dissenting in part, concurring in part.
It has been difficult for me to place this case in a proper perspective, but following the effort to do so I am convinced that the opinion written by Judge Swygert reaches an incorrect result in a substantial number of instances. Therefore while concurring in that opinion wherein it affirms the district court’s judgment and with regard to the reversal as to one group of defendants on one issue, I otherwise respectfully dissent, all as set forth hereinafter.
The initial difficulty in acquiring a proper perspective, indeed any kind of an overall view, of the case comes from the sheer volume of material it has generated. To begin with, the mass of documents, which is what this court basically has to go on to make its decision, includes some 37,000 pages of evidence, plus exhibits which we can only view visually as a cold record but which was presented audibly to the district court bit by bit, painstakingly and tediously, over the approximate eighteen months that this civil case jury trial took. Next we have before us the contentions of the parties in the so-called briefs, occupying more than 800 pages. At this point, the accumulation of additional paper might appear to be drawing to a welcome close. There is virtually no dispute as to the basic law applicable to the appellate treatment of directed verdicts. At the risk of over-simplification, they are not favored by the law and the judgments based thereon will be reversed when the evidence reflects that reasonable persons in a fair and impartial exercise of their judgment may draw different conclusions therefrom. Thus it would seem that if the 37,000 pages reasonably exhibited a basis for different conclusions, the resulting decisional opinion, unless it were designed to serve some other purpose than its primary one of disposing of the case, could be of fairly short length. Alternatively, of course, if there is difficulty in finding a solid base in the monumental record we have here for different conclusions under the applicable law, the effort to reverse might necessarily achieve extensive proportions. In any event, Judge Swygert’s opinion has added to the bulk more than 125 typed pages.
The matter of a proper perspective is further made difficult by the diverse approaches of the parties which I might have assumed before becoming involved in the case was to recover monetary damages for claimed wrongs visited upon them by the state and federal defendants. From my evaluation of their briefs and oral arguments, however, there is not this single-*650minded pursuit. One group of plaintiffs, whom for convenience of reference I will call the Hampton plaintiffs, consists of the Administratrix of the Fred Hampton estate, Hampton’s girlfriend and the mother of his posthumously born child, and two other persons. Of the four Hampton plaintiffs, three were present in the apartment at the time the raid occurred and two of the three were wounded. The fourth Hampton plaintiff is the personal representative of one of the two persons killed in the raid.
While the compact original brief filed by the attorney for the Hampton plaintiffs does purport to incorporate by reference most of the issues and supporting arguments advanced by the remaining plaintiffs (with the exception of those dealing with the bias and prejudice of the trial judge and his failure to recuse himself), this brief “relates to the directed verdict granted, following the dismissal of the jury as distinguished from the [earlier] directed verdict regarding the Federal and certain State defendants.” While the reply brief of the Hampton plaintiffs does advance some argument as to the conspiracy and liability vis-a-vis the federal defendants, it appears abundantly clear to me that the prime thrust of the Hampton plaintiffs both in briefing and oral argument is toward the most vulnerable underside of this litigation, the directed verdict as to the defendant raiders who engaged in shooting in the apartment. This appears to me to be a realistic evaluation of this civil damage case and one best designed to achieve the purpose of the case, that of expeditiously collecting damages from claimed wrongdoers without undertaking once again the agonizingly extended trial of extraneous political issues. I can only assume that the Hampton plaintiffs’ attorney is pursuing that which his clients most desire, compensation for the wrong which they feel they suffered.
The remaining five plaintiffs, designated for convenience as the Anderson plaintiffs, includes the Administratrix of the Estate of Mark Clark and two more of those who were wounded. While all of these people no doubt will not spurn any recovery that might be made in their behalf, I come away from an examination of this case with the distinct sensation that the Anderson plaintiffs’ lawyers, although equally willing for and desirous of a substantial money recovery, are fervently bent on attempting to demonstrate the existence of a widespread and sinister conspiracy among top law enforcement officials, state and federal, serving in the Chicago area in 1969, to kill Fred Hampton and other functionaries of the Black Panther Party. Their wide-ranging and vociferous charges indicate that the conspiracy was racially motivated to put down and destroy people associated with a political movement. But, the tenor and scope of their assertions is best illustrated by these quotations from their brief’s Introduction and Statement of the Case:
In response to this challenge to white supremacy, the F.B.I. mobilized to stop this political movement. They implemented and refined illegal, unconstitutional counterintelligence tactics designed to neutralize and destroy these organizations with special, violent emphasis on those leaders and organizations such as the B.P.P. who sought the liberation of black people. This program, implemented and run in Chicago by the F.B.I. Defendants, solicited and obtained the willing assistance of State’s Attorney EDWARD HANRAHAN — who was himself anxious to gain political prominence by exploiting racism. HANRAHAN and his special political police force, in conspiracy with these F.B.I. Defendants, planned and executed the murderous December 4th raid at the apartment of the Plaintiffs. . . . After Hampton and Mark Clark were killed, a concentrated effort was launched by City, County and Federal officials to cover up both the true nature of the political assassination as well as their involvement in it. They manipulated the judicial system at every turn to accomplish this end. HANRA-HAN used his power as State’s Attorney to falsely charge the survivors, and to prosecute them for six months to mask his culpability and that of his police. *651Richard Nixon’s Justice Department, in cooperation with the F.B.I., used a Federal Grand Jury investigation to cover up the F.B.I. involvement in the raid and subsequently entered into an agreement with HANRAHAN which saved him from indictment in exchange for HANRA-HAN’s continued silence concerning the F.B.I. involvement. The Justice Department then attempted to put the controversy to rest in the public eye by releasing a report which was critical of both the police and the Panthers. By the fall of 1975, pretrial discovery, .because of Defendants’ obstructions, served little purpose except to frustrate the search for truth, the Court’s prejudice having similarly frustrated this search. January 1976, the Plaintiffs went to trial in front of a Judge determined to defeat their claims and with much of the evidence which proved the F.B.I. Defendants’ involvement in the raid still being concealed by the Defendants and their attorneys. . . . After 15 months of treachery to the Plaintiffs’ claims the District Court, four days before the mayoral primary in which HAN-RAHAN was a candidate, directed verdicts for all the Defendants except those seven raiders who admitted to firing their weapons at the apartment. Plaintiffs appeal, but they seek not only reversal of these grossly unfair and illegal verdicts, but sanctions and fees against the parties and their attorneys who knowingly obstructed justice in the Court below, and appropriate orders to assist them to finally obtain the discovery to which they are entitled, and strong rebuke to the trial Court who completely abused his power, trammelled the Constitution and nullified the Civil Rights Act.
