing or allegation of contrivance or bad faith on the part of the witness or those conducting the lineup, the procedures which occurred here cannot be designated as unconstitutional. Since the lineup as described does not violate the constitutional norms established by the Supreme Court, identification testimony by Sergeant Armstrong, including lineup identification, was properly admitted into Battles’ trial.

Because I agree with Judge Aldisert’s conclusion that the defendant' has set forth no other grounds for reversal, I concur in affirming the judgment of the district court.

Circuit Judge ROSENN joins in this concurring opinion.

      . S.H. 146-47 emphasis supplied. It appears to be conceded, however, that Sergeant Armstrong was the sole officer to identify Battles. Both Sergeants identified defendant Thomas.

      . N.T. 82, 83, 125, 84, 135. At a suppression hearing Sergeant Armstrong testified: “I saw his face before he fired the shot at me,” that he had a good look, that the lighting conditions were good, and that the gunman’s face was not covered or masked. (S.H. 50-51.)

      . The verdict was against the weight of the evidence; the trial court erred in denying defendant’s motion for judgment of acquittal and submitting the question of identification to the jury; the lineup identification was an exploitation of an original, unlawful arrest in violation of the Fourth Amendment; FBI Agent Gleason’s gratuitous remark concerning defendant’s probation constituted grounds for a mistrial.

      . 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

      . 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

      . Trial Transcript 82-84, 89.

      . Id. 91-92 (direct examination); 135 (cross-examination).

      . Suppression Hearing Transcript (S.H.) 146-47.

      . 388 U.S. at 240, 87 S.Ct. at 1939.

      . In Wade no testimony regarding the lineup was introduced, and the case was remanded for a determination whether the witness had a basis for independent observations. The situation in Gilbert, where testimony of the lineup was admitted at trial, was expressly distinguished. See Wade, n. 32 and accompanying text, 388 U.S. at 240, 87 S.Ct. at 1939.

      . Of course, if the appellate court determines that introduction before a jury of an illegal lineup identification is harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reversal is not required. However, no harmless error finding would appear appropriate in the situation presented here.

      . 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942 (1971).

      . 92 Cal.Rptr. at 8, 478 P.2d at 944, quoting People v. Fowler, 1 Cal.3d 335, 348, 82 Cal.Rptr. 363, 461 P.2d 643 (1969).

      . 388 U.S. at 236, 87 S.Ct. at 1937.

      . See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . S.H. 90 (Testimony of Detective Frank Cupus, who conducted the lineup).

      . S.H. 53 (Sgt. Armstrong); 91 (Detective Cupus).

      . S.H. 54 (Sgt. Armstrong); 91-92 (Detective Cupus).

      . S.H. 90 (Detective Cupus).

      . S.H. 73-75 (Sgt. Armstrong); 90-92 (Detective Cupus).


author: GIBBONS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. 564.54 ACRES OF LAND, MORE OR LESS, situate IN MONROE AND PIKE COUNTIES, COMMONWEALTH OF PENNSYLVANIA, and Benedict F. Pastorini, et al. Appeal of SOUTHEASTERN PENNSYLVANIA SYNOD OF the LUTHERAN CHURCH IN AMERICA.
    No. 74-1502.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 21, 1974.
    Decided Dec. 30, 1974.

      Wallace H. Johnson, Asst. Atty. Gen., Peter A. Ruvolo, Carl Strass, Lawrence E. Shearer, Attys., Dept, of Justice, Washington, D. C., for appellee.
    H. Ober Hess, Peter M. Mattoon, John V. Bonneau, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellant Southeastern Pennsylvania Synod of the Lutheran Church in America.
    Joseph C. Kreder, Warren, Henkelman, McMenamin & Kreder, Scranton, Pa., for appellants.
    Before HASTIE, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This interlocutory appeal which the district court certified involves a controlling question of law as to which there is a substantial ground for a difference of opinion. The appeal was permitted by this Court pursuant to 28 U.S.C. § 1292(b). The order appealed from arose in an action by the United States for the condemnation of three recreational camps in the proposed Tocks Island recreational area which were owned and operated on a not-for-profit basis by or on behalf of the Southeastern Pennsylvania Synod of the Lutheran Church in America. The land and improvements, according to the owner, have a special character designed specifically for camping purposes.

