◆ SpookStack

Nos. 77-1698, 77-1210 & 77-1370 43 the shootout. In light of our decision in Byrd, the fact if found by a jury determination that these men did not per- sonally participate in the abuse, but instead callously chose to watch, would not preclude their liability. Accord- ingly, this issue should have been submitted to the jury. We hold that the directed verdicts in favor of the nonshooters regarding their activities in the raid were improperly granted by the trial court.* C. Hanrahan and Jalovec Plaintiffs contend that the alleged failure of Hanrahan and Jalovec to supervise properly the officers attached to the SPU creates a cause of action based on section * Judge Pell states in dissent that the directed verdicts in favor of the nonshooters were proper because there” is “no basis [in the record] for even an inference that the nonshooters were inside when any occupant of the apartment was allegedly mistreated, and certainly not to sup ort the inference suggested in Judge Swygert’s opinion that they ‘eallously chose to watch.’” Infra, p. 105. _ The record demonstrates that the dissent’s position is incorrect. Louis Truelock testified before the state grand jury that there were “fifteen or twenty officers In the kitchen,” some in uniform and some in plainclothes, when the firing ceased and Groth ordered that the bodies be brought into the kitehen. Plaintiffs’ Exhibit LT #7, pp. 27-28. (The shooters wore black on the raid; nonshooters wore police uniforms.) Additionally, testimony of several of the nonshooters themselves establishes that they were inside the apart- ment before the srvivors were taken away. Officer Kelly testified at the Coroner’s inquest that he entered the apartment in the midst of the firing. Plaintiffs’ Exhibit 417, Pp: 109. See also Federal Grand Jury testimony, Plaintiffs’ exhibit 574B, p. 152. And Officer Marusich testified at the Coroner’s inquest that he entered the apartment “a couple of me after the last shot was fired. Plaintiffs’ Exhibit 421, p. 1236. This evidence demonstrates that at least some, if not all, nonshooters were in the apartment at the time the occupants allegedly were being abused. The question whether non- shooters are liable under section 1983 for purposeful nonfeasance, under the rule of Byrd, is one for the jury to determine.