Thus it seems although they are not charged as unindicted co-conspirators that the entire officialdom of government from the President to the federal district judge were intent upon bringing about the elimination of a small group of people who simply desired to achieve the desirable and constitutionally required status of racial equality.
The Introduction and Statement of the Case of the Anderson plaintiffs’ brief set the tone which was followed through their 247 pages of overstated characterizations. Thus, initially, supposedly by way of background they move on the Federal Bureau of Investigation in an endeavor to demonstrate that the FBI’s counterintelligence program insofar as it was directed toward the Black Panther Party was a basis for a reasonable inference that FBI officials in reality were conspiring to implement the program by resorting to homicide of the local Black Panther leader. Conspicuously absent in the development is any reference to the fact that the program was directed toward an organization which had announced it would achieve its objectives by violent means.
The intemperance of the Anderson plaintiffs’ approach is particularly demonstrated in the some 75 or more pages devoted to denigrating the district court judge. Thus, typically:
. the Court, ignoring the merits of Plaintiffs’ claim, denied the Motion “as not well taken.” . The Court refused to declare them hostile witnesses or allow them to be impeached or cross examined by Plaintiffs’ counsel. . The Court repeatedly refused to hear the motions, and angrily postponed hearing the contempt and sanctions motions until after the trial. . . . the court (in sustaining a specious objection by Defendant . . the Court grasped at various straws in attempting to justify his baseless and punitive ruling. . The Court’s arbitrary refusal to allow discovery concerning GROTH’s alleged informant and his obstruction of meaningful cross-examination. . . . The Court, in essence, scuttled the entire Plaintiffs’ rebuttal case . . . . The entire record demonstrates that the trial judge was not an impartial judge representing the impersonal authority of the law, but was both an advocate from the bench for the Defendants’ cause, and an “activist seeking combat” with Plaintiffs’ counsel . . Despite this powerful *652evidence of racism and prejudice against the Plaintiffs, the Court refused to allow lawyer voir dire. . The Court tightly controlled the voir dire, and attempted to select a jury which he could manipulate to agree with his view of the case and return a verdict for the Defendants ... In stark contrast to the treatment afforded the Plaintiffs and their evidence, the trial court aided the Defendants and supported their cause throughout the trial, in its rulings and remarks from the bench . . . unduly restricted questioning in key areas using the pretext that they hadn’t been questioned with the sketch on direct . . The Court, on its own added to the prejudicial information imparted to the jury during the course of the trial. ... He [the judge] repeatedly threatened contempt in order to discourage Plaintiffs’ right to be heard and to make a record. . . . Defendants’ lawyers were allowed almost free reign in the Courtroom. . . . Constant interruption from the Bench, and frivolous objections from the Defense counsel (encouraged by the Court’s obvious attitudes) diluted the strength of Plaintiffs’ evidence. The atmosphere of intimidation generated from the bench made an effective presentation of the evidence against Defendants difficult, if not impossible. The Court’s arbitrary and ever-shifting rules made cross-examination of Defendants a perilous task, with Summary Contempt lurking behind each question. Merely rising to object was fraught with danger and likely to evoke a strong rebuke from the Court. Plaintiffs’ counsel were confronted with a hostile, powerful adversary in the District Court; the damage inflicted on Plaintiffs as a result of the intimidation and belittlement of Plaintiffs’ counsel by the District Court of itself requires reversal. Both in specific instances, and as a whole, the court’s charge to the jury revealed its bias in favor of the defendants, and constituted reversible error. . He [the judge] used his judicial power as well as the resources and bullying of defense counsel to harass and attack the Plaintiffs when they attempted to recuse him. [Footnotes omitted.]
I do not mean to suggest that the multi-page portions of the brief from which the above extracts were taken is not replete with specific instances purporting to show the asserted unbridled bias and prejudice of the trial judge. A close analysis of these supportive instances reflects, however, that many of them pertained to rulings in evi-dentiary matters as to which the trial judge is accorded substantial discretion. Any trial lawyer of any competence is aware that he doesn’t prevail on every ruling of the court but that his failure to do so is no ground for a legitimate claim of bias and prejudice. Such a lawyer also is sufficiently perceptive to realize the scope of the judge’s rulings and that to attempt another tack on the same forbidden subject may well occasion a rebuke. Nevertheless, the Anderson plaintiffs’ trial counsel pursued such a course and then when rebuked claimed this to be another example of the unfairness of the judge. I find the claim of unfair limitation of the presentation of their case to be virtually frivolous. A year and a half of trial and 37,000 pages of testimony scarcely is supportive of a restrictive evidentiary limitation. Nor can I find any real indication in this record that the ebullient trial counsel were intimidated by the judge. In this circuit, voir dire of the jury is conducted by the trial judge. Yet in this civil case, failing to get special treatment, the plaintiffs claim they were treated unfairly.
If there is merit in claims of incorrect judicial rulings, those rulings should speak for themselves in requiring reversal and they do not need to be sandwiched in a desperate collage of conclusory overstated characterizations. Even though it often might seem that heaping abuse on public officials is now a favorite public pastime, it does appear to me that the proper place for this steam-venting is other than in the area of appellate review. We have here the matter of the propriety of directed verdicts. I should think that while hyperbolic and *653cynical character castigations might create an atmosphere of suspicion and distrust, even though unfounded, it does not upon examination provide a case or controversy to go to a jury. I do not, I hasten to add, mean to suggest that history has not recorded corrupt governments, or public officials who have intentionally deprived citizens of those rights which are given to them by our constitution. When, however, the charge is a broadside condemnation of the entire fabric of law enforcement in a large metropolis, we at the very least ought to examine most carefully the underlying facts to see if the charges are reasonably inferable or are nothing more than fanciful conjectures.
Chief Judge Fairchild observes in his concurring opinion that the main objective of the plaintiffs appears to be the recovery of damages arising from the events of the raid. I agree with him insofar as the Hampton plaintiffs are concerned but, as I have already indicated, it appears to me that the Anderson plaintiffs have a secondary objective, indeed, one which may well be a primary objective in view of their emphasis on it, and that is to use this litigation as an exposition ground for political philosophy and the courtroom as a political forum. If law enforcement or other government officials are demonstrated by evidence as having deprived citizens of their constitutional rights and in the process of such litigation those officials get smeared with the brush of villainy then it must be so; it is simply that I think the process should not go in reverse.
I regret to do so, but feel compelled in candor to add, that it appears to me that Judge Swygert’s opinion, although I would question whether it was so intended, lends aid and succor to the political espousal objective of the Anderson plaintiffs. I come away from each reading of the opinion, despite.occasional references therein to the requirement that plaintiffs to recover must prove their case to the trier of fact, with the feeling that the author of the opinion thinks that the case has already been convincingly proven in many respects.
