Appendix — JOHNSON, et al. v. HAMPTON, et al. (Nos. 79-914, 79-912)

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Gu the Supreme Court of the United States

OCTOBER TERM, 1979

MARLIN JOHNSON, ET AL., PETITIONERS

IBERIA HAMPTON, ET AL.

APPENDIX TO THE PETITION FOR

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APPENDIX A

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

Nos. 77-1698, 77-1210-and 77-1370

IBERIA HAMPTON ET AL., PLAINTIFFS-APPELLANTS

Vv.

EDWARD V. HANRAHAN ET AL.,

DEFENDANTS-APPELLEES

UNITED STATES OF AMERICA EX REL.

HONORABLE JOSEPH SAM PERRY, APPELLEE

Uv.

JEFFREY H. HAAS, ATTORNEY AT LAW,

CONTEMNOR-APPELLANT

UNITED STATES OF AMERICA EX REL.

HONORABLE JOSEPH SAM PERRY, APPELLEE

Vv.

G. FLINT TAYLOR, ATTORNEY AT LAW,

CONTEMNOR-APPELLANT

Argued Aug. 14, 1978

Decided April 23, 1979

As Amended April 30, 1979

Before FAIRCHILD, Chief Judge, and SWYGERT

and PELL, Circuit Judges.

2a

SWYGERT, Circuit Judge. bares

This appeal concerns a civil rights action for mone-

tary damages brought by niembers of the Black Pan-

ther Party and the mothers of two deceased party

members against federal and state law enforcement

officers. The suit arises from a gun battle which oc-

curred in Chicago during the early morning hours

of December 4, 1969. Two Black Panthers were killed

and four other Panthers were injured by the gunfire.

The action was tried in the district court before a

jury in 1976-1977. At the close of plaintiffs’ case,

the district court directed verdicts for some of the

defendants. The district court directed verdicts for

the remaining defendants at the conclusion of the

trial. We reverse as to most defendants and remand

for a new trial.

I. BACKGROUND

At 4:30 a.m. on December 4, 1969, fourteen Chi-

cago police officers, detailed to the Special Prosecu-

tions Unit of the Cook County State’s Attorney’s Of-

fice, arrived at an apartment building located on the

near west side of Chicago. They were equipped with

a search warrant issued the previous day by a judge

of the Cook County Circuit Court authorizing the

search for and seizure of “sawed-off shotguns and

other illegal weapons,” at the first floor apartment,

2337 West Monroe Street. This apartment was oc-

cupied by nine members of the Black Panther Party

(“BPP”). Seven officers took “cover” positions at the

front and rear entrances of the apartment; seven en-

3a

tered the apartment. Immediately upon the police

entry there was an enormous burst of gunfire. Two

of the occupants, Fred Hampton and Mark Clark,

died as a result of the gunfire and four others, Ronald

Satchel, Blair Anderson, Brenda Harris, and Verlina

Brewer, were wounded. Louis Truelock, Deborah

Johnson, and Harold Bell escaped without physical

injury.

Many reverberations followed the incident. Among

these were the arrest and imprisonment of the sur-

viving occupants of the apartment, their prosecution

by the Cook County State’s Attorney for criminal

offenses, a coroner’s inquest, and an internal investi-

gation by the Chicago Police Department. A federal

and two state grand jury investigations were ini-

tiated. Indictments were returned by the Special

Cook County Grand Jury against several of the pres-

ent defendants for conspiring to obstruct justice. The

case terminated when defendants’ motions for ac-

quittal were granted at the close of the prosecution’s

case. Finally, this civil action was initiated.

The mothers of Hampton and Clark, as adminis-

tratrices of their sons’ estates, and the seven surviv-

ors of the December 4 incident filed four separate

actions in 1970 against a number of city and state

defendants. The actions were consolidated in an

amended complaint filed in the district court in April

1972. ?

1In June 1972 the death of Fred Howard, one of the police

officers, was suggested on the record and the cause was dis-

missed as to him.

4a

The defendants moved to dismiss the complaint.

The district court denied the motions by the fourteen

police officers participating in the raid. The court dis-

missed the complaint as to the remaining defendants.”

Upon appeal this court affirmed in part and reversed

in part. Hampton v. City of Chicago, 484 F.2d 602

(7th Cir. 1973), cert. denied, 415 U.S. 917, 94

S.Ct. 1413, 39 L.Fd.2d 471 (1974), (“Hampton I’).

Thereafter plaintiffs requested this court to supple-

ment its mandate by directing that the case be reas-

signed to another judge for trial. We denied the

request.

In December 1974 plaintiffs amended their com-

plaint by naming four additional defendants, all con-

nected with the federal government. In October 1975

plaintiffs moved to have the district judge recuse

himself or to reassign the case. The motion was

heard by another district judge and was denied.

2 Hampton v. City of Chicago, 339 F.Supp. 695 (N.D.II.

1972).

3 We summarized our action as follows:

Insofar as the district court’s order of February 3,

1972, dismissed the charges against the City of Chicago

and the County of Cook, it is reversed with respect to the

Brewer complaint and affirmed as modified with respect

to the Johnson complaint; insofar as it dismissed the

charges against Mayor Daley and Superintendent Conlisk,

it is affirmed; insofar as it dismissed the charges against

defendants Hanrahan, Jalovec, Mulchrone, Ervanian,

Meade, Kukowinski, Purtell, Koludrovic, Sadunas, Soro-

sky and Meltreger, it is reversed. The case is remanded

to the district court for further proceedings consistent

with this opinion.

Hampton I, supra, 484 F.2d 602 at 611.

5a

The trial began January 5, 1976 and lasted ap-

proximately eighteen months. Thirty-seven thousand

pages uf testimony were taken. At the conclusion of

plaintiffs’ evidence, defendants moved for directed

verdicts with costs. The motion was granted except

for the seven police officers directly participating in

the shooting incident, the court ruling that “no prima

facie case of a conspiracy or joint venture has been

established as alleged in the Amended Complaint... .”

The trial continued as to the seven remaining de-

fendants and at its conclusion the case was submitted

to the jury. After three days deliberation the jury

announced it was deadlocked. The trial judge then

directed verdicts in favor of these defendants and as-

sessed costs against plaintiffs for $100,000. This ap-

peal followed.

During the trial, Jeffrey H. Haas and G. Flint Tay-

lor, attorneys for the plantiffs, were found guilty of

contemptuous conduct in the courtroom. They appeal

from the contempt judgments.

The principal issue on appeal is whether the trial

judge erred in directing verdicts for the defendants.

We are convinced that he did err. Among the other

issues presented which we deem necessary to discuss

are the breadth of the official immunity available to

defendants, the scope of discovery, the circumstances

of the issuance of the search warrant, the companion

diversity action filed by Verlina Brewer, the attor-

neys’ fees and costs, and the contempt judgments.

Before a discussion of the directed verdicts and these

other issues, we believe it would be helpful to list the

6a

names of the defendants and to summarize the

amended complaint.

Federal Defendants

Marlin Johnson—Special Agent-in-Charge of Chi-

cago office of the Federal Bureau of Investi-

gation.

Robert Piper—Supervisor of the Racial Matters

Squad of the FBI, Chicago office.

Roy Martin Mitchell—Special agent of the FBI,

Chicago office,: assigned to the Racial Matters

Squad.

Wililam O’Neal—Paid informant for the FBI.

State Defendants

Cook County State’s Attorney’s Office

Edward Hanrahan—Cook County State’s At-

torney.

Richard Jalovec—Assistant State’s Attorney and

supervisor of the Special Prosecutions Unit of

the State’s Attorney’s Office.

James Meltreger—Assistant State’s Attorney.

Sheldon Sorosky—Assistant State’s Attorney.

Raiders

Shooters: Daniel Groth, James Davis, Joseph

Gorman, George Jones, Raymond Broderick,

Edward Carmody, and John Ciszewski.

7a

Nonshooters: Wiliam Corbett, Lynwood Harris,

Fred Howard, Robert Hughes, Philip Joseph,

William Kelly, and John Marusich.

All of the above defendants were Chicago po-

lice officers detailed to the Cook County State’s

Attorney’s Office.

Chicago Police Crime Laboratory

David Purtell—Director.

John Koludrovic—Supervising officer of the Mo-

bile Crime Laboratory Unit.

John Sadunas—Firearms examiner.

Chicago Police Department Internal Investigations

Division (“IID’’)

Harry Ervanian—Captain, Chicago Police De-

partment, director of IID.

Robert Kukowinski—Lieutenant, Chicago Police

Department, head of Excessive Force Unit of

the IID.

John Mulchrone—Deputy supervisor, Chicago Po-

lice Department.

John Meade—Sergeant, Chicago Police Depart-

ment. ti

The amended complaint contains seventeen counts.

For convenience we shall segregate the counts into

different categories.

Hanrahan, Javolec, the raiders, and the four fed-

eral defendants are named in Counts 1, 2, 3, and 4.

Counts 1 and 2 charge these defendants with in-

8a

tentionally and negligently depriving the occupants

of the apartment at 2337 West Monroe Street of their

civil rights under the Constitution and under 42

U.S.C. § 1983 by participating in the planning and

execution of the raid. Count 3 describes a conspiracy

to deprive the occupants of the apartment of the

equal protection of the laws, violating 42 U.S.C.

§§ 1983, 1985(8), as well as the First, Fourth, Fifth,

Eighth, Ninth, Thirteenth, and Fourteenth, Amend-

ments. Count 4 alleges, pursuant to 42 U.S.C. § 1986,

that these defendants failed to prevent the wrongs

perpetrated in violation of section 1985(3).

Counts 5 and 6 are directed against Hanrahan,

Jalovee, and the police officers participating in the

raid. Count 5 alleges intentional deprivation of the

occupants’ civil rights by false imprisonment in viola-

tion of their First, Fifth, and Fourteenth Amendment

rights and their rights secured under 42 U.S.C.

§ 1983. Count 6 charges a conspiracy for the depri-

vation of the occupants’ civil rights by false im-

prisonment under the First, Fifth, and Fourteenth

Amendments and 42 U.S.C. §§ 1983 and 1985(3).

Count 7 charges all defendants named in Count 6

and, in addition, Mitchell, Piper, and Johnson, with

failing to prevent the alleged conspiracy and illegal

acts described in Count 6, in violation of 42 U.S.C.

§ 1986.

Count 8 charges all defendants, except O’Neal, with

conspiring to deprive the occupants of the equal pro-

tection of the laws and their due process rights by

9a

_ malicious prosecution in violation of the First and

Fourteenth Amendments and 42 U.S.C. §§ 1983 and

1985(3). Count 9 charges the same defendants as

listed in Count 8 with intentional deprivation of civil

rights by malicious prosecution in violation of 42

U.S.C. § 1983. Count 10 alleges that these defend-

ants neglected to prevent harm from the execution

of the conspiracy charged in Count 8, thereby violat-

ing 42 U.S.C. § 1986.

Count 11 charges a conspiracy among Hanrahan,

Jalovec, Groth, O’Neal, Mitchell, Johnson, and Piper

to obstruct the “due course of justice” with intent to

deny the occupants of the apartment the equal pro-

tion of the laws and their Sixth Amendment right to

counsel as protected by 42 U.S.C. § 1985(2).

Counts 12 and 13 charged the City of Chicago and

Cook County with the deprivation of the civil rights

of the occupants of the apartment, directly and under

the doctrine of respondeat superior. The district

court dismissed these counts and there is no appeal

from this ruling.

Count 14 is a wrongful death action against Han-

rahan, Jalovec, the raiders, and the four federal de-

fendants under both federal and state law by the

estates of Fred Hampton and Mark Clark through

their respective administratrices.

Verlina Brewer is the sole plaintiff in Counts 15,

16, and 17 which are based on diversity jurisdiction.

These counts name Hanrahan, Jalovec, and the raid-

ers as defendants. Count 15 charges assault and bat-

10a

tery, Count 16, false imprisonment, and Count 17,

malicious prosecution.

II. DIRECTED VERDICT

We first consider the rulings of the district court

directing a verdict for twenty-one of the defendants

at the close of plaintiffs’ case in chief, and for the

remaining seven defendants (who fired their weapons

during the raid) after the jury was deadlocked. On

appeal plaintiffs assert that the trial court disre-

garded the proper legal standard in granting the di-

rected verdicts and that their claims justified submis-

sion to the jury.

This court has enunciated on numerous occasions

the rule that a motion for a directed verdict must be

denied when the evidence reveals that reasonable per-

sons “in a fair and impartial exercise of their judg-

ment may draw different conclusions therefrom.”

Hannigan v. Sears, Roebuck & Co., 410 F.2d 285, 287

(7th Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 214,

24 L.Ed.2d 178 (1969). The function of the trial

court considering such a motion was further discussed

in Byrd v. Brishke, 466 F.2d 6, 9 (7th Cir. 1972),

a civil rights action involving facts similar to the

case at bar. In Byrd we emphatically stated that the

court is not to substitute its judgment for that of the

jury and accordingly we reversed a ruling by the

district judge granting defendants’ motion for a di-

rected verdict on the grounds that the court had

weighed the testimonial evidence and had passed on

the credibility of the witnesses. Jd. The function of

lla

the trial judge is to review the testimony most

strongly against the moving party “[a]nd if there

is doubt, or the question is close, the case should

go to the jury.” Keaton v. Atchison, Topeka & Santa

Fe RR. Co., 321 F.2d 317, 318 (7th Cir. 1963).

On appeal our task is equally well established. We

must consider all the evidence—disregarding conflict-

ing, unfavorable testimony-—and extract all the rea-

sonable inferences therefrom. Viewing such evidence

and inferences in the light most favorable to the

plaintiffs, the question is whether a prima facie case

has been presented against any of the defendants.

Clark v. Universal Builders, Inc., 501 F.2d 324 (7th

Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 657, 42

L.Ed.2d 666 (1974); Kish v. Norfolk & Western Ry.

Co., 426 F.2d 1132 (7th Cir. 1970); Pinkowski v.

Sherman Hotel, 313 F.2d 190 (7th Cir. 1963).

At the conclusion of this trial, the district judge

prepared a lengthy “Summary” of the evidence which

illuminated the court’s rationale in directing the ver-

dicts of April 15 and June 20, 1977. Upon a com-

parison of the extensive record, including the received

and improperly rejected evidence, and the trial judge’s

Summary, there can be no doubt that the district

judge erred by supporting his grant of the directed

4 Judge Perry elected to provide the parties with a Sum-

mary of the evidence approximately one month after the

trial’s conclusion. Although the judge stated in a letter at-

tached to the Summary that it was not intended to be an

official memorandum in the case, we see no reason why the

Summary is not a part of the record and therefore properly

before us.

12a

verdicts with evidence which was. considered in the

light most favorable to the defendants. Further~ore,

we are compelled to conclude that, once again, as in

Byrd, the district judge weighed the evidence,

thereby invading the province of the jury.

We recite the facts adduced at trial to determine

whether the plaintiffs presented a prima facie case

against any defendant which warranted submission

to a jury. The facts can be considered in three

stages: pre-raid, the raid itself, and post-raid.

A. Pre-Raid —

In August 1967 the FBI initiated a national covert

counterintelligence program called “COINTELPRO”

which was designed to neutralize a variety of political

organizations including those which the Bureau char-

acterized as “Black Nationalist Hate Groups.” Di-

rectives from Washington ordered the Chicago office

of the FBI to implement the program in the Chicago

area. While the Black Panther Party was not an

original target of this program, it was included

with the ambit of COINTELPRO’s scrutiny by Sep-

tember 1968.° The trial court’s Summary stated that

the “purpose of the counterintelligence program, as it

was implemented in Chicago as to the Panthers was

to prevent violence.” The plaintiffs, however, pre-

sented considerable evidence to compel a different con-

5 The organizations originally the subject of COINTELPRO

included the Southern Christian Leadership Conference

(SCLC), the Student Nonviolent Coordinating Committee

(SNCC), and the Nation of Islam.

13a

clusion.* Perhaps the most damning evidence indicat-

ing the COINTELPRO was intended to do much more

than simply “prevent violence” comes from the files

of the FBI itself. An FBI memorandum from Feb-

ruary 1968 described the goals of COINTELPRO as:

1. Prevent a coalition of militant black na-

tionalist groups... .

2. Prevent the rise of a messiah who could

unify and electrify the militant nationalist move-

ment . . . Martin Luther King, Stokely Car-

michael and Elijah Muhammad all aspire to this

position....

3. Prevent violence on the part of black na-

tionalist groups. .

4. Prevent militant black nationalist groups

and leaders from gaining respectability by dis-

crediting them ....

5. ... prevent the long-range growth of mili-

tant black nationalist organizations, especially

among youth.

Senate Select Committee to Study Governmental Op-

erations with respect to Intelligence Activities, The

FBI’s Covert Action Program to Destroy the Black

Panther Party, S.Rep. No. 94-755, 94th Cong., 2d

Sess., 187 (1976). These goals were incorporated

into the various directives which Marlin Johnson, the

special agent-in-charge of the Chicago FBI office, re-

ceived instructing him to establish the program in

Chicago.

6 Further, the trial court’s restrictions on discovery and its

questionable evidentiary rulings hampered the plaintiffs’ abil-

ity to marshall evidence to substantiate their contentions.

See infra, pp. 689-642.

