decided: April 23, 1979; As Amended April 30, 1979.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 70-C-1384 - Joseph Sam Perry, Judge.
Before Fairchild, Chief Judge, and Swygert and Pell, Circuit Judges.
This appeal concerns a civil rights action for monetary damages brought by members of the Black Panther Party and the mothers of two deceased party members against federal and state law enforcement officers. The suit arises from a gun battle which occurred 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.
At 4:30 a.m. on December 4, 1969, fourteen Chicago police officers, detailed to the Special Prosecutions Unit of the Cook County State's Attorney's Office, 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 occupied by nine members of the Black Panther Party ("BPP"). Seven officers took "cover" positions at the front and rear entrances of the apartment; seven entered 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 surviving occupants of the apartment, their prosecution by the Cook County State's Attorney for criminal offenses, a coroner's inquest, and an internal investigation by the Chicago Police Department. A federal and two state grand jury investigations were initiated. Indictments were returned by the Special Cook County Grand Jury against several of the present defendants for conspiring to obstruct justice. The case terminated when defendants' motions for acquittal were granted at the close of the prosecution's case. Finally, this civil action was initiated.
The mothers of Hampton and Clark, as administratrices of their sons' estates, and the seven survivors 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.*fn1
The defendants moved to dismiss the complaint. The district court denied the motions by the fourteen police officers participating in the raid. The court dismissed the complaint as to the remaining defendants.*fn2 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. Ed. 2d 471 (1974), ("Hampton I ").*fn3 Thereafter plaintiffs requested this court to supplement its mandate by directing that the case be reassigned to another judge for trial. We denied the request.
In December 1974 plaintiffs amended their complaint by naming four additional defendants, all connected 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.
The trial began January 5, 1976 and lasted approximately eighteen months. Thirty-seven thousand pages of 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 defendants 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 assessed costs against plaintiffs for $100,000. This appeal followed.
During the trial, Jeffrey H. Haas and G. Flint Taylor, attorneys for the plaintiffs, 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 attorneys' 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 names of the defendants and to summarize the amended complaint.
Marlin Johnson Special Agent-in-Charge of Chicago office of the Federal Bureau of Investigation.
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.
William O'Neal Paid informant for the FBI.
Cook County State's Attorney's Office
Edward Hanrahan Cook County State's Attorney.
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.
Shooters: Daniel Groth, James Davis, Joseph Gorman, George Jones, Raymond Broderick, Edward Carmody, and John Ciszewski.
Nonshooters: William Corbett, Lynwood Harris, Fred Howard, Robert Hughes, Philip Joseph, William Kelly, and John Marusich.
All of the above defendants were Chicago police officers detailed to the Cook County State's Attorney's Office.
Chicago Police Crime Laboratory
John Koludrovic Supervising officer of the Mobile Crime Laboratory Unit.
John Sadunas Firearms examiner.
Chicago Police Department Internal Investigations Division ("IID")
Harry Ervanian Captain, Chicago Police Department, director of IID.
Robert Kukowinski Lieutenant, Chicago Police Department, head of Excessive Force Unit of the IID.
John Mulchrone Deputy supervisor, Chicago Police Department.
John Meade Sergeant, Chicago Police Department.
The amended complaint contains seventeen counts. For convenience we shall segregate the counts into different categories.
Hanrahan, Jalovec, the raiders, and the four federal defendants are named in Counts 1, 2, 3, and 4. Counts 1 and 2 charge these defendants with intentionally 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(3), as well as the First, Fourth, Fifth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments. 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, Jalovec, and the police officers participating in the raid. Count 5 alleges intentional deprivation of the occupants' civil rights by false imprisonment in violation 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 deprivation of the occupants' civil rights by false imprisonment 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 protection of the laws and their due process rights by 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 defendants neglected to prevent harm from the execution of the conspiracy charged in Count 8, thereby violating 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 protection 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 Hanrahan, Jalovec, the raiders, and the four federal defendants 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 raiders as defendants. Count 15 charges assault and battery, Count 16, false imprisonment, and Count 17, malicious prosecution.