Thus, on a random basis, I note:
Plaintiffs’ prima facie case offers a number of constitutional deprivations to accompany their conspiracy allegations Plaintiffs’ evidence in the instant case indicates that the federal and state defendants share in instigating and preparing for the raid . . 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.” . . . 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 share — inflicting injury to the BPP. . In granting the directed verdicts, the trial judge repeatedly usurped this [the jury’s] function. . . . Despite their awareness of conflicting stories, Hanra-han, Jalovec, and the raiders continued to circulate reports to justify the continuation of plaintiffs’ detention. 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. And during the pretrial discovery in this suit, the federal defendants continued to engage in dilatory and obstructive tactics to conceal evidence of their involvement in the planning of the raid. . . . His [Sadunas’] examination resulted in a crucial misidentification which would have remained uncorrected absent Zimmers’ subsequent tests and conclusions. .
Because of the high esteem in which I hold my brother Swygert, it is with considerable regret that I feel compelled to observe that had I not had an acquaintanceship with the case as a member of the panel prior to reading Judge Swygert’s opinion I *654could, upon the completion of the lengthy process of reading it, well have entertained the idea that the case involved a group of political idealists who had been subjected to a cleverly orchestrated governmental persecution designed not just to neutralize their effectiveness 1 but to remove them from the American scene physically. It is time, it seems to me, to look realistically at the group to which the local authorities directed their activities pursuant to a judicially authorized search warrant.
The state defendants have summarized from the record of this case the matters pertaining to the Black Panther Party which undoubtedly engaged the attention of law enforcement agencies. Because this factual information does not appear to be subject to challenge as to accuracy I note some of the salient aspects thereof.
The Black Panther Party was a militant, black, extremist, paramilitary, uniformed organization formed in Oakland, California in 1966. It was a violent, revolutionary organization, which by party edict required its members to own and know how to use weapons and to have access to more than one weapon. The Illinois Chapter of the Black Panther Party proclaimed that a class struggle in this country required the leadership of an armed revolutionary party, and that the Black Panther Party was simultaneously a military organization and political organization with leaders holding both military and political rank.
Black Panther publications called for killing policemen. The party’s policy was that if at least one shot was not fired by a member being arrested, then the party would not stand behind that member. Black Panthers were called on to “revolt,” “to arm themselves,” to “dynamite,” to “kill the pigs everywhere,” to “not dissent from American government, we will overthrow it,” and were admonished that “political power grows out of the barrel of a gun.” Black Panthers published a “Destruction Kit” which described how to make and use incendiary bombs and other similar devices.
Much emphasis is placed in the record on the social service to the community provided by the Black Panther Party particularly with regard to their “Breakfast for Children Program.” However, the record also reflects that drawings were made on blackboards instructing children to “Kill the Pigs.” At these breakfasts there was distributed a “Black Panther Coloring Book” depicting in cartoons pictures of children killing policemen. At one similar Black Panther Breakfast program the children were given revolutionary posters entitled “Free Huey, In Revolution One Lives and One Dies, and Off The Pig.” A report concerning the FBI raid of Panther headquarters on Madison Street on June 4, 1969 reflects that the material seized therein included posters which advocated violent overthrow of the government, numerous weapons, both handguns and long guns including stolen weapons, and press releases promoting Panther propaganda. The Black Panther Publications during 1969 contained quotations of various of their leaders such as
Huey P. Newton — When the people move for liberation, they must have the basic tool of liberation — the gun The blood, sweat, tears and' suffering of Black people are the foundation of the wealth and power of the United States of America. We were forced to build America, and if forced to we will tear it down. The immediate result of this destruction will be suffering and bloodshed. But the end result will be perpetual peace for all mankind.
In one exhibit there appears a description of a “Plan for the Complete Breakdown of the State of Illinois Power Structure.” This plan documents the Panthers advocating the bombing and destruction of buildings and public systems as well as the killing of government leaders.
There had been numerous shooting confrontations and clashes between the Black Panthers and police prior to December 4, *6551969, both nationally and locally. Several policemen had been wounded and there had been shooting with Chicago police at the Black Panther Party headquarters a block from the apartment in question on July 31, 1969, and October 4, 1969. On November 13, 1969, two Chicago police officers were killed in a shootout with Spurgeon Jake Winters. Winters was killed in the incident and seven other Chicago police officers were wounded. The Black Panthers boasted of the killing of these police officers by Winters and claimed Winters as a member.
Hampton’s own propensities as a leader in the Black Panther Party were evident from his proposal to murder a state trooper who was approaching his car stalled on a highway on a trip to Rockford, his conviction by a jury for robbery in May 1969, his kidnapping and torturing of a party member who is accused of stealing a Panther weapon, his use of weapons during a shootout of the Panthers with the Blackstone Rangers in Robbins, Illinois, and his often-quoted statement, “If you kill one pig, you get a little satisfaction, if you kill some more pigs you get more satisfaction, if you kill all the pigs, you get complete satisfaction.” Others of the plaintiffs who were at the apartment in question had criminal records and all had familiarity with handling firearms.
Finally, on the matter of the Black Panthers being a political party it must be remembered that the nine people who occupied this relatively small apartment on the morning in question were in the midst of a private arsenal consisting of 19 unregistered weapons, including 12 shotguns and rifles, among which were a stolen Chicago Police Department riot gun and 2 sawed-off shotguns, 7 handguns and several hundred rounds of ammunition. The occupants were not without knowledge in the use of the weapons and were members of an organization that advocated use of the weapons when a confrontation with police was involved.
This brings me to a final difficulty in placing this ease in a proper perspective and that is the role of martyrdom in which many now regard Hampton and Clark. Irrespective of whether that shroud of martyrdom is misconceived, I cannot imagine that prior to December 4, 1969, this posthumously acquired respectability would have been accorded by many persons, either black or white, other than those subscribing to ochlocracy even though many persons, both black and white supported the goal of equal recognition and treatment for black people. The emotionalism of the plaintiffs’ sinister conspiracy presentation should not obliterate the fact that there were ample grounds for regarding Hampton and those in the apartment with him as law violators.
Perhaps this is not in keeping with the time in which we live, but I cannot believe simply because a minority group, even one composed of people who have been rather consistently repressed and denied equal treatment before the law, calls itself a political party and espouses a commendable purpose, that there is created some sort of an irrebuttable presumption that it is above the law, or that it can accomplish its goals by violence or other illegal means.
In saying the above I am not ignoring the fact that in our system of jurisprudence every law violator is guaranteed the full scale of rights provided for by law, including the constitution, statutes, and case law. I am simply endeavoring to put this case into the perspective in which it clearly was viewed by law enforcement officials in 1969, that there was a group of people who were dangerous to the law-abiding citizens of the community. Also, this case concerns itself with the Black Panther Party as it existed and functioned in 1969 and what its subsequent direction or conduct may have been is immaterial.