14a

The national COINTELPRO program adopted a

variety of tactics which seemingly were aimed not

at preventing violence, but at neutralizing the BPP

as a political entity. These tactics included efforts to

discredit the BPP among “liberal” whites, the pro-

motion of violent conflicts between the BPP and other

groups,’ the encouragement of dissension within the

BPP, and the disruption of the BPP’s Breakfast Pro-

gram for Children. Memoranda from Washington

directing the local employment of such tactics were

transmitted to Johnson, Robert Piper (after March

1969 the chief of the Racial Matters Squad of the

Chicago FBI which was responsible for FBI programs

regarding the BPP), and Roy M. Mitchell (special

agent assigned to the Racial Matters Squad in

Chicago).

The evidence presented by plaintiffs indicates that

when the local chapter of the BPP opened in Chicago

in November 1968, the Chicago FBI was quick to

implement the tactics mandated by Washington. One

of the key figures in the Chicago FBI’s program to

disrupt the Panthers was William O’Neal. O’Neal

was a paid FBI informant whom Mitchell originally

had contacted while O’Neal was incarcerated in the

Cook County Jail. Mitchell recontacted O’Neal and

instructed him to join the BPP. O’Neal walked into

7 For example, in Southern California the FBI mounted a

covert operation to escalate a “gang war’ between the BPP

and an organization called the “United Slaves.” This gang

war resulted in the killing of four Panthers by members of

United Slaves and numerous beatings and shootings.

15a

the BPP office at 2350 West Madison Street the day

it opened in November 1968 and joined, soon becom-

ing the local chief of security for the Panthers.

The local FBI was able the effectuate many of its

plans to disrupt the BPP through O’Neal. O’Neal in-

formed Mitchell about a proposed merger between

the BPP and a local black gang, the Blackstone Rang-

ers. The Chicago office, with Johnson’s approval, then

sent an anonymous letter to Jeff Fort, the leader of

the Rangers, telling Fort that the Panthers had a “hit

out” on him. The purpose of the letter was to prevent

a merger and to induce the Rangers to initiate re-

prisals against the BPP. O’Neal also falsely accused

a member of the Vice Lords, another black Chicago

gang, of being a police informant, thereby squelching

another possible merger. O’Neal, according to plain-

tiffs’ evidence, encouraged the Panthers to initiate

and participate in various criminal activities, to ob-

tain more weapons, and to increase their use of

violent tactics.

O’Neal also facilitated the FBI’s efforts to dis-

credit the BPP leadership and to frustrate their at-

tempts to garner support among white groups.

O’Neal provided Mitchell with information that en-

abled local police to serve an arrest warrant on Fred

Hampton, the leader of the BPP in Chicago, just

prior to his appearance on a local television inter-

view show. O’Neal also encouraged the distribution

of racist BPP cartoons, thereby fostering a rift be-

tween the BPP and the Students for a Democratic

Society (SDS). For his efforts, O’Neal received sev-

l6a

eral pay raises from Mitchell with Johnson’s ap-

proval.* After March 1969 Piper also lent his ap-

proval to O’Neal’s efforts as a part of the FBI’s coun-

terintelligence program.

The FBI had other means of monitoring the BPP

in Chicago. Johnson and Piper requested and received

authorization for a warrantless wiretap on BPP head-

quarters. And in June 1969 the FBI, based on infor-

mation provided by O’Neal, executed a fugitive arrest

warrant at Panther headquarters. No shots were

fired; however, several Panthers were arrested for

harboring a fugitive and weapons were seized. All

the charges against the arrested Panthers ultimately

were dropped.

The FBI in Washington urged its offices imple-

menting COINTELPRO to develop liaisons and work-

ing relationships with local law enforcement officials

to comply with the FBI’s mandate to provide infor-

mation to these agencies as well as to help effectuate

the FBI’s counterintelligence goals. In Chicago the

FBI had an ally which also was quite concerned about

the growth of militant black groups. In November

1968 Edward V. Hanrahan was elected Cook County

State’s Attorney. Hanrahan appointed Richard

Jalovee an Assistant State’s Attorney and made him

the chief 6f the office’s Special Prosecutions Unit

(SPU). By Apyil 1969 the primary focus of the

SPU was on black street gangs. About this same

®From January 1969 to June 1970, O’Neal’s monthly pay

for his services as an FBI informant ranged from $100 to

$500.

172

time Mitchell contacted Jalovec and told him that

the FBI had an informant, O’Neal, within the Chi-

cago BPP.

Before June 1969 the State’s Attorney’s Office had

relied on its own police force which it used only for

routine matters. At that time, however, the State’s

Attorney’s Office requested that nine Chicago police

officers—Groth, Davis, Carmody, Jones, Ciszewski,

Howard, Marusich, Kelly, and Joseph—be assigned to

the SPU. Groth was next in command after Jalovec,

to whom all the officers reported.

Tension and hostilities between the BPP and local

law enforcement agencies in Chicago escalated

throughout the summer and fall of 1969. Shooting

incidents involving Chicago police and Panthers oc-

curred at the BPP headquarters in July and October.

On July 21 and October 3 the BPP headquarters was

ransacked by Chicago police. And on November 13,

1969 two Chicago policemen were killed in an am-

bush-shootout with Jake Winters, who was closely

associated with the BPP.* Winters also was killed

and seven other Chicago police officers were wounded.

On the evening of the Winters incident, Mitchell

met with O’Neal and showed him photographs of the

dead police officers. Soon thereafter, on November 19,

Mitchell again met with O’Neal and with O’Neal’s

aid constructed a floorplan of the apartment at 2337

* Testimony differed as to whether Winters was a member

at the time of the shootout or whether he had been expelled

from the Party prior to the incident. In any event, he was

close to the Panthers and was eulogized by Hampton as a

fallen comrade.

18a

West Monroe Street to which Hampton recently had

moved. The floorplan included the layout of the

rooms, the placement of doors and furniture, the iden-

tity of the apartment’s oceupants and frequent visi-

tors, and the location of the bedroom which Hampton

shared with Deborah Johnson. And, either on the

basis of this or previous conversations with O’Neal,

Mitchell compiled a list of weapons which O’Neal

said were in the apartment and incorporated the list

into a memorandum dated November 21. This memo-

randum, however, failed to mention the presence in

the apartment of two federally illegal weapons—a

sawed-off shotgun and a stolen police riot gun—which

O’Neal had told Mitchell about. There is evidence

that the appropriate FBI procedure would have been

to notify the Alcohol, Firearms and Tobacco Division

of the Treasury Department about these weapons.

This was not done.

After his meeting with O’Neal on November 19,

Mitchell met with members of the Chicago Police De-

partment’s Gang Intelligence Unit (GIU) and con-

veyed to them the information contained in the floor-

plan. Mitchell also teld them that a large quantity

of weapons was stored at the apartment, including

the sawed-off shotgun and the stolen police gun.”

Piper was aware of the transfer of this information

to the GIU and at a meeting with Johnson informed

10 Mitchel!, however, never mentioned these federally illegal

weapons in writing until eight days after the December 4

raid on the apartment.

ae

19a

him of the same."' On the basis of this information,

the GIU planned a raid on the apartment to seize

the weapons.

Shortly thereafter O’Neal told Mitchell that the

weapons had been removed from the Monroe Street

apartment. Mitchell relayed this information to Piper

who in turn informed Johnson. Johnson ordered

Piper to inform all local agencies which had re-

ceived the prior information about the weapons that

they had been removed. Piper transmitted this order

to Mitchell, who phoned Officer Bizewski of the GIU.

Johnson, on November 24, also phoned Thomas Lyons,

director of the GIU, and told him that the BPP ex-

pected the raid and had removed the weapons from

the apartment. Lyons told Johnson that he would

cancel the raid.

Within two days of the cancellation of the GIU

raid, Mitchell called Jalovec and told him that the

weapons had been returned to the apartment.” Mit-

chell also informed Jalovec that Hampton and John-

son were living at the apartment, that other members

of the BPP frequented the apartment, and that a

variety of weapons, illegally purchased, was kept

there. About the first of December Mitchell told

Jalovec that a sawed-off shotgun and a stolen police

gun were in the apartment. Shortly thereafter, ac-

cording to plaintiffs’ evidence, Mitchell met with

The SPU also was informed about the presence of a

large quantity of weapons at 2337 West Monroe Street.

12 From late November to December 4, 1969, Mitchell had

five to seven conversations with Jalovec.

20a

Jalovee and Groth and, with Piper’s prior approval,

showed them the floorplan of the West Monroe Street

apartment. Mitchell also told them that a BPP politi-

cal education meeting was scheduled for the evening

of December 3 and that the occupants of the apart-

ment likely would be absent then.

At trial, Groth did not recall attending the meeting

with Mitchell. Groth did claim, however, to have re-

ceived a phone call sometime during the late afternoon

or evening of December 2 from an _ unidentified

informant who provided information paralleling the

information transmitted by Mitchell. Groth stated

that this unidentified informant—who was unpaid—

was a member of the BPP.”

Groth met with Jalovec on December 3 and had

a discussion with him about the information Groth

received from his informant. Jalovec said that he

had received essentially the same information from

Mitchell. Groth also told Jalovee that he had sur-

veyed the premises at 2337 West Monroe Street on

his way to work that morning. Later that day Groth

instructed Davis and Kelly to survey the prcmises,

and they returned with a street diagram of vhe sur-

rounding area. Groth told Davis, Kelly, and a few

other officers assigned to the SPU that they would be

going to the apartment at 8:00 p.m. that night to

search the premises for illegal weapons.

18 The plaintiffs question whether Groth’s informant in

fact ever existed. The trial court did not require Groth to

disclose the identity of his informant. See infra, pp. 635-639.

2la

At midday on December 3 Jalovec and Groth met

with Hanrahan and recounted the information they

had received from their sources. At this meeting

Jalovee told Hanrahan that they intended to obtain

a search warrant for the Monroe Street apartment.

Jalovec and Groth drafted the warrant. The affidavit

stated that Jalovee had received information from

a reliable informant—Mitchell was not mentioned by

name—that sawed-off shotguns and other weapons

were kept in the apartment. It also stated that a

reliable informant had told Groth that the apartment

contained numerous weapons including three sawed-

off shotguns. The warrant and affidavit were shown

to Hanrahan and then taken to a Cook County Circuit

judge who was formerly Hanrahan’s first assistant

when Hanrahan was United States Attorney. The

warrant was issued that afternoon.

After the warrant was issued, Jalovee and Groth

busied themselves with the final preparations for

its execution. They decided that fourteen men would

take part in the mission. Groth described the plan to

some of the police officers who would be accompany-

ing him. Jalovee phoned the Chicago Police Depart-

ment to obtain approval to bring certain weapons,

including a machine gun, when they served the search

warrant. Jalovec also approved Groth’s revised deci-

sion to serve the warrant at 4:00 a.m., rather than

in the evening, so that the sleeping occupants in the

apartment could be taken by surprise. At trial

Jalovee and Groth indicated that they did not dis-

22a

cuss the use of tear gas, sound equipment, or other

means to gain entry to the apartment.

Jalovee met with Hanrahan and detailed the final

plan for the search of the apartment. He told him

that Groth would be leading twelve to fourteen men.

Again the testimony indicated that there was no dis-

cussion of alternative ways of gaining entry to the

apartment or of the use of any equipment besides

guns. Hanrahan told Jalovec to tell the men to

be careful. Jalovec related his conversation with Han-

rahan to Groth, and told Groth to call him at home

after the raid.

This same day, on December 3, 1969, Johnson and

Piper approved a counterintelligence memorandum

sent to the Director in Washington. The memoran-

dum stated that local police’* planned ‘a positive

course of action” based on the information regarding

the West Monroe Street apartment which the Chi-

cago FBI had provided local law enforcement officials.

14 The FBI document refers to action planned by “Chicago

police.” This, however, does not necessarily indicate that the

local FBI thought that the Chicago Police Department planned

an action and that it was unaware of the action planned by

the SPU of the State’s Attorney’s Office. The officers detailed

to the SPU were, in fact, Chicago police officers. More im-

portantly, other FBI documents indicate that the local FBI

at other times referred to police actions of the SPU as actions

taken by Chicago police. For example, a December 10 coun-

terintelligence memorandum sent from Johnson’s office to

Washington stated that Hampton was killed by “Chicago

police.” ;

Reba

23a

B. Raid

The fourteen raiders met at the State’s Attorney’s

Office for a briefing at 4:00 a.m. the morning of the

raid. Groth described the apartment’s layout and

informed the other officers that it was a BPP dwelling

frequented by Fred Hampton. Armed with a machine

gun, a sawed-off shotgun, a semi-automatic .30-caliber

carbine, and other weapons, they arrived at the apart-

ment at 4:30 a.m. Groth instructed seven officers

(the nonshooters) to guard the apartment’s exterior.

Groth, Jones, Gorman, and Davis approached the

front of the apartment while Broderick, Carmody,

and Ciszewski circled to the rear door.

Before the raid began, Clark, Truelock, Bell, and

Harris, were in the living room on chairs and mat-

tresses scattered around the room. Satchel, Ander-

son, and Brewer were asleep in the front bedroom

which was located directly south of the living room.

The rear bedroom of the apartment, directly south

of the front bedroom, was occupied by Hampton and

Johnson. A diagram of the apartment is shown here:

24a

APARTMENT DIAGRAM

SA

25a

A factual dispute exists as to the activity inside

the apartment. Plaintiffs’ testimony depicts a violent,

well-armed, unprovoked attack on the apartment.

Plaintiffs testified that the officers did not announce

their purpose when they arrived at the apartment.

After hearing a knock at the apartment door, True-

lock and Bell ran to the rear bedroom to awaken

Hampton. Davis burst through the door into the liv-

ing room and began firing into the darkened room.

Clark, in the northwest part of the room about three

or four feet from the door, was struck in the heart by

a bullet from Davis’ rifle. According to Harris,

Clark’s gun went off as he fell. Groth also began fir-

ing into the living room from the apartment. door-

way. Harris was shot as she lay in bed. She testified

at the trial that she neither fired nor handled a gun

during the raid.

The attack from the rear of the apartment was

precipitated by the sound of a shotgun blast from

within. Carmody broke through the back door and

entered the kitchen. Using a .38 revolver, he fired five

times. Corbett, Ciszewski, and Broderick followed

him into the kitchen, the latter two firing into the two

bedrooms from the dining room area. Bell, Truelock,

and Johnson emerged from the back bedroom during ‘

a pause in the shooting.

Meanwhile, Gorman had entered the living room

and began firing his machine gun into the south wall

toward the bedrooms. Davis also began firing into the

south wall. Carmody entered the back bedroom and

26a

found Hampton lying on his bed.” Carmody went to

the head of the bed clutching a revolver in his right

hand. During the course of the firing, Hampton was

shot several times in the body and the head. The

bullets which went through his brain were never

found. Carmody emerged from the bedroom drag-

ging Hampton’s body by the left wrist. In Carmody’s

firearms report, he indicated that he had critically

wounded a suspect. He recorded that his first shot

was fired from a distance of ten feet and noted the

distance of his second shot by a question mark.

Meanwhile the other shooters were moving toward

the front bedroom where Satchel, Anderson, and

Brewer lay huddled on the floor. Broderick, located in

the bathroom, and Ciszewski, positioned in the dining

room, fired several blasts from their shotguns into

the front bedroom. Simultaneously, Gorman ad-

vanced down the hallway and approached this bed-

room. Seeing the forms of Anderson and Brewer

rising between the beds, he aimed and fired his ma-

chine gun into the bedroom. At that point Carmody

charged through the front bedroom doorway and the

occupants surrendered. When the guns were stilled,

Satchel had been struck four times, Anderson and

15 Plaintiffs introduced the expert testimony of Eleanor

Berman, chief toxicologist of Cook County Hospital, indicat-

ing that Hampton was drugged at the time of the raid. On

the basis of blood samples extracted from his body, she con-

cluded that secobarbital was present in Hampton’s system

at the time of his death in an amount which would make it

difficult for him to awaken. Bell and O’Neal testified that

Hampton was not a drug user.

27a

Brewer, twice. All three plaintiffs denied firing

weapons. While the survivors were gathered into the

kitchen the nonshooters entered the apartment. Ac-

cording to the survivors’ testimony, they were then

physically and verbally abused.

The evidence introduced by defendants at trial

produces a portrait of the incident which barely re-

sembles the one depicted by plaintiffs. All the officers

testified that they were fired on from within the

apartment as they attempted to serve the search war-

rant. Groth testified that he and his men announced

their purpose to the occupants on the morning of

December 4 while standing on the apartment porch.

After receiving no response, Davis struck down the

front door of the apartment. As he lunged into the

living room a shotgun blast flashed through the room

from Clark’s gun. Seeing Harris’ gun directed at the

front entrance door, he fired and hit her in the leg.

Fearing for Davis’ life, Groth stepped into the living

room and was met by the barrel of Harris’ gun aimed

in his direction; believing that she had fired a shot

at him, Groth responded by firing at her. Davis

noticed Clark rising from his chair, “pumping”’ his

shotgun, and turning toward him. Davis fired three

shots while simultaneously rushing at Clark. A

struggle for Clark’s gun followed and the men

dropped to the floor. In the meantime, Gorman had

entered the living room and grabbed the shotgun

from Harris who was sitting on a bed next to the

south wall of the living room. The officers testified

that during the next few seconds they observed flashes

28a

of firing exiting from both bedrooms. Testimony was

given that a cease-fire was called, but was broken

by two shots, one from each bedroom.

