◆ SpookStack

Nos. 77-1698, 77-1210 & 77-1370 103 FEDERAL PRACTICi: .16.18 at 1129 (1978). As another text has stated, ‘R.:le 16 cells for a pretrial con- ference, which can prouuce a pretrial order that supersedes the pleadings, .... 5 WRIGHT AND Ce Federal Practice and Procedure, § 1189 at 28 Perhaps a simplification of the issues would also help - avoid a repeat performance of the same length. Turning then to the various issues .as applicable to the various defendants, I will first treat the situation as to the remaining thirteen policemen and their liability herein insofar as the raid is concerned. It appears necessary here to consider separately the actual activity of the raid and the conspiracy and likewise consider separately the shooters and nonshooters. In my opinion a directed verdict was proper on all aspects of the rai itself and the conspiracy as to the nonshooters and as to the conspiracy with regard to the shooters with the possible exception of Groth. Relying on Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), Judge Swygert’s opinion holds that the directed verdicts in favor of the nonshooters regarding their activities in the raid were improperly granted by the trial court. As indicated, I disagree. The holding of impropriety is based upon the factual premise that the nonshooters were in the apartment at the time the occupants were being mis- treated and did nothing to protect them. In my view, there is no need to reach the Byrd question as there appears to me to be a complete lack of proof of the fac- tual premise stated above. The Hampton plaintiffs’ brief does not touch at all upon this matter. The Anderson plaintiffs’ brief in its argument portion, relying upon a case of gross negligence, stated with regard to the non- shooters only the following, “Similarly culpable is the conduct of the raiders who did nothing to stop the use of excessive force, or the beating and mistreatment which followed. See Byrd v. Brishke, 466 F.2d 6 [7th Cir. 1972].” In the Summary of Evidence portion of their brief, after describing in two paragraphs, with frequent transcript citations, the mistreatment of the occupants following the shooting, the brief then contained the