Turning then to my views on the disposition of the various components of this case, as I have already indicated, I concur in the relatively limited portions of Judge Swy-gert’s opinion in which the judgment of the district court was affirmed.
Judge Swygert’s opinion directs that sanctions should be imposed, pursuant to Fed.R.Civ.P. 37(b)(2), against the federal defendants and counsel representing them *656at the first trial for repeatedly disobeying court orders to produce documentary material. I do not agree with the premise. This was a trial in which the judge told the jury on the first day that it would last many weeks, “possibly as much as three months,” but which in fact continued some six times that long. The district judge' was on a day-by-day basis aware of the extreme difficulties of complying with the every-nook- and-cranny discovery demands of the plaintiffs, was in an excellent position to gauge the good faith of the defense efforts to comply with those orders, and also knew that these government files were not at the beck and call of former employees, were monumental in nature, contained much information not pertinent to the present lawsuit but which involved national security and which in any event was duplicative of that which had already been furnished. I cannot believe that this respected trial judge, who for the most part patiently continued presiding over a trial that was stretching beyond the wildest preliminary estimates, would have, in the words of Judge Swygert, “repeatedly exonerated the federal defendants,” if in his position to observe there had been reason to support Judge Swygert’s basis for sanctions that the federal defendants, other than O’Neal and their counsel “deliberately impeded discovery and actively obstructed the judicial process.” It flies in the face of reason to think that the judge would not have reacted promptly to any defense obstructionist tactics which were further lengthening the time of this tediously long trial.
For these reasons I would see no necessity for the imposition of sanctions. Nevertheless, because the case is going back and so that the mandate of this court is clear, I will join Chief Judge Fairchild with regard to a direction to the district court to giving consideration to the matter, rather than requiring it to impose sanctions.
There is one other matter not mentioned in Judge Swygert’s opinion to which the district judge on remand might properly give some attention. As one reads Judge Swygert’s summary of the seventeen counts of the amended complaint, of which twelve will remain viable as to most defendants on remand, it seems rather obvious that the plaintiffs were fractionalizing what was at most five basic issues, possibly following the school of thought that a shotgun charge is more likely to hit something than would a rifle bullet. The federal jurisdictional issues, four in number, as I see them, allegedly arise from (1) the raid, (2) the conspiracy concerning the raid, (3) the post-raid activities of obstruction and malicious prosecution, and (4) the conspiracy regarding the post-raid activities. All of these have the common underpinning of claimed violations of constitutional rights and the post-Civil War civil rights statutes. The fifth issue would concern the pendent state jurisdictional claims.
It is true that Rule 8(e)(2), Fed.R.Civ.P., permits the statement of separate counts which here would seem to be utilized to the maximum. On the other hand, it would seem to me that the new trial judge pursuant to Rule 16 could use pre-trial procedure to good effect to accomplish a fundamental simplification of the issues as an aid to the jury’s comprehension of what was involved. Although Rule 16 speaks of the pre-trial order limiting the issues for trial to those not disposed of by admissions or agreements of counsel, “it has been pointed out that that is an understatement, since the pre-trial judge does not merely eliminate uncontroversial issues but also formulates the remaining issues to show the real contentions of the parties.” (Footnote omitted.) 3 Moore’s Federal Practice 11 16.18 at 1129 (1978). As another text has stated, “Rule 16 calls for a pretrial conference, which can produce a pretrial order that supersedes the pleadings, . . . .” 5 Wright and Miller, Federal Practice and Procedure, § 1189 at 28 (1969).
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 *657insofar 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 raid 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 mistreated 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 factual 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 nonshooters 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 following which is the first reference to the presence of the nonshooters:
All 14 raiding police officers were present inside the apartment during the beatings and abuse, participated in them and did nothing to try to stop them. FRED HAMPTON was still lying unattended on the floor in the dining room. All 14 police officers then ransacked the apartment, turning beds and dressers over and emptying their contents throughout the apartment, and destroying and mutilating evidence of what had occurred. [PI # 553 PL. 410 1SSGJ84-5] All 14 police officers saw FRED HAMPTON lying on the floor with blood coming from his head, but none did anything to try to determine if he was alive and could be helped. At no time did any of the officers seek to determine the nature of Plaintiffs’ injuries, or to assist or protect them in any way.
There is no reference at all to any portion of the transcript of the evidence with regard to any nonshooter officer even being in the apartment. The only two citations at all to the record are to Plaintiffs’ Exhibits 553 and 410. Exhibit 553 is a photograph showing no people but showing drawers out of a dresser, clothing on the floor, and beds turned over. Exhibit 410 is a partial transcript of testimony by nonshooter defendant Lynwood Harris. Three of the pages, 77, 78, and 203 appear to be from a deposition of Harris and the balance of the pages are from his appearance before the grand jury at the time Barnabas Sears was appearing as the special prosecutor. This exhibit is somewhat difficult to read because of its disjointed nature, it being only a part of a complete transcript. The exhibit was 33 pages of the grand jury testimony but the first page of the exhibit is numbered 57 and the last 157. It is clear, however, that it contains no evidence of any of the outside nonshooters going into the apartment immediately following the shooting. Harris apparently did go in at some later time when the firearms were being laid out on a mattress. At the time of the shooting he heard the noise of the shots. When asked what happened next after he heard the second round of shooting, Harris, who was not in uniform at the raid, responded:
Well, actually from that point on, I was really concerned with myself because cars were beginning to arrive in response to the policeman’s call. And I was concerned in letting those officers arriving know that I was a police officer standing here. And this was a constant cry by me, police officer.
While Harris subsequently was asked “who else was there other than the fourteen *658State’s Attorney’s Police Officers, when you got back to the apartment?” he mentioned officers from other units, a photographer, an evidence technician and other officers making sketches. The question does not, of course, confine the 14 officers to the inside or outside of the apartment and obviously, in any event, the time referred to is obviously after the occupants had been removed when Lynwood Harris, himself, was helping by carrying out some of the firearms. When the raiders went inside, it was understandable in this neighborhood that others would be posted outside to prevent interference with the operation. The continuance of that guard duty clearly would have become more important after the actual shooting. In sum, I find no basis for even an inference that the nonshooters were inside when any occupant of the apartment was allegedly mistreated, and certainly not to support the inference suggested in Judge Swygert’s opinion that they “callously chose to watch.”
