author: BELL, Circuit Judge: GEWIN, Circuit Judge

text:
    Paul Nichols GLENN, Petitioner-Appellee, v. Reubin O’D. ASKEW, Governor of Florida, et al., etc., Respondents-Appellants.
    No. 74-2138.
    United States Court of Appeals, Fifth Circuit.
    May 21, 1975.
    Rehearing Denied July 14, 1975.
    Robert L. Shevin, Atty. Gen., Richard C. Booth, Asst. Atty. Gen., Davis G. Anderson, Jr., Tampa, Fla., for respondents-appellants.
    William F. Casler, St. Petersburg, Fla. (Court-appointed), for petitioner-appel-lee.
    Before GEWIN, BELL and CLARK, Circuit Judges.
   BELL, Circuit Judge:

This appeal presents us with a problem of federal intervention into state court criminal proceedings. Because appellee failed to exhaust his state court remedies, we vacate the district court’s order and remand for further proceedings.

Appellee Glenn was charged with disorderly conduct in violation of Florida Statute § 877.03. His motion to dismiss the charge in the County Court of Pinellas County was denied. Appellee then sought a writ of habeas corpus in federal district court. That court found § 877.03 unconstitutional and, in effect, granted the writ by ordering the state court to dismiss the charge, and also granted injunctive relief in the form of requiring that the state record of Glenn’s arrest be expunged, that he be discharged, his bond cancelled and his surety exonerated upon the bond posted in the County Court of Pinellas County, Florida.

Appellant’s primary argument before the district court, and now on appeal, is that Glenn failed to exhaust the state remedies available to him prior to instituting this action. In rebuttal, Glenn maintained that it would have been futile for him to seek relief in the Florida courts. He asserts that the statute he is charged with violating has been held unconstitutional on its face by the federal courts, although the Florida Supreme Court continues to uphold its validity. He looks to Layton v. Carson, 5 Cir., 1973, 479 F.2d 1275, for support.' In that case we held that a federal district court need not dismiss a federal habeas corpus petition for failure to exhaust state remedies if the state’s highest court has recently rendered an adverse decision in an identical case “and if there is no reason to believe that the state court will change its position.” Id. at 1276.

While Glenn’s argument has surface appeal, the facts of this case are altered significantly by the recent decision of this court in Wiegand v. Seaver, 5 Cir., 1974, 504 F.2d 303, cert. den. and appeal dismissed, 1975, --U.S. -, 95 S.Ct. 1650, 44 L.Ed.2d 83, where we also held § 877.03 unconstitutional. In light of this holding we feel that there is a possibility that the Florida Supreme Court may change its position, or at least should be given the opportunity.

In its consideration of the statute Wie-gand adopts and follows the constitutional standard of Gooding v. Wilson, 1972, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408, 414; “the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.” Because the Florida Supreme Court had not made such a limiting construction, § 877.03 was invalidated.

The latest expression of that court in Gonzales v. City of Belle Glade, supra, also persuades us that Florida may change its position with respect to the statute. This view is supported by a comparison of the conduct of the defendant here with that of the defendants whose convictions were reversed in Gonzales, and as was pointed to in Wiegand. A majority of the Florida court in Gon-zaies noted its prior holdings that § 877.-03 was constitutional but went on to limit its application to the defendants there so as to exclude speech in the following context:

There was no evidence that Smith or Sweet struck or even touched a police officer, that they actually offered a physical threat to any officer, or that they violated any law. Likewise, there was no evidence of any wrongdoing by Gonzales with the possible exception of the utilization of an intemperate expletive or two. In neither case was there any evidence that the actions of any of the appellants were more than annoying to those around them and a violation of Fla. Stat. § 877.03, F.S.A., requires more than the creation of a mere annoyance. 287 So.2d at 670.

Having reversed on the unconstitutional application of § 877.03, a majority of the court declined to reach the issue of its constitutionality vel non. Gonzales does not, of course, meet the constitutional test of Gooding v. Wilson, supra, as followed in Wiegand, but that question is not before this court. Our consideration is restricted to whether, given the present state of the law, it would be futile to seek relief in the Florida courts.

The issue thus presented, as we see it, is whether Glenn should have been required to exhaust his available state remedies. In Wiegand v. Seaver, supra, we granted habeas relief to one convicted but not yet sentenced under § 877.03. The state, however, stipulated that state appellate review would be futile, and so exhaustion was not at issue. Id. at n. 1. See also Tolg v. Grimes, 5 Cir., 1966, 355 F.2d 92, cert. den., 1966, 384 U.S. 988, 86 S.Ct. 1887, 16 L.Ed.2d 1005. In the instant case the state has not made a similar stipulation and indeed insists that its courts be given a chance to consider once again the statute. We do not find this difference in position unusual given the fact that Gonzales was decided after the stipulation of futility in Wiegand.

The exhaustion of state remedies doctrine is based on federalism and the resultant policy of comity necessary to the functioning of the dual court system— state and federal. The same policy considerations support the doctrine announced in Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, that federal courts are not to enjoin state criminal proceedings except under extraordinary circumstances where the danger of irreparable injury is both great and immediate. The cost, anxiety or inconvenience attendant to the defense of a single criminal proceeding is not the sort of irreparable injury which justifies federal intervention. Id. at 46, 91 S.Ct. 951. Douglas v. City of Jeannette, 1943, 319 U.S. 157, 164, 63 S.Ct. 877, 87 L.Ed. 1324, 1330.

Whether viewed as a habeas corpus matter or as having an injunctive connotation, this case must be decided within the frame of reference of these policy considerations. To these we must add Florida’s claim that exhaustion be required, and the arguable viability of state remedies if exhausted. Given this combination, we conclude that the district court erred in not having required that Glenn exhaust state remedies.

Vacated and remanded for further proceedings not inconsistent herewith.

GEWIN, Circuit Judge

(dissenting):

I respectfully dissent.

The majority, persuaded by “an arguable showing of non-futility as to the state court remedy”, note 7, supra, concludes that the state court defendant has not satisfied the exhaustion requirements of, 28 U.S.C. § 2254. Because two federal decisions, including one of this court, have declared the statute in question unconstitutional on its face, and because I find no indication that the Supreme Court of Florida will not continue to uphold its validity, I believe that this case falls within the exception to the exhaustion principle announced in Layton v. Carson, 479 F.2d 1275 (5th Cir. 1973).

The majority’s assertion that the Supreme Court of Florida may somehow revise its judgment of the validity of § 877.03 does not comport with the series of state and federal decisions involving this statute. In Severson v. Duff, 322 F.Supp. 4 (M.D.Fla.1970), the United States District Court for the Middle District of Florida declared that the provision was both overbroad and vague on its face in violation of the First, Fifth, and Fourteenth Amendments. Since that decision, Florida’s court of highest jurisdiction has considered the statute in question at least four times and has never reached a decision consistent with Severson. In In re Fuller, 255 So.2d 1 (Fla.1971) and Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla.1973), the state supreme court found that the statute was unconstitutional as applied to the individual defendants in those cases but declined to declare it invalid on its face. In State v. Magee, 259 So.2d 139 (1972), the Supreme Court of Florida considered a vagueness challenge to § 877.03 and determined simply that the “terms ‘public decency’ and ‘corrupt the public morals’ are terms of general understanding” and therefore concluded flatly that § 877.03 is constitutional. The Court reaffirmed this analysis in Bradshaw v. State, 286 So.2d 4 (Fla.1973) and declared also that the statute was not overly broad. Bradshaw explicitly rejected the logic of Se-verson v. Duff, noting that “a decision of a federal trial court, while persuasive if well-reasoned, is not by any means binding on the courts of a state.” 286 So.2d at 6.

We have recently declared § 877.03 to be facially unconstitutional. Wiegand v. Seaver, 504 F.2d 303 (5th Cir. 1974). The majority suggests that our Wiegand decision may prompt the Florida Supreme Court to revise its well established position. In view of the state judiciary’s reluctance to adopt the Se-verson analysis, I find this willingness to await the impact of Wiegand on the Florida courts inappropriate.

It is particularly significant that in Wiegand, in regard to the exhaustion issue, the state stipulated that state appellate review would be futile. While no such concession was made in this case, I find no recent change in Florida law to detract from the accuracy of that stipulation. Nor can I accept the majority’s suggestion that the stipulation may have lost its vitality in view of the subsequent decision in Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla.1973). The convictions in that case were reversed merely because of an unconstitutional application of the statute, not facial invalidity as we found in Wiegand. The Gonzales court held merely that the record did not support a finding that the defendant’s conduct had violated the statute. The holding in a sense narrowed the construction of the statute by stating that it does not proscribe conduct which constitutes a mere “annoyance” to the public, but in Wiegand, we explicitly rejected the state’s contention that Gonzales sufficiently narrowed the construction of the statute to comply with the Supreme Court’s mandate in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). And even if the Gonzales interpretation mitigates the overbreadth problem, it does nothing to shield the statute from a due process vagueness challenge.

The majority states that the Gonzales court, “[hjaving reversed on the unconstitutional application of § 877.03, . declined to reach the issue of its constitutionality vel non.” While the Gonzales opinion did conclude with this statement, it begins with the emphatic and unequivocal observation that the statute is not facially defective:

This' Court has consistently upheld the validity of the challenged statute, most recently in Bradshaw v. State, 286 So.2d 4 . . . and prior thereto in State v. Magee, 259 So.2d 139 (Fla.1972). Nothing has occurred to warrant receding from those opinions. (emphasis added).

In view of this statement, I cannot join in my brothers’ conclusion that the Gonzales opinion “persuades us that Florida may change its position with respect to the statute.”

I, of course, share my brothers’ concern for the values of federalism and comity which, in normal circumstances, preclude federal court interference with state criminal proceedings. Yet the general prohibitions of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), are not apposite in this case since an injunction against the trial in state court would fall within the “protective jurisdiction” exception of the Anti-Injunction Act, 28 U.S.C. § 2283. While the Act generally prohibits a federal court from enjoining state proceedings, it permits injunctions “to protect or effectuate its judgments.” The statute in this case has been declared facially unconstitutional in two federal forums. Florida’s highest court has demonstrated no inclination to accept these judgments. Comity does not require citizens of a state to submit to a state criminal trial in circumstances when the state itself has recently stipulated that exhaustion of state remedies would be futile and when two federal courts have declared the act in question unconstitutional prior to the state prosecution. Comity does not reach that far. In these circumstances, the judgment of the district court is appropriate and should be affirmed.