At the same time, Carmody broke through the

kitchen door into the rear of the apartment. Observ-

ing flashes of firing exiting from the back bedroom,

he lunged into the kitchen. He advanced to a position

in the dining room and fired into the bedroom.

Ciszewski and Broderick followed Carmody’s lead.

Ciszewski pointed his flashlight into the back bed-

room and Bell surrendered.

A second cease-fire was called. It too was broken

when flashes were observed again in the rear of the

apartment. When Gorman and Davis fired through

the living room wall, their volleys were returned by

more firing from the bedroom.

Truelock and Johnson emerged from the back room

during a third cease-fire. Carmody then entered the

back bedroom where he saw Hampton’s body on the

bed. While Carmody dragged the body from the

room, Ciszewski entered to remove weapons. A bullet

ripped through the north wall of the bedroom and

struck Ciszewski in the ankle.

Having secured the living room and back bedroom,

the raiders concentrated their efforts on the front

bedroom. Gorman ran to the bedroom after shooting

through the south wall of the living room. He fired

his machine gun into the front bedroom as he saw

Anderson rising between the beds with a shotgun

clutched in his bands. Anderson was hit by Gorman’s

volley. Gorman also spotted Brewer with an object

29a

in her hands, but no shots were exchanged. Carmody

and Broderick also fired into the north bedroom. Ac-

cording to a tape of a radio dispatcher’s communica-

tion with the raiders that morning, the apartment

was under control within seven minutes.

In addition to the raiders’ testimony, the state-

ments of several plaintiffs given to their lawyers

after the incident were presented by the defense at

trial. In these statements, both sworn and unsworn,

several plaintiffs said they picked up weapons during

the course of the raid and Truelock said he fired two

shots at the raiders. These statements were offered

as further proof that the officers were fired at and

that they perceived themselves to be in great _——

during the course of the raid.

Countering this defense evidence and in support

of their trial testimony in which the survivors de-

nied firing at the raiders, plaintiffs introduced the

expert testimony of Robert Zimmers, a ballistics ex-

aminer with the FBI crime laboratory. Zimmers

also was qualified as an expert to testify regarding

the angle a shot entered a surface based on evidence

of its impact point. According to his testimony, he

examined the weapons seized from the apartment,

the shooters’ weapons and their bullets, bullet frag-

ments, and shotgun casings and cartridges found in

the apartment. He also analyzed impact points on the

walls and furniture in the apartment. On the basis

of this examination and his analysis,’ he concluded

that there was no evidence of a shotgun blast coming

from the corner of the living room where Harris was

30a

during the raid. He also concluded that there was

no evidence of shotgun shots exiting from the front

bedroom where Satchel, Anderson, and Brewer were

sleeping, and found no evidence of a shot being fired

from within the rear bedroom where Johnson, Hamp-

ton, Truelock, and Bell were located.

On the other hand, Zimmers determined that there

were forty-two bullet holes created by shots fired

from the living room through its south wall into the

front bedroom. Additionally, there were thirty-three

bullet holes of entrance found in the south wall of

the front bedroom (the wall between the front and

rear bedrooms), twenty-five of which entered from

the living room. There were fourteen bullet holes of

entrance found in the south wall of the back bed-

room occupied by Hampton and Johnson. Six of these

bullet holes came from shots that originated in the

doorway of the north bedroom. Zimmers also testified

that on the basis of his examination only one shot

shell was identified with the seized weapons and that

this shell corresponded with a hole of exit in the liv-

ing room door; further, he stated that a bullet re-

moved from the body of Hampton was fired from the

.30-caliber carbine carried on the raid by Davis.

C. Post-Raid

After the firing ceased, Gorman telephoned Jalovec

from the back bedroom to report what occurred and

to inquire whether Jalovec would be directing the

evidence collection at the apartment. Jalovec re-

sponded that the men should leave th: apartment

sla

immediately to avoid creating a riotous situation and

should bring the seized weapons to the State’s Attor-

ney’s Cffice. The other ‘raiders were searching the

apartment, overturning furniture and seizing books

and files in the process. The raiders retrieved bullets

and other ballistics material but failed to identify the

recovered items. According to Groth, the seized

weapons were neither tagged for identification pur-

poses nor fingerprinted, and the locations were not

specifically recorded. Consequently, when the Mobile

Crime Unit of the Chicago Police Department ar-

rived at approximately 5:15 a.m. to collect evidence,

its task was hindered greatly by the raiders’ search.

The Unit, headed by Koludrovic, nevertheless re-

covered a number of ballistics items from through-

out the apartment which were taken to department

heaquarters for examination by experts in firearms

identification. The officers retained their own weap-

ons, and the weapons found inside the apartment

were taken to the State’s Attorney’s Office.

Immediately after the raid, the four wounded oc-

cupants were taken to a hospital and the three other

survivors were incarcerated in Cook County Jail.

On the basis of sworn complaints which stated that

the plaintiffs fired at the raiders, charges of at-

tempted murder, aggravated battery, and unlawful

use of weapons were filed against the survivors.

Bond was set for each at $100,000. (Several sur-

vivors remained in jail until December 21 when their

hond was lowered. )

32a

As the day unfolded, an atmosphere of confusion

and tension developed in Chicago’s black community.

Hanrahan met with the raiders and decided to en-

gage in a series of media activities because “there

were no methods of getting the officers’ story to the

public as effectively.” The initial phase began around

noon on December 4 when he issued a statement to

the press in the presence of Jalovec, Groth, and other

raiders. Although aware of conflicting stories, he

adopted the raiders’ version of the incident and urged

the support of the eitizens of Chicago for the coura-

geous actions of the police officers. He frequently

emphasized his words by pointing to a display of

seized weapons and, in particular, to a revolver which

he said -was “used by Hampton in the course of the

attack on the police.”

On December 8, amidst the continuing storm of

controversy surrounding the raid, Hanrahan called

his second press conference. Reading from a pre-

pared statement, he reiterated the raiders’ account of

the incident and summarily dispelled conflicting re-

ports referred to by reporters. Despite further po-

tential pre-trial prejudice to the survivors’ crimi-

nal defense, Hanrahan continued to publicize the in-

cident and decided to employ additional media tactics

to promote the raiders’ version of the incident. At

his behest the Chicago Tribune published an exclu-

sive interview with the raiders on December 11. The

article stated that the occupants initiated the firing

and contained photographs provided by the State’s

Attorney’s Office which showed holes in walls and doors

IRC eet

33a

of the apartment which purportedly represented shots

originating from guns fired in the bedrooms. At trial

a reporter for the newspaper testified that his sole

source of material for the article was the informa-

tion obtained from Hanrahan, Jalovec, and the raiders

during an interview.

The following day a reenactment of the raid was

filmed by CBS-TV in Chicago. Hanrahan asked the

broadcasting company to film the story for television

without editing by CBS. A set was constructed at the

State’s Attorney’s Office, and Jalovee assisted the

production directors. All the raiders were present

for the event and those who participated in the re-

enactment were informed that the film could be cut

as the raiders desired. To insure the production’s

conformity with his previous press statements, Han-

rahan visited the set during portions of the taping. ,

The broadcast was aired the same evening. Hanrahan

held his final press conference the following day.

When confronted with questions from reporters that

focused on the photographic misrepresentations con-

tained in the Chicago Tribune article, Hanrahan

again confirmed the accuracy of the officers’ stories

without investigating the conflicting reports. At trial

Hanrahan testified that he believed his publicity ef-

forts were necessary to maintain the integrity and

reputation of law enforcement in the community.

The role of the federal defendants continued in the

post-raid period. Mitchell, Piper, and Johnson testi-

fied that they first learned of the raid through the

news media the morning of December 4. Later tha‘

34a

day, they received information from the State’s At-

torney’s Office that Hampton’s body had been posi-

tively identified. Johnson then approved the trans-

mission of an “urgent” teletype to FBI headquarters

in Washington reporting the raid. Pursuant to

Piper’s instructions, Mitchell spoke with Jalovec and

Groth at the State’s Attorney’s Office to obtain more

details. At this meeting Jalovec asked Mitchell

whether he would be concerned if “it got out” that

Mitchell was the source of the preliminary informa-

tion for the raid.

The FBI continued to monitor BPP activities

through O’Neal’s assistance, and it was during this

early post-raid period that FBI officials wrote a series

of memoranda highlighting their involvement in the

raid. Piper sent a memorandum to Bureau head-

quarters on December 11 which requested a bonus

for O’Neal. The request was “justified” on the

grounds that the raid was based on information fur-

nished by O’Neal and that this information was not

available from any other source. Shortly thereafter,

a three hundred dollar bonus was approved. On De-

cember 12 Mitchell wrote.a memorandum which

stated for the first time that federally illegal weapons

had been present in the apartment a few days prior

to the raid. The memorandum also noted that the

FBI communicated with the State’s Attorney’s Office

around the first of December regarding the illegal

weapons. Mitchell’s memorandum was not sent to

the Washington office of the FBI but instead was

placed in the Chicago FBI’s “O’Neal” file which also

a

35a

contained the floorplan that had been furnished to

Mitchell prior to the raid.

A series of investigations and inquests followed

the December 4 raid. On December 12 Hanrahan re-

quested Chicago Police Superintendent Conlisk to

initiate an internal police investigation. Internal in-

vestigations generally were conducted by Ervanian

and Kukowinski, director of the Internal Investiga-

tions Division of the Chicago Poiice Department (IID)

and head of the Excessive Force Unit of the IID,

respectively. This investigation, however, was placed

under the direct supervision of Mulchrone, a deputy

police superintendent. Meade, a police department

legal advisor, was placed in charge of the investiga-

tion by Mulchrone. Meade designed a few questions

based on Groth’s official report and typed in answers

which, as Mulchrone stated, “would justify the use

of entry and force by the officers.” ErvVanian and

Kukowinski were informed of the limited nature of

the inquiry and of Meade’s and Mulchrone’s decision

that all of the raiders’ statements were to be identical.

Although dismayed at the proposed procedures, neither

protested. Copies of Meade’s material were dis-

tributed to Assistant State’s Attorneys Sorosky and

Meltreger who were advising the officers at the De-

cember 16 questioning. Jalovec, Kukowinski, Ervan-

ian, Mulchrone, and Meade also were present at the

interviews. Prior to the commencement of the in-

quiry, Groth was shown the prearranged questions

and answers and then requested to give his account

of the raid. Thereafter the other raiders met pri-

86a

vately with Jalovec and Sorosky and were shown

copies of both the Meade material and Groth’s state-

ment. During the interviews each officer was asked

substantially the same four questions:

Does Groth’s statement describe what occurred

at the apartment? .

Did you use excessive force in effecting these

arrests?

Did other officers use excessive force in effect-

ing these arrests?

Is there anything you wish to add? Each of the

raiders answered “yes’’ to the first question and “no”

to the next two. They gave a varied assortment of

immaterial answers to the fourth question.** The

16 For example, Officer Kelly stated :

A Yes, I have two questions. Am I charged with

any crime?

Q You are not charged with any allegations, no.

A My second is not a question, it is a statement. I

have known Sergeant Groth personally for approximately

eight or more years. I have never seen him act in any

manner other than that which would bring praise and

credit to the Chicago Police Department. That is it.

Officer Jones said:

I am Black and proud of being Black. and a member

of the Chicago Police Department. I have worked with

these officers, both black and white for over six months

and consider them to be of highest professional caliber

and a real credit to the Department. The courage they

exhibited that night made me even prouder of my as-

sociates. I feel strongly about the advancement of Blacks

on the Chicago Police Department and deeply sorry that

criminal elements are using this incident to attempt to

destroy mutual understanding and respect.

87a

survivors were asked to participate in the IID in-

vestigation by filing complaints, but declined.

While the internal investigation was underway,

Sadunas, a ballistics analyst for the Chicago Police

Department Crime Laboratory, had been conducting

a series of firearms identification tests based on the

materials recovered by the Mobile Crime Laboratory

Unit. Sadunas was urged by the State’s Attorney’s

Office and some of the raiders to complete his report

as quickly as possible. On December 17 he issued his

findings which included an identification of two shells

with the gun allegedly fired by Brenda Harris. Sa-

dunas, however, failed to include the raiders’ weapons

in his testings. The Sadunas report was sent to the

JID for consideration. On December 18, six days

after Hanrahan’s request for the investigation, the

IID submitted its report to Conlisk. He determined

that no disciplinary action was warranted against

the fourteen raiders. At trial both Kukowinski and

Ervanian characterized the investigation as less than

thorough and admitted that the irregular nature of

the proceeding might be attributed to the involve-

ment of the State’s Attorney’s Office. According to

Mulchrone, “[the] purpose of the investigation was

not to in any way serve to later destroy [the police

officers’] testimony before a criminal trial” which

the IID knew was going to take place in Cook County

Circuit Court.

Additional state investigations during the post-

raid period included a January 1970 Cook County

38a

Special Coroner’s Inquest into the deaths of Hampton

and Clark. Testimony was taken from the raiders

and Crime Laboratory personnel. The survivors re-

fused to testify at the inquest. A finding of justifi-

able homicide was made by the Coroner’s office. Plain-

tiffs challenged this finding at trial with evidence

that Groth made several statements at the inquest

which he later contradicted, including testimony in

which he denied being aware prior to the raid of the

interior design of the apartment.

Also, during the month of January, a Cook County

grand jury returned an indictment for attempted

murder and aggravated battery against the seven

survivors of the raid. Hanrahan was responsible for

the presentation to the grand jury of evidence con-

sisting mainly of the police officers’ testimony and the

Sadunas report.

A federal grand jury had been convened in Decem-

ber 1969 to investigate whether the occupants’ civil

rights had been violated. Jerris Leonard, Assistant

Attorney General in charge of the Civil Rights Divi-

sion, was assigned by the Department of Justice to

present evidence to the grand jury, and Leonard

Treviranus served as case agent for the grand jury

on behalf of the FBI.” Johnson instructed Trevi-

17 Plaintiffs attempted to join Leonard as a coconspirator-

defendant in December 1975 after receiving certain discovery

materials. The court denied the motion and plaintiffs have

not raised the ruling on appeal. The record fails to reveal

whether Treviranus was intended to be named as a defendant

in the motion.

39a

ranus that all requests for evidence from the grand

jury and Leonard were to be channelled through

Johnson. Additionally, Johnson and Leonard met

throughout the investigations and Leonard revealed

to Johnson what information he was seeking for

presentation to the grand jury.

The grand jury began to hear evidence in January

1970 and Johnson was requested to appear before it

to testify concerning the June 1969 raid on the BPP

headquarters. Treviranus sent a memorandum to

FBI headquarters in Washington which assured that

Johnson’s testimony would not relate to “the circum-

stances” of the December 4 raid, insuring that “no

exposure” to the Bureau would occur., Leonard, how-

ever, informed Johnson that the grand jury was in-

terested additionally in what information the FBI

had supplied to local authorities prior to the raid.

Johnson asked a member of his staff to brief him on

the information that had been disseminated. Although

Johnson knew Mitchell had provided information

about the BPP to local authorities, he asked neither

Mitchell nor Piper about these communications. On

Februury 11, 1970 Johnson testified before the grand

jury. He stated that the Chicago office of the FBI

was not aware that illegal weapons were in the apart-

ment prior to the raid. Additionally, Johnson failed

to mention that a floorplan was furnished by Mitchell

to the State’s Attorney’s Office. On the same day

that Johnson testified, Mitchell wrote the FBI Di-

rector on behalf of the Chicago office for authoriza-

ee

40a

tion to continue paying O’Neal as an informant. In

the letter Mitchell justified the request, as Piper had

justified the earlier bonus for O’Neal, by reminding

headquarters that O’Neal had provided a detailed

floorplan of the apartment, as well as other infor-

mation, which subsequently “saved injury and possi-

ble death to police officers” participating in the De-

cember 4 raid.

Neither Mitchell nor Piper testified before the

grand jury. The Racial Matters Squad, however,

which was under Piper’s supervision, regularly pro-

vided Treviranus with selective intelligence informa-

‘tion on the BPP and the raid. Included in this infor-

mation flow were Bureau files on the survivors, a

report on Hampton’s activities one week before the

raid, and Mitchell’s November 21 weapons memoran-

dum listing the legally purchased weapons reported

by O’Neal to be in the apartment. Conspicuously

absent was information on the floorplan and Mitch-

ell’s December 12 memorandum concerning the pres-

ence of illegal weapons in the apartment prior to the

raid. O’Neal was never made available to testify

| before the grand jury nor to be interviewed by the

prosecutors in charge of the grand jury despite Bu-

reau instructions issued in September 1969 that ef-

forts should be made to convince informants to testify

about information they had furnished concerning the

BPP.

During the first weeks of February 1970, Zimmers

conducted exhaustive tests of the ballistics evidence

4la

and weapons involved in the raid. Zimmers concluded

that the spent shells identified in the Sadunas report

as having been fired from Brenda Harris’ gun ac-

tually had been fired from Officer Ciszewski’s weapon.