The order under review was entered during pre-trial proceedings on the government’s request for a ruling that the cost of “substitute facilities” is not a proper measure of compensation for the taking of defendant’s property, and that evidence at the trial should be restricted to fair market value as of the date of taking, or if that measure is unavailable, to depreciated replacement cost of the properties as improved on that same date. The district court held that the cost of substitute facilities measure of compensation was available only to a governmental condemnee. However, recognizing that if its ruling was in error a fruitless trial might result, the trial court certified the case for an interlocutory appeal on that issue. We reverse.

Appellant Southeastern Pennsylvania Synod of the Lutheran Church in America owned and operated three summer camps located on three separate tracts totaling 305.81 acres along the Delaware River in Monroe County, Pennsylvania. On June 15, 1970 the United States acquired the three camps by filing a notice of taking, and has offered compensation totaling $485,400. The condemnees have offered to prove that the camps have been operated on a nondenominational basis for many years at continuous losses, which losses have been underwritten by the Synod; that there is no ready market for such not-for-profit facilities; that by virtue of grandfather clauses in the Pennsylvania legislation governing recreational camps the Synod could have continued operating the camps with their present somewhat primitive facilities; that because of the same legislation as well as recently enacted federal environmental legislation the development of new camps would require far more elaborate facilities, especially for housing and sewage treatment; and that the cost of development of the new site will total in excess of $5.8 million. At this stage of the case there has been no ruling as to whether all of the items of cost included in appellant’s $5.8 million estimate would actually be needed for the development of substitute facilities, but it is undisputed that $485,000 would fall for short of providing for them.

Whether the Lutheran Synod operates camping facilities at a loss because it believes camping builds character, or because it feels a charitable obligation to afford recreational opportunities to persons who would not otherwise be able to afford them, it seems clear that the reason for operating the camps is related to the Synod’s religious mission. Thus the question presented is the extent to which owners of single purpose facilities, operated not-for-profit for a religious or charitable purpose (and having no ready market) are entitled to be indemnified when the federal government condemns the facilities. A closely analogous case would be the condemnation of an ancient church building still in active use for religious purposes.

Recently Justice Rehnquist wrote for the Court:

“Our prior decisions have variously defined the ‘just compensation’ that the Fifth Amendment requires to be made when the Government exercises its power of eminent domain. The owner is entitled to fair market value, United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336 (1943), but that term ‘is not an absolute standard nor an exclusive method of valuation.’ United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 790, 5 L.Ed.2d 838 (1961). The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U.S. 121, 124, 70 S.Ct. 547, 549, 94 L.Ed. 707 (1950), as it does from technical concepts of property law.” United States v. Fuller, 409 U.S. 488, 490, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973).

See also Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 478, 93 S.Ct. 791, 35 L.Ed.2d 1 (1973). The basic principle underlying the constitutional requirement of “just compensation” is one of indemnity. The condemnee “is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but he is entitled to no more.” Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934).

If the government condemns property for which there is a ready market (commodities are a classic example) payment of the fair market value is complete indemnity since, whatever its intended use, the condemnee can readily replace it in the marketplace. Some property, however, from its very nature, has no marketplace. An example is a single purpose facility requiring a large capital investment, such as a power generating station. Such facilities usually are operated for profit. When they cannot be valued in the marketplace a fair measure of the government’s obligation to indemnify may be the present value of capitalized future earnings. Presumably the investors in a single purpose facility operated for profit will be able to take their capital investment, valued on the basis of the capitalized earning capacity of the facility in which they invested, and put it to another use. Finally, there are facilities which are unique, for which there is no ready market, and which are operated for motives other than profit. With respect to such facilities, neither a fair market value nor a capitalized earnings approach as the measure of the government’s constitutional duty to indemnify will produce a fair result.