      . Fla.Stat. § 877.03: Breach of the peace; disorderly conduct.
      Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor, and subject to punishment as provided by law.
      Glenn’s arrest resulted from the alleged statement to a police officer that he, Glenn, would “jerk him off.” The factual context in which the statement was made has never been developed.

      . At the time this case was argued, a federal court had found § 877.03 to be violative of the First, Fifth, and Fourteenth Amendments. See Severson v. Duff, M.D.Fla., 1970, 322 F.Supp. 4. Severson was the decision which the district court in the instant case followed in issuing its order.

      . See Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla.1973); Bradshaw v. State, 286 So.2d 4 (Fla.1973); State v. Magee, 259 So.2d 139 (Fla.1972).

      . The stipulation in Wiegand was made on October 25, 1973, Gonzales was decided December 20, 1973.

      . See Ex parte Royall, 1886, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 and Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 on the exhaustion principle.

      . The Younger doctrine has been extended in recent cases by the Supreme Court to civil cases “in aid of and closely related to criminal statutes.” Huffman v. Pursue, Ltd., 1975, - U.S. -, 95 S.Ct. 1200, 43 L.Ed.2d 482; and to the military justice system, Schlesinger v. Councilman, 1975, - U.S. -, 95 S.Ct. 1300, 43 L.Ed.2d 591.

      . This case would have required little discussion to point up the error in not requiring exhaustion were it not for our decision in Wie-gand. There the conduct in question did not fit into the saving language of Gonzales. Here it appears possible that the verbal conduct of appellee Glenn may not have exceeded the bounds of the conduct found exempt in Gonzales.

        Wiegand declared the statute unconstitutional for want of limiting authoritative court construction. The statute may, of course, be resuscitated by such construction. Meanwhile, pending resolution of the conflict as to the statute being resolved by a merging of views as between this court and the Florida Supreme Court, or by the Supreme Court of the United States, we would and should, follow Wiegand unless, as here, there Is an arguable showing of non-futility as to the state court remedy based on the particular facts of a case.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge:

license: Public Domain

text:
    Milton SCHLESINGER et al., Plaintiffs, v. Robert H. WALLACE et al., Defendants. Milford E. HENSLEY et al., Plaintiffs-Appellants, v. Jack E. LOVE et al., Defendants-Appellees. Milford E. HENSLEY et al., Plaintiffs-Appellants, v. Claude E. SHELL et al., Defendants-Appellees.
    No. 73-1914.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1975.
    Rehearing and Rehearing En Banc Denied July 17, 1975.

      J. Vernon Patrick, Jr., A. Berkowitz, Michael L. Edwards, Birmingham, Ala., for Schlesinger.
    W. Gerald Stone, Bessemer, Ala., for Bookout.
    David J. Vann, pro se.
    Alan W. Heldman, Birmingham, Ala., Joe H. Reynolds, Houston, Tex., Jack Crenshaw, Montgomery, Ala., for defendants-appellees.
    Eugene J. Pitman, Houston, Tex., Hobart H. McWhorter, Jr., Birmingham, Ala., for Cowling.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   GODBOLD, Circuit Judge:

This appeal is by plaintiffs from a judgment for numerous defendants in consolidated shareholder derivative suits. The litigation concerns intricate transactions touching two Alabama insurance companies, Alabama National Life Insurance Company and its parent Old National Insurance Company, both now in state receivership in Alabama on petition of the Alabama Superintendent of Insurance; Southern States Life Insurance Company, a Texas company; and Capital Corporation of Texas and National Securities, Inc., investment companies based, respectively, in Texas and Arizona; and numerous individual defendants from several states connected at various times with one or more of these companies. Eventually there were a total of 16 defendants. The plaintiffs are individual stockholders of Alabama National Life, the Superintendent of Insurance of Alabama as receiver for Alabama National Life, and the receiver ad litem for Old National Insurance Co.

The result of the web of transactions, plaintiffs contend, was to siphon off the assets of the two Alabama insurance companies.

Following a ten-week trial the case was decided by the jury on numerous special interrogatories and a general verdict for defendants. The trial court granted plaintiffs’ motion for judgment n. o. v. against one defendant, National Securities, Inc., and no appeal has been taken by that defendant. Plaintiffs’ motion for new trial as to all other defendants was denied. Finding no reversible error, we affirm.

I.

Plaintiffs contend that the trial court erroneously permitted defense counsel to refer at trial to consent judgments entered before trial against an individual defendant, Robert H. Wallace, and to various pending claims and'suits by plaintiffs against persons not parties to this case (and possible insurance coverage that might be a source of recovery on some of these claims).

We condense the intricacies of the record. A few days before trial and without notice to the other defendants accused of conspiracy with him, defendant Wallace agreed, subject to approval by the court, to a settlement pursuant to which two $3,500,000 judgments, not dis-chargeable in bankruptcy, would be entered against him in favor of Alabama National Life and Old National, respectively, and in partial satisfaction of the judgments he would transfer assets to the receivers for Alabama National Life and Old National. The settlement was pro tanto and made without prejudice to claims of plaintiffs against other defendants.

On the morning of the day set for trial a hearing was held to determine if the settlement should be approved. Some of the defendants opposed approval, urging that the form of the settlement was a sham and calculated to give the plaintiffs an unfair advantage in the trial. Some defendants had received no notice of the hearing and asked for a continuance to determine how the settlement had affected their rights. It was denied. Various defendants contended that the figure of $7,000,000 was employed as a tactical device to influence the jury ve-nire and to give to the case the aura of liability against the defendants and in large amounts. They pointed out that the defendant Wallace, 58 years old, broke, and unemployed, had transferred in partial satisfaction of the judgments all of his assets except his exempt homestead, and, though the judgments were not dischargeable in bankruptcy, plaintiffs had agreed they would not attempt to satisfy them out of his future earnings.

During the hearing the trial judge suggested that it would be desirable to determine whether the settlement could be mentioned in the presence of the jury. He referred to another case with which counsel were familiar in which a consent settlement had been approved, and the plaintiffs therein had agreed not to mention it, and he had left it to defendants therein whether they wished to bring it up before the jury. He implicitly, if not explicitly, solicited such an agreement from the plaintiffs in this case, but it was not offered. He stated that it would be up to the defendants in this case whether they wished to present to the jury the matter of the settlement and pointed out that reference to it might redound to the benefit of defendants. Defendant Wilder specifically pointed out that he reserved the right to refer at trial to the settlement.

The court approved the settlement, and the trial began. The matter of the settlement developed immediately. In his opening statement defendant Love, an attorney appearing pro se, twice remarked that Wallace had paid $7,000,000 “in form of confession of judgment.” No one objected. Later, however, after opening statements on behalf of two other defendants, plaintiffs requested the court instruct the jury that the fact that a judgment had been entered did not mean it had been collected “and tell them [the jury] to disregard that.” Counsel for defendant Sellers objected to going into the matter any further, and the court sustained that objection to plaintiffs’ request. Counsel for plaintiffs then said, “Well, they brought it up, and I think we’re entitled to go into it, Your Honor.”

From then on plaintiffs and defendants were scrambling for the benefit of inferences that the jury might draw from the settlement and from plaintiffs’ other suits and claims. Defendants sought to convey the inference that Wallace’s concession of liability revealed him as the sole or primary person responsible for the alleged wrongdoing. Implicitly, if not explicitly, defendants attempted to convey the impression that plaintiffs would be made whole by the Wallace judgments and other pending claims and suits. From their side of the table, plaintiffs carried out with vigor their stated intention of going into the matter of the judgments. In a series of moves, counter-moves, and responsive moves occurring during several days of trial, the parties jockeyed for advantage with respect to this complex of evidentiary matters. Plaintiffs’ position was neither clear rior consistent, and it shifted as the apparent immediate tactical benefit to plaintiffs appeared to move.

For instance, a defendant offered in evidence a copy of one of the Wallace judgments. Plaintiffs’ counsel made a statement that the court treated as an objection and overruled, and the copy was admitted on the issue of damages. Plaintiffs’ counsel then suggested that “the court handle that matter” (presumably meaning that the effect of the judgment on damages should be decided by the court and not the jury), but then went on to state that he considered he had the right to present to the jury evidence relating to the settlement.

Plaintiffs introduced evidence tending to show that recovery on the Wallace judgments would be small. They elicited testimony concerning settlements made with other individual defendants and testimony regarding other pending suits and claims asserted in behalf of Alabama National Life and Old National against others. . Also the receiver of Alabama National Life testified on cross-examination, without objection by plaintiffs, to a proposed settlement with National Securities that would produce over a million dollars for the two Alabama companies and another settlement with a released defendant that relieved Alabama National Life of a contract on which its exposure was $350,000.

Arguably, with respect to the Wallace judgments, plaintiffs obtained eve-of-trial approval of the settlement subject to the court’s stated intention to permit defendants to refer to it if they wished, and therefore waived objection to mention of it. But, pretermitting that point, in the continuing and ongoing context of the eve-of-trial hearing and the trial, with respect to the Wallace judgments and the other matters we have mentioned the District Judge did not abuse the discretion permitted him in eviden-tiary matters.

II.

The trial judge required that the “shop book” rule, 28 U.S.C. § 1732, be satisfied as a prerequisite to introduction of corporate records as they were offered. The argument is made to us that instead the court should have admitted all of these records in bulk at the beginning of the trial. The basis for this contention is a theory that corporate records shown to be in possession of a receiver and obtained from the lawful custodian may be admitted upon that predicate alone to prove fraud against managing officers and other persons to whom knowledge of the fraudulent character of the transactions may be fairly imputed. Plaintiffs rely upon Taylor v. United States, 96 F.2d 16 (CA5), cert. denied, 305 U.S. 596, 59 S.Ct. 78, 83 L.Ed. 377 (1938). The trial court did not err in declining to follow Taylor here where the records did not come from a single corporate custodian but from several sources, and not all were, as in Taylor, identifiable by a single custodian, and the defendants included persons other than managing officers to whom knowledge of the character of transactions could fairly be imputed. Additionally the documents included informal memoranda as opposed to records kept in regular course of business.