Sadunas was informed of this discrepancy in mid-

February. Upon receiving the evidence and weapons

from the FBI, Sadunas retested the shotshells and

test-fired Ciszewski’s gun for the first time. His find-

ings confirmed Zimmers’. Several weeks later Sa-

dunas appeared before the federal grand jury and

testified to his previous error. Hanrahan, who was

in charge of the state prosecution, learned of Sadunas’

error in March. He discussed the corrected findings

with the raiders and asked if they wanted, to make

further statements. Hanrahan and the raiders de-

cided that the raiders should testify before the fed-

eral grand jury to relate their accounts of the inci-

dent. At the same time Hanrahan was considering

dismissal of the state indictments.

According to Leonard, Hanrahan, the raiders, and

other police officers eventually became “targets” of

the federal grand jury investigation. Hanrahan was

warned of this several weeks before he was requested

to testify. Suosequently Leonard discussed the po-

tential indictments with Johnson and informed him

that “an arrangement” had been made between Han-

rahan and him, whereby the raiders’ testimony would

be given to Hanrahan after they testified and that

Hanrahan would drop the indictments against the

survivors within thirty days. Leonard hoped that the

42a

survivors would then testify before the federal grand

jury. Shortly after this discussion, Johnson informed

Treviranus of the “arrangement” and, on the basis

of this conversation, Treviranus sent a teletype to

FBI headquarters on April 8. The teletype stated

that the dismissal of the local indictments would be

based on the change in Sadunas’ testimony.** Enclosed

with the teletype was a draft of the first chapter of

the grand jury report.

Groth and the other raiders began their testimony

before the grand jury on the same day that Trevi-

ranus dispatched the teletype and the report. Groth

was not requested to reveal the identity of his infor-

mant even though Leonard’s assistants had requested

this information from the State’s Attorney’s Office

18 The teletype stated :

AAG Jerris Leonard, Civil Rights Division, Department

of Justice, at Chicago, advised SAC Marlin Johnson in

strictest confidence that no indictments of police officers

are planned in captioned matter. AAG Leonard has a

firm commitment to meet with Edward V. Hanrahan,

State’s Attorney, Cook County, Illinois, within one week,

whereupon, on basis of Federal District Court order

Hanrahan will receive testimony of State’s Attorney’s

Police before FGJ.

The above is based upon an agreement whereby Hanrahan

The above is based upon an agreement where Hanrahan

will dismiss the local indictments against the BPP mem-

bers. Hanrahan is to be given thirty days to dismiss the

local indictment which will be based upon the change of

testimony of John Sidunas [sic] of the Chicago Police

Department Crime Lab.

Subsequent to this dismissal, BPP victims will then be

subpoenaed before the FGJ for their testimony in this

case.

43a

and Groth in early February. At that time the State’s

Attorney’s Office informed the assistants that “Jalo-

vec was informed by a federal employee: [and] Groth

may consider course of action if asked before the

Grand Jury.” The raiders refused to conform their

testimony to the ballistics evidence and physical evi-

dence shown them by the federal prosecutors prior to

their appearance.

On May 4 Hanrahan appeared before the grand

jury and testified that it was his intention to dismiss

the indictments based on the revised Sadunas report.

Four days after Hanrahan’s appearance, the indict-

ments against the survivors were dropped. The Gov-

ernment sought the seven survivors’ testimony before

the grand jury on May 11; however, the plaintiffs

refused to testify. No indictments were returned

and the federal grand jury was discharged on May

15. ;

In June 1970 a special prosecutor was appointed

by the Chief Judge of the Criminal Division of the

Circuit Court of Cook County to inquire into the

police and Black Panther actions on December 4. A

special state grand jury was convened in December

1970 which returned indictments against Hanrahan,

Jalovec, Mulchrone, Meade, Sadunas, Koludrovic,

Groth, Broderick, Carmody, Ciszewski, Corbett,

Davis, Gorman, and Jones for conspiring to obstruct

justice. On October 25, 1972 these defendants were

found not guilty after a bench trial in the Criminal

Court of Cook County. .

44a

These facts provide the basis for a determination

of the legal issues concerning the directed verdicts.

The plaintiffs’ principal claim is that defendants con-

spired to deprive them of their civil rights."* The

plaintiffs also assert claims against individual de-

fendants for intentional and negligent violations of

their rights. We now seek to outline generally the

governing legal principles regarding civil conspira-

cies. This discussion will be followed by an analysis

both of these standards and of the individualized

claims as applied. to the facts presented in the three

stages of plaintiffs’ case.

III. CONSPIRACY CLAIMS

A civil conspiracy is “a combination of two or

more persons acting in concert to commit an unlaw-

ful act, or to commit a lawful act by unlawful means,

the principal element of which is an agreement be-

tween the parties ‘to inflict a wrong against or injury

upon ancther,’ and ‘an overt act that results in dam-

age.’”” Rotermund v. United States Steel Corp., 474

F.2d 1139 (8th Cir. 1973) (citation omitted). In

order to prove the existence of a civil conspiracy, a

plaintiff is not required te provide direct evidence of

the agreement between the conspirators; “[c]ircum-

stantial evidence may provide adequate proof of con-

spiracy.” Hoffman-LaRoche, Inc. v. Greenberg, 447

F.2d 872, 875 (7th Cir. 1971). See also United

19 Plaintiffs’ conspiracy claims are based on 42%U.S.C.

§§ 1983 and 1985(3).

45a

States v. Varelli, 407 F.2d 735, 741-42 (7th Cir.

1969). Absent the testimony of a coconspirator, it

is unlikely that direct evidence of a conspiratorial

agreement will exist. Thus, the question whether an

agreement exists should not be taken from the jury

in a civil conspiracy case so long as there is a possi-

bility that the jury can “infer from the circumstances

[that the alleged conspirators] had a ‘meeting of the

minds’ and thus reached an understanding” to achieve

the conspiracy’s objectives. Adickes v. Kress & Co.,

398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.

2d 142 (1970).

A plaintiff seeking redress need not prove that each

participant in a conspiracy knew the “exact limits of

the illegal plan or the identity of all participants

therein.” Hoffman-LaRoche, Inc., supra, 447 F.2d at

875. An express agreement among all the conspira-

tors is not a necessary element of a civil conspiracy.

The participants in the conspiracy must share the

general conspiratorial objective, but they need not

know all the details of the plan designed to achieve

the objective or possess the same motives for desiring

the intended conspiratorial result. To demonstrate

the existence of a conspiratorial agreement, it simply

must be shown that there was “a single plan, the

essential nature and general scope of which [was]

known to each person who is to be held responsible

for its consequences.” Id.

Keeping these standards in mind, when we examine

the evidence presented by both sides in this case in

&

46a

the light most favorable to the plaintiffs, we conclude

that the district court erred when it ruled that the

plaintiffs had not established a prima facie case of

conspiracy. Our analysis of the plaintiffs’ case leads

us to conelude that the plaintiffs did offer sufficient

evidence to warrant a jury determination of whether

a conspiracy existed. The fact that “all of the evi-

dence . . . does not point in one direction and differ-

ent inferences might reasonably be drawn from it”

does not justify judicial intrusion into the jury’s role

in determining whether a civil conspiracy existed.

Continental Ore Co. v. Union Carbide & Carbon

Corp., 370 U.S. 690, 700-01, 82 S.Ct. 1404, 1411, 8

L.Ed.2d 777 (1962). In such a situation, “it is the

jury which ‘weighs the contradictory evidence and

inferences’ and draws ‘the ultimate corclusion as to

the facts.’” Id. (citation omitted). When a plaintiff

alleges a conspiracy to violate civil rights, “[t]he ex-

istence or nonexistence of a conspiracy is essentially

a factual issue that the jury, not the trial judge,

should decide.” Adickes, supra, 398 U.S. at 176, 90

S.Ct. at 1618 (Black, J., concurring.)

We do wish, however, to make one observation

about the nature of the conspiracy described by plain-

tiffs’ evidence in this case.” We believe that plaintiffs

have presented a prima facie case, not of a single

20 It should be noted that when we refer to a conspiracy

among defendants, we are not passing on the ultimate validity

of plaintiffs’ claims. We merely are commenting on plaintiffs’

claims and evidence from which a jury reasonably could infer

that a conspiracy or conspiracies existed.

47a

conspiracy, but of two conspiracies designed to vio-

late their rights in distinct ways. These conspiracies

share many of the same participants who form “the

common nucleus of *scparate conspiracies,” Varelli,

supra, 407 F.2d at 743, but they are not identical

conspiracies. The first conspiracy, as we view the

evidence, involves the state and federal defendants

who participated in the pre-raid preparations and

planning, and the raid itself. The second conspiracy,

involving many of these same defendants, was the

alleged coverup of evidence regarding the instigation,

preparation and execution of the raid, and the post-

raid legal harassment of the plaintiffs. These two

conspiracies required entirely different kinds of ac-

tivities, both legal and illegal, to achieve their ends.

But more importantly, these two conspiracies had

distinct objectives. The first conspiracy was designed

to subvert and eliminate the Black Panther Party

and its members, thereby suppressing both a poten-

tial source of unrest, turmoil, and even violence in

the black community, and a vital, radical-black politi-

cal organization. The second conspiracy harassed the

survivors of the raid. Moreover, the post-raid con-~

spiracy was intended to frustrate any redress the

plaintiffs might seek and, more importantly, to con-

ceal the true character of the pre-raid and raid ac-

tivities of the defendants involved in the first con-

spiracy.

Reference to the law of criminal conspiracy sug-

gests that this distinction between the substantive

48a

criminal conspiracy and the subsequent concealment

of the crime is important. The Supreme Court stated

in Grunewald v. United States, 353 U.S. 391, 77 S.

Ct. 968, 1 L.Ed.2d 931 (1957): “Acts of covering

up, even though done in the context of a mutually

understood need for secrecy, cannot themselves _con-

stitute proof that concealment of the crime after its

commission was part of the initial agreement among

the conspirators.” Jd. at 401-02, 77 S.Ct. at 972.

Thus, in order to prove that acts of concealment con-

stitute a part of the initial conspiracy, the prosecu-

tion must present “direct evidence [of] an express

original agreement among the conspirators to con-

tinue to act in concert in order to cover up, for their

own self-protection, traces of the crime after its com-

mission.” Id. at 404, 77 S.Ct. at 973-74. Absent such

evidence, the concealment is independent of the crigi-

nal conspiracy; the original conspiracy is not con-

sidered ongoing simply because concealment of the

conspiracy continues. Thus, persons who participate

in the concealment are not ips: facto participants in

the original conspiracy.

These principles are instructive in analyzing the

case presented by plaintiffs. Many of the state de-

fendants are named in plaintiffs’ complaint only for

their participation in the post-raid coverup. Without

direct proof that an agreement to conceal was part

-of the original conspiracy, these defendants should

be liable only for damages arising out of the post-

raid conspiracy. Defendants who are proved to have

49a

participated in both the pre-raid and post-raid con-

spiracies are liable, of course, for damages arising

out of both conspiracies.

We do not decide now that plaintiffs’ case involves

two conspiracies and that liability must be deter-

mined on the basis of that conclusion. Plaintiffs’ dis-

covery was hampered unduly by the trial court, see

infra, pp. 639-642 and we cannot be certain that the

plaintiffs, given full discovery, would be unable to

prove that an agreement to conceal the facts con-

cerning the preparation and execution of the raid

existed as part of the original conspiracy. And, as

we have noted before,

[s]ince the existence of multiple conspiracies is

really a fact question as to the nature of the

agreement, it is for the jury to decide whether

there is one agreement or several. United States

v. Crosby, 294 F.2d 928 (2d Cir. 1961); Green

v. United States, 332 F.2d 788, 789 (5th Cir.

1964) ; United States v. American Honda Motor

Co., 273 F.Supp. 810 (N.D.IIl. 1967).

Varelli, supra, 407 F.2d at 746. Thus, the trial court

upon remand should provide jury instructions that

will insure that the jury is aware of the alternatives

of finding single or multiple conspiracies in the evi-

dence presented by plaintiffs.

The defendants raise several questions about the

legal sufficiency of plaintiffs’ conspiracy claims which

must be discussed. First, defendants contend that in

order to have an adequate claim for relief under

section 1983, a plaintiff must allege and prove both

50a

a conspiracy and an actual deprivation of rights;

mere proof of a conspiracy is insufficient to establish

a section 1983 claim. This statement of the law is

correct, see Lesser v. Braniff Airways, Inc., 518 F.2d

538, 540 n.2 (7th Cir. 1975), but we do not see how

this affects the viability of plaintiffs’ claims in the

instant case. Plaintiffs’ prima facie case offers a

number of constitutional deprivations to accompany

their conspiracy allegations; clearly, the evidence

would support a finding of injury which would con-

stitute deprivation of constitutional rights. Thus,

this requirement of a section 1983 claim has been

satisfied. .

The federal defendants also contend that section

1983 is inapplicable to them since its prohibitions are

directed only against state actors. Yet when federal

officials are engaged in a conspiracy with state offi-

cials to deprive constitutional rights, the state officials

provide the requisite state action to make the entire

conspiracy actionable under section 1983. The Second

Circuit has stated: ‘When the violation is the joint

product of the exercise of a State power and of a

non-State power then the test under the Fourteenth

Amendment and § 1983 is whether the state or its

officials played a ‘significant’ role in the result.”

Kletschka v. Driver, 411 F.2d 486, 449 (2d Cir.

1969) (citation omitted.) Our recent decision in

Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976),

is not to the contrary. In Askew the state officials

did not play a significant role in the conspiracy:

5la

“TBloth the impetus for and the execution of” the

conspiratorial plan derived from the federal officials.

Id. at 678. Plaintiffs’ evidence in the instant case

indicates that the federal and state defendants shared

in instigating and preparing for the raid. There can

be no question that the state defendants “played a

‘significant’ role in the result.” Kletschka, supra, 411

F.2d at 449.

Defendants also contend that plaintiffs have failed

to state a claim under section 1985(3) because they

have not proved that a racial or otherwise class-based,

invidiously discriminatory animus was behind the

conspirators’ actions.” Proof of a class-based animus

underlying the conspiracy is, of course, a require-

ment of a section 1985(38) claim. Griffin v. Brecken-

ridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d

338 (1971). Griffin itself held that race was such

a class-based animus, but did not establish what

other types of class-based animi were sufficient to

state a claim. The conspiracy alleged in this case,

however, does not require:an intensive analysis into

either the meaning of Griffin or Congress’ intent in

drafting section 1985(3) to determine whether the

class-based animus requirement was satisfied. The

21 The federal defendants make no contention that, because

they are not state actors, they are not subject to the anti-

discrimination provisions of the statute. Section 1985(3)

clearly was intended to provide redress for victims of a con-

spiracy to violate civil rights whether or not the conspiracy

was under color of state law. Griffin v. Breckenridge, 403

U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

52a

statute was intended, perhaps more than anything

else, to provide redress for victims of conspiracies

impelled by a commingling of racial and political

motives.” And this is precisely the sort of conspiracy

alleged by plaintiffs in this case.

A brief recital of so.ne of the evidence presented

by plaintiffs substantiates this conclusion.” The BPP

was a black organization with a distinct political ide-

ology and a variety of politically-oriented programs.

FBI documents offered by plaintiffs demonstrate that

certain FBI activities directed against the BPP tran-

scended mere “law enforcement,” and were designed

to “neutralize” the BPP as a political voice on racial

issues. Hanrahan testified that two of the principal

22 Discrimination on the basis of political beliefs or affilia-

tions has been found to be actionable under section 1985 (3).

See, e.g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975),

cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364

(1976) ; Glasson v. City of Louisville, 518 F.2d 899 (6th

Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258

(1975). See also Griffin, supra, 403 U.S. at 102 n. 9, 91 S.Ct.

1790, n. 9; Comment, Private Conspiracies to Violate Civil

Rights, 90 Harv.L.Rev. 1721, 1728 (1977) (‘the legislative

history behind section 1985(3) points unmistakably to the

conclusion that discrimination on [the basis of political be-

liefs or affiliations] was intended to be actionable”). One of

the foremost concerns of the drafters of the original section

1985(3) was discrimination against individuals whose politi-

cal affiliations were imbued with racial implications. See

Avins, The Ku Klux Klan Act of 1871: Some Reflected Light

on State Action and the Fourteenth Amendment, 11 St. Louis

U.L.J. 381 (1967).

*3 This evidence is examined in more detail. See, esp. supra

at pp. 608-612.

53a

goals of the unit his office assigned to investigate the

BPP were to combat the anti-police propaganda the

BPP had been disseminating in the black community

and to mobilize support among blacks for police. And

one of the purposes of the post-raid coverup was to

prevent the development of widespread sympathy for

the BPP cause which might have arisen out of a full

disclosure of the facts surrounding the raid and the

deaths of Clark and Hampton. Such purposes, if

proven, bespeak of a class-based discriminatory ani-

mus which is at the heart of section 1985(3)’s pro-

hibitions. There is no doubt that the plaintiffs have

satisfied this requirement for proving a section 1985

(3) claim.

