◆ SpookStack

Nos. 77-1698, 77-1210 & 77-1270 107 proof of purposeful nonfeasance on the part of the non- shooters. As to the conspiracy count pertaining to the raid in- sofar as the nonshooters are concerned, even if we were to assume that the sinister conspiracy with the object of using excessive force and killing some of the occupants existed among the federal defendants and the higher- ups of the state defendants, I find no basis for saying that the nonshooters, and indeed the shooters with the possible exception of Groth, were a part of the con- spiracy. If there had been such a conspiracy, these men, five of whom including three of the shooters being black, were not doing anything except pursuing the often un- happy lot of a policeman of carrying out orders of superiors. Lynwood Harris, for example, found out he was to go on a raid when he left work the evening before. He reported at 3:45 a.m. and he along with the others was given an assignment by Groth. They were simply carrying out their duty of serving a judicially issued search warrant. If subsequent to learning that this might be a very dangerous assignment involving a local leader of the Black Panther Party, while it might | not be surprising: if- these entering the premises overreacted in view of the knowledge that they were entering as “pigs,” some of their colleagues having been allegedly killed by a Black Panther Party member, the fact of the subsequent overreaction would not bear upon the existence of a conspiracy on their part. At this point, it is appropriate to refer to one point of emphasis both on the part of the plaintiffs and in Judge Swygert’s opinion with regard to the existence of a con- spriacy and this is applicable to all of the defendants who are charged with conspiracy in connection with the raid. That point was that Groth planned the raid for 4:00 a.m. and there was no discussion of the use of tear gas, sound equipment, bull horns, or of any equipment besides guns; and that there was no discussion of alter- native ways of gaining entry to the apartment, including telephoning the occupants. To anyone with a realistic regard to the circumstances existing at the time it might seem unnecessary to point