Coupled with the foregoing point is an additional argument that even if the shop book rule was technically applicable the trial court’s insistence that it be complied with required plaintiffs to call individual defendants as adverse witnesses, unduly prolonged the trial and inhibited plaintiffs’ examination of witnesses. This complaint is addressed to the trial judge’s discretion, and we see no abuse.

III.

We have examined the record with respect to the claim of plaintiffs that they were denied a fair trial by reason of improper statements and suggestions directed at individual plaintiffs, the receiver-plaintiffs, plaintiffs’ counsel, and plaintiffs’ witnesses, made in the presence of the jury by defendant Love, an attorney who appeared pro se, and by various of the defense attorneys. Plaintiffs focus most strongly upon allegedly anti-Semitic remarks directed at the Jewish partner of plaintiffs’ lead counsel. This partner participated in various pretrial matters but not in the trial itself.

This was a hotly-contested case, with unconcealed tension between some of the attorneys from discovery through appeal. Things were said in the trial court, and even in briefs on this appeal, that should not have been said — by various defense counsel (particularly by defendant Love) and by plaintiffs’ counsel as well. But this is not to say that in the overall context of this ten-week trial these departures rose to the level of reversible . error.

Plaintiffs raised this issue for the first time as a major point of their motion for new trial. The trial judge heard lengthy arguments on the motion and denied it by written order saying, inter alia:

Plaintiffs have removed from context and brought into focus from a ten weeks trial certain alleged prejudicial statements of defendant Love as a basis for a new trial as to all of the defendants. Most of these statements did not evoke any objections at the time of their utterance, and at no time were they asserted as grounds for a mistrial — actions normally calculated to alert the court to the taking of corrective measures. The omission of able and skilled counsel to take some such action could be attributed to a belief that the statements were innocuous, but if not so, to a judgment that they should take their chances on a favorable outcome notwithstanding such statements. The statements as now reflected against an unfavorable outcome are attributed a significance claimed to be so vital as to necessitate a new trial.
Without analyzing each such statement, but referring only to those charged to be anti-Semitic, the Court, with what it believes to be sensitive ears to racial overtones, did not at the time such statements were made detect any such racial overtones.
In the environment of the contest so vigorously waged for so long, the Court seriously doubts that any of the statements complained of prejudiced the jury or affected the outcome of the cases and so holds.

We could not possibly say that the distinguished and experienced trial judge was not correct in his appraisal.

Other issues either drop out of the case or do not merit discussion. In the final analysis, as the trial judge noted, this was a hard-fought case with evidence on the basis of which the jury could have found either way. The trial was not perfect but there was no reversible error. The jury verdict is in and there the case ends.

Affirmed.

      . In a prior appeal in one of the actions we held that a cause of action was stated under federal securities laws. Shell v. Hensley, 430 F.2d 819 (CA5, 1970).

      . The value of the assets is in dispute but various counsel refer to values in the neighborhood of $20,000, plus Wallace’s rights in a note receivable in the face amount of $1,500,-000 (the subject of litigation in another state and impliedly of dubious value).

      . See United States v. Feinberg, 140 F.2d 592 (CA2), cert. denied, 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562 (1944), in which Judge Learned • Hand refers to Taylor as “extreme.”


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Walter TAYLOR, Jr., and A. J. Taylor, Defendants-Appellants.
    No. 74-1657.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1975.
    Rehearing and Rehearing En Banc Denied July 7, 1975.
    Richard A. Hirsch, Arnold D. Levine, Tampa, Fla., for defendants-appellants.
    John L. Briggs, U. S. Atty., William H. James, Asst. U. S. Atty., Jacksonville, Fla., Claude Tison, Jr., Asst. U. S. Atty., Tampa, Fla., John F. Conroy, Civil Rights Div., U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Appellants Walter Taylor, Jr. and A. J. Taylor were indicted under 18 U.S.C. § 1584, holding to involuntary servitude, and 18 U.S.C. § 371, conspiring to violate § 1584. Walter Taylor, Jr. was charged with two substantive counts related to two separate individuals, John Bryant, Jr. and Will Herdges, allegedly held by him to involuntary servitude, and with a conspiracy count related to both Bryant and Herdges. A. J. Taylor was charged jointly with his brother on the conspiracy count and on a substantive count related to Bryant. They were tried jointly. Both men were convicted on the conspiracy count and both were acquitted on the substantive counts related to Bryant. Walter Taylor, Jr., was found guilty on the Herdges substantive count. They jointly appeal their convictions. Having considered their contentions of error in the trial below, we affirm the convictions.

The only assignment of error which is substantial enough to warrant discussion is their contention that the trial judge erred in making certain statements to a deadlocked jury in the nature of a supplemental Allen charge and concomitantly giving the jury a time limit within which to reach a verdict, stating to the jury that the consequences of not reaching a unanimous verdict by that deadline would be a mistrial.

The supplemental charge by the trial court was given when, six hours after the jury retired to deliberate, it requested advice from the trial court as to the procedure to follow in the event there was not a unanimous decision.. The trial court told the jury that its failure to reach a unanimous decision would result in a mistrial. He indicated his intention to dismiss the jury for the evening and have them return the following morning to deliberate two more hours.

At this point, counsel for the defendants stated unequivocally to the court, “I have no objection to the jury retiring for the evening and returning in the morning.” After the jurors were dismissed, however, he moved for a mistrial on the grounds that the jurors had expressed an inability to reach a unanimous verdict; alternatively, if that motion were denied, he “insist[ed] that they [the jury] finish this evening.” Counsel never objected to the instructions he now alleges as error, nor did he request curative instructions be given by the trial court. The following morning, the jury returned with its verdict five minutes before the deadline.

Because defense counsel did not object to the charge, our review of this asserted error in the Taylors’ trial is limited by the “plain error” rule, Fed.R.Crim.P. 52(b), which is to be invoked “only where the error complained of seriously affects the fairness or integrity of the trial and the appellate court must take notice of it to avoid a clear miscarriage of justice.” Moore v. United States, 399 F.2d 318, 319 (5th Cir. 1968), cert. denied, 393 U.S. 1098, 89 S.Ct. 893, 21 L.Ed.2d 789.

The appellants rely upon two cases decided by the Tenth Circuit, Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966), and Goff v. United States, 446 F.2d 623 (10th Cir. 1971), where giving the Allen charge to a deadlocked jury in combination with a time limitation on further deliberations was held to be. reversible error. We do not accept the proposition that a time deadline added to an Allen charge is in and of itself reversible error. Every Allen charge situation must be decided upon the particular facts and circumstances of the individual situation. Powell v. United States, 297 F.2d 318, 322 (5th Cir. 1961). Having considered all the circumstances surrounding the supplemental charge here, as well as the charge itself, we find that the plain error rule prohibits our taking cognizance of this allegation of error. Counsel had ample opportunity to object to the deadline procedure and to request curative instructions as to any objectionable portions of the trial court’s remarks, Fed.R.Crim.P. 51.

The remaining contentions of error are clearly without merit.

Affirmed.

      . Title 18, U.S.C. § 1584 provides:
      Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

      . Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . “THE COURT: I’ve had a question from the jury that if we don’t have a unanimous decision, what is the procedure. The procedure is, it will be necessary for me to grant what is known as a mistrial, and this whole proceeding will be lost. And I may as well tell you that I’m going to ask you to come back tomorrow. And I think you as jurors should consider that the case must at sometime be decided, and that you are selected in the same manner and from the same source from which any future jury must be, and there’s no reason to suppose that the case will ever be submitted to the jury, to a jury of more intelligence, more impartial, or more competency to decide it than you, or that more or clearer evidence will be produced on one side or the other.
      “Now, I ask you to do exact justice as between the government and the defendants. I am not in any way going to try to coerce you into reaching a decision, if you can’t agree unanimously. But I do want, if I don’t have objections from one side or the other, I would want you to come back tomorrow morning and please try and see if you can’t reach an agreement. And you considered it now I guess pretty much for five hours, and that’s a pretty long time to discuss the matter. And if within two hours, between 9:30 and 11:30, you are unable to reach an agreement, I will be very happy to discharge you from further duty in the case and declare a mistrial, which, of course, will necessitate a trial at some other time. So would you please come back tomorrow morning and try and see if you can conscientiously reach a unanimous verdict. Are you willing to do that, every one of you?
      (The jury indicated affirmatively.)
      “THE COURT: All right. Please, I’m going to ask you to do that. Now, is there any objection on the part of the government upon that procedure?
      “MR. FISHKIN: No, your Honor.
      “MR. LEVINE: I have no objection to the jury retiring for the evening.
      “THE COURT: Pardon me.
      “MR. LEVINE: I have no objection to the jury retiring for the evening and returning in the morning.
      “THE COURT: That’s the only question I ask. Please be in the jury room, members of the jury, by 9:25 tomorrow, and the clerk will call the roll. And if you’re all present, please resume deliberation. I’m going to take it for granted, since the case has been given to you for evaluation and decision, that none of you will, under any circumstances tonite talk to anybody about the case, even the immediate members of the family, your wives and so forth. I’m going to ask you to refrain, if you would, please, from any discussion of this case tonite with anybody else. Now, all agree to that?
      (The jury indicated affirmatively.)
      “THE COURT: I’ve seen all twelve heads nod that they would. Therefore, ladies and gentlemen, it’s been a long day for you, and I hope y’all have a good night’s sleep, and I’ll see you tomorrow morning. I’m not going to bring you back to court and ask you if you’ve talked to anyone. I’m going to take your word that you’ve given me this afternoon that you will not talk to anybody, and resume your deliberations, and I hope that you can reach a decision within the two hour limit. I don’t think I’m over burdening you in asking you to try a little harder because I said something to you this morning, and I again repeat it. You will be a great aid to the administration of justice when you agree upon a verdict based upon the law of the elders. And it is upon the utmost concern of the court where the verdict lies, for the government or the defense. All I’m here to do is to give you the law and to see that the law is properly conducted according to the rules of evidence and the rules of procedure. That is my only interest in the case. So I have no axe to grind, but I do like to see cases moved along. But I only want them moved along if the verdict represents the conscientious individual judgment of each juror and is unanimous. So good night, ladies and gentlemen, and I’ll see you sometime tomorrow morning.”


author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar RAMIREZ and Leoncio Sanchez, Defendants-Appellants.
    No. 74-3045.
    United States Court of Appeals, Fifth Circuit.
    May 19, 1975.
    Rehearing and Rehearing En Banc Denied June 18, 1975.