Reviewing the facts presented by plaintiffs in light

of these standards, we find that the trial court erred

when it directed verdicts as to plaintiffs’ conspiracy

claims against Hanrahan, Jalovec, the raiders, and

the federal defendants regarding their participation

in the planning and execution of the raid. Plaintiffs

presented considerable evidence, including FBI docu-

ments and express statements by Hanrahan, from

which reasonable persons could conclude that these

parties shared a ‘“‘class-based or otherwise discrimina-

tory” desire to undermine the BPP. These defend-

ants also engaged in an extensive series of communi-

cations which could demonstrate to a reasonable per-

son the existence of an agreement—either tacit or

express—to act in concert to achieve their shared

54a

objective.“ Plaintiffs need not prove that the indi-

vidual motives underlying a common, illegal desire to

achieve the conspiratorial objective were identical.

The essence of a conspiracy is the agreement, and a

reasonable jury could find that the actions of these

defendants demonstrate that they had agreed at least

tacitly to work together to eliminate the BPP.

The state defendants argued that they never

heard of a FBI counterintelligence program called

“COINTELPRO” and thus they cannot be liable as

coconspirators with the federal defendants. Simi-

larly, the federal defendants contend that because

they never met with any of the raiders—in fact, they

had never heard of most of them—they cannot be

part of a conspiracy which includes the raid on the

BPP apartment. As we stated earlier, however, each

participant in a conspiracy need not know the “exact

limits of the illegal plan or the identity of all par-

ticipants therein.” Hoffman-LaRoche, Inc., supra, 447

F.2d at 875.

For example, the fact that Special Agent-in-Charge

Johnson never spoke to Carmody (one of the raiders)

does not preclude their being conspirators. Johnson

closely supervised his subordinate FBI officials’ ac-

tivities vis-a-vis the BPP. These agents, in turn,

had their contacts among the state defendants. The

24 If the evidence were to demonstrate that the federal and

state defendants merely agreed to help each other enforce

the law and prevent violence by the BPP through lawful

means, the agreement, of course, would not have violated

plaintiffs’ civil rights.

55a

communications between Jalovec and Mitchell, in par-

ticular, were essential to the planning and successful

execution of the raid. Without the information the

federal defendants furnished the state defendants, the

state defendants could not have acted in furtherance

of the purpose which plaintiffs contend the state and

federal defendants shared—inflicting injury to the

BPP. The absence of a sole instigator who personally

communicated with all the participants in the con-

spiracy and orchestrated each of their actions does

not preclude a jury from concluding that a conspiracy

existed. Plaintiffs presented sufficient evidence from

which a reasonable person could find that all the de-

fendants named in the initial conspiracy performed

discreet functions in concert to further a common

plan—the raid.

Liability for civil conspiracy requires proof of

more than an agreement among conspirators; a plain-

tiff must show that an actual deprivation of his

rights resulted from the conspiracy. See supra, p.

622. The raid and the injuries suffered by plaintiffs

as a result of the raid reasonably could be found to

constitute this actual deprivation of rights. Thus,

plaintiffs have established a prima facie case under

sections 1983 and 1985(38) for civil liability: a con-

spiracy to violate their civil rights and actual de-

privation of those rights arising from the implementa-

tion of the conspiratorial plan.

56a

IV. CLAIMS OF INDIVIDUAL LIABILITY FOR

ACTS BEFORE AND DURING THE RAID

As an alternative to the conspiracy allegations,

plaintiffs assert that these defendants are subject to

individual liability under section 1983 or directly

under the Constitution. The gist of their claims is

that these defendants are liable for the intentional

and negligent deprivation of rights which occurred

during the raid.”

A. Shooters

Plaintiffs seek recovery against the shooters on the

ground that these defendants, acting under color of

state law, made an illegal entry into the West Mon-

25 Defendants urge that plaintiffs be denied relief on the

ground that negligent conduct is not cognizable under section

1983. We are not persuaded by this argument. Defendants

are correct that “mere negligence” is not actionable under

42 U.S.C. § 19838. Bonner v. Coughlin, 545 F.2d 565, 567

(7th Cir. 1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507,

55 L.Ed.2d 529 (1978). In Jamison v. McCurrie, 565 F.2d

483, 486 (7th Cir. 1977), Chief Judge Fairchild articulated

the standard for a constitutional cause of action: “The plain-

tiff must show that [the police officers’] misbehavior was

either intentional or in reckless disregard of his constitu-

tional rights,” citing Bonner v. Coughlin, supra. The evidence

offered by plaintiffs, however, viewed in the light most

favorable to them, satisfies this test. Plaintiffs’ case rests on

evidence of excessive force, assault, battery, and wrongful

death which a jury could conclude constituted reckless dis-

regard of plaintiffs’ civil rights in violation of 42 U.S.C.

§ 1983. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5

L.Ed.2d 492 (1960); Clark v. Ziedonis, 513 F.2d 79, 80 n.1

(7th Cir. 1975).

57a

roe Street apartment and used deadly and excessive

force in addition to committing assault, battery, and

other abusive acts on its occupants. Our discussion

of the facts concerning the propriety of the search

warrant which defendants assert justified their entry

into the apartment is found in our analysis of Groth’s

refusal to identify the informant he used to support

the affidavit for the warrant. See infra, pp. 635-639.

Even if the officers were acting pursuant to a search

warrant validly issued, the question remains for the

jury’s determination whether the force used by the

raiders within the apartment was reasonable under

the circumstances. The officers had a right to use

some degree of force in executing the warrant and

defending themselves. As noted in Terry v. Ohio, 392

U.S. 1, 28, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889

(1968), “it would be unreasonable to require that

police officer. take unnecessary risks in the perform-

ance of their duties.” The record is replete with

factual disputes regarding the activities of the

shooters on the morning of December 4. For ex-

ample, it reasonably could be inferred that Mark

Clark’s gun fired during his struggle with Groth

rather than when the police officers first broke through

the door. Additionally, plaintiffs testified at trial that

none of the survivors fired a gun during the raid.

And Zimmers’ expert testimony corroborated these

assertions. Numerous other questions of fact are pres-

ent in the record, including the issue of whether Fred

Hampton was drugged at the time of the raid and

ud

58a

shot deliberately after Johnson, Truelock, and Bell

had left the bedroom.

Assessing the credibility of witnesses and weighing

the evidence are matters within the sole province of

the jury. In granting the directed verdicts, the trial]

judge repeatedly usurped this function. For ex-

ample, the judge concluded in his Summary that

“Brenda Harris fired a shot which went past Groth’s

shoulder.” This finding was made in disregard of

Harris’ testimony to the contrary and the physical

evidence offered at trial. Additionally, the trial court

ignored the testimony of Johnson and Truelcek and

determined that “the evidence is conclusive that

[Hampton] was shot three times and that he was

dead when Deborah Johnson and Louis Truelock left

the bedroom.” The court also weighed the conflicting

evidence of the experts and found that the evidence .

introduced by plaintiffs’ toxologist, Dr. Eleanor Ber-

man, was “in error.”

In light of the evidence presented by plaintiffs, the

question of the seven shooting police officers’ liability

should have been submitted to the jury. Accordingly,

we reverse the verdicts directed in favor of these

police officers on the individual counts.

B. Nonshooters

In addition to their conspiracy allegations, plain-

tiffs have presented a prima facie case under section

1983 against the nonshooters on the basis of their

nonfeasance at the BPP apartment. This court pre-

viously imposed liability in damages for nonfeasance

59a

in Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972). The

facts in Byrd are strikingly similar to those alleged

in the case at bar. In Byrd Chicago police officers

failed to deter other officers who, in their presence,

beat the plaintiff with fists and clubs. Holding that

purposeful nonfeasance of such magnitude could serve

as the basis of tort liability under section 1983, we

stated that “fone who is given the badge of authority

of a police officer may not ignore the duty imposed

by his office and fail to stop other officers who sum-

marily punish a third person in his presence.” 466

F.2d at 11.

Plaintiffs in this case assert that the nonshooters

are liable, under the rule in Byrd, for failing to as-

sist or protect the wounded occupants. The officers

entered the apartment immediately after the firing

ceased and plaintiffs testified that the nonshooters

were present during the beatings and abuse which

they said followed the shootout. In light of our de-

cision in Byrd, the fact if found by a jury determina-

tion that these men did not personally participate in

the abuse, but instead callously chose to watch, would

not preclude their liability. Accordingly, this issue

should have been submitted to the jury. We hold

that the directed verdicts in favor of the nonshooters

regarding their activities in the raid were improperly

granted by the trial court.*

* Judge Pell states in dissent that the directed verdicts

in favor of the nonshooters were proper because there is “‘no

basis [in the record] for even an inference that the non-

shooters were inside when any occupant of the apartment

60a

C. Hanrahan and Jalovec

Plaintiffs contend that the alleged failure of Hanra-

han and Jaiovec to supervise properly the officers

attached to the SPU creates a cause of action based

on section 1983. We agree. In Schnell v. City of

Chicago, 407 F.2d 1084 (7th Cir. 1969), we held

that supervisory personnel are proper party-defend-

ants to a section 1983 action

whether the plaintiffs’ constitutional rights are

violated as a result of police behavior which is

the product of the active encouragement and di-

was allegedly mistreated, and certainly not to support the

inference suggested in Judge Swygert’s opinion that they

‘callously chose to watch.’ ” Infra, p. 658.

The record demonstrates that the dissent’s position is in-

correct. Louis Truelock testified before the state grand jury

that there were “fifteen or twenty officers in the kitchen,”

some in uniform and some in plainclothes, when the firing

ceased and Groth ordered that the bodies be brought into the

kitchen. Plaintiffs’ Exhibit LT +7, pp. 27-28. (The shooters

wore black on the raid; nonshooters wore police uniforms.)

Additionally, testimony of several of the nonshooters them-

selves establishes that they were inside the apartment before

the survivors were taken away. Officer Kelly testified at the

Coroner’s inquest that he entered the apartment in the midst

of the firing. Plaintiffs’ Exhibit 417, p. 109. See also Federal

Grand Jury testimony, Plaintiffs’ Exhibit 574B, p. 152. And

Officer Marusich testified at the Coroner’s inquest that he

entered the apartment “a couple of minutes” after the last

shot was fired. Plaintiffs’ Exhibit 421, p. 1236.

This evidence demonstrates that at least some, if not all,

nonshooters were in the apartment at the time the occupants

allegedly were being abused. The question whether nonshoot-

ers are liable under section 1983 for purposeful nonfeasance,

under the rule of Byrd, is one for the jury to determine.

MEE

6la

rection of their superiors or as a result of the

superiors’ mere acquiescence in such behavior.

Id. at 1086. See also Sims v. Adams, 537 F.2d 829,

831 (5th Cir. 1976). Plaintiffs have established a

prima facie case against Hanrahan and Jalovec on

the basis of their roles as supervisors of the police

officers who participated in the raid. They approved

Groth’s selection of men and weapons carried on the

raid. Additionally, they approved of the early morn-

ing timing of the execution of the search warrant.

It was for the jury to determine whether the conse-

quences of these actions were foreseeable. We believe

that the trial court improperly directed verdicts in

favor of these defendants on the nonconspiracy counts.

D. Federal Defendants

Finally, we fail to see the distinction which plain-

tiffs make between “joint activity” under section

1983 and conspiracy under sections 1985(3) and

1983 regarding the federal defendants’ liability for

damages resulting from the raid. The same legal

standards apply to each form of liability. As stated

by Prosser,

joint tortfeasor liability arises when persons

‘who, in pursuance of a common plan or design

to commit a tortious act, actively take part in it,

or further it by cooperation or request, or who

lend aid or encouragement to the wrongdoer, or

ratify and adopt his acts done for their benefit

are equally liable with him.” Prosser, Torts (4th

ed. 1971) p. 292.

62a

The evidence which plaintiffs presented to support

their nonconspiracy theory against these defendants

is identical to that which was aimed at establishing

their conspiracy claims. Accordingly, although we

fail to see the need to allege this redundant theory of

recovery, we hold that plaintiffs have presented suf-

ficient evidence to support their joint activity claims.”

V. CLAIMS OF LIABILITY FOR POST-RAID

ACTS

On the basis of the post-trial facts, plaintiffs claim

« that defendants conspired to cause the false arrest,

imprisonment, and prosecution of the survivors of the

raid. All defendants are named as participants in

the post-raid conspiracy. As a further result of the

conspiracy, plaintiffs allege that the Cook County

criminal prosecution against them was prolonged to

28—In Count 4 of their complaint, plaintiffs allege under

section 1986 that Hanrahan, Jalovec, the raiders, and the fed-

eral defendants neglected to prevent the wrongs perpetrated

in violation of section 1985(3). Section 1986 states in part:

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section

1985 of this title, are about to be committed, and having

power to prevent or aid in preventing the commission

of the same, neglects or refuses so to do, if such wrong-

ful act be committed, shall be liable to the party injured,

or his legal representatives, for all damages caused by

such wrongful act, which such person by reasonable

diligence could have prevented.

On the basis of our examination of the evidence supporting

plaintiffs’ conspiracy claim, we conclude that plaintiffs estab-

lished a prima facie case of section 1986 liability.

63a

May 8, 1970 and that they incurred unnecessary

legal expenses and suffered mental anguish and in-

jury to their reputations. Relief is sought under sec-

tions 1983 and 1985(3).

A. Hanrahan, Jalovec, the raiders, and the federal

defendants

We hold that plaintiffs have presented sufficient

evidence to establish a prima facie case that Hanra-

han, Jalovec, the raiders, and the federal defendants

participated in a post-raid conspiracy to harass the

survivors of the raid and to conceal the facts sur-

rounding the raid, thereby injuring plaintiffs.”

On the morning of December 4 several raiders met

with Hanrahan and Jalovee to discuss the raid.

Mitchell met with Groth and Jalovec the same morn-

ing and left immediately prior to Hanrahan’s first

press conference. From these conversations emerged

an allegedly distorted, if not false, account of the

raid which justified the officers’ actions. In the days

that followed, Hanrahan instituted a promotional

campaign. Despite their awareness of conflicting

stories, Hanrahan, Jalovec, and the raiders continued

to circulate reports to justify the continuation of

plaintiffs’ detention. And it was the raiders’ testi-

mony which provided much of the basis for the in-

dictments Hanrahan brought against the survivors.

The irregularities in the series of official investiga-

tions into the raid also constitute evidence from

. We read Counts 6 and 8 of plaintiffs’ complaint as de-

scribing the post-raid conspiracy.

64a

which there could be found a concerted effort to sup-

press facts about the planning and execution of the

raid and to justify the charges filed against the sur-

vivors. For example, at the internal investigation

(IID) conducted by the Chicago Police Department,

customary procedures were abandoned. Detailed

statements normally taken were never obtained. Jal-

ovec and Sorosky, present at Hanrahan’s direction,

met with the raiders immediately before the raiders

supplied their previously prepared, uniform answers

to predetermined questions. At the same time, a

ballistics report, compiled under pressure from the

State’s Attorney’s Office and several of the raiders,

was issued by Sadunas of the Chicago Police Depart-

ment. Despite its lack of completeness, the report

immediately was used to support the raiders’ ac-

count of the raid, the IID findings, and the Cook

County indictments.

The concerted effort to suppress facts is further evi-

denced by the obstruction of the federal grand jury

investigation, caused by the failure of the federal de-

fendants to turn over materials sought by the grand

jury. The evidence shows that a jury could find

that Johnson’s testimony before the grand jury was

false and misleading and concealed the involvement

of FBI headquarters and the roles of Piper, Mitchell,

and O’Neal in the planning of the raid. Addition-

ally, Johnson participated in the arrangement be-

tween Hanrahan and Leonard whereby Leonard

agreed not to obtain indictments against any state

officials for their actions with regard to the raid in

Matra.

65a

exchange for the dismissal of the state indictments

against the survivors. And during the pretrial dis-

covery in this suit, the federal defendants continued

to engage in dilatory and obstructive tactics to con-

ceal evidence of their involvement in the planning of

the raid. See infra, pp. 639-642.

A jury reasonably could infer that a conspiracy

existed to conceal the facts of the raid and to con-

tinue an unfounded prosecution against plaintiffs.”*

*8In Count 7 plaintiffs charge Hanrahan, Jalovec, the

raiders, and the federal defendants (except O’Neal) with

failing to prevent the post-raid conspiracy in violation of

section 1986. Plaintiffs have presented sufficient evidence to

establish a prima facie case on this theory of liability. Ad-

ditionally, in Count 11 of their complaint, plaintiffs allege

that Hanrahan, Jalovec, Groth, O’Neal, Mitchell, Johnson,

and Piper conspired to obstruct justice in violation of 42

U.S.C. § 1985(2). Section 1985(2) states:

. if two or more persons conspire for the purpose of

impeding, hindering, obstructing, or defeating, in any

manner, the due course of justice in any State or Terri-

tory, with intent to deny to any citizen the equal pro-

tection of the laws, or to injure him or his property for

lawfully enforcing, or attempting to enforce, the right of

any person, or class of persons, to the equal protection

of the laws. .. . the party so injured or deprived may

have an action for the recovery of damages, occasioned

by such injury or deprivation, against any one or more

of the conspirators.

We conclude, on the basis of our review of the evidence sup-

porting plaintiffs’ conspiracy claims, that plaintiffs estab-

lished a prima facie case of a section 1985(2) violation.

66a

B. Purtell, Koludrovic, and Sadunas

We hold that plaintiffs’ evidence does not present

a prima facie case as to Purtell and Koludrovic. Pur-

tell was the director of the Chicago Crime Laboratory

and the supervisor of Koludrovic and Sadunas. There

is, however, no evidence that he participated in any

agreement-or effort to distort the evidence found in-

side the apartment on December 4. Similarly, plain-

tiffs’ case against Koludrovic is insufficient. In his

official report he stated that more than one shot was

fired at the raiders as they entered the apartment and

he reiterated this conclusion at the Coroner’s inquest.