With respect to some unique facilities it may be possible to afford just compensation by calculating depreciated replacement cost to arrive at an approximation of otherwise unavailable proof of market value. For others, however, such a measure will not be fair. Typical of facilities which simply cannot be valued in the marketplace, or by capitalized earnings, or by depreciated replacement cost, are those erected for common public purposes by states or their public subdivisions; roads for example. Fair indemnification in such circumstances requires compensation sufficient to provide a substitution for the unique facilities so that the functions carried out by or on behalf of members of the community may be continued. Depreciated replacement cost often will not permit continuation of such functions. To meet the requirement of fair indemnification for the taking of community facilities the courts have developed the “substitute facilities” measure of compensation.

There has been a certain amount of confusion in the literature on condemnation with respect to use of the “substitute facilities” terminology as a measure of “valuation” rather than of “fair compensation.” It should be apparent that the cost of substitute facilities in most instances will have no relationship to “valuation.” Indeed, the Second Circuit in United States v. Certain Property, 403 F.2d 800, 803 (2d Cir. 1968), and the Ninth Circuit in California v. United States, 395 F.2d 261, 266 (9th Cir. 1968) have made it clear that even in those comparatively rare instances where there is a market value for the community facility taken (for example a possible sale of a public building for private use) the government’s duty to indemnify is to provide the cost of a more expensive public substitute facility. The difference between the market value in a private use market, and the cost of a public substitute facility often will result from the fact that more stringent building codes will apply to the new public facility even though the old might have continued in use. The community entity is entitled to be made whole, and making it whole means more than forcing it to abandon its non-profit community use and accept what it could obtain in the marketplace from a profit motivated purchaser. Simply stated this method insures that sufficient damages will be awarded to finance a replacement for the condemned facility. Nothing less would afford just compensation. And since the owner of a facility devoted to a non-profit, public use has a proprietary as well as a community interest in it, if the fair market value exceeds the cost of the substitute facility, such an owner should be entitled to the higher of the two measures of compensation.

The government urges that no operator of a public non-profit facility other than a governmental entity under a legal obligation to replace a condemned facility should be entitled to indemnification to the extent of the substitute facilities measure of just compensation. See, e. g., United States v. Wheeler Township, 66 F.2d 977, 985 (8th Cir. 1933); cf. United States v. Certain Lands, 246 F.2d 823, 824 (3d Cir. 1957). But such a holding would produce the anomalous result that the federal government’s fifth amendment duty of fair compensation, which would seem to be equally applicable throughout the country, would vary according to the vagaries of local law. We prefer the approach of the Second Circuit, which recognizes that the decision to replace a facility may involve discretionary determinations as to community need, and that fair compensation for a structure reasonably necessary to public welfare means “compensation . . . measured not in terms of ‘value’ but by the loss to the community occasioned by the condemnation.” United States v. Certain Property, supra, 403 F.2d at 804.

The government also urges that the substitute facilities measure of just compensation is totally inapplicable to any condemnee other than a governmental entity. This position was accepted by the district court. No Supreme Court or court of appeals decision has ever considered that issue. Those federal cases which have applied the substitute facilities measure all have involved governmental condemnees. A leading state court case which considered the condemnation of privately owned non-profit community facilities held that the substitute facilities measure of just compensation is equally applicable to these private facilities as to those operated by a governmental unit. Newton Girl Scout Council Inc. v. Massachusetts Turnpike Authority, 335 Mass. 189, 138 N.E.2d 769 (1956); cf. Pleasant Hill v. First Baptist Church, 1 Cal.App.3d 384, 397 n. 1, 82 Cal.Rptr. 1, 7 n. 1 (Ct.App.1969); First Baptist Church v. Nebraska, 178 Neb. 831, 135 N.W.2d 756 (1965); Assembly of God Church v. Vallone, 89 R.I. 1, 150 A.2d 11, 15—16 (1959); Jahr, Eminent Domain §§ 83-84, at 117—18 (properties of non-profit organizations); Note, 37 B.U.L.Rev. 495 (1957).

For several reasons we think the government’s position with respect to private owners of non-profit community facilities is untenable. In the first place we are dealing with the measure of the duty of indemnification imposed by the “taking clause” in the fifth amendment:

“nor shall private property be taken for public use, without just compensation.” (emphasis supplied).