      Nago L. Alaniz, Marvin Foster, San Diego, Tex:, Michael Anthony Maness, Houston, Tex., for Ramirez.
    Roberto J. Yzaguirre, Knox Jones, McAllen, Tex., for Sanchez.
    Anthony J. P. Farris, U. S. Atty., Houston, Tex., John Patrick Smith, Asst. U. S. Atty., Brownsville, Tex., Mary Sin-derson, James R. Gough, Asst. U. S. At-tys., Houston, Tex., for plaintiff-appellee.
    Before BELL, THORNBERRY and GEE, Circuit Judges.
   GEE, Circuit Judge:

Oscar Ramirez and Leonelo Sanchez, among others, were charged in a two-count indictment with possession with intent to distribute approximately 1,300 pounds of marihuana and with conspiracy to possess with the intent to distribute the same marihuana. Both waived jury trial and were tried before the court on stipulated evidence. Sanchez’ conspiracy count was dismissed. Ramirez, however, was tried and convicted on both counts. Sanchez was sentenced to four years’ imprisonment and a two-year special parole term and fined $10,-000 while Ramirez received two four-year terms of incarceration to be served consecutively and a two-year special parole term and was fined $10,000. Both appeal their convictions.

Before trial and the stipulation of evidence Ramirez and Sanchez moved to exclude from evidence the 1,300 pounds of marihuana, which they maintained was seized by D.E.A. agents following an illegal search. They admit that the agents who searched their truck had probable cause to believe marihuana was concealed in it; they argue, however, that the agents should have obtained a warrant before conducting their search since exigent circumstances were absent. They point out that four days before the search D.E.A. agents knew the marihuana would be transported from South Texas to Hillsboro, a town south of Dallas, by truck. Moreover, they had a description of the truck, knew its license number, knew the name of its driver, and knew where and how the marihuana was to be concealed within it. In addition to this four-day grace period, during the ten hours preceding the search D.E.A. agents had been trailing the truck as it proceeded from South Texas towards Hillsboro. Ramirez and Sanchez contend, therefore, that this is the case postulated in the dicta of Carlton v. Estelle, 480 F.2d 759, 762-63 (5th Cir.), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973), since the D.E.A. “had probable cause for search before their arrival on the scene, knowledge of factors bearing upon the likelihood of future movement, and time enough and assurance enough to obtain a warrant beforehand,” and thus missed a genuine opportunity to obtain a valid warrant authorizing the search of their truck. Further examination of the facts brought out at the suppression hearing, however, shows that the reliance which Ramirez and Sanchez place upon Carlton v. Estelle is reliance misplaced.

Ramirez and Sanchez were caught by what, until the evening of the search of their truck, was a well-planned and smooth D.E.A. operation. On October 16, 1973, in Mission, Texas, an undercover agent of the D.E.A. negotiated with Ramirez and Sanchez for the purchase of approximately 1,500 pounds of marihuana. The dope was to be transported by truck from the Mission/McAllen area to a motel just off Interstate’ Highway 35 in Hillsboro. There the undercover agent, who was the agent in charge of the operation, was to take delivery. The truck and a car left South Texas on the morning of October 20 with D.E.A. agents shadowing. The agent in charge, who had spent most of the day testifying in court in Dallas, drove to Hillsboro that evening to be in position for the delivery. When he arrived there between 8:30 and 9:00 p. m., however, he observed that the pre-arranged delivery spot, the motel, was not a favorable location for conducting a night-time operation. He then altered plans and proceeded south along 1-35. The agent and the truck, along with its entourage, arrived in Waco at approximately the same time, about 10:00 p. m. There the truck stopped at a filling station and its occupants, as well as the occupants of the accompanying car, at a cafe. There the D.E.A. agents, who had abandoned their plan to take actual delivery of the marihuana at Hillsboro on radioed command of the case agent, arrested the occupants and searched the truck.

That the D.E.A. agent in charge may have had both sufficient time and probable cause to have obtained a warrant to search appellants’ truck at Hillsboro has no bearing on whether exigent circumstances existed at Waco. Even if the bypassing of a genuine opportunity to obtain a search warrant is destructive of exigent circumstances, a proposition of extremely doubtful validity in light of the plurality opinion in Cardwell v. Lewis, 417 U.S. 583, 595, 94 S.Ct. 2464, 2472, 41 L.Ed.2d 325, 338 (1974), no genuine opportunity was bypassed here. This is so because the D.E.A. agents never intended to search appellants’ truck at Hillsboro. They anticipated, rather, that the marihuana would be handed over to them and that a search warrant, therefore, would be unnecessary. We refuse to hold, as appellants have suggested, that the search at Waco was invalid because the D.E.A. agent in charge could have obtained a warrant for a search in Hillsboro which was never projected and never occurred. Needless to say, there is •no requirement, constitutional or otherwise, that in order to validate unforeseen but possible searches law enforcement officials must obtain search warrants when the operation being conducted does not contemplate a search. The arrest of appellants and the search of their truck at Waco was made necessary by a change in the D.E.A.’s plan of operation. The necessity for the change did not become apparent until an hour or an hour and a half before the arrest and search. From the time that the D.E.A. agent in charge realized that the Hills-boro motel was an unfavorable location for a nighttime operation until the time of the search, it cannot be said that the D.E.A. missed any genuine opportunity to obtain a warrant for the search of appellants’ truck. The search of the truck at Waco was well within the parameters of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

In addition to the joint illegal search- and-seizure complaint, Ramirez, alone, contends that his convictions must be reversed in whole or in part because (1) the evidence does not support his conviction for conspiracy to possess with intent to distribute the marihuana, (2) the trial court judge, who was the factfinder, read his presentence report prior to finding him guilty and (3) both the trial judge and counsel for the government failed “to satisfy their affirmative constitutional obligation to disclose critically significant extrajudicial facts within their knowledge that were unknown to the defense and that, if known, would have had a material bearing on the decision to waive trial by jury and to stipulate the evidence.” Prior to discussing these points we must highlight some of the events surrounding the somewhat peculiar trial of Ramirez.

Ramirez and Sanchez were originally indicted along with several other co-defendants in Waco. Another group of defendants, which included Ramirez’ brother Rene, allegedly involved in the same transaction, was indicted in Brownsville. In response to a motion filed pursuant to Rule 21(b) of the Fed.R.Crim.P., the proceedings relating to the Waco indictment were transferred from the Western District of Texas to Brownsville, in the Southern District. Following transfer the trial judge denied a motion to consolidate and instead scheduled the trial of the Brownsville defendants for Thursday, July 18, 1974, and that of Ramirez and Sanchez for Monday, the 22nd. On Friday, Ramirez testified as a defense witness in the trial of his brother Rene. As a witness he denied that Rene was in any way involved but admitted his own complicity in the transaction. Over the weekend, early Sunday morning, three unidentified gunmen fired a number of shots into a Brownsville motel room, seriously wounding a government undercover agent who had been a key witness at the trial of the Brownsville defendants and who was scheduled to testify against Ramirez and Sanchez on Monday. On Monday, Ramirez and Sanchez were brought to trial as scheduled. Sanchez waived trial by jury and agreed with the government to a stipulation of the evidence. Based upon the stipulated evidence the court found Sanchez guilty on Count 2 of the Waco indictment and granted the government’s motion to dismiss Count 1. Sentencing was deferred until the conclusion of Ramirez’ trial. Next Ramirez waived trial by jury and stipulated that all the witnesses who had participated in Friday’s trial would, if called, testify as they had previously. Following this stipulation and before passing on the guilt or innocence of Ramirez, the court recessed to review its notes of the first trial. Court was reconvened that afternoon, and the judge found Ramirez guilty on both counts of the Waco indictment. Just after the adjudication of guilt the following colloquy took place between the court and several of the lawyers involved in the case:

THE COURT: Will he [Sanchez] come forward, too, please. I did adjudge Leonelo Sanchez guilty this morning, did I not?
MR. YZAGUIRRE: Yes, Your Hon- or.
THE COURT: All right. Is there any reason why we cannot proceed with sentencing of both defendants?
MR. YZAGUIRRE: No, Your Hon- or.
MR. FOSTER: Your Honor, at this juncture, may we inquire — not being familiar with the Court’s usual procedure, will we be allowed an opportunity to examine the presentence investigation?
THE COURT: No. I will tell you that I do have presentence reports, and none of them are — I would say the one that relates to both of these defendants, neither of them, the defendants appears to have any prior criminal record, is that true?
MR. FOSTER: That is true, my understanding.
MR. YZAGUIRRE: That is true, yes, sir.
MR. FOSTER: But may Your Hon- or — may the record show the point in time — since these were reports, as I understand it, by agreement of the defendants that were prepared prior to trial—
THE COURT: Yes, sir.
MR. FOSTER: —may the record simply show from the report to what time those were delivered to the Court in this case since the Court itself passed on the question of guilt or innocence?
THE COURT: Well, I received these after our recess at noon today, and I have them available. I have reviewed the one with respect to Leo-nelo prior to this moment because, of course, he had been adjudged earlier. I would like to take a few moments and look further and see if there is anything different in this report. It virtually covered both of them. I’m looking to be sure. So I’ll take a short recess. I might say I have received from Counsel or some — I guess it was Counsel — copies of letters of recommendation with respect to Oscar Ramirez.
MR. FOSTER: Well, we made no inference at all, Your Honor. It’s just our understanding that in a case like this that the report should not actually come to the Court’s attention, as such, until after a finding of guilt or innocence, and I’m sure that was the manner the Court handled it, but I did want it in the record.
THE COURT: Yes. All right.