There was, however, no evidence of an agreement,

either tacit or express, between him and any other de-

fendant to conceal or distort facts about the raid.

His task at the apartment was made especially dif-

ficult by the raiders’ disruptive search prior to his

arrival and, if his examination of the premises was

less than thorough, the evidence suggests that this

was the result, at worst, of negligent rather than

intentional conduct.

There is, however, evidence—and reasonable infer-

ences—pointing to Sadunas’ participation in the post-

raid conspiracy. Sadunas’ initial ballistics test was

incomplete; he compared spent shotshells from the

apartment only with the weapons seized at the apart-

ment and ignored the weapons which had been used

by the raiders. His examination resulted in a crucial

misidentification which would have remained uncor-

rected absent Zimmers’ subsequent tests and conclu-

67a

sions. When he learned of Zimmers’ findings, Sadunas

retested the shells comparing them with all the

weapons—including those of the raiders. After these

tests, Sadunas readily admitted his mistake. Given

this set of events, we think that the determination

whether his misidentification was the result of pro-

fessional incompetence or conspiratorial conduct

should have been left for the jury.

C. Participants in the IID Investigation

| Meade and Mulchrone, through their participation

in the IID investigation, were not involved in the

_ dimension of the conspiracy which resulted in the

imprisonment and prosecution of the survivors with-

out legal basis; rather, their actions reasonably could

have been found to have encouraged the continuation

of the unfounded prosecution by suppressing the de-

velopment of inconsistent evidence against the raiders,

Hanrahan, and Jalovec. Police Superintendent Con-

lisk initiated the investigation at Hanrahan’s request

and ordered Mulchrone to supervise the proceedings.

Mulchrone admitted that the purpose of the investiga-

tion was not to test the veracity of the raiders’

stories, but to prevent the emergence of contradictory

testimony. Meade designed the perfunctory questions

and supplied the uniform answers for the inquiry.

Accordingly, the facts were sufficient to include

Meade and Mulchrone in a post-raid conspiracy

charge.

Plaintiffs did not present a prima facie case for

conspiratorial liability against Ervanian, Kukowinski,

68a

Sorosky, and Meltreger. A reasonable jury might find,

however, that these defendants violated 42 U.S.C.

§ 1986. Section 1986 provides:

Every person who, having knowledge that any

of the wrongs conspired to be done, and men-

tioned in section 1985 of this title, are about to

be committed, and having power to prevent or

aid in preventing the commission of the same,

neglects or refuses so to do, if such wrongful

act be committed, shall be liable te the party in-

jured, or his legal representatives, for all dam-

ages caused by such wrongful act, which such

person by reasonable diligence could have pre-

vented; and such damages may be recovered in

an action on the ¢ase; and any number of per-

sons guilty of such wrongful neglect or refusal

may be joined as defendants in the action.

Ervanian and Kukowinski, who normally conducted

IID investigations, were replaced for the Hampton

investigation. They were aware of and later acknowl-

edged the irregular character of the investigation.

Although they were not active participants in the

“whitewash,” they took no steps to correct it. Simi-

larly, plaintiffs presented no evidence that Assistant

State’s Attorneys Sorosky and Meltreger participated

in the preparation for the perfunctory interrogation

of the raiders. Prior to this examination, however,

they were shown the questions and answers which

had been prepared for the raiders, and Sorosky, with

Jalovec, met with the raiders immediately before their

interviews. And, like Ervanian and Kukowinski,

Sorosky and Meltreger made no attempt to prevent

69a

the irregular conduct of the investigation. Thus, al-

though these defendants could not be liable on the

basis of the existing record under plaintiffs’ con-

spiracy claims, there is sufficient evidence to support

the claims brought against them pursuant to 42

U.S.C. § 1986.

Plaintiffs also contend, in addition to their con-

spiracy claims, that there was no legal basis for the

arrest and imprisonment of the survivors of the raid

and therefore that Hanrahan, Jalovec, and the raid-

ers are liable under section 1983 for the intentional

deprivation of civil rights by false imprisonment. See

Monroe v. Pape,*365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.

2d 492 (1961) ; Joseph v. Rowlen, 402 F.2d 367 (7th

Cir. 1968). Several survivors were jailed on the basis

of the officers’ sworn complaints that the occupants

committed attempted murder and aggravated battery

against the raiders. Hanrahan and Jalovee author-

ized the filing of these charges. As a result of the

charges, the high bond set at the request of the

State’s Attorney’s Office, and the denial of plaintiffs’

demand for a preliminary hearing, these survivors

were imprisoned until December 21.

Plaintiffs’ claim, of course, hinges on the question

whether defendants were acting with probable cause

when they filed charges against the survivors. Pier-

son v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d

288 (1967) ; Banish v. Locks, 414 F.2d 638 (7th Cir.

1969). See also pp. 631-635 infra. The question of

whether the facts known to a defendant amounted

to probable cause should be determined by the court

- j :

70a

when there is no disagreement as to the facts or

circumstances surrounding the detention. Banish v.

Locks, supra, 414 F.2d at 641. In light of the numer-

ous disputes regarding the facts defendants knew or

reasonably believed, however, the trial court should

have submitted the issue of probable cause to the

jury.

Plaintiffs argue that all defendants (except O’Neal)

are liable individually under section 1983 for malici-

ous prosecution. An action for malicious prosecution

may be brought under section 1983 if, acting under

color of state law, the defendant has subjected the

plaintiff to a deprivation of constitutional magnitude.

Hampton I, supra; Banish v. Locks, supra; Nesmith

v. Alford, 318 F.2d 110, 126 (5th Cir. 1963). Plain-

tiffs contend that the raiders, Hanrahan, and Jalo-

vec instituted an unfounded prosecution and that

they, along with the other defendants, supported its

continuation. Relief is sought for the constitutional

deprivations and injuries arising from this prosecu-

tion.

The absence of probable zause is an essential ele-

ment of an action for malicious prosecution. Banish

v. Locks, supra, 414 F.2d at 640. Under the general

tort principles of malicious prosecution,

The defendant may be liable either for initiating

or for continuing a criminal prosecution without

probable cause. But he cannot be held responsi-

ble unless he takes some active part in instigating

or encouraging the prosecution. He is not liable

merely because his approval or silent acquiescence

Wi.

Tla

in the acts of another, nor for appearing as a

witness against the accused, even though his

testimony is perjured. . . . On the other hand, if

he advises or assists another person to begin the

proceeding, ratifies it when it is begun in his

behalf, or takes any active part in directing

or aiding the conduct of the case, he will be re-

sponsible (emphasis added).

Prosser, Torts (4th ed. 1971) pp. 836-37.

Plaintiffs referred to essentially the same evidence to

support their individual malicious prosecution claims

as they did to substantiate their conspiracy claims re-

garding malicious prosecution. We reach the same con-

clusion here as we did earlier. We hold that plaintiffs

failed to establish a prima facie case against defend-

ants Purtell, Koludrovic, Kukowinski, Ervanian, Soro-

sky, and Meltreger. The malicious prosecution claims

against the remaining defendants should have been

submitted to the jury and, accordingly, we reverse

the trial court’s directed verdicts as to these de-

fendants.”

22In summary, a prima facie case has been made out

against defendants as follows:

Counts 1-4: Hanrahan, Jalovec, the raiders, and the

federal defendants.

Count 5: Hanrahan, Jalovec, and the raiders.

Count 6: Hanrahan, Jalovec, and the raiders.

Count 7: Hanrahan, Jalovec, the raiders, Johnson,

Piper, and Mitchell.

Count 8: Hanrahan, Jalovec, the raiders, Johnson,

Piper, Mitchell, Sadunas, Meade, and Mulchrone.

Count 9: Hanrahan, Jalovec, the raiders, Johnson,

Piper, Mitchell, Sadunas, Meade, and Mulchrone.

72a

VI. CLAIMS OF IMMUNITY

The Supreme Court stated many years ago that

the “very essence of civil liberty certainly consists

in the right of every individual to claim the protec-

tion of the laws, whenever he receives an injury.”

Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60

(1803). When Congress adopted section 1983, it de-

cided that “every person” who, under color of state

law, deprived another of a constitutional right, privi-

lege, or immunity was liable to the victim for dam-

ages. Since then, however, the courts have recognized

certain exceptions to the unrestricted language of this

provision and have afforded immunity to persons act-

ing in specified official capacities.

Both the state and federal defendants claim that

they enjoy official immunity for their actions in con-

nection with the raid on the apartment on West

Monroe Street. The entreaties of public officials for

immunity for their official wrongdoing, however,

should be treated with circumspection. Grow v. Fish-

er, 523 F.2d 875 (7th Cir. 1975). We should be hesi-

tant to expand the scope of official activity which,

from the perspective of a victim seeking civil redress,

stands beyond the constraints of the Constitution. See

Count 10: Hanrahan, Jalovec, the raiders, Johnson,

Piper, Mitchell, Sadunas, Meade, Mulchrone, Ervanian,

Kukowinski, Sorosky, and Meltreger.

Count 11: Hanrahan, Jalovec, Groth, and the federal

defendants.

Count 14: Hanrahan, Jalovec, the raiders, and the fed-

eral defendants.

73a

generally Butz v. Economou, 438 U.S. 478, 98 S.Ct.

2894, 57 L.Ed.2d 895 (1978). For us to hold that

all of the actions of the defendants in this case should

be immune from liability as a matter of law would

require us to expand radically the parameters which

the Supreme Court has set for the doctrine of official

immunity. This we are unwilling ‘to do.

A. State Defendants: Absolute Immunity

State defendants Hanrahan, Jalovec, Meltreger,

and Sorosky (the Cook County State’s Attorney and

three of his assistants) contend that they cannot be

found liable for the damages alleged by plaintiffs

because they enjoy absolute immunity for their ac-

tions under the rule of Imbler v. Pachtman, 424 U.S.

409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The other

state defendants claim a qualified immunity. See

Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855,

55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S.

308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer

v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90

(1974). We hold that the four state prosecutors have

absolute immunity from section 1982 liabilityfor

some of their post-raid activities. Most of their al-

legedly illegal actions, however—including all of their

pre-raid activities—must be tested by the standards

of qualified immunity. :

The Supreme Court in Jmbler did not hold that all

official actions of a state prosecutor are absolutely

immune from section 1983 liability. Jmbler held

only that a prosecutor has absolute immunity “in

74a

initiating a prosecution and in presenting the State’s

case.” Imbler, supra, 424 U.S. at 4381, 96 S.Ct. at

995. See Briggs v. Goodwin, 186 U.S.App.D.C. 179,

569 F.2d 10 (1977), cert. denied, 487 U.S. 904, 98

S.Ct. 3089, 57 L.Ed.2d 1133 (1978) (prosecutor’s im-

munity limited to his “advocacy” functions). The

Court left standing circuit decisions which, by focus-

ing on “the functional nature of the activities” rath-

er than the “status” of the prosecutor, held that cer-

tain official actions by state prosecutors are entitled

only to qualified immunity. Jmbler, supra, 424 U.S.

at 430, 96 S.Ct. at 995. See, e.g., Guerro v. Mul-

hearn, 498 F.2d 1249, 1256 (1st Cir. 1974); Hamp-

ton v. City of Chicago, 484 F.2d 602, 608-09 (7th Cir.

1973); Robichaud v. Ronan, 351 F.2d 533, 536-37

(9th Cir. 1965). These cases clearly indicate that

when a state prosecutor is performing investigative

rather than advocacy functions, he is not wrapped

with absolute immunity.” See Briggs, supra, 569 F.2d

at 16-17.

In Hampton I, supra, we examined the claim of

Hanrahan and Jalovec to absolute immunity for their

pre-raid conduct. We concluded that their

alleged participation in the planning and execu-

tion of a raid of this character has no greater

claim to complete immunity than activities of

8 Our recent decision in Daniels v. Kieser, 586 F.2d 64

(7th Cir. 1978), is not to the contrary. In Daniels we held

that the prosecutor’s actions were within his “quasi-judicial”

functions and, for that reason, were absolutely immune from

liability. Jd. at 68-69.

75a

police officers allegedly acting under [their] di-

rection.

Hampton I, supra, 484 F.2d at 609. Neither Jmbler,

supra, 424 U.S. at 430, 96 S.Ct. 984, nor our fuller

consideration of the issue aided by the evidence pro-

duced at trial alters that conclusion.

More difficult questions are presented by the claims

of the defendants from the State’s Attorney’s Office

—Hanrahan, Jalovec, Meltreger, and Sorosky—to

absolute immunity with respect to their post-raid

conduct. Resolution of these claims requires a close

analysis of the nature of the defendants’ activities.

We hold that while some of their actions fall within

the ambit of Imbler’s protection, others do not.

Hanrahan’s decision to file charges against the

survivors of the raid, his, presentation of evidence

before the state grand jury, and his deal with As-

sistant Attorney General Leonard to drop the state

charges all comprise part of his “quasi-judicial” du-

ties as state prosecutor—“‘initiating a prosecution and

. . . presenting the State’s case... .” Imbler, supra,

424 U.S. at 431, 96 S.Ct. at 995; Butz, supra, “438

U.S. at 512-517, 98 S.Ct. at 2914-2916. Thus, Han-

rahan and any Assistant State’s Attorney who aided

him in these phases of his post-raid activity are abso-

lutely immune from civil liability for their conduct.

Other post-raid actions of these defendants, how-

ever, do not warrant absolute immunity. To the ex-

tent that plaintiffs can both show injuries arising

from this conduct and demonstrate that the defend-

76a

ants’ actions were illegal and unprotected by their

qualified immunity, the defendants will be liable for

damages. In particular, the State’s Attorney’s Office’s

generation of post-raid publicity, which may have

caused pre-trial prejudice to the plaintiffs and en-

couraged the alleged coverup of the true facts of the

raid, is not protected by absolute immunity. Barr v.

Matteo, 360 U.S. 564, 79 S.Ct. 13835, 3 L.Ed.2d 1434

(1959), said that a federal official who, even mali-

ciously, issues a false and damaging publication the

issuance of which is within the parameters of his

official duties, is absolutely immune from liability for

libel. However, the Supreme Court this term noted

that

a quite different question would have been pre-

sented had the officer ignored an express statu-

tory or constitutional limitation on his authority.

Barr did not, therefore, purport to depart

from the general rule, which long prevailed, that

a federal official may not with impunity ignore

the limitations which the controlling law has

placed on his powers.

Butz, supra, 438 U.S. at 482, 98 S.Ct. at 290. Thus,

Barr does not control in this case where the state

officials’ post-raid public relations activity allegedly

violated specific statutory and constitutional guaran-

tees.

Further, the Supreme Court’s recent decisions in

Butz and Imbler do not suggest that a state prose-

cutor’s publicity actions should be absolutely immune

from civil liability. In Butz, one of the actions plain-

7Ta

tiff complained of was the defendants’ issuance of a

deceptive press release. Butz, supra, 438 U.S. at 482,

98 S.Ct. at 2898. And the language in Butz suggests

that the defendants were absolutely immune for most

of their conduct vis-a-vis the plaintiff. However, “the

task of applying the foregoing principles” to the par-

ticular claims against the defendants in Butz was left

to the district court on remand. Id. 488 U.S. at 517,

98 S.Ct. at 2916. A close reading of Butz suggests

that the boundaries of the absolute immunity afforded

prosecutors in administrative proceedings do not en-

compass their publicity campaigns. The Court said

that “the decision to initiate or continue a proceed-

ing” and “the role of an agency attorney in conduct-

ing a trial and presenting evidence on the record to

the trier of fact”? are cloaked in absolute immunity

but made no intimation that a prosecutor’s issuance

of a press release warrants the same treatment. Id.

438 U.S. at 516-517, 98 S.Ct..at 2916. Significantly,

one of the safeguards the Butz Court persistently

referred to in justifying its extension of absolute im-

munity to certain “quasi-judicial” actions of admin-

istrative prosecutors—the scrutiny a prosecutor’s dis-

cretionary decisions receive in the adjudicatory proc-

ess, id. 438 U.S. at 516-517, 98 S.Ct. at 2916—is ab-

sent in the publicity context.

Imbler’s imposition of absolute immunity on the

“judicial phase” of a prosecutor’s duties likewise does

not protect a prosecutor’s publicity campaigns. Jm-

bler’s justification for granting absolute immunity to

78a

all of a state prosecutor’s’ “quasi-judicial” activities

has been sharply criticized, see, e.g., Imbler, supra,

424 U.S. at 432-47, 96 S.Ct. 984 (White, J., con-

curring); Developments in the Law: Section 1983,

90 Harv.L.Rev. 1133, at 1200, 1204 (1977), but even

on its own terms the justification does not extend

to a prosecutor’s decision to publicize his actions or

actions taken by others in the community. Neither

the prosecutor’s judgment “in* deciding which suits

to bring and in conducting them in court,” Jmbler,

supra, 424 U.S. at 424-25, 96 S.Ct. at 992, nor “the

functioning of the criminal justice system,” id. at

426-27, 96 S.Ct. at 998, would be undermined by

maintaining the exposure of a prosecutor’s public re-

lations decisions to section 1983 liability, subject only

to a qualified immunity: There is no compelling jus-

tification for extending absolute immunity to these

decisions. Thus, we hold that Hanrahan’s post-raid

press conferences and the participation of Hanrahan

and Jalovec in the exclusive interview with the Chi-

cago Tribune and in the CBS-TV reenactment of the

raid are protected only by a qualified immunity.