I must assume that the plaintiffs’ counsel have advised us of all of their record support for their assertion that all fourteen officers were inside and certainly this court is under no duty to search 37,000 pages of transcripts plus voluminous documents to see if there is some other reference to any of the nonshooters being present in the apartment before the occupants had been removed.2
Even if we were to assume arguendo that some of the nonshooters were present when an occupant was mistreated, on the record we have here, I would not find Byrd applicable. That case on which I was a member of the panel, and the opinion of which was authored by Judge Swygert, reversed a judgment based upon a directed verdict which reversal was predicated upon the fact that the jury could have found nonfeasance, either negligent or intentional, on the part of officers of a particularly egregious nature. In the later case of Bonner v. Cough-lin, 545 F.2d 565 (7th Cir. 1976), negligence was eliminated from the picture. In that case, the plaintiff relied upon Byrd, and in the en banc opinion written by Judge Cummings, Judge Swygert dissenting, the significance of Byrd was circumscribed to “purposeful nonfeasance.” Id. at 568. “Thus defendants’ failure to act in Byrd can be properly characterized as ‘intentional.’ ” Id. at 569. I find absolutely no basis for a viable claim of proof of purposeful nonfea-sance on the part of the nonshooters.
As to the conspiracy count pertaining to the raid insofar 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 nonshoot-ers, and indeed the shooters with the possible exception of Groth, were a part of the *659conspiracy. 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 unhappy 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 those 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 conspiracy 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 alternative 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 our the foolishness of these various proposed alternatives if the purpose of serving a particular warrant was to search for and seize an arsenal of illegal weapons in a probably unfriendly neighborhood and to arrest those who were found to be possessors of those weapons. Nevertheless, because the nature of the raid has been given significance, it is necessary to analyze the existing situation.
In settling upon the early morning hour as the appropriate time for making the raid, Groth, as the commanding officer of the group, complied with Illinois law which provided that a search warrant may be served at any time of the day or night. § 108-13, Ill.Rev.Stat. Ch. 38 (1969). As the state defendants point out the key factor in that decision was to surprise the occupants while hopefully they would be asleep, thus avoiding, if possible, any use of force or resistance, and that the possessors of those illegal weapons would most likely be present subject to arrest at the early morning hour. The apartment was located in a residential area and police arriving in any force at the scene during a daylight hour, even during working time, would attract a crowd and in the event of any shooting the lives of nearby citizens would be in danger.
The police had a right to anticipate the possibility that the guns in the apartment might be used against them particularly in view of the well-known attitude of the Black Panther Party on the subject of the dispensability of policemen.
As the Supreme Court stated in Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968):
Certainly it would be unreasonable to require that police officers take unnecessary risks in their performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.
One of the occupants, Anderson, indeed said that he was searching trying to find his shotgun which he had loaded before going to bed with deer slugs and .00 shells and the pistol which he had loaded and placed between the beds, but he could not find them because there was shooting although he would have used them had he found them.
To have gone to the apartment in the early evening of December 3 might well have attracted reinforcements from the Panther Party headquarters only a short distance away. During daylight hours snipers could reasonably be anticipated from the buildings in the area. To have brought equipment such as bullhorns or to have *660telephoned the occupants or to have thrown strong searchlights on the apartment and ordered the occupants to come out could have reasonably been anticipated to precipitate a battle royal. The use of tear gas at this point might have been appropriate if the battle royal had policemen shooting from the outside and Black Panther Party members shooting from the inside. To have used it as an initial matter,' however, would have given the real possibility of other types of damage to the occupants. Expert testimony in this trial was that tear gas should be avoided in residential districts such as this one. Further, it is noted that gas masks were reported to be stored at the apartment which would have been effective against the use of tear gas by the police. A telephoning or other type of communication would only have given the occupants time to set up their counter-attack and the time to fire the weapons which the plaintiffs contend were never fired. To have used bullhorns, spotlights, or loud speakers in this residential area would have only exacerbated the situation by attracting crowds and thereby exposing more persons to a potentially dangerous situation.
One only has to recall the gun battle occurring when the police were involved with the Symbionese Liberation Army in Los Angeles a few years ago to realize that the police chose a wise and prudent course in attempting to serve their warrant by way of surprise when the purpose of seizing the weapons could be accomplished with the least likelihood of harm to anyone. As to why this did not go as planned will ultimately apparently have to be determined by a jury but there seems to be little dispute that someone fired a shot and thereafter the shooting inside the apartment occurred rapidly. All of this, however, does not negative the fact that the -timing and manner of the raid was prudently planned as opposed to all alternatives and the timing of the raid and carrying of the weapons are, in my opinion, no evidence whatsoever of the existence of a conspiracy.
Turning next to the shooters, what I have said with regard to the conspiracy as to the raid itself is applicable to them with, as I have previously indicated, the possible exception of Groth. If there was such a sinister conspiracy, or putting it in the context of this case, if there was evidence in the case sufficient to require the conspiracy-raid issue to go to the jury, then the jury should also have the opportunity of deciding whether he was a party to the conspiracy. As will be indicated hereinafter I do not think there was a jury issue developed.
With regard to the non-conspiracy raid activity case against the shooters, the state defendants’ brief presents a persuasive case to the effect that these officers who were acting pursuant to a judicial warrant did not fire a weapon until there had been firing at them. It seems fairly certain that some of the officers who went in, negligently thought that the occupants were firing at them and thereupon returned the fire. This could well result in a jury verdict for some of the shooting officers and against others. Insofar as the case before us is concerned, however, there is testimony from which a jury could reasonably find that the shooters overreacted and used excessive force. See Davis v. Freels, 583 F.2d 337 (7th Cir. 1978). Where evidence is to be weighed, that is not the function of this court but that of the trial court trier of fact. I think the district judge, although understandably satiated with this long drawn-out trial which was not going to come to a final decision because of a hung jury, mistakenly directed a verdict on the raid issue as to the shooting officers.
Going next to the conspiracy-raid issue as to the remaining state defendants and the federal defendants, I cannot agree that there was a basis for reasonable inferences that there was any kind of an agreement among them, express or implicit, to cause a raid to be made with the object of killing or wounding various Black Panther Party members. It is true that at the time in question, the federal authorities thought it would be in the public good to neutralize the Black Panther Party so that it could not carry out its avowed purpose, among others, of killing policemen. Indeed, the idea perhaps could have been entertained by some, *661if not all, of those defendants who were engaged ir. law enforcement work that the community would be a safer place for law-abiding citizens to live and work in if Fred Hampton and his cohorts were not on the scene. This human feeling is far removed from a basis for an inference that they deliberately set a course to accomplish that by violence.
In our jurisprudence a person cannot be convicted of a traffic offense unless proven guilty beyond a reasonable doubt. Even though the present case is of the civil variety, I cannot believe that the law should permit a determination that any person has deliberately planned a homicide on nothing more than speculative conjecture or mere suspicion. The hard basic reasonable inference-creating facts just did not exist in this case.