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 disregarded the proper legal standard in granting the directed verdicts and that their claims justified submission 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 persons "in a fair and impartial exercise of their judgment 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 directed verdict on the grounds that the court had weighed the testimonial evidence and had passed on the credibility of the witnesses. Id. The function of 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 conflicting, unfavorable testimony and extract all the reasonable 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 verdicts of April 15 and June 20, 1977.*fn4 Upon a comparison 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 verdicts with evidence which was considered in the light most favorable to the defendants. Furthermore, 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.
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 characterized as "Black Nationalist Hate Groups." Directives 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 within the ambit of COINTELPRO's scrutiny by September 1968.*fn5 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, presented considerable evidence to compel a different conclusion.*fn6 Perhaps the most damning evidence indicating the COINTELPRO was intended to do much more than simply "prevent violence" comes from the files of the FBI itself. An FBI memorandum from February 1968 described the goals of COINTELPRO as:
1. Prevent a coalition of militant black nationalist groups . . . .
2. Prevent the rise of a messiah who could unify and electrify the militant nationalist movement . . . Martin Luther King, Stokely Carmichael and Elijah Muhammad all aspire to this position . . . .
3. Prevent violence on the part of black nationalist groups . . . .
4. Prevent militant black nationalist groups and leaders from gaining respectability by discrediting them . . . .
5. . . . prevent the long-range growth of militant black nationalist organizations, especially among youth.
Senate Select Committee to Study Governmental Operations 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, received instructing him to establish the program in Chicago.
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 promotion of violent conflicts between the BPP and other groups,*fn7 the encouragement of dissension within the BPP, and the disruption of the BPP's Breakfast Program 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 the BPP office at 2350 West Madison Street the day it opened in November 1968 and joined, soon becoming the local chief of security for the Panthers.
The local FBI was able to effectuate many of its plans to disrupt the BPP through O'Neal. O'Neal informed Mitchell about a proposed merger between the BPP and a local black gang, the Blackstone Rangers. 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 reprisals 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 plaintiffs' evidence, encouraged the Panthers to initiate and participate in various criminal activities, to obtain more weapons, and to increase their use of violent tactics.
O'Neal also facilitated the FBI's efforts to discredit the BPP leadership and to frustrate their attempts to garner support among white groups. O'Neal provided Mitchell with information that enabled 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 interview show. O'Neal also encouraged the distribution of racist BPP cartoons, thereby fostering a rift between the BPP and the Students for a Democratic Society (SDS). For his efforts, O'Neal received several pay raises from Mitchell with Johnson's approval.*fn8 After March 1969 Piper also lent his approval to O'Neal's efforts as a part of the FBI's counterintelligence 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 headquarters. And in June 1969 the FBI, based on information 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 implementing COINTELPRO to develop liaisons and working relationships with local law enforcement officials to comply with the FBI's mandate to provide information 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 Jalovec an Assistant State's Attorney and made him the chief of the office's Special Prosecutions Unit (SPU). By April 1969 the primary focus of the SPU was on black street gangs. About this same time Mitchell contacted Jalovec and told him that the FBI had an informant, O'Neal, within the Chicago 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 occurred 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 ambush-shootout with Jake Winters, who was closely associated with the BPP.*fn9 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 West Monroe Street to which Hampton recently had moved. The floorplan included the layout of the rooms, the placement of doors and furniture, the identity of the apartment's occupants and frequent visitors, 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 memorandum, 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 Department's Gang Intelligence Unit (GIU) and conveyed to them the information contained in the floorplan. Mitchell also told them that a large quantity of weapons was stored at the apartment, including the sawed-off shotgun and the stolen police gun.*fn10 Piper was aware of the transfer of this information to the GIU and at a meeting with Johnson informed him of the same.*fn11 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 received 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 expected 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.*fn12 Mitchell also informed Jalovec that Hampton and Johnson 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, according to plaintiffs' evidence, Mitchell met with Jalovec 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 political education meeting was scheduled for the evening of December 3 and that the occupants of the apartment likely would be absent then.