State defendants Jalovec, Sorosky, and Meltreger

contend that they are absolutely immune from li-

ability for their participation in the IID investiga-

tion. In our earlier review of Sorosky’s and Melt-

reger’s claims for absolute immunity, Hampton I,

supra, we observed that the plaintiffs essentially al-

leged that these defendants had engaged in “the

deliberate preparation of perjured testimony.” Id.

of 79a

at 609 n. 9.*° We concluded that such conduct

“clearly exceeded the scope of their quasi-judicial

immunity.” Id.

Since our decision in Hampton JI, however, the

Supreme Court rendered its decision in Jmbler v.

Pachtman, supra. Applying that decision, we re-

cently held that prosecutors who with local police

allegedly destroyed and falsified a line-up report and

police tapes of incoming phone calls, were protected

by the doctrine of absolute immunity. Heidelberg v.

Hammer, 577 F.2d 429, 432 (7th Cir. 1978). The

actions of Jalovec, Sorosky, and Meltreger at the IID

investigation constituted failure to prevent conduct

which was essentially indistinguishable from the

prosecutorial activity encapsulated in the allegations

in Heidelberg. Thus, we are compelled to conclude

that Jalovec, Sorosky, and Meltreger are absolutely

immune from liability for their actions at this

hearing.

B. Federal Defendants: Absolute Immunity

The federal defendants, Johnson, Piper, Mitchell,

and O’Neal, seek absolute or at least qualified official

immunity for their allegedly illegal actions. They

31 Today we hold that plaintiffs did not present sufficient

evidence against Sorosky and Meltreger to warrant submis-

sion of the conspiracy claims against them to a jury. We do

hold, however, that there was sufficient evidence supporting

the section 1986 claims against them. While Jmbler expressly

discusses only section 1983, its reasoning applies to the 1871

civil rights statutes generally, see Tenney v. Brandhove, 341

U.S. 367, 369, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and thus

should be applied to claims brought against prosecutors pur-

suant to section 1986.

80a

rely on Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1535,

3 L.Ed.2d 1434 (1959), as the basis for their claim

to absolute immunity. But as we noted earlier, swpra

at p. 632, the Supreme Court recently explained that

Barr does not afford protection to a federal official

who has exceeded an express statutory or constitu-

tional limitation on his authority. “[A] federal of-

ficial may not with impunity ignore the limitationis

which the controlling law has placed on his powers.”

Butz, supra, 438 U.S. at 489, 98 S.Ct. at 2902. Plain-

tiffs have presented considerable evidence to support

their allegations that the federal defendants violated

both constitutional and statutory limitations on their

authority. Thus, the absolute immunity granted to

federal officials pursuant to Barr does not apply to

the federal defendants in this case.

Butz made clear that federal officials should re-

ceive no more judicial protection from liability for

violating an individual’s civil rights than their state

counterparts. The Court stated:

. in the absence of congressional direction to

the contrary, there is no basis for according to

federal officials a higher degree of immunity

from liability when sued for a constitutional in-

fringement as authorized by Bivens than is ac-

corded state officials when sued for the identical

violation under § 1983.

Id. 488 U.S. at 500, 98 S.Ct. at 2907." It must be

32 The Butz Court held that a federal official’s exposure to

civil liability under Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971), should be the same as a state

8la

remembered, though, that while Butz concluded that

federal officials exercising discretion generally are

protected only by qualified immunity for their official

actions, there are “exceptional situations’ where

“absolute immunity is essential for the conduct of

public business.” Jd. 488 U.S. at 507, 98 S.Ct. at

2911. The situation of these federal defendants is

not exceptional. They were, according to their own

characterizations, law enforcement officials investi-

gating potential wrongdoing. It is a firmly estab-

lished rule that such activity by state law enforce-

ment officials warrants only qualified immunity. Pier-

son v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.E.2d

288 (1967). And as the Supreme Court observed in

Butz: “We see no sense .. . in distinguishing be-

tween state and federal police participating in the

same investigation.” Butz, supra, 438 U.S. at 500,

98 S.Ct. at 2908. Thus we conclude that the federal

defendants in this case are not absolutely immune

from liability for their actions and are protected only

by the doctrine of qualified official immunity.

C. Qualified Immunity

The test for applying the doctrine of qualified

immunity to a given defendant was most recently

official’s exposure under section 1983. In the instant case, the

plaintiffs not only are seeking damages from the federal de-

fendants under Bivens, but also are alleging that the federal

defendants, by conspiring with state officials to violate the

plaintiffs’ civil rights, violated section 1983. We see no rea-

son, given the Court’s reasoning in Butz, to give different

official immunity treatment to federal violators of section

1983 than to state violators.

82a

restated by the Supreme Court in Procunier v. Nava-

rette, 434 U.S. 555, 98 S.Ct. 855, 54 L.Ed.2d 24

(1978). See also Wood v. Strickland, 420 U.S. 308,

95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v.

Rhodes, 416 U.S. 232, 94 S.Ct. 1688, 40 L.Ed.2d 90

(1974). The Court in Procunier described the two

circumstances in which an official ordinarily insulated

by qualified immunity would be exposed to section

1988 liability. First, the Court said:

[T]he immunity defense would be unavailing to.

petitioners if the constitutional right allegedly

infringed by them was clearly established at the

time of their challenged conduct, if they knew

or should have known of that right, and if they

knew or should have known that their conduct

violated the constitutional norm.

Procunier, supra, 434 U.S. at 562, 98 S.Ct. at 860.

See Wood, supra, 420 U.S. at 322, 95 S.Ct. 992. Al-

ternatively, the Court stated that qualified immunity

is not available

where the official has acted with “malicious in-

tention” to deprive the plaintiff of a constitu-

tional right or to cause him “other injury.” This

part of the rule speaks of “intentional injury,”

contemplating that the actor intends the conse-

quences of his conduct. See Restatement (Sec-

ond) of Torts § 8A [1965].

Procunier, supra, 434 U.S. at 566, 98 S.Ct. at 862.

The allegations of plaintiffs in this case clearly

complain of official misconduct which is outside the

83a

ambit of the doctrine of qualified immunity. If plain-

tiffs prove their case against the defendants, the doc-

trine of qualified immunity will not thwart recovery

of damages. The rights which plaintiffs contend that

defendants have violated are clearly established.

Plaintiffs have presented evidence which could sug-

gest that the defendants—both as part of a conspir-

acy and individually—violated, among others, their

clearly established First,** Fourth,** and Fourteenth

Amendment rights.** And defendants have not shown

as a matter of law that they should not have known

either that these rights existed or that their alleged

conduct violated them. See Procunier, supra, 434 U.S.

at 562, 98 S.Ct. 855. Thus, we hold that the ques-

tion whether defendants reasonably believed that their

conduct did not violate a constitutional right, given

the evidence presented at trial, should have been sub-

mitted to the jury.”

33 The suppression of plaintiffs’ political speech through

harassment, intimidation, and subversion—-part of plaintiffs’

case against the defendants—would constitute violation of a

clearly established right.

34 An illegal entry based on a falsified warrant is a viola-

tion of clearly established Fourth Amendment protections.

35 Killing and wounding the inhabitants of an apartment

without cause, placing the survivors in jail, and subjecting

them to trial based on spurious charges is a patently obvious

violation of an individual’s right not to be deprived of life,

liberty, or property without due process of law.

6 There is no need to examine the second branch of the

doctrine to determine whether the defendants acted with the

requisite intent to deprive them of the benefits of their quali-

fied immunity. Either branch of the doctrine independently

84a

In summary, Hanrahan’s decision to file criminal

charges against the survivors, his presentation of evi-

dence to the grand jury, and his eventual decision

. to drop these charges, are absolutely immune from

civil liability under the /mbler doctrine. Similarly,

the activities of Jalovec, Sorosky, and Meltreger at

the IID hearing are absolutely immune. All the re-

maining activities of the defendants in this contro-

versy are protected only by a qualified immunity, and

a determination of whether their actions satisfy the

conditions for this defense must await the retrial.

VII. VALIDITY OF THE SEARCH WARRANT

The police officers who went to 2337 West Monroe

Street on December 4, 1969 were acting pursuant to

a warrant issued by a Cook County circuit judge.

The warrant was supported by an affidavit in which

Groth stated that a reliable informant had provided

information that illegal weapons were present in the

Monroe Street apartment. Groth’s complaint for the

search warrant further stated that Jalovec told Groth

that he too had a conversation with a reliable in-

formant who told him that illegal weapons were

stored in the apartment.

‘can deprive a defendant of the immunity. We note, however,

that plaintiffs in the instant case have presented sufficient

evidence to require a trial court to submit the issue of the

defendants’ intent to a jury if it were necessary to determine

whether the defendants could avail themselves: of qualified

immunity.

85a

The plaintiffs seek disclosure of the identity of

Groth’s informant.” The plaintiffs contend that only

disclosure of the identity of Groth’s informant—if,

in fact, one exists—will permit a full inquiry into

whether probable cause existed for the issuance of

the warrant. If Groth did not have an informant,

or his informant did not provide the information

contained in the affidavit, or the informant was un-

reliable, the validity of the warrant would be in

jeopardy and plaintiffs’ Fourth Amendment violation

claims would be strengthened.* Further, plaintiffs

contend that the search warrant was merely a pretext

for the raid and that misrepresentations in the affi-

davit would constitute evidence of a conspiracy to

violate the civil rights of the plaintiffs. If Groth did

not receive the information contained in his affidavit

37 The identity of Jalovec’s “informant” has already been

disclosed. In fact, Jalovec did not have an informant who

saw the weapons in the apartment. Instead, Jalovec was told

about the weapons by Mitchell, who in turn had learned about

the weapons from his informant, O’Neal. O’Neal’s identity

was disclosed several years after these events by the United

States Attorney for the Northern District of Illinois in an

unrelated criminal case.

38 The credibility of the affidavit to the warrant has already

been undermined by the evidence that Jalovec did not have an

informant and was relying on information which Mitchell had

received from O’Neal. And the sufficiency of O’Neal’s informa-

tion alone as the basis for a warrant is questionable. See

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723

(1964). See also Franks v. Delaware, 438 U.S. 154, 98 S.Ct.

2674, 57 L.Ed.2d 667 (1978); United States v. Carmichael,

489 F.2d 983 (7th Cir. 1973) (en banc).

86a

from a reliable informant, this contention would be

strengthened.

In his complaint for the search warrant, Groth

stated that his informant had been inside the Hamp-

ton apartment on December 1 and had seen illegal

weapons. The complaint also stated that this in-

formant had provided reliable information which led

to two prior, successful raids for illegal weapons and

information which led to several convictions. At his

deposition five years later, Groth said that this in-

formant had told him about illegal weapons, persons

who frequented the apartment, and the layout of the

apartment. When asked about the informant’s iden-

tity and reliability, however, Groth refused to elabo-

rate further upon the information contained in the

affidavit, saying that to do so would endanger the

lives of other persons.

At trial Groth persisted in his refusal to answer

questions which related to the identity of the inform-

ant. Plaintiffs moved to compel his testimony. The

trial judge then held a private, in camera, off-the-

record meeting with Groth in which he asked him

only one question—the identity of his informant.

Groth refused to answer, saying that he would main-

tain his silence even if it would lead to “consequences”

for him. On the record the court repeated the ques-

tion and received the same answer. The court then

denied plaintiffs’ motion to compel Groth’s testimony.

The trial court did not permit the development of

a record on the questions of Groth’s credibility re-

garding the existence and reliability of his informant

87a

and the danger the informant might be subjected to

if his identity were disclosed. The court concluded

that the reliability of Groth’s informant was estab-

lished by the results of the raid and, therefore, in-

quiry into his identity was irrelevant. At the end

of trial, the judge refused to give instructions to the

jury which would have allowed it to decide whether

the informant existed and whether information about

the informant was relevant to the conspiracy and

Fourth Amendment claims of plaintiffs.

Since Roviaro v. United States, 353 U.S. 538, 77

S.Ct. 628, 1 L.Ed.2d 639 (1957), it has been clear

that the so-cailed informer’s privilege (the privilege

that protects the identity of a person which otherwise

would be required to be disclosed during the course of

litigation) is not absolute. In Roviaro the Court

39 The trial judge, in his “Summary,” never mentioned

Roviaro. In fact, he cited only a Missouri appellate court

criminal case, Ex parte McClelland, 521 S.W.2d 481 (Mo.

App. 1975), to support his conclusion that Groth was not |

required to disclose the identity of his informant. Apart from

the judge’s obvious failure to apply the appropriate controlling

precedent, his analysis and reliance on McClelland is not

entirely accurate. There is a factual similarity between

McClelland and the instant case: in both, a police officer

refused to identify his informant. More importantly, though,

McClelland recognized that the decision to compel disclosure

or not should be based on a balancing test. And the two

factors which the McClelland court said would justify dis-

closure, when translated for application in the civil context,

are present in the instant case: The informant may have

been a witness, if not a participant, to the conspiracy which

constitutes the basis of the action, and the reasonableness of

the law enforcement officers’ conduct is dependent upon the

reliability of the informant. See id. at 485. Thus, even under

McClelland, disclosure would have been appropriate.

88a

said, ‘Where the disclosure of an informer’s identity

. is relevant and helpful to the defense of an ac-

cused, or is essential to a fair determination of a

cause, the privilege must give way.” Jd. at 60-61, 77

S.Ct. at 628. The Court went on to explain the test

to be applied tu determine when disclosure is required:

We believe that no fixed rule with respect to

disclosure is justifiable. The problem is one that

calls for balancing the public interest in protect-

ing the flow f information against the indi-

vidual’s righ’ . prepare his defense. Whether a

proper bala: renders nondisclosure erroneous

must depend on the particular circumstances of

each case, taking into consideration the crime

charged, the possible defenses, the possible sig-

nificance of the informer’s testimony, and other

relevant factors.

The Roviaro test has been applied in the context

of civil litigation in a variety of cases, see e.g., So-

cialist Workers Party v. Attorney General, 565 F.2d

19 (2d Cir. 1977) cert. denied, 486 U.S. 962, 98

S.Ct. 3082, 57 L.Ed.2d 1129 (1978); Westinghouse

Elec. Corp. v. City of Burlington, 122 U.S.App.D.C.

65, 351 F.2d 762 (1965), and we see no reason to

depart from this well-established rule. The language

employed by the Court in Roviaro encompasses civil

litigation as well as criminal litigation, and the com-

peting interests underlying the privilege and its ex-

ceptions are essentially the sar. in both contexts.”

40 The determination of the guilt or innocence of a criminal

defendant has been characterized as qualitatively more sig-

nificant than civil litigation, thus justifying a higher threshold

89a

See Westinghouse, supra, 122 U.S.App.D.C. at 72,

351 F.2d at 769. As the Westinghouse court con-

cluded, “The Roviaro balance should be struck in each

case, civil and criminal, in deciding whether disclo-

sure ‘is essential to a fair determination of a cause.’

353 U.S. at 61, 77 S.Ct. at 628.” Jd. And in striking

this balance, the court should examine the “‘relevance”’

of the informer’s information to “possible defenses,” **

the “possible significance” of the information, and

“the seriousness of the litigation.” Jd. 122 U.S.App.

D.C. at 74, 351 F.2d at 771.

The trial judge never attempted to apply the

Roviaro balancing test or to determine whether dis-

closure was essential to a fair determination of

plaintiffs’ cause of action. The judge, in fact, resisted

plaintiffs’ efforts to develop a record on these issues.

Ordinarily, we would remand the disclosure issue to

the trial court for adjudication under the appropriate

legal standards. In this case, however, enough evi-

dence relevant to the validity of Groth’s assertion of

of justification for exceptions to the privilege in civil cases.

However, the difference in “significance” of criminal and civil

cases simply should be considered another factor in the Ro-

viaro balancing test. Further, the proposition that all civil

cases are less significant—and therefore require a higher

level of justification for the disclosure of the identity of the

informer—than all criminal cases is a dubious one. It would

seem impossible to conclude absolutely that every criminal

misdemeanor case is “more significant” than civil actions to

redress, for example, egregious violations of an individual’s

rights.

41 And, conversely, the relevance to the establishment of a

cause of action.

90a

informer’s privilege has been amassed throughout the

trial to make such a remand unnecessary.

A considerable amount of evidence was introduced

leading to the conclusion that either Groth did not

have an informant and merely repeated information

he had received from Jalovec in the affidavit for the

warrant or that O’Neal was Groth’s informant as

well as the ultimate source for Jalovec’s information.