Ramirez’ contention that his conviction must be reversed because the trial court violated Rule 32(c) of the Federal Rules of Criminal Procedure by reading his presentence report prior to adjudicating his guilt is simply answered. As the record clearly indicates, it was the presentence report of Sanchez and not that of Ramirez which the court viewed prior to the latter’s conviction. Thus, even if Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) does create a per se rule that a court’s reading of a defendant’s presentence report prior to a finding of guilt is reversible error, that rule would be inapplicable here. Cf. United States v. Duhart, 496 F.2d 941 (9th Cir.), cert. denied, 419 U.S. 967, 95 S.Ct. 230, 42 L.Ed.2d 182 (1974).

We have reviewed Sanchez’ presentence report. It consists of what are essentially three separate documents. One summarizes Sanchez’ personal history and does not relate to Ramirez at all. The second is a report of the “official version” of the offense. It naturally covers Ramirez’ participation in the crime. The third is a recommendation for sentencing which covers Ramirez, his brother Rene and Sanchez and which strongly implies that the brothers had, for a long period of time, been heavily involved in major marihuana trafficking in South Texas. This third document is styled Re: Rene Ramirez, Oscar Ramirez, Leonelo Sanchez. It should not have been included in Sanchez’ presentence report, and it should not have been read by the court prior to the adjudication of Ramirez’ guilt. However, here there is no possibility that the error was harmful. Ramirez, in his brother’s trial, had taken the stand and admitted his complicity in the scheme to sell marihuana to the undercover agents. At his own trial he stipulated that if called to the stand he would again admit his guilt. Without abandoning the law and sanity, it would have been impossible for the court to have found Ramirez innocent.

Ramirez next contends that it was error for the court to find him guilty of participating in a conspiracy to possess the 1,300 pounds of marihuana with the intent to distribute it because it is undisputed that the weed was possessed, half by him and half by Sanchez, before their agreement to pool their resources and distribute them to the undercover agents. He argues that neither he nor Sanchez may correctly be found guilty of conspiring to possess a thing, all of which was owned and possessed by them, albeit severally, prior to the agreement to distribute. This argument misses the mark, for it focuses too closely on the word possess and erroneously interprets its contextual meaning. Ramirez was indicted for conspiracy to possess with the intent to distribute, not for conspiracy to obtain possession of. All that the government was required to prove was that Ramirez was party to an agreement which contemplated that the 1,300 pounds of marihuana would be held for distribution. This it did.

Ramirez’ final contention is that his conviction should be reversed because no one told him that one of the government’s key witnesses would be unavailable for trial. He says that had he known of the government’s problem he would not have waived jury trial and entered into a stipulation of the evidence. He is, in essence, asking us to extend Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to force the government to disclose not only all information in its possession which exculpates the defendant but also all information it has which might influence a defendant’s choice of tactics. This we refuse to do. Ramirez’ waiver of his right to a jury trial was knowing and intelligent, as was his decision to stipulate the evidence. He will not be heard to complain that he would have acted differently had he been informed of a weakness in the government’s case against him. Requiring such disclosures is a far cry from Brady, which rests upon an abhorrence of the concealment of material arguing for innocence by one arguing for guilt.

Affirmed.

      . A violation of 21 U.S.C. § 841(a)(1).

      . A violation of 21 U.S.C. § 846.

      . Rene was acquitted by a jury.

      . An identical document, a Xeroxed copy, was included in Ramirez’ presentence report. In the future, in order to avoid problems similar to the one which we face here, those preparing presentence reports in cases involving multiple defendants should sanitize all documents — except the official version of the offense — included in an individual defendant’s presentence report, deleting all references to co-defendants, especially those relating to past criminal history or propensities. This is especially important when, as here, the report of one co-defendant is made available to the judge prior to the adjudication of guilt of another or others. We recognize, of course, that the official version of the offense will, of necessity, detail all co-defendants’ alleged complicity in the crime. Because such an official version of the crime will likely be included in each defendant’s pre-sentence report, we feel that it would be better practice for the judge not to read the presen-tence report of any co-defendant prior to the adjudication of guilt of all defendants when, as here, such an adjudication is to be made in the immediate future. We do not mean to imply that the presentence report of a co-defendant should not include an official version of the offense or that the court should not read the official version when co-defendants are to be tried at different times as when, for instance, one co-defendant pleads guilty and another or others exercise their right to a trial by jury.

      . Even if an agreement to obtain were an element of the crime of conspiracy to possess with the intent to distribute, that element is present here. Prior to the agreement between Ramirez and Sanchez to pool their resources, the undercover agents had made it clear to both that they were not interested in purchasing small quantities of marihuana. The agreement to pool made marketable the marihuana owned by each individual. It is clear that Ramirez and Sanchez conspired together to obtain possession of a marketable quantity of marihuana. That this marketable quantity was formed from the individual caches of each is immaterial.


author: CUMMINGS, Circuit Judge.

text:
    Edmund Gordon CLARK, a minor, suing by Buster Clark, his father and next friend, et al., Plaintiffs-Appellees, v. Joseph ZIEDONIS, Individually, and in his capacity as Police Officer in the Police Department of the City of Milwaukee, Defendant-Appellant.
    No. 74-1157.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 22, 1974.
    Decided March 26, 1975.

      Rudolph T. Randa, Milwaukee, Wis., for defendant-appellant.
    Gary A. Gerlach, Milwaukee, Wis., for plaintiff s-appellees.
    Before CUMMINGS and TONE, Circuit Judges, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wyzan-ski, Jr. of the District of Massachusetts is sitting by designation.

   CUMMINGS, Circuit Judge.

In this action brought under 42 U.S.C. § 1983, plaintiffs Edmund Clark and Edward Travis, both minors, sued defendant, a Milwaukee police officer, for violating their constitutional rights by purportedly using excessive force while arresting them. In a bench trial, the district court concluded that defendant had used excessive force in making these arrests. Clark was awarded $5000 in damages and Travis was awarded $1500.

As shown by the evidence, at 10:00 p.m. on January 11, 1971, defendant and a fellow police officer responded in their squad car to a radio dispatch providing: “Entry in progress. Three Negro males on the scene across from 3175 North 29th Street” in Milwaukee, Wisconsin. When the officers arrived on the scene, they found the two principal plaintiffs, each 13 years of age, and 14-year-old Joseph French outside 3164 North 29th Street. They had been ringing the front and rear doorbells of the almost unlighted home of Mrs. Emma Schwister, who thereupon called the police. Upon observing the police officers, Clark, Travis and French ran directly to the edge of the lot located at 3160 North 29th Street. Believing that plaintiffs, who were five to ten yards away from defendant when he first observed them, had attempted to commit a burglary, defendant pursued them and ordered them to halt. When defendant gave a second command to halt, the fleeing Travis turned back toward defendant. Travis was wielding a thin 12" steel blue file which, defendant claims, resembled a long-barreled revolver. At that moment, defendant fired a warning shot over plaintiffs’ heads. When, moments later, Travis again turned toward defendant with the file in his hand, defendant discharged his shotgun, wounding both Clark and Travis. When the shotgun blast that injured them was fired, plaintiffs were approximately 45 feet from defendant in the gangway adjacent to 3160 North 29th Street.

At the conclusion of the trial, the district court made certain findings from the bench. Preliminarily, the court ruled that plaintiffs had the burden of showing by the preponderance of the evidence that there was unreasonable force applied. The court also stated that much of the plaintiffs’ credibility was in doubt. The court then remarked:

“I also believe that the officers were justified in believing that there was a felony in progress, that all the circumstances of the telephone calls reporting the alleged felony in progress, coupled with finding the three men at about the right place without any apparent justification for their having innocently come upon Mrs. Schwister’s locale, all lead me to believe that the officers were entitled to conclude that there was probable cause to believe that a felony either had been committed or was in progress and that these three men reasonably were ones who had engaged in it.”

Judge Gordon then remarked that he would have to evaluate whether the circumstances warranted defendant’s use of a gun, stating:

“On the one hand, we have a felony in progress; we have probable cause to believe that the three men who were observed were perpetrators of that felony; we have darkness; we have failure to halt, at least by several of the suspected perpetrators. On the other hand, we have great force used —shotgun; we have juvenile perpetrators.
“I think the issue that’s probably going to have to be determinative — the issues that are going to be determinative are whether Mr. Ziedonis reasonably believed, from the circumstances of either fear, force, own safety or for that of his fellow officers, that there was justification to shoot at the plaintiffs.”

Several weeks later in a decision and order reported in 368 F.Supp. 544 (E.D. Wis.1973), the district court concluded that defendant’s use of “deadly force” was unreasonable and excessive under the circumstances. The court entered judgment for plaintiffs on the basis of its findings. On appeal, defendant contends that his use of deadly force was justified because: (1) defendant reasonably believed that the shooting was necessary to protect himself and his partner from imminent threat of death or great bodily harm and (2) as a police officer, defendant was privileged to use deadly force to apprehend plaintiffs whom he reasonably believed to be fleeing felony suspects.

Self-defense and Defense of Partner

The law has traditionally recognized that a person may employ deadly force against another, if such person reasonably believes such force necessary to protect a third person or oneself from imminent death or great bodily harm, without incurring civil liability for injury to the other. Since this is a suit under 42 U.S.C. § 1983, federal law determines the adequacy of the defenses asserted. This Court accepts the traditional principle noted above as a complete defense to an action against a state official under Section 1983. Nevertheless, we reject defendant’s contention that the district court erred in finding this defense inapplicable in this case.

As to defendant’s contention that he viewed Travis’ first file-wielding move “as a confrontation by someone holding a long-barreled revolver, and that he feared for his life,” the trial judge noted that the street area was lighted, the distance between the two was short, the file did not resemble a gun, and. defendant only fired over the head of Travis at that time. In concluding that defendant had used unreasonable force in firing his second shot directly at Travis and Clark after a second such confrontation in a darker gangway, the court stated:

“While the defendant’s testimony as to his frightened state of mind stands unchallenged by any of the testimony of the plaintiffs, I conclude that the defendant’s second shot, which was aimed directly at the suspects, was clearly unreasonable and unjustified. The lighted conditions, the proximity of the actors, the physical appearance of the file, the nature of the wounds, the defendant’s ‘warning’ shot during a ‘confrontation’ which he says caused him to fear for his life, the suspects’ retreat, and the defendant’s awareness both of his partner’s presence at the suspects’ only available avenue of escape, and of his partner’s knowledge of the warning shot, represent the circumstances which persuade me that the defendant used excessive force in effecting the arrest.” 368 F.Supp. at 546

The district court clearly recognized the defendant was privileged to use deadly force in self-defense or in defense of a third person. Therefore, the court’s rec-’ itation of the factors which made it improbable that defendant could have perceived the file as a source of imminent danger amounts to a finding of fact that defendant could not have reasonably believed his or his partner’s life endangered.