In view of the express reference to private property and the absence of any reference to public property, it is inconceivable that the framers of the amendment intended to impose a greater obligation of indemnification on the national government toward the states and their subdivisions than toward private owners. One might argue that the reference to “private” property in the fifth amendment’s taking clause, and in the almost universal state constitutional clauses limiting the eminent domain power, means that the clause simply was not intended to protect “community” rather than private values. But we have long since passed that point, and the government concedes that it must pay substitute facilities values when it condemns community facilities owned by a governmental entity. We are not dealing with congressional largess toward governmental entities, which might justify a distinction between the measure of fair compensation for governmental and for non-governmental community facilities. Rather we are dealing with judicial interpretation of the taking clause. Accepting the interpretation that it protects the value of community uses, there is no basis for distinguishing between governmental and private community uses. Moreover acceptance of the appellee’s position would inevitably put the government in a posture in which, for economic reasons, it would be forced into unfortunate and possibly discriminatory choice-of-location decisions. One can envision for example, the choice between a highway route traversing land occupied by a private or a public university; the condemnation for emergency office use of a parochial school or a public school; the destruction of a church rather than a city hall to permit the building of a federal courthouse. It seems to us an impermissible suggestion that the fifth amendment puts the government in the position of making such choices on the basis that it would be required to pay less by way of fair compensation to the private owners of such community facilities.

Finally, we note that in Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171 (1923), a case upholding the constitutionality of a statute which authorized the government to condemn additional land adjacent to land to be flooded by a dam and reservoir project as a substitute site for the purpose of relocating the town of American Falls, Idaho, the Court said:

“A town is a business center. It is a unit. If three-quarters of it is to be destroyed by appropriating it to an exclusive use like a reservoir, all property owners, both those ousted and those in the remaining quarter, as well as the State, whose subordinate agency of government is the municipality, are injured. A method of compensation by substitution would seem to be the best means of making the parties whole.” 263 U.S. at 82-83, 44 S.Ct. at 94.

No distinction was drawn in Brown v. United States between public and private owners. All were to be relocated in substitute facilities. Although the holding deals with condemnation for the purpose of making the substitution, the case is frequently cited as the genesis of the substitution of facilities method of measuring fair compensation. See, e. g., United States v. Certain Property, 403 F.2d 800, 803 (2d Cir. 1968).

We conclude that the substitution of facilities measure of fair compensation is available to private owners of non-profit community facilities as well as to public owners of such facilities, in appropriate cases. In the preliminary stage in which the case is before us we have no occasion to decide whether this is an appropriate case.

The order appealed from will be reversed.

      . Congress, in providing a mechanism for the government’s exercise of eminent domain, has adopted the language of the fifth amendment’s taking clause. The government’s declaration of taking must contain to the owner in fee “[a] statement of the sum of money-estimated by said acquiring authority to be just compensation for the land taken.” 40 U.S.C. § 258a (emphasis supplied).

      . E. g., United States v. Certain Property, 403 F.2d 800 (2d Cir. 1968); United States v. Certain Land, 346 F.2d 690 (2d Cir. 1965); United States v. Bd. of Educ. of Mineral County, 253 F.2d 760 (4th Cir. 1958); United States v. Certain Lands, 246 F.2d 823 (3d Cir. 1957); State of Washington v. United States, 214 F.2d 33 (9th Cir. 1954); City of Fort Worth v. United States, 188 F.2d 217 (5th Cir. Auth., 146 F.2d 564 (6th Cir. 1945). See generally, Note, Just Compensation and the Public Condemnee, 75 Yale L.J. 1053 (1966).

      . 1 Nichols on Eminent Domain § 1.3, at 1-78 to 1-83 (rev. third ed. 1974).

      . Such an interpretation of the fifth amendment would have first amendment overtones. See generally, Comment, The Lord Buildeth and the State Taketh Away — Church Condemnation and the Religion Clauses of the First Amendment, 46 Colo.L.Rev. 43 (1974).