◆ SpookStack

110 Nos. 77-1698, 77-1210 & 77-1370 determined by a jury but there seems to be little dispute that someone fired a shot and thereafter the shooting in- side 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 whatso- ever 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 re- quire 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 in- dicated 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 8387 (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 drawnout 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