While, if we were the trier of facts we might have found that defendant reasonably feared for his own or his partner’s safety, Fed.R.Civ.P. 52(a) does not permit us to upset the district court’s finding ‘.‘unless clearly erroneous.” On this record, for the reasons he stated, it was permissible for Judge Gordon to find that the defendant did not reasonably believe that his or his partner’s life was endangered. Therefore, it would be improper for this Court to set aside the trial court’s finding on this issue.

Police Officer's Privilege to Apprehend Escaping Felons Using Deadly Force

As amicus curiae advises, at common law an officer may use deadly force where necessary to apprehend the fleeing perpetrator of any felony. While most states still follow the common law rule, the proliferation of crimes classified as felonies and the reservation of the death penalty for only a very few of .them has lead a small group of states to modify the common law rule. These authorities now limit the privilege to certain felonies, apparently including burglary, which are deemed to represent some threat of harm to persons and are variously lábeled “forcible”, “dangerous” or “serious” felonies.

Under either the common law or modified versions of the privilege, an officer may use deadly force only when he reasonably believes that such force is necessary to effect an arrest. The district judge found that defendant did not reasonably believe that his or his partner’s life was in imminent danger. He further found that the suspects were retreating, that defendant was aware of his partner’s presence at plaintiffs’ “only available means of escape,” and’ that defendant knew his partner would be alerted by the warning shot. We think the district court concluded that defendant did not reasonably believe deadly force necessary to effect plaintiffs’ arrest. While this Court might again have been disposed to make different findings, were it the trier of fact, we cannot fault Judge Gordon’s findings on this issue as “clearly erroneous.”

The district court was called upon to make difficult factual determinations. Both of the defenses raised by defendant required the trial court to determine first, whether defendant possessed a certain state of mind and, if so, whether such a state of mind was reasonably possessed under the circumstances. Great deference must be accorded the finder of fact, who is in a position to view the demeanor of the witnesses, where, as here, resolution of the crucial issues requires a determination as to what a party reasonably believed under all the circumstances of the moment. Therefore, despite our sympathy for the plight of law enforcement officers confronted with criminal suspects, it would be improper for us to set aside the district court’s findings in support of its decision that excessive force had been used in effecting these arrests.

Judgment affirmed.

      . Plaintiffs’ complaint specifically alleges that “the defendant Joseph Ziedonis acted wilfully, wantonly, knowingly and purposefully with specific intent to deprive plaintiff Edmund Gordon and plaintiff Edward Travis of their rights to freedom from physical injury, abuse, coercion and intimidation; all of these rights are secured to plaintiffs by the provisions of the Eighth, Ninth and Fourteenth Amendments to the United States Constitution and by 42 U.S.C. § 1983.” The use of excessive force by police officers in effecting an arrest is a well-recognized ground for liability under 42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973), certiorari denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32; Kerr v. City of Chicago, 424 F.2d 1134, 1140-1141 (7th Cir. 1970), certiorari denied, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 64; Col-lum v. Butler, 421 F.2d 1257, 1259-1260 (7th Cir. 1970); and Hardwick v. Hurley, 289 F.2d 529, 530-531 (7th Cir. 1961); see also Jenkins v. Averett, 424 F.2d 1228, 1231-1233 (4th Cir. 1970).

      . Clark’s father, Buster Clark, was an additional plaintiff and received $1767.31 for special medical damages. Travis’ mother, Carrie Staples, was also a plaintiff and received $279.83 for special medical damages.

      . While “deadly force” has been variously defined, the district court’s conclusion that the use of a shotgun is within the definition is correct under any definition. Compare Model Penal Code § 3.11(2) (1962) with Ill.Rev.Stat. Ch. 38, § 7-8 (1974) and N.Y. Penal Law § 10.-00(11) (McKinney’s Consol.Laws c. 40, 1967).

      . 4 Blackstone Commentaries 184 (Lewis’s ed. 1897 at 1582). See Restatement (Second) of Torts §§ 65, 70, 71 and 76 (1965); Rummel, “The Right of Law Enforcement Officers to Use Deadly Force to Effect an Arrest,” 14 N.Y.L.F. 749, 751-752 (1968); and Perkins, “The Law of Arrest,” 25 Iowa L.Rev. 201, 283-285 (1940); see e. g., Wis.Stat.Ann. § 939.48(1) (1958).

      . Hampton v. City of Chicago, Cook County, Illinois, 484 F.2d 602, 607 (7th Cir. 1973), certiorari denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471; see McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968).

      . The trial court said, “the issues that are going to be determinative are whether Mr. Zie-donis reasonably believed under the circumstances of fear, force, own safety or that of his fellow officers, that there was justification to shoot at the plaintiffs” (emphasis added). See quotation, supra p. 81.

      . Professor Fred E. Imbau and others have filed a helpful brief for the Americans for Effective Law Enforcement, Inc.

      . 4 Blackstone Commentaries 292-293 (Lewis’s ed. 1897 at 1684-1685); Rummel, supra note 4, at 751-752; Note, “Justifiable Use of Deadly Force by the Police: A Statutory Survey,” 12 Wm. & Mary L.Rev. 67, 68-71 (1970).

      . The modified approach has been adopted by the American Law Institute in the Model Penal Code; see Model Penal Code § 3.07(2)(b)(iv) (1962). The ALI advocated this modified approach in the original Restatement of Torts. However, in drafting the second Restatement, the common law’s “any felony” rule was adopted because no support had been given the original Restatement in the cases. See discussion in Rummel, supra note 4, at 750, 756.
      Georgia, Illinois, Louisiana and New York had adopted the modified approach by 1970. Note, supra note 8, at 78, n. 56.

      . In Wisconsin, both attempted burglary and attempted robbery are felonies. See Wis.Stat. Ann. §§ 939.32, 943.10 and 943.32 (1958).

        It also appears that burglary is one of the “serious” or “dangerous” felonies which give rise to the privilege to use deadly force under the modified rule. See Stinnett v. Virginia, 55 F.2d 644, 646-647 (4th Cir. 1932); Perkins, supra note 4, at 272, 274; Rummel, supra note 4 at 752; Ill.Rev.Stat. Ch. 38, § 2-8 (1974) and N.Y. Penal Law § 35.30 (McKinney Supp. 1970).
      This accords with the so-called Ma M. Barker rule, which was an acronym taught defendant at the Milwaukee Police Academy. That rule provides that an escaping person can be apprehended, if it is necessary, with the use of lethal force in the case of Murder, Attempted murder, Mayhem, Burglary, Attempted felony, Rápe, Kidnapping, Extortion and Robbery (Defendant’s Br. 5 and Reply Br. 4; October 3, 1973, Tr. 68-69).

      . Restatement (Second) of Torts, § 131(c) (1965); Model Penal Code § 3.07(1) (1962); Comment, “Use of Deadly Force in the Arrest Process,” 31 La.L.Rev. 131, 138-139 (1970); Note, supra note 8, at 69-70; and Rummel, supra note 4, at 751-752.

      . Both the protection of person and the escaping felon rationales, upon which defendant relies, involve objective elements. Even if one can prove that he actually feared for his own or another’s life or that he actually believed deadly force was necessary to prevent the escape of felons, a defense is not established. Unless reasonable under the circumstances, actual fear or belief is not a defense. See text, supra, at notes 4 and 11, and authorities cited there.


text:
    Vertia BOYD, Plaintiff-Appellant, v. Raymond ADAMS et al., Defendants-Appellees.
    No. 74-1337.
    United States Court of Appeals, Seventh Circuit.
    Heard Jan. 8, 1975.
    Decided March 27, 1975.

      David C. Thomas, Chicago, 111., for plaintiff-appellant.
    Richard L. Curry, Corp. Counsel, Jerome A. Siegan, Asst. Corp. Counsel, Bernard Carey, State’s Atty., John A. Dienner, III, Asst. State’s Atty., Chicago, 111., for defendants-appellees.
    Before SWYGERT, CUMMINGS and SPRECHER, Circuit Judges.
   CUMMINGS, Circuit Judge.

This complaint was filed under the Civil Rights Act (42 U.S.C. §§ 1983, 1985, 1986 and 1988) seeking damages for illegal arrest and search, unlawful imprisonment and physical brutality. The defendants were the arresting police officers, Raymond Adams and Richard Hof-man, then Chicago Superintendent of Police Conlisk, the City of Chicago, then State’s Attorney of Cook County Hanra-han, and Assistant State’s Attorney Paul S. Kayman.

The complaint alleges that at 2:30 p. m. on February 9, 1972, plaintiff was a passenger in an automobile driven by Tommy Jones. The other passengers were Donald Jones and William Taylor. They were driving to Austin High School in Chicago to pick up the mother of the Jones brothers. After circling the school, the automobile was stopped by the defendant police officers who were in plain clothes and driving an unmarked police car. The policemen searched the three male occupants of the automobile and the automobile itself and found nothing incriminating. Plaintiff refused to be searched. She alleges that the defendant police thereupon “pushed her violently against the Jones vehicle, then grabbed her and pushed her over to their police car. They shoved her violently against the police car as well, all the while using abusive language toward her and threatening her.” Plaintiff claims that at all times relevant to the complaint she was pregnant. She was then arrested and transported to the Austin Police Station and eventually to the Central Police Station where she was incarcerated for five hours while charges of disorderly conduct and resisting a police officer in the performance of his duty were preferred against her. Plaintiff alleges that the assault upon her caused a miscarriage in September 1972.