What I have said about the conspiracy-raid is also applicable to the non-conspiracy counts concerning the planning and participation in the raid by the federal defendants and the state defendants. The shooters, as I have previously indicated, remain in the case not because they planned a raid with the objective of attempted homicide, but because of the excessive force question. As I have stated previously I do not regard the carrying of the firearms or the time and manner of the raid as being the basis of an inference of a plan to use excessive force.
An aspect that is directly involved in the result of the decision in this appeal is, in my opinion, a potentially disastrous curtailment on necessary exchanges of information between law enforcement and agencies. The rising need for effective law enforcement cannot but be substantially chilled if there should be the prospect of becoming a defendant in a suit for monetary damages whenever information concerning law violations is communicated by one agency or official to another agency or official having primary jurisdiction over the crime.
At this point in the preparation of this dissent, I have become confronted with an increasingly compelling necessity to turn to other cases of this court with which I am concerned, many of which have statutory priority over this civil case, notwithstanding Judge Swygert’s concluding admonition that upon remand this case should be given “high priority.” I have not requested, nor have I been given, a respite from a full calendar of sitting accompanied as that must be by the necessity of preparing opinions or orders on at least one-third of the cases on which I have sat. Therefore, while not doing so happily because of my belief that sending virtually the complete case back for another extended trial constitutes a miscarriage of justice and a misuse of the federal judicial facilities, I will endeavor simply to outline as briefly as possible my remaining observations on this case.3
1. Post-raid prosecutorial matters. An initial difficulty for the plaintiffs here is that the occupants were in possession of illegal firearms and were subject to prosecution. In any event, under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), most of the post-raid direct prosecutorial activities of the state’s attorney and his assistants provided to them absolute immunity from civil liability. It is true that the Imbier Court expressly left open the question of whether absolute immunity extended to a prosecutor in the role of an administrator or investigative officer rather than an advocate. Here charges were being made following the raid that the police and Hanrahan were guilty of murder and genocide. Demonstrations occurred and there was tension in the community. Under these circumstances it appears to me to have been well within the prosecu-*662torial authority and duty of this public official charged with the enforcement of the criminal law in his county to take the steps that he did in defense of the system of law administration. Hanrahan’s concept of this duty was thus stated:
I had a public responsibility as the chief prosecuting officer in Cook County to do everything possible to preserve the peace and to prevent an outbreak of violence. I saw that coming as a result of what I described as the press orgy, the accusations of murder and unlawful conduct, and I did not feel that there had been clear and accurate reporting of the accounts given by the officers.
Vociferous denunciations of the police conduct by those supporting the Panthers, as an aftermath of the raid does not mean that Hanrahan was not entitled to believe those who were involved in the law enforcement activities of the county. It appears to be a frequent practice today when steps are taken to enforce the law that the one charged attempts to divert attention from his own malfeasance by asserting that his constitutional rights have been violated.
The involvement here in public statements and media publicity was of a far less egregious nature than that which has been involved in cases of absolute immunity where prosecutors were engaged directly in the prosecutorial process. The conduct here was so intimately interrelated with the prosecutorial process that it should have the same protection. As the Court pointed out in Imbler, at 425, 96 S.Ct. at 992, “Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation.” That is what has happened here in my opinion, and, again quoting the Court, at 426, 96 S.Ct. at 993, “The affording of only a qualified immunity to the prosecutor also could have an adverse effect upon the functioning of the criminal justice system.” In the present case, the counterattack to the publicity was for the purpose of avoiding such an adverse effect.
It is the state authorities who prosecute, and irrespective of whether the federal defendants may have thought prosecution was proper, I fail to see a jury case of malicious prosecution against them. One, of course, does not have to be in the prosecutor’s office to be chargeable with malicious prosecution but he should have some connection with bringing about the wrongful prosecution more than just thinking that the defendant should be prosecuted.
2. Claimed obstructionism. Under my view the matter of the raid would only remain in litigation as to the shooters. Without the issue of conspiracy as to the raid, the post-hoc claimed acts of obstructionism, upon which the Anderson plaintiffs particularly rely, have not been, it seems to me, demonstrated to have harmed the plaintiffs. As Chief Judge Fairchild has pointed out in his concurrence, it seems clear that plaintiffs cannot recover damages for injury to reputation, without more. If the defendants have engaged in the obstruction of justice or perjury the criminal courts not this civil suit are the proper place for their consideration.
Indeed, the history of criminal proceedings in the area with which we are concerned during the past decade testifies to the fact that high office or powerful position does not provide a shield against successful prosecution for violations of the law.
I find it almost incredible that Sadunas, who made a mistake in identifying one of many guns he examined from which a shell had been fired, is being left in the case. This is particularly true because he is paying a penalty for honesty by promptly acknowledging his mistake when he made a reexamination and because this is not a case of a rifle or pistol cartridge where the rifling in the barrel gives a much more distinctive basis for identification than in the shotgun shell casing here involved.
Other charges of obstructionism upon which the plaintiffs rely amount to nothing more than nonfeasance, or failure to act.
Again, the fragmentation of the complaints creates difficulties. These matters are all interrelated and when they are *663viewed in the light of a nonsupportable claim of conspiracy as to the raid, the prose-cutorial immunity, the nonexistence of claims based upon mere negligence, the existence of law violations in the illegal possession of firearms and the fact that the plaintiffs who were offered an opportunity to appear and participate in the post-raid investigations declined to do so, I find no merit in the claim that the charged obstructionism was the basis for an action against the defendants.
3. Groth’s informant. I must confess that I fail to comprehend the considerable emphasis given to this matter. I have no idea whether Groth did or did not have his own informant; but I cannot agree with Judge Swygert’s conclusion that the lack of or unreliability of the informant, or the furnishing of incorrect information by the informant, would, on the facts of this case, place the search warrant in any serious jeopardy. I do know that a knowledgeable and reliable informant known to be such to a law officer provided information which was passed through a reliable chain of law enforcement officers into an application for a search warrant and the information so furnished was correct. And it was on this judicially issued search warrant that the police officers acted as they had to do.
At one point in their brief, the Anderson plaintiffs say they are seeking to learn the identity of the informant in order to “try and find” evidence of illegality. Mere speculation or suspicion that an informant might be of some assistance should not be sufficient to overcome the public interest in the protection of an informant’s identity.
The matter of protecting the identity of a confidential informant, in my opinion, is one of extreme importance in law enforcement. Perhaps if this were the best of all worlds, spying would not be tolerated because there would be no place for it. The said fact, however, is that this is not the best of all worlds and crime, whether it is caused by poverty, economic inequality, psychological maladjustment, or other causes for which society may be responsible, does continue to exist, and at the present moment appears in no way to be declining. Particularly with regard to those who have consciously embarked upon a criminal career, one of the most effective ways of learning of their activities and curtailing them is through the use of confidential informants.