First, Groth had no record of payments to his in-

formant since, according to Groth, the informant’s

information was provided for advancement in other

areas. Groth never elaborated what these incentives

were. Further, the similarity of the content and the

timing of the information received by Jaloveec and

_Groth is striking: Each said that on December 2

his informant told him about the weapons, inhabi-

tants and visitors to the apartment, the apartment’s

layout, and the BPP meeting on December 3 And

while, as the state defendants correctly indicate, this

could mean simply that the reports provided by two

different sources were corroborated, the fact that

each report was similarly incorrect about the number

of sawed-off shotguns in the apartment casts doubt

on this explanation. Groth’s destruction of all the

information he received from his informant, includ-

ing the floorplan he allegedly constructed based on

his informant’s description of the apartment, also

undermines Groth’s claim that he had an independent

source. More importantly, Jalovec asked Mitchell

after the raid if he cared whether it was disclosed

that he was “the source” for the information leading

—

9la

to the raid. And both Piper and Mitchell sent memo-

randa to the FBI in Washington which said that

O’Neal was the only source for the preraid informa-

tion about the weapons and the apartment.”

A determination that Groth’s informant did not

exist would have significant ramifications for plain-

tiffs’ case. The warrant used to gain entry to the

apartment would be supported only by the misrepre-

sented, triple hearsay Groth received from Jalovec,

and Groth’s own perjured statement. Perhaps more

importantly, such a conclusion would bolster plain-

tiffs’ conspiracy claims. It would be powerful evidence

of Groth’s bad faith vis-a-vis plaintiffs. And it would

highlight the importance of the federal defendants

in the alleged conspiracy. If O’Neal was the only

eyewitness informant able to provide the crucial pre-

raid information about the apartment, there could

be no question that he and his conduit to the state

defendants, Mitchell, were indispensable to the entire

operation.

Even if Groth did have an informant, disclosure

of his identity would be important to a resolution

of the case since that informant might be a critical

figure in the conspiracy alleged by plaintiffs. If

42'The danger that law enforcement officials, protected by

the informer’s privilege, may, and have misrepresented them-

selves on affidavits for warrants, saying that informers have

provided information which they have not provided, has been

recognized by the courts. See, e.g., McCray Vv. Illinois, 386

U.S. 300, 316 n.2, 86 S.Ct. 1575, 16 L.Ed.2d 546 (1967)

(Douglas, J., dissenting) ; United States v. Pearce, 275 F.2d

318, 322 (7th Cir. 1960).

92a

O’Neal, who was being paid for his work by the fed-

eral defendants, was also the informant Groth relied

on in his affidavit, plaintiffs would have additional

evidence of the federal involvement in the raid itself.

Further, the person described by Groth as his in-

formant—according to Groth a member of the BPP

—could be a coconspirator. Groth said that his in-

formant asked when he was going to “move on the

crib,” and provided information about the weapons

when told that the presence of weapons in the apart-

ment would precipitate a raid. Also, as a member

of the BPP, Groth’s informant may have been in the

apartment or at least with Hampton the night before

the raid—an important fact given the testimonial

and scientific evidence introduced by plaintiffs sug-

gesting that Hampton had been drugged prior to the

raid.

Disclosure of Groth’s informant’s identity is “es-

sential to a fair determination” of this case. Roviaro,

supra, 353 U.S. at 61, 77 S.Ct. 623. The plaintiffs’

request for disclosure is based neither on mere specu-

lation about the informant’s identity, see United

States v. Prueitt, 540 F.2d 995 (9th Cir. 1976), cert.

denied, 429 U.S. 1068, 97 S.Ct. 790, 50 L.Ed.2d 780

(1977), nor on a desire to extract punitive damages

from an additional defendant. See Black v. Shera-

ton Corp. of America, 184 U.S.App.D.C. 65, 564 F.2d

550 (1977). We are mindful of “the public interest

in protecting the flow of information,” Roviaro, supra,

353 U.S. at 62, 77 S.Ct. at 629, but we also are aware

of the need to maintain the integrity of and confi-

93a

dence in the criminal justice system. The assertion

of informer’s privilege by a law enforcement official

defending against a civil suit for damages based on

his own alleged official misconduct should be scruti-

nized closely.

This case, in which plaintiffs have alleged gross

misconduct by federal and state law enforcement offi-

cials and have: presented serious evidence’ to support

these claims, is of paramount significance. There is a

serious factual controversy focusing on the existence

or identity of Groth’s informant, and a resolution of

this controversy is essential to a just adjudication

of plaintiffs’ claims. Thus, we conclude that the pub-

lie’s interest in encouraging the flow of information

to law enforcement officials cannot prevail in this

case, and that Groth must disclose the identity of his

informant. In order to minimize both the risks to

this particular informant and any adverse effects on

law enforcement generally, we suggest that the ap-

propriate parties move at the retrial for a protective

order to set the terms of this disclosure.

VIII. CHALLENGED DISCOVERY RULINGS

Even though the judgments for the defendants

must be vacated and the cause remanded for a new

trial because of the trial judge’s errors in directing

verdicts for the defendants, we deem it necessary to

discuss a separate issue: the delaying and obstruc-

tive tactics of the federal defendants and their coun-

sel in matters of discovery. To demonstrate the im-

94a

poftance of the delay and its crippling effect on plain-

tiffs’ case, a full summary must be undertaken. Only

for the sake of brevity do we refrain from reciting

all the details. 7

A. Pre-Trial Discovery

In March 1974 a subpoena duces tecum was issued

for FBI Agent Roy Mitchell’s deposition calling for

all information furnished by O’Neal on plaintiffs and

the BPP from 1968 through 1970. In April 1974

thirty-four documents were turned over by the de-

fendants. By affidavit the FBI represented that these

were the only ones within the scope of the subpoena.

Government counsel affirmed this in open court.

In July 1974 a subpoena duces tecum was served

on Marlin Johnson for FBI files on plaintiffs and the

BPP. No documents were produced, and Johnson re-

fused to answer questions on deposition about the

FBI’s counterintelligence program and the federal

grand jury proceedings.

In the latter part of 1974 plaintiffs subpoenaed

FBI Agent Robert Piper and the Special Agent-in-

Charge of the Chicago FBI office, Richard Held, for

depositions duces tecum. No documents were fur-

nished. Assistant United States Attorney Arnold

Kanter informed the court that he had reviewed the

FBI files and found the thirty-four documents al-

ready furnished were the only ones that were rele-

vant. Piper refused to answer deposition questions

on matters such as the counterintelligence program,

wiretaps, and informants.

95a

In response to the Held subpoena, Government

counsel, in February 1975, delivered a packet of

counterintelligence documents to the trial judge for

an in camera inspection on the representation that

the documents were “irrelevant.” Over plaintiffs’

protest the judge examined the documents before

plaintiffs could be heard on the propriety of the sub-

mission. The judge ruled that the counterintelligence

information which he had examined in camera was

“irrelevant and immaterial.” Later it was discovered

that among the documents submitted were the Jeff

Fort “hit letter; a memo which applauded the De-

cember 4, 1969 raid as a counterintelligence achieve-

ment; documents which showed O’Neal to be imple-

menting counterintelligence operations and acting as

a provocateur; and a directive from the FBI head-

quarters in Washington which called for measures to

“cripple” the BPP.

In March 1975 the trial judge entered an order at

plaintiffs’ request requiring the production of docu-

ments that contained information relating to plain-

tiffs or the raid. In June 1975 plaintiffs received

193 documents in response to this order.

The FBI witnesses continued to refuse to answer

any questions on deposition that related to their

counterintelligence activities on the BPP. In August

1975 plaintiffs renewed their attempts to subpoena

documents from the FBI files. Government counsel

resisted and made representations to the effect that

plaintiffs had received all pertinent documentary ma-

terial. The subpoena was denied by the trial judge.

96a

Three additional attempts made by plaintiffs prior to

trial brought similar results. In fact, the last effort

to obtain relevant documents was denied by the judge

before Government counsel filed their response.

B. Trial Discovery

When the trial started in January 1976 plaintiffs

had received over 200 extensively excised documents

from the FBI. On the opening day of trial, plaintiffs

issued trial subpoenas on Held, Mitchell, Piper, and

Johnson calling for relevant counterintelligence docu-

ments. After the jury was selected, the judge ad-

mitted that he had made a “mistake” in allowing the

federal defendants to determine the relevancy of the

documents. He thereupon ordered the complete

O’Neal and plaintiffs’ files maintained by the FBI to

be turned over to plaintiffs as well as the counterin-

telligence documents which plaintiffs had previously

sought. In response to the order, Government counsel

turned over approximately 100 documents which con-

tained many deletions.. Hearings were held to deter-

mine the propriety of the deletions. The court sus-

tained all deletions which did not mention the BPP

directly.

On February 2 plaintiffs moved to reopen discovery

in order to depose the FBI defendants and other

agents. Three days later plaintiffs again issued a

trial subpoena on Held, this time requesting certain

documents relating to the case, including those con-

cerning the Racial Matters Squad and payments to

O’Neal. Government counsel moved to quash the sub-

97a

poena and Assistant United States Attorney Kanter

represented to the court that the plaintiffs would be

furnished the entire O’Neal file, including all infor-

mation concerning payments to him. On February 26

the FBI completed its turnover of the O’Neal docu-

mentary material, and again it was represented that

this constituted the complete file.

At a later date Mitchell was called to the stand.

Prior to his testimony, plaintiffs asked for a hearing

to review the Government’s deletions in certain docu-

ments which had been furnished. During the hear-

ings relevant documents which had not been produced

were discovered to exist in the Government’s files.

Moreover, after Mitchell took the stand he volunteered

certain information allegedly supplied by O’Neal that

was not contained in any document which had been

produced by the Government. The court ordered

Mitchell to search for the document. Kanter again

represented that the complete O’Neal file had been

furnished. While Mitchell was still on the stand, he

reported that he had found the document in a FBI

file relating to a BPP member who lived in Rockford,

Illinois. Mitchell conceded that the document should

have been placed in the Hampton or O’Neal files but

that it had not been located there. Plaintiffs then

moved for the complete Ifampton and O’Neal files to

be brought into open court. The court granted the

request. Although Kanter admitted that the O’Neal

documents were indeed located in the Hampton and

O’Neal files, he excused the nonproduction as an over-

sight.

98a

Despite the court’s order, Kanter produced only one

volume of the O’Neal file. Thereupon the judge or-

dered that the entire files on Hampton, O’Neal, the

plaintiffs, and the BPP be brought into the courtroom.

The Government responded that there were 135 vol-

umes of files which responded to the court’s order.

The next morning the Government produced nearly

200 volumes of files in open court. Although acknowl-

edging that the documents should have been produced

earlier, the judge stated that he deemed it a mistake

or negligence on the part of the FBI in failing to

comply with his order. He informed the jury that

they were to “blame him” rather than the parties or

their attorneys. Plaintiffs moved for sanctions, in-

cluding holding the Government attorneys in con-

tempt. The judge refused to hear the motions, indi-

eating that he would defer any hearings until after

the trial. The judge, however, said that he would

allow plaintiffs to recall the federal defendants to

the witness stand in order to examine them on docu-

ments which plaintiffs did not have at the time of

the witnesses’ examinations.** Plaintiffs asked that

the trial be suspended until all the documents had

been produced. The judge denied the request.

On April 8, three months after the trial began,

Government counsel completed the turnover to plain-

tiffs of the twelve volumes of Hampton files and six-

teen volumes of O’Neal files. One of the O’Neal files

43%n March 1977 the trial judge changed his position and

refused to permit plaintiffs to reexamine Johnson and

Mitchell.

99a

contained a document written by Piper claiming FBI

credit for the December 4 raid and asking that the

FBI pay a bonus to O’Neal for his furnishing the

floorplan of the apartment and setting up the raid.

At that point the Government’s entire turnover con-

sisted of fifty volumes of documents, of which plain-

tiffs had received about six percent before Mitchell’s

inadvertent reference to the O’Neal document.

On April 16, 1976 the FBI revealed to the court

and plaintiffs’ counsel the existence of 45 additional

files in its possession pertaining to the case. On May

6 the Government furnished two volumes of docu-

ments relating to plaintiffs. Among these documents

were instructions from the FBI’s headquarters in

Washington “to destroy what the BPP stood for,” to

engage informants in thefts of BPP records and docu-

ments, to escalate actions against the Panther Break-

fast Program for Children and other similar activi-

ties, and to combat the adverse publicity of the

December 4 raid. Many of these instructions had

Piper’s and Johnson’s initials on them. :

On May 11, 1976, four months into the trial, the

court ordered the production of other FBI files, in-

cluding the balance of its counterintelligence pro-

gram file. In response the Government furnished

thirteen additional files. These included three vol-

umes of counterintelligence, three volumes relating

to federal grand jury proceedings, two volumes re-

lating to the Breakfast Program, and one volume

concerning the June 4, 1969 search of the BPP head-

quarters. In these files were counterintelligence docu-

100a

ments which called for the destruction of the Break-

fast Program and for the use of local police to harass

the BPP for possession of guns. Many of these docu-

ments were approved by Johnson, Piper, and Mitchell.

On June 14, 1976 the Government furnished the

plaintiffs two more volumes of documents; these re-

lated to wiretaps on the BPP.

On June 30, 1976 the court finally denied plaintiffs’

motion to reconsider its February 26 order which

quashed the second Held trial subpoena duces tecum.

The court also denied plaintiffs’ request for produc-

tion of other files relating to the case, finding that

their production would be duplicative of the files

already produced. The court also found that the Gov-

ernment’s deletions and withholdings were proper.

It is clear that federal defendants, Johnson, Piper,

and Mitchell, and their counsel, rather than promptly

furnishing relevant documents as requested, deliber-

ately impeded discovery and actively obstructed the

judicial process, thus denying plaintiffs the fair trial

to which they were entitled.** Regrettably, the trial

judge permitted these tactics. Moreover, he repeat-

44 The federal defendants contend that since the documents

in question are official FBI documents, they had no control

over them and should not be held responsible for the obstruc-

tive tactics regarding their production in the course of dis-

covery. Neither federal defendants nor their counsel (pro-

vided by the federal government) said at trial, however, that

the delays in producing the relevant documents were caused

by their lack of control over the documents; instead, the

record is replete with statements by the federal defendants

and their counsel suggesting that documents which were dis-

covered later never existed.

10la

edly exonerated the federal defendants for their dere-

lictions. Instead of applying sanctions on these de-

fendants and their counsel, the court assessed costs

against plaintiffs in excess of $26,000 for the Gov-

ernment’s time in reproducing the documents which

were finally furnished to plaintiffs only under the

orders of the court.

If there were any doubts about the sufficiency of

the evidence when considered under the applicable

standard constituting a jury question on liability, the

delay of the federal defendants in meeting their ob-

ligations to produce relevant documentary material

would supply a basis for an inference that plaintiffs

were unable to present all the available evidence and

thus were denied the opportunity to prove their case.

On retrial the court should consider plaintiffs’ con-

tention that they ultimately were denied full dis-

covery. Moreover, sanctions should be imposed, pur-

suant to Fed.R.Civ.P. 37(b) (2), against the federal

defendants and counsel representing them at the first

trial for repeatedly disobeying court orders to pro-

duce documentary material.*

45 Fed.R.Civ.P. 37 (b) (2) states in relevant part:

In lieu of any of the foregoing orders or in addition

thereto, the court shall require the party failing to obey

the order or the attorney advising him or both to pay the

reasonable expenses, including attorney’s fees, caused

by the failure, unless the court finds that the failure was

substantially justified or that other circumstances make

an award of expenses unjust.

102a

IX. DISMISSAL OF BREWERS

DIVERSITY COUNTS

The state defendants challenge the appealability of

the trial court’s dismissal of Counts 15, 16, and 17

of the amended complaint. Plaintiff Verlina Brewer

originally filed a separate complaint against the state

defendants, including the City of Chicago and Cook

County, Illinois. The complaint alleged common law

torts of assault and battery, false imprisonment, and

malicious prosecution. Jurisdiction was based on di-

versity of citizenship. 28 U.S.C. § 1332. In the con-

solidated amended complaint the three counts of the

original complaint became Counts 15, 16, and 17,

respectively.

Prior to trial, state defendants moved to dismiss

the Brewer counts for lack of diversity or, in the al-

ternative, to sever them for trial. The district court

granted severance, and took under advisement the

dismissal aspect of the motion. At the conclusion of

trial and after the state defendants had again moved

to dismiss the Brewer counts, the district court on

June 30, 1977 filed an order which read in pertinent

part:

For the reasons set forth in the State de-

fendants’ original motion, their recent motion

and in the arguments of counsel for the State

defendants and based upon the entire record of

this case, the court finds that said counts 15,

16 and 17 should be dismissed.

The actual dismissal order was entered July 1, 1977.

103a

Prior to the events just described, the district court

on April 15, 1977 granted motions for directed ver-

dicts in favor of all defendants except the seven

shooters. Later, on June 20, 1977, the court granted

directed verdicts in favor of these seven and entered

judgment for all the defendants on the basis of the

directed verdicts. The court’s order reads:

It is Ordered and Adjudged that the Court finds

as a matter of law that the plaintiffs and each

of them have failed to sustain their burden of

proof on the issues of each and every count re-

maining in the plaintiffs’ amended complaint,

accordingly the defendants’ motion for a directed

verdict in favor of each and every defendant and

against each and every plaintiff is granted and

judgment is entered herein together with costs

against each and every plaintiff and in favor of

each and every defendant.

On June 22, 1977 plaintiffs, including Brewer, filed

a notice of appeal from the orders of April 15, 1977

and June 20, 1977.

It is apparent from this sequence of events that the

This text is long and has been trimmed here. Open the source document for the complete record.