Plaintiff appeared in court on June 7, 1972, for trial of the charges brought against her by police officer Adams. Defendant Assistant State’s Attorney Kayman purportedly agreed to dismiss the charges on the condition that she execute a release of the police officers and the City of Chicago for liability. The release was attached to the complaint, but plaintiff claims that it was executed under duress, coercion and fear of further punitive and harassing action.

In addition to the damages sought, plaintiff sought a declaratory judgment that the release she executed was void and unenforcible and also sought an injunction against the practice of exchanging a dismissal of criminal charges for a release from civil liability. Finally, the district court was asked to enjoin the State’s Attorney and his assistant from prosecuting plaintiff and from taking any other retaliatory action.

In a memorandum opinion, the district court granted the City’s motion to dismiss and Superintendent Conlisk’s motion for summary judgment, and those rulings are not 'involved in this appeal. In that opinion, the district court also granted the State’s Attorney’s and Assistant State’s Attorney’s motion to dismiss on immunity grounds before our decision in Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), certiorari denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471, was released. 364 F.Supp. 1180 (N.D.Ill.1973). In a subsequent, unreported memorandum opinion, the district court held the release valid and dismissed the claim against the two policemen.

Prosecutorial Immunity

The district court relied upon our opinion in Littleton v. Berbling, 468 F.2d 389, 409-410 (7th Cir. 1972), reversed on other grounds sub nom. O’Shea v. Little-ton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, and the Illinois Local Governmental and Governmental Employee Tort Immunity Act, Ill.Rev.Stat., Ch. 85, § 1—101 et seq. (1969), in concluding that defendants Hanrahan and Kayman were immune from suit under Section 1983 of the Civil Rights Act. The court thereupon dismissed the action as against the two prosecutors. We agree that the then State’s Attorney and his assistant are immune from monetary liability for damages under Section 1983 because dismissing the charges in exchange for the release was within the “quasi-judicial” function of the prosecutor and not among the “investigatory activities normally performed by laymen, such as police officers.” Hampton v. City of Chicago, supra, 484 F.2d at 608; Tyler v. Witkowski, 511 F.2d 449, 450-451 (7th Cir. 1975).

While this Court agrees that defendant prosecutors are immune from liability for the compensatory and punitive damages sought, a different question is presented by plaintiff’s prayer for injunctive relief forbidding the future exchanging of dismissals for releases from liability and preventing further prosecution of plaintiff or other retaliatory conduct by the prosecutors. The district court never discussed this aspect of the case.

Prosecutorial immunity is a derivative of judicial immunity. Littleton v. Berbling, supra, 468 F.2d at 408-410; Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir. 1965). In Jacobson v. Schaefer, 441 F.2d 127 (7th Cir. 1971), a case dealing with judicial immunity, this Court said:

“We point out again that we are applying the judicial immunity doctrine only to damage suits against judges. The doctrine does not reach suits for purely equitable relief.” (441 F.2d at 130, emphasis added.)

In Conover v. Montemuro, 477 F.2d 1073, 1096-1104 (3d Cir. 1973) (en banc) (Judge Gibbons, concurring), the application of immunity to a complaint seeking injunc-tive relief against a state judge under Section 1983 is discussed at great length. There, after an exhaustive historical analysis, Judge Gibbons found that judicial immunity did not prohibit injunctive relief. No case has been cited in the briefs, nor has our own research revealed any, which holds that a state prosecutor’s immunity, or any other state official’s immunity, to damage claims under the Civil Rights Act extends to injunc-tive remedies. See generally Safeguard Mutual Insurance Co. v. Miller, 472 F.2d 732, 734-735 (3d Cir. 1973); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; cf. Rochester v. White, 503 F.2d 263, 267 (3d Cir. 1974).

The policies so often cited in the cases as the justification for certain state officials’ immunity from damages under the Civil Rights Act include: (1) an official who must make decisions based upon his discretion should not have to fear personal financial loss, if he errs, and (2) the spectre of such financial loss will deter qualified persons from public serv-‘ ice. See, e. g., Wood v. Strickland, - U.S. --, 95 S.Ct. 992, 43 L.Ed.2d 214, especially the majority opinion 95 S.Ct. at 999 and the dissent of Justice Powell, 95 S.Ct. at 1005. Prospective, prohibitory injunctions, such as those sought here by plaintiff, will, if granted, only order defendant prosecutors to conform their conduct to the dictates of the law. No personal financial risk is involved, nor should any person be deterred from public service because of the possibility that a court may order him to conform his future conduct to the law.

In light of the lack of any directly contrary precedent and the inapplicability of the policy considerations which underlie the granting of immunity from damages, we hold that defendant prosecutors are not immune from that part of plaintiff’s claim that seeks injunctive relief. Of course, this does not mean that plaintiff is entitled to an injunction. Because defendant prosecutors were dismissed before a hearing on the merits, we have necessarily assumed the facts alleged as to them in the complaint can be proven at trial. Moreover, the district court never reached the question of the propriety of injunctive relief under the conventional analysis. Upon remand, the court should examine plaintiff’s claim in light of this opinion.

Validity of the Release

Plaintiff urges that the district court erred when, after a hearing which examined the factual circumstances surrounding the execution of the release, it held the release of civil liability valid and therefore dismissed on the merits the claims against the defendant policen The question presented by plaintii contention is a purely federal one, whether a release executed under the circumstances presented here constitutes a valid waiver of plaintiff’s constitutional rights. We need not consider whether the release would be valid in a suit based on Illinois tort law, because plaintiff has brought suit under a federal statute in federal court alleging deprivation of rights secured by the federal constitution.

While the Supreme Court has recognized that one may voluntarily relinquish constitutional rights, it has also required that such relinquishments be entered into voluntarily under all of the circumstances presented. Schneckloth v. Bustamonte, 412 U.S. 218, 222-234, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854. The district court held the instant release valid because it found that plaintiff had knowingly waived her right to pursue civil claims against defendants and because no coercion or duress of any sort had been exerted upon her. We cannot agree. After her arrest, plaintiff was held in custody for five hours until her mother posted a bond. At the time plaintiff executed the release, she still was on conditional recognizance bail. Her uncontested testimony was that she would not be able to pay the disorderly conduct and resisting arrest fines and therefore thought she would again be put in jail. Thus as in Bucher v. Krause, 200 F.2d 576, 585 (7th Cir. 1952), certio-rari denied, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404, where Bucher was likewise charged with resisting arrest in violation of the Municipal Code of the City of Chicago, at the time she signed the release, under the age-old concept of duress by imprisonment, plaintiff was “effectively restrained.” As a matter of law, the district judge should have held, on the facts as he found them, that the release was secured in such an inherently coercive context that plaintiff did not effectively waive her civil rights action against defendants. In the circumstances, the “waiver” of these federally guaranteed rights was neither voluntary nor an intentional relinquishment or abandonment of the right or privilege, as required. Schneckloth v. Bustamonte, supra, 412 U.S. at 248-249, 93 S.Ct. 2041; D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 186, 92 S.Ct. 775, 31 L.Ed.2d 124; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461.

In deciding that there had been no coercion, the district court relied upon its finding, which is supported in the evidence and admitted by plaintiff here, that the possibility of exchanging a release for dismissal of the charges was first suggested by plaintiff’s counsel. While the release practice was in effect and there was therefore a possibility of securing a dismissal of charges against his client without the risk of conviction, plaintiff’s counsel had a duty to inform her of the release practice and to approach the prosecutors about it unless she disapproved. Counsel also advised his client of his opinion regarding the possible legal invalidity of the release, which was also his duty, so that his client could make an informed decision as to the best course of action. If the inherently coercive nature of the situation could be wholly negated in the eyes of a court because negotiations leading to the release were commenced by plaintiff’s counsel, the coercive practice would be perpetuated so long as the prosecutors refrained from instigating the negotiations. In a short time, routine practice would call for the accused’s counsel to initiate release discussions. In our judgment, it is immaterial that plaintiff’s counsel commenced the discussions. See Woodall v. Peden, 274 Ill. 301, 305-306, 113 N.E. 608 (1916); Williamsen v. Jernberg, 99 Ill.App.2d 371, 240 N.E.2d 758 (1st Dist. 1968); Good Hope State Bank v. Kline, 303 Ill.App. 381, 25 N.E.2d 425 (3rd Dist. 1940). The inherently coercive character of such a situation is not dependent upon which party first suggests the release since the very existence of the well-known release practice invited plaintiff’s counsel to enter the negotiations.

In addition to the defect in the release caused by the inherent coercion present, we think that the release is void as against public policy. In his memorandum of decision, the district judge stated that “these release agreements are basically odious and must have every presumption placed against their validity.” The decision goes on to summarize:

“In sum, we find these release agreements odious and distasteful, to be enforced only in very rare circumstances. Among other requirements, there must be a knowing and intelligent waiver by the signer of the right to pursue further actions at law, and the person[s] released from liability have the burden of proving by clear and convincing proof, that no coercion or duress of any sort was exerted upon the signer.”

As well stated in Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966, 968-969 (1968), a case where the arrestee violated his “tacit” agreement not to sue and the prosecutor retaliated by filing the traffic charges, which had been held in abeyance pursuant to the tacit agreement:

“The Government may not prosecute for the purpose of deterring people from exercising their right to protest official misconduct and petition for redress of grievances.
* * * * * 4c
“The major evil of these agreements is not that charges are sometimes dropped against people who probably should be prosecuted. Much more important, these agreements suppress complaints against police misconduct which should be thoroughly aired in a free society. And they tempt the prosecutor to trump up charges for use in bargaining for suppression of the complaint. The danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest.”

Likewise, in MacDonald v. Musick, 425 F.2d 373, 375 (9th Cir. 1970), where an arrestee refused to enter into a stipulation that would bar a civil action against the officers who arrested him, Judge Duniway stated the proposition as follows:

“It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the defendant against policemen, even where the civil case arises from the events that are also the basis for the criminal charge. * * * What [the prosecutor] cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter’s civil case.”

An application of the principles of these cases leads us to the conclusion that this release is invalid as a matter of public policy. For the reasons set out in the discussion of coercion supra, the district court erred in holding that instigation of negotiations by plaintiff’s counsel and other facts found present in this case constitute the “very rare circumstances” which would justify the enforcement of these “odious” releases.

