# Appendix — JOHNSON, et al. v. HAMPTON, et al. (Nos. 79-914, 79-912) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1380%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 ## Text 9-914 *F IL bBv t | DEC 1} 1979 No. mms (| | (i! PARC i Vee Pe rN, SPe 0 a, 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 A WRIT OF CERTIORARI t} | j Page PI Bi sess pti coetiocietetareinentcmannncioaned 1a-169a RE FF nici 170a-171la BIE Be: cessitnitenstinneiiaesnvennceeneiiataenalan 172a-174a | BERR ior in neahe art aea Manly fer eiie ne Non 175a-221a FOIE Te ics cictnnrrccenieninitieceesnicnimmncerties 222a-230a PII A cece pisiinp cin ieniniensaennmieoeianian 231a-232a PE etait sick rence wwnaicrinsitaacienecanioniath 233a-235a la 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1380%3A3. Public record. Not legal advice.