I would let the matter rest upon the determination of Judge Perry, who had the opportunity to see and evaluate Groth’s credibility. The fact that Groth declined to reveal the informant’s identity to Judge Perry in camera is a strong indication of the truth of his assertion that the informant’s life would be endangered by his identification. O’Neal’s identity could be revealed even though his usefulness as an informant was thereby ended because he was no longer associated with the Black Panther Party. There is ample basis for belief that if Groth’s informant were still in such an association he would be in a position of retributive jeopardy.
I cannot conceive that the scope of our appellate review is such as to permit us to conclude, as Judge Swygert’s opinion does, that upon remand the identity of the informer must be disclosed. The matter, if it really is of significance, which I doubt on the facts of this case, should be reexamined carefully in the light of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). By this court deciding as a matter of law that the identity of the informer is not entitled to protection, we are deciding a factual matter in much the same way as that which the majority faults Judge Perry for doing.
4. Discovery matters. I have already earlier in this dissent expressed my views on this subject. This was not in trite parlance “a fine-tooth-comb” operation but was a time-wasting and harassing “fishing expedition.”
5. Evidentiary rulings. I find no basis for a reversal in this respect. The Anderson plaintiffs’ claims for the most part relate either to instances where the judge sustained objections to improper questions, barred testimony on an irrelevant area, made non-damaging comments or clarifying *664remarks to the jury, explained the pertinent law or himself asked questions of the witness, all of which were well within his discretion. United States v. Pellegrino, 470 F.2d 1205, 1206-08 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973); United States v. Curcio, 279 F.2d 681, 682 (2d Cir. 1960), cert. denied, 364 U.S. 824, 81 S.Ct. 59, 5 L.Ed.2d 52.
Insofar as the complaints of the Anderson plaintiffs that Judge Perry disparaged their evidence or that he engaged in acrimonious exchanges with their lawyers are concerned, I regard these as nothing more than instances in which the judge either lamented the irrelevant and repetitive nature of appellants’ counsel’s questions, instructed the jury on a relevant point of law, or aptly described improper questions by plaintiffs’ counsel.
The exchanges which did occur between court and counsel were, it appears to me, the result of repeated improper questioning and, on the whole, resulted from the rude and insulting behavior on the part of the Anderson plaintiffs’ lawyers. Thus, frequently, counsel would persist in asking improper questions, in interrupting, in making improper statements in front of the jury, and in continuing to argue and object after the judge had made a ruling. It is well settled that the judge may admonish counsel for unnecessary and improper questions or for failing to comply with the rules of the court. Miley v. Delta Marine Drilling Co., 473 F.2d 856, 857 (5th Cir. 1973), cert. denied, 414 U.S. 871, 94 S.Ct. 93, 38 L.Ed.2d 89 (1974); United States v. Glaziou, 402 F.2d 8, 17 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969); Pacific Coast Cheese, Inc. v. Wirtz, 314 F.2d 145, 148 (9th Cir. 1963), and the judge did nothing more than that here.
As the court stated in Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 445 (1st Cir. 1966), cert. denied, 385 U.S. 919, 87 S.Ct. 230, 17 L.Ed.2d 143:
It is inappropriate for counsel to complain of treatment that he has invited, particularly when that treatment is well within responsive limits. We have said before, and we repeat, such claims should not be made at all unless they are very sound. The proposition that counsel can disregard the court’s instructions, obtain a rebuke, and then preserve the incident as insurance in the event the case is lost, does not sit well.
It appears to me that Judge Perry displayed wisdom and patience in a vigorously contested case with contentious counsel and that his rulings followed the governing rules of evidence, producing a fair trial for the plaintiffs.
6. The Contempts. The authority of a federal judge to punish summarily for conduct constituting contempt committed “in the actual presence of court” as well as the procedure to be followed, is established by Rule 42(a) of the Rules of Criminal Procedure.
Rule 42(a) reads:
(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
The authority to punish summarily applies to behavior of counsel. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). See also United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975). In Sacher the issue arose from a nine month trial, one-half the length of the present case. During the Sacher trial defense counsel, in the presence of the trial judge and in the face of repeated warnings from him that their conduct was regarded as contemptuous, persisted in a course of conduct that was highly contemptuous and that tended to disrupt and delay the trial and possibly to cause a mistrial. Upon receiving the verdict of the jury at the conclusion of the trial, the trial judge, without further notice or hearing, immediately filed a certificate under Rule 42(a) of the Federal Rules of Criminal Procedure summarily finding such counsel *665guilty of criminal contempt and sentencing them to imprisonment.
The decisive issue in the Sacher case was whether Rule 42(a) applied at the end of the case. Of significance to the present case is the fact that the Court in Sacher took it as conceded that there was no substantial issue when, as in the present case, the judge acted promptly. By way of summary, the Supreme Court stated at 13-14, 72 S.Ct. at 457:
But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer’s calling.
It is clear in the present case that Judge Perry properly followed the procedures set forth in Rule 42(a). The conduct clearly was not committed outside “the actual presence of the court” nor is it contended that the judge did not see or hear such conduct. Also, the judge promptly signed and entered an order reciting the facts.
It is to be noted before taking up the individual contempt orders that both Haas and Taylor were counsel for the Anderson plaintiffs.
Taking up the Haas incident first, this incident developed very shortly after Haas had been reprimanded for directing a derogatory statement towards the judge. Thereafter, the jury was excused because of argument regarding the propriety of a question. When the jury returned the judge struck the last question and told the jury to disregard it. Haas resumed his examination of Hanrahan and upon objection the judge told Haas that they had just gotten through that out of the presence of the jury and “you will not go into that subject matter any further.” Haas responded that he did not even get to argue it and the court repeated, “I said you will not go into it any further.”
Upon this Haas responded, “Judge, we can’t cover up the cover-up.” Haas continued that that was part of their complaint, that they covered up. The judge immediately held him in contempt of court. All of the above was in the presence of the jury. After the jury retired Haas continued:
All right, Judge. I think all the people who have spoken the truth have always ended up in contempt, and the cover-up goes on and on and on.
It appears obvious to me, as it must have to the jury, that Haas in his first statement about a cover-up was not referring to something which had happened back in the early 1970’s but was referring to the court participating in a further cover-up. His meaning was made clear by his subsequent statement that the cover-up goes on and on and on. A charge in the presence of the jury that the presiding judge is participating in a “cover-up” is particularly damaging during the course of a trial. On the one hand the jury may come to the conclusion that the judge thinks there is no merit in the answer which counsel is attempting to elicit and therefore he is curtailing the pursuit. On the other hand, the jury may think just the opposite, i. e., that the trial judge is improperly covering up for the defense, in which case the judge’s necessary authority in further trial matters such as instructions is diminished. In either event a fair trial is hampered.