At trial, Groth did not recall attending the meeting with Mitchell. Groth did claim, however, to have received 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.*fn13
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 Jalovec that he had surveyed 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 premises, and they returned with a street diagram of the surrounding 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.
At midday on December 3 Jalovec and Groth met with Hanrahan and recounted the information they had received from their sources. At this meeting Jalovec 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 Jalovec 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, Jalovec 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 accompanying him. Jalovec phoned the Chicago Police Department to obtain approval to bring certain weapons, including a machine gun, when they served the search warrant. Jalovec also approved Groth's revised decision 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 Jalovec and Groth indicated that they did not discuss the use of tear gas, sound equipment, or other means to gain entry to the apartment.
Jalovec 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 discussion 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 Hanrahan 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 memorandum stated that local police*fn14 planned "a positive course of action" based on the information regarding the West Monroe Street apartment which the Chicago FBI had provided local law enforcement officials.
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 apartment 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 mattresses scattered around the room. Satchel, Anderson, 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:
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, Truelock and Bell ran to the rear bedroom to awaken Hampton. Davis burst through the door into the living 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 firing into the living room from the apartment doorway. Harris was shot as she lay in bed. She testified at 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 found Hampton lying on his bed.*fn15 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 dragging 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 advanced down the hallway and approached this bedroom. Seeing the forms of Anderson and Brewer rising between the beds, he aimed and fired his machine 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 Brewer, twice. All three plaintiffs denied firing weapons. While the survivors were gathered into the kitchen the nonshooters entered the apartment. According 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 resembles 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 warrant. 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 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. Observing 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 bedroom 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 hands. Anderson was hit by Gorman's volley. Gorman also spotted Brewer with an object in her hands, but no shots were exchanged. Carmody and Broderick also fired into the north bedroom. According to a tape of a radio dispatcher's communication with the raiders that morning, the apartment was under control within seven minutes.
In addition to the raiders' testimony, the statements 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 danger during the course of the raid.
Countering this defense evidence and in support of their trial testimony in which the survivors denied firing at the raiders, plaintiffs introduced the expert testimony of Robert Zimmers, a ballistics examiner 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 fragments, 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 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, Hampton, 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 bedroom 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 living room door; further, he stated that a bullet removed from the body of Hampton was fired from the .30-caliber carbine carried on the raid by Davis.
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 responded that the men should leave the apartment immediately to avoid creating a riotous situation and should bring the seized weapons to the State's Attorney's Office. 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 purposes nor fingerprinted, and the locations were not specifically recorded. Consequently, when the Mobile Crime Unit of the Chicago Police Department arrived at approximately 5:15 a.m. to collect evidence, its task was hindered greatly by the raiders' search. The Unit, headed by Koludrovic, nevertheless recovered a number of ballistics items from throughout the apartment which were taken to department headquarters for examination by experts in firearms identification. The officers retained their own weapons, and the weapons found inside the apartment were taken to the State's Attorney's Office.
Immediately after the raid, the four wounded occupants 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 attempted murder, aggravated battery, and unlawful use of weapons were filed against the survivors. Bond was set for each at $100,000. (Several survivors remained in jail until December 21 when their bond was lowered.)