Defendants argue .that the present case is moot as to part of the prospective injunctive relief sought because such releases were apparently forbidden after February 26, 1973, in accordance with the memorandum set out in note 6, supra. However, there can be no assurance that a new State’s Attorney or his assistants will not resurrect the old procedure in the future. The propriety of injunctive relief cannot be foreclosed by a promise to discontinue what has been an established pattern of wrongdoing. United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303. As reiterated in United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344, “mere voluntary cessation of allegedly illegal conduct does not moot a case * * *.” See also Aurora Education Ass’n v. Board of Education of Aurora Public School District No. 131, 490 F.2d 431, 435 (7th Cir. 1973); Knell v. Bensinger, 489 F.2d 1014, 1018 (7th Cir. 1973); Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966).

In summary, insofar as the district court’s opinion holds the State’s Attorney and his assistant immune from monetary damages, it is affirmed. However, because injunctive relief may be proper against these two defendants, their dismissal is reversed. Finally, the district court’s determination that the release was valid is reversed. Plaintiff has propounded other arguments to sustain its position, but -we find them to be without merit.

Affirmed in part; reversed in part and remanded.

      . The release constituted a form, allegedly sup- ■ plied by the Assistant State’s Attorney, with the appropriate blanks filled in and the signature and address of Vertia Boyd. The form provides:
      “For and in consideration of the sum of $1.00 and other valuables and consideration, the receipt whereof is hereby acknowledged, the undersigned does hereby release and forever discharge the City of Chicago, its agents and employees including R. Adams # 13001 and R. Hofmann # 8850 from any and all claims and causes of action, he, his heirs and assigns now has or hereafter may have against the City of Chicago, its agents, employees and R. Adams # 13001 and R. Hofmann # 8850 from or arising out of an arrest which occurred on the 2/9/72 in the City of Chicago.
      /s/ Vertia Boyd”

      . See also Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974). Neither MacDonald v. Musick, 425 F.2d 373 (9th Cir. 1970), certiorari denied, 400 U.S. 852, 91 S.Ct. 54, 27 L.Ed.2d 90, nor Dixon v. District of Columbia, 129 U.S. App.D.C. 341, 394 F.2d 966 (1968), upon which plaintiff relies, involved prosecutorial immunity.
      The district court’s reliance on the Illinois Immunity Statute was misplaced. Hampton v. City of Chicago, supra, 484 F.2d at 607; Clark v. Ziedonis, 53 F.2d 79, 81 (7th Cir. 1975).

      . The Illinois Local Governmental and Governmental Employee Tort Immunity Act, upon which the district court erroneously relied, provides in pertinent part:
      “Nothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee.”
      Ill.Rev.Sta., Ch. 85, § 2-101 (1973). Thus even under the Illinois Act plaintiff’s claim to injunctive relief would not be foreclosed.

      . We also note that the defendant prosecutors in this case were represented in this Court and in the court below by attorneys from the office of the State’s Attorney of Cook County, Illinois, so that they were not made to bear personally the costs of their defense. Under Fed. R.Civ.P. 25(d)(1), Bernard Carey, successor to State’s Attorney Hanrahan, automatically became a defendant when succeeding to that office. Since no claim for damages will lie against Mr. Hanrahan, upon remand, Mr. Carey should be substituted for him as a party defendant by the district court.

      . We note that the release would be of doubtful validity even under Illinois law. As Justice Burman pointed out in Williamsen v. Jernberg, 99 Ill.App.2d 371, 375, 240 N.E.2d 758, 760 (1st Dist. 1968):
      “The universal rule, followed in Illinois, is that ‘[c]ompounding a crime being itself criminal, an agreement not to prosecute is void, not only because it is against the policy of the law, but also because the agreement is itself a crime . . .’ 17 C.J.S. Contracts § 228, p. 1067. Therefore, where the consideration for the execution of a note is a promise by the payee not to prosecute a party for an alleged crime, the consideration for the note is illegal and the instrument is void. Dionne v. Matzenbaugh, 49 Ill.App. 527. Where any part of the consideration for a contractual obligation executed to compromise civil injuries resulting from a criminal act is a promise that the prosecution for the criminal act shall be suppressed, the contract is unenforceable. Henderson v. Victor, 268 Ill.App. 514; Good Hope State Bank v. Kline, 303 Ill.App. 381, 25 N.E.2d 425.”

      . Apparently the State’s Attorney’s office recognized the dubious validity of the releases secured in exchange for dismissals of charges, for in a memorandum from the Chief of the Criminal Division to Assistant State’s Attorneys, which was circulated four days after the service of summons upon the State’s Attorney in this lawsuit, it was said:
      “An Assistant State’s Attorney is not permitted to condition his official action in a criminal case as contingent upon the action of any person in a civil proceeding (e. g. a nolle in return for a release of a civil liability). Your official action must be based only upon the merits of the criminal case before you. To do otherwise could violate Chapter 38, Section 32-1, Illinois Revised Statutes (Compounding a Crime) and would be of doubtful validity.”
      The reference to the possible criminal nature of the release practice is verified by the discussion in Williamsen v. Jernberg, supra, note 5.


author: PER CURIAM:

text:
    L. N. McDONALD and Raymond Laird, Plaintiffs-Appellants, v. The SANTE FE TRAIL TRANSPORTATION COMPANY et al., Defendants-Appellees.
    No. 74-2813.
    United States Court of Appeals, Fifth Circuit.
    May 21, 1975.
    James Bullock, Houston, Tex., for plaintiffs-appellants.
    Benjamin R. Powel, Robert W. Alexander, Galveston, Tex., for Sante Fe Trail Transp.
    James P. Wolf, Houston, Tex., for Local 988.
    Before WISDOM, SIMPSON and RO-NEY, Circuit Judges.
   PER CURIAM:

42 U.S.C.A. § 1981 gives all persons within the jurisdiction of the United States the same right to equal benefit of the laws “as is enjoyed by white citizens.” The district court held that this section confers no actionable rights upon white persons, and dismissed for lack of jurisdiction the § 1981 claim brought by the two white plaintiffs. We affirm. Perkins v. Banster, 190 F.Supp. 98 (D.Md.), aff’d, 285 F.2d 426 (4th Cir. 1960); Kurylas v. U. S. Department of Agriculture, 373 F.Supp. 1072 (D.D.C.1974); Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973); Ripp v. Dobbs Houses, Inc., 366 F.Supp. 205 (N.D.Ala.1973). Contra, WRMA Broadcasting Co. v. Hawthorne, 365 F.Supp. 577 (M.D.Ala.1973); Gannon v. Action, 303 F.Supp. 1240 (E.D.Mo.1969), aff’d in part, remanded in part on other grounds, 450 F.2d 1227 (8th Cir. 1971); Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894 (E.D.Mo.1969).

We likewise agree with the district court’s conclusion that an employer’s dismissal of white employees charged with misappropriating company property while not dismissing a similarly charged black employee does not raise a claim upon which relief may be granted under Title VII, 42 U.S.C.A. § 2000e et seq. There is no allegation that the plaintiffs were falsely charged. Disciplinary action for offenses not constituting crimes is not involved in this case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Cf. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939); Nix v. NLRB, 418 F.2d 1001, 1006 (5th Cir. 1969); AHI Machine Tool & Die, Inc. v. NLRB, 432 F.2d 190 (6th Cir. 1970).

Affirmed.


text:
    Harry CHESTNUT et al., Plaintiffs-Appellants, v. CITY OF QUINCY, R. D. Edwards, Individually and as Chief of Police, City of Quincy, et al., Defendants-Appel-lees.
    No. 74-2916.
    United States Court of Appeals, Fifth Circuit.
    May 21, 1975.
    Kent Spriggs, Tallahassee, Fla., Jack Greenberg, New York City, for plaintiffs-appellants.
    Drew Days, New York City, for N. A. A. C. P.
    Alton M. Towles, Quincy, Fla., W. K. Whitfield, Tallahassee, Fla., for defendants-appellees.
    Before GEWIN, DYER and ADAMS, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   PER CURIAM:

On October 10, 1970, Roberts, an officer of the City of Quincy, Florida, Department of Public Safety, while attempting to arrest Chestnut, shot and injured him. Another bullet grazed á bystander, Fisher. They brought suit under 42 U.S.C.A. § 1983 for damages against Roberts and Chief of Police Edwards. The district court entered a partial summary judgment in favor of Edwards and this appeal ensued. We affirm.

The gravamen of the complaint against Edwards was that he had notice of the past culpable conduct of his subordinate Roberts and failed to prevent a recurrence of such misconduct, thus failing in his responsibility to provide for the personal safety of individual members of society.

The facts are undisputed. Some time long before Edwards became Chief of Police he had heard rumors that Roberts, while on duty, had shot and injured another person, but he could not recall the incident. After Edwards became Chief he found no reason to investigate what had purportedly occurred years before because there was no record of the shooting or even that a complaint with respect to it had ever been filed. During the five years after Edwards became Chief, and prior to the Chestnut shooting, Roberts was an average officer, with a good record. Chief Edwards knew of no instance of the use of excessive force by Roberts.

The first knowledge or information that Edwards had concerning the Chestnut shooting was after the fact. He did not cause, encourage, initiate, participate in, consent to, authorize, direct, command, or have any active control over anything to do with or leading up to the shooting.

It is self-evident that the Chief of Police and the officers under him had an affirmative duty to preserve law and order, and to protect the safety of persons in the community. In carrying out these duties it is equally clear that he may not invade, under color of law, a federal civil right. Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.

However, the remote and unrecorded incident in which Roberts was implicated before Edwards was Chief, and Edwards’ non-action with respect to it years later when he became Chief was, under the circumstances, wholly insufficient to raise an inference creating an issue as to liability. The record simply does not disclose any other omissions sufficient to raise an issue concerning the measures taken by Edwards with respect to the duty assignments of Roberts. In the light of the undisputed facts the district court properly granted Edwards’ motion for summary judgment.

Affirmed.

      . The complaint was cast in terms of a discriminatory pattern of law enforcement. The district court granted plaintiffs’ partial motion for summary judgment enjoining the City of Quincy’s racial police assignment policy. That ruling was not appealed.