A charge that the trial judge engaged in a cover-up made in the presence of the jury is clearly an affront to the court and disruptive to the administration of justice and the order of contempt as to Haas should be affirmed. See United States v. Wilson, supra; United States v. Sacher, supra.
The case as to Taylor is closer although possibly with some significance it was Haas who was examining the witness but it was Taylor who engaged in the conduct charged as being contemptuous. The case is closer because it simply should not have occurred in the first place. This all began because defense counsel objected to a question *666which included the word “raid” and said that the defendants had never entered into a stipulation using that word. He accused Haas of a “deliberate, willful, and intentional intent to prejudice the jury.” The defense was incorrect because the word “raid” had been used in the stipulation and indeed I am at a loss as to why this type of objection would have been made as there could be little doubt in my mind, and I have so characterized it herein, that the service of the search warrant on the morning of December 4, 1969, was a raid within the common dictionary definition of that word. The situation no doubt became more distressing to plaintiff’s counsel when the judge told the jury that Haas had deliberately and willfully misread a statement and subsequently, after a transcript had been obtained, did not upon the request of Haas advise the jury that Haas’ statement was not a misrepresentation.
At this point Taylor for some reason got into the act and as he slapped papers on the table his hand knocked off the pitcher which broke onto the floor. The glass lining of the pitcher was broken. In dealing with this incident in the Anderson plaintiffs’ brief, typical of the hyperbole throughout the brief was the reference to defense counsel’s bringing to the attention of the judge that a water pitcher was broken which caused the brief writer to characterize the defense counsel as “the snitch.”
The appellants’ brief concedes the judge’s action finally got them good and mad by refusing to hear them and that they returned to their table flinging down their papers in anger and frustration. At a further point the brief indicates that, “Taylor, by contrast, gave the judge grist for his mill, by letting him get his goat, to mix metaphors. In a case without such pervasive bias and unremitting provocation by the Court, some rebuke might arise on such a gesture. . . . ”
I have no reason for believing that Taylor deliberately knocked the pitcher off onto the floor. On the other hand one cannot safely predict the consequences of uncontrolled anger which should not occur, or at least which should not be exhibited in the courtroom by counsel.
Under all of the circumstances, I would affirm the contempt orders as to both Taylor and Haas.
7. Other contentions and issues. Judge Swygert’s opinion correctly holds that the matter of whether plaintiffs should recover attorneys’ fees must be deferred until thé final outcome of the litigation but does allow such fees for the appellate work. Because of my position on the merits of the appeal I would only allow the appellate work fees commensurate with the work involving the shooter defendants which would be the full reasonable amount for the Hampton plaintiffs but which would be substantially curtailed for the Anderson plaintiffs.
Judge Swygert’s opinion also directs the district court judge to whom the case is reassigned on remand “to give the retrial high priority.” I assume that this can only mean all possible priority and that we are not directing the district court to disregard the numerous types of litigation which might have statutory priority over this civil suit. I should think, for example, that cases under the so-called Speedy Trial Act would have precedence over the instant litigation.
Because of the multiplicity of the claimed errors, at least in the Anderson plaintiffs’ briefs, it is somewhat difficult to be sure that all significant claims have been addressed. I am not aware, however, of any, including any of the various elaborating fragmentations, which cause me to think that a new trial is indicated as to any of the defendants except to the extent herein indicated.
8. Conclusion. It has not been a happy task to disagree to the extent to which I have felt compelled with the opinion of an esteemed brother judge but I consider that this case has important overtones of unbridled denigrating attacks on governmental officials. I hope I have made it clear that I do not entertain the idea that government officials should not have to answer in some forum for abuse of power. I would agree *667that, individual governmental officials who do not have absolute immunity should anticipate that they will be held accountable for monetary damages to those whom they have injured when they have discharged their duties of office in a way that is known to them to violate the United States Constitution or in a manner that they should know transgresses a clearly established constitutional rule. The result would be the same where the actions were manifestly beyond their line of duty.4
I am saying, however, that a wide-ranging witch-hunting type of assault on public servants across the board should receive the most careful judicial attention.5 I don’t think the present case can withstand that scrutiny, the focus of which must be on the situation as it existed at the time of the events in question.
. Whatever the situation may now be, or should be, it is doubtful that in 1969 attempts to discredit groups thought to be presenting a clear and present danger of violence was a violation of First Amendment rights.
. A footnote has been added to Judge Swy-gert’s opinion with regard to the point in my dissent that the nonshooters were entitled to a directed verdict because they were not even in the apartment at the time the plaintiffs claim the occupants were mistreated. I attempted to make it clear that I assumed that plaintiffs’ counsel would give us all of the record support available to demonstrate the presence of the nonshooters in the apartment at the time in question and that upon analysis they gave no such support. Judge Swygert’s added footnote, however, refers to other items of evidence on the question.
I see no reason, however, for receding from the position I took on this issue in my dissent. Judge Swygert’s added footnote gives significance to there being fifteen or twenty officers in the kitchen some of them being in police uniforms. If the number was twenty, this, of course, was six more officers than were in the raiding party and would seem to indicate that the presence in the kitchen related to a time substantially subsequent to the cessation of the shooting when other officers had answered the call. Further, Officer Harris at least, upon whom the Anderson plaintiffs rested the matter, was in plain clothes although a nonshooter. The fact that two of the nonshooters entered the apartment at or about the time of the shooting, if that indeed is a fact, does not place them there at the time of the alleged mistreatment of any of the occupants. While this is a situation in which reasonable inferences are permitted to be drawn, there should be something more than Judge Swygert’s added footnote demonstrates to say that there was something to go to the jury on the matter of purposeful nonfeasance on the part of any of the nonshooters.
. The incentive toward continuing a fuller discussion is not encouraged by the realities of the situation being that there is very little probability this case will not go back for retrial. Two of the active judges of this court (Judges Bauer and Wood) have disqualified themselves, two more, of course, are in the majority of the present panel, and all four of the remaining would have to vote to rehear the case en banc. Insofar as the Supreme Court of the United States is concerned, the small percentage of the heavy volume of petitions for certiorari which can be granted minimizes the likelihood in any case of being successful in the pursuit of certio-rari.
. Nor, I should add, do 1 intend anything said herein to minimize the importance of lawyers accepting unpopular civil cases. Accepting such employment often requires a solid exercise of courage, but I regard doing so as one of the obligations assumed by a person who has been admitted to the practice of law.
. The pendulum has taken a far swing from the days of McCarthyism but the extremes of the swing seem to me to be equally undesirable for the good of the country. Unfortunately many who decried the excesses of McCarthyism do not seem equally concerned by the development of the extremity of present day witch-hunting directed toward law enforcement officials.