As the day unfolded, an atmosphere of confusion and tension developed in Chicago's black community. Hanrahan met with the raiders and decided to engage 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 citizens of Chicago for the courageous 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 prepared statement, he reiterated the raiders' account of the incident and summarily dispelled conflicting reports referred to by reporters. Despite further potential pre-trial prejudice to the survivors' criminal defense, Hanrahan continued to publicize the incident and decided to employ additional media tactics to promote the raiders' version of the incident. At his behest the Chicago Tribune published an exclusive 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 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 information 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 Jalovec assisted the production directors. All the raiders were present for the event and those who participated in the reenactment were informed that the film could be cut as the raiders desired. To insure the production's conformity with his previous press statements, Hanrahan 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 contained 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 efforts 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 testified that they first learned of the raid through the news media the morning of December 4. Later that day, they received information from the State's Attorney's Office that Hampton's body had been positively identified. Johnson then approved the transmission 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 information 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 headquarters on December 11 which requested a bonus for O'Neal. The request was "justified" on the grounds that the raid was based on information furnished by O'Neal and that this information was not available from any other source. Shortly thereafter, a three hundred dollar bonus was approved. On December 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 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 requested Chicago Police Superintendent Conlisk to initiate an internal police investigation. Internal investigations generally were conducted by Ervanian and Kukowinski, director of the Internal Investigations Division of the Chicago Police 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 investigation 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." Ervanian 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 distributed to Assistant State's Attorneys Sorosky and Meltreger who were advising the officers at the December 16 questioning. Jalovec, Kukowinski, Ervanian, Mulchrone, and Meade also were present at the interviews. Prior to the commencement of the inquiry, Groth was shown the prearranged questions and answers and then requested to give his account of the raid. Thereafter the other raiders met privately with Jalovec and Sorosky and were shown copies of both the Meade material and Groth's statement. 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 effecting 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.*fn16 The survivors were asked to participate in the IID investigation 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. Sadunas, however, failed to include the raiders' weapons in his testings. The Sadunas report was sent to the IID 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 involvement 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 Special Coroner's Inquest into the deaths of Hampton and Clark. Testimony was taken from the raiders and Crime Laboratory personnel. The survivors refused to testify at the inquest. A finding of justifiable homicide was made by the Coroner's office. Plaintiffs 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 consisting mainly of the police officers' testimony and the Sadunas report.
A federal grand jury had been convened in December 1969 to investigate whether the occupants' civil rights had been violated. Jerris Leonard, Assistant Attorney General in charge of the Civil Rights Division, 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.*fn17 Johnson instructed Treviranus 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 circumstances" of the December 4 raid, insuring that "no exposure" to the Bureau would occur. Leonard, however, informed Johnson that the grand jury was interested 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 February 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 apartment 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 Director on behalf of the Chicago office for authorization 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 information, which subsequently "saved injury and possible death to police officers" participating in the December 4 raid.
Neither Mitchell nor Piper testified before the grand jury. The Racial Matters Squad, however, which was under Piper's supervision, regularly provided Treviranus with selective intelligence information on the BPP and the raid. Included in this information flow were Bureau files on the survivors, a report on Hampton's activities one week before the raid, and Mitchell's November 21 weapons memorandum listing the legally purchased weapons reported by O'Neal to be in the apartment. Conspicuously absent was information on the floorplan and Mitchell's December 12 memorandum concerning the presence 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 Bureau instructions issued in September 1969 that efforts 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 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 actually 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 findings confirmed Zimmers'. Several weeks later Sadunas 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 decided that the raiders should testify before the federal grand jury to relate their accounts of the incident. 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. Subsequently Leonard discussed the potential indictments with Johnson and informed him that "an arrangement" had been made between Hanrahan 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 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.*fn18 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 Treviranus dispatched the teletype and the report. Groth was not requested to reveal the identity of his informant even though Leonard's assistants had requested this information from the State's Attorney's Office and Groth in early February. At that time the State's Attorney's Office informed the assistants that "Jalovec 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 evidence 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 indictments against the survivors were dropped. The Government 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.
These facts provide the basis for a determination of the legal issues concerning the directed verdicts. The plaintiffs' principal claim is that defendants conspired to deprive them of their civil rights.*fn19 The plaintiffs also assert claims against individual defendants for intentional and negligent violations of their rights. We now seek to outline generally the governing legal principles regarding civil conspiracies. 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.
A civil conspiracy is "a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties "to inflict a wrong against or injury upon another,' and "an overt act that results in damage.' " 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 to provide direct evidence of the agreement between the conspirators; "circumstantial evidence may provide adequate proof of conspiracy." Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971). See also United 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 possibility 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 conspirators 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 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 conclude that the plaintiffs did offer sufficient evidence to warrant a jury determination of whether a conspiracy existed. The fact that "all of the evidence . . . does not point in one direction and different 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 conclusion as to the facts.' " Id. (citation omitted). When a plaintiff alleges a conspiracy to violate civil rights, "(t)he existence 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 plaintiffs' evidence in this case.*fn20 We believe that plaintiffs have presented a prima facie case, not of a single conspiracy, but of two conspiracies designed to violate their rights in distinct ways. These conspiracies share many of the same participants who form "the common nucleus of separate 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 activities, 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 potential source of unrest, turmoil, and even violence in the black community, and a vital, radical-black political organization. The second conspiracy harassed the survivors of the raid. Moreover, the post-raid conspiracy was intended to frustrate any redress the plaintiffs might seek and, more importantly, to conceal the true character of the pre-raid and raid activities of the defendants involved in the first conspiracy.
Reference to the law of criminal conspiracy suggests that this distinction between the substantive 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. 963, 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 constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators." Id. at 401-02, 77 S. Ct. at 972. Thus, in order to prove that acts of concealment constitute a part of the initial conspiracy, the prosecution must present "direct evidence (of) an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission." Id. at 404, 77 S. Ct. at 973-74. Absent such evidence, the concealment is independent of the original conspiracy; the original conspiracy is not considered ongoing simply because concealment of the conspiracy continues. Thus, persons who participate in the concealment are not Ipso facto participants in the original conspiracy.
These principles are instructive in analyzing the case presented by plaintiffs. Many of the state defendants 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 participated in both the pre-raid and post-raid conspiracies 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 determined on the basis of that conclusion. Plaintiffs' discovery 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 concerning the preparation and execution of the raid existed as part of the original conspiracy. And, as we have noted before,
since 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.Ill.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 evidence 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 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 constitute 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 officials 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 436, 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: "(B)oth 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.*fn21 Proof of a class-based animus underlying the conspiracy is, of course, a requirement of a section 1985(3) claim. Griffin v. Breckenridge, 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 statute was intended, perhaps more than anything else, to provide redress for victims of conspiracies impelled by a commingling of racial and political motives.*fn22 And this is precisely the sort of conspiracy alleged by plaintiffs in this case.
A brief recital of some of the evidence presented by plaintiffs substantiates this conclusion.*fn23 The BPP was a black organization with a distinct political ideology and a variety of politically-oriented programs. FBI documents offered by plaintiffs demonstrate that certain FBI activities directed against the BPP transcended mere "law enforcement," and were designed to "neutralize" the BPP as a political voice on racial issues. Hanrahan testified that two of the principal 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 animus which is at the heart of section 1985(3)'s prohibitions. 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 documents and express statements by Hanrahan, from which reasonable persons could conclude that these parties shared a "class-based or otherwise discriminatory" desire to undermine the BPP. These defendants also engaged in an extensive series of communications which could demonstrate to a reasonable person the existence of an agreement either tacit or express to act in concert to achieve their shared objective.*fn24 Plaintiffs need not prove that the individual 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 argue that they never heard of a FBI counterintelligence program called "COINTELPRO" and thus they cannot be liable as coconspirators with the federal defendants. Similarly, 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 participants 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' activities vis-a-vis the BPP. These agents, in turn, had their contacts among the state defendants. The communications between Jalovec and Mitchell, in particular, 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 conspiracy 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 defendants 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 plaintiff 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(3) for civil liability: a conspiracy to violate their civil rights and actual deprivation of those rights arising from the implementation of the conspiratorial plan.
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 ...