In Re: City Phila Litigation

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-6-1995
In Re: City Phila Litigation
Precedential or Non-Precedential:
Docket 94-1277
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 94-1277, 94-1278,
94-1279, 94-1280,
94-1322 and 94-1377
IN RE: CITY OF PHILADELPHIA LITIGATION
(D.C. Civil No. 85-2745)
RAMONA AFRICA
v.
CITY OF PHILADELPHIA;
WILLIE GOODE; LEO A. BROOKS;
GREGORE SAMBOR; WILLIAM C. RICHMOND;
FRANK POWELL, LT.; WILLIAM KLEIN, OFFICER;
MICHAEL TURSI, OFFICER; ALBERT REVEL, SGT.;
EDWARD CONNOR, SGT.; MORRIS DEMSKO, CORPORAL;
RICHARD REED, STATE TROOPER,
Individually and in their present
and/or former official capacities
(D.C. Civil No. 87-2678)
Leo A. Brooks,
Appellant in No. 94-1277
Ramona Africa,
Appellant in No. 94-1322
City of Philadelphia,
Appellant in Nos. 94-1280 and 94-1377
William C. Richmond,
Appellant in No. 94-1279
Gregore Sambor,
Appellant in No. 94-1278
Nos. 94-1233, 94-1272, 94-1276,
94-1321 and 94-1378
IN RE: CITY OF PHILADELPHIA LITIGATION
(D.C. Civil No. 85-2745)
ALFONSO LEAPHART, Administrator of the
Estate of VINCENT LOPEZ LEAPHART,
a/k/a JOHN AFRICA
v.
CITY OF PHILADELPHIA;
W. WILSON GOODE, Mayor, City of Philadelphia;
LEO A. BROOKS, Former Managing Director, City of Philadelphia;
GREGORE J. SAMBOR, Former Police Commissioner,
City of Philadelphia;
WILLIAM C. RICHMOND, Fire Commissioner, City of Philadelphia;
FRANK POWELL; WILLIAM KLEIN;
MICHAEL TURSI; ALBERT REVEL;
COMMONWEALTH OF PENNSYLVANIA;
RICHARD THORNBURGH, Former Governor,
Commonwealth of Pennsylvania;
JAY COCHRAN, Commissioner of State Police,
Commonwealth of Pennsylvania;
RICHARD REED; MORRIS DEMSKO;
E.I. DUPONT DE NEMOURS AND COMPANY
(D.C. Civil No. 87-2756)
Alfonso Leaphart, Administrator of the
Estate of Vincent Lopez Leaphart, a/k/a
John Africa,
Appellant in No. 94-1321
City of Philadelphia,
Appellant in Nos. 94-1378, 94-1233, and
94-1272
William C. Richmond,
Appellant in No. 94-1276
Nos. 94-1229, 94-1230, 94-1231,
94-1232, 94-1320 and 94-1379
IN RE: CITY OF PHILADELPHIA LITIGATION
(D.C. Civil No. 85-2745)
LOUISE JAMES
v.
FRANK POWELL; GREGORE J. SAMBOR;
LEO BROOKS; WILLIAM C. RICHMOND;
W. WILSON GOODE; CITY OF PHILADELPHIA;
STATE OF PENNSYLVANIA;
DU PONT DE NEMOURS, E.I. & COMPANY
v.
RAMONA JOHNSON AFRICA;
ALPHONSO ROBBINS AFRICA,
Third-Party Defendants
(D.C. Civil No. 85-3528)
Louise James, Administratrix of the
Estate of Frank James,
Appellant in No. 94-1320
City of Philadelphia,
Appellant in Nos. 94-1229 and 94-1379
Gregore Sambor,
Appellant in No. 94-1230
Leo A. Brooks,
Appellant in No. 94-1231
William C. Richmond,
Appellant in No. 94-1232
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Nos. 85-02745, 85-03528,
87-02678, 87-02756)
Argued November 3, 1994
BEFORE: GREENBERG, SCIRICA, and LEWIS,
Circuit Judges
(Filed: March 6, l995)
André L. Dennis (argued)
Jeffrey M. Lindy
Raymond S. Wierciszewski
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103-7098
Attorneys for
Appellant/Appellee
Ramona Africa
Fincourt B. Shelton (argued)
Fincourt B. Shelton and
Associates
Six North 9th Street, Suite 201
Darby, Pennsylvania 19023
Attorneys for
Appellant/Appellee
Louise James
Rosemarie Rhodes (argued)
Harper & Paul
140 West Maplewood Avenue
Philadelphia, PA 19144
Attorneys for
Appellant/Appellee
Alfonso Leaphart
Joseph A. Dworetzky,
Acting City Solicitor
Michael F. Eichert,
Divisional Deputy City Solicitor
E. Jane Hix (argued)
Deputy City Solicitor
City of Philadelphia
Law Department
1600 Arch Street, 8th Floor
Philadelphia, PA 19103
Attorneys for Appellant
City of Philadelphia
Nolan N. Atkinson, Jr. (argued)
Frank E. Noyes, II
Duane, Morris & Heckscher
4200 One Liberty Place
Philadelphia, PA 19103-7398
Attorneys for Appellee
W. Wilson Goode
Steven R. Waxman (argued)
Kleinbard, Bell & Brecker
1900 Market Street, Suite 700
Philadelphia, PA 19103
Attorneys for Appellant
Leo A. Brooks
John W. Morris (argued)
One Penn Square West
Suite 1300
Pennsylvania, PA 19102-4813
Attorney for Appellant
Gregore Sambor
Peter C. Kennedy (argued)
James M. Marsh
Hecker Brown Sherry and Johnson
1700 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Attorneys for Appellant
William C. Richmond
Richard D. Malmed
Two Penn Center Plaza
Suite 1920
15th & JFK Boulevard
Philadelphia, PA 19102
Attorney for Appellee
Frank Powell
E. Harris Baum
John R. O'Donnell
Zarwin & Baum, P.C.
Suite 700
Four Penn Center Plaza
1616 John F. Kennedy Boulevard
Philadelphia, PA 19103
Attorneys for Appellee
William Klein
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
GREENBERG, Circuit Judge.
These consolidated appeals have been taken from
judgments and orders in three civil actions against the City of
Philadelphia and certain of its former officials and employees.
The plaintiffs' claims arose out of an attempt by the
Philadelphia Police Department on May 13, 1985, to execute search
warrants and arrest warrants at a premises in Philadelphia
occupied by a group known as MOVE. After hours of gunfire and
failed attempts to inject tear gas into the residence in which
the MOVE members had barricaded themselves, police officers
dropped an explosive device on the roof of the house. The
ensuing fire killed 11 persons, including five children, in the
residence and destroyed dozens of homes in the vicinity.
The plaintiffs appeal from the district court's grant
of summary judgment on qualified immunity grounds in favor of
certain of the defendants with respect to claims arising from the
dropping of the explosive device. Philadelphia Managing Director
Leo A. Brooks, Police Commissioner Gregore Sambor, and Fire
Commissioner William C. Richmond appeal from the district court's
denial of their motions for summary judgment on qualified
immunity grounds with respect to claims under 42 U.S.C. § 1983
arising from their alleged decisions to let the fire burn.1 They
1
. For simplicity and convenience, we will address these
officials by the titles they held during the 1985 conflict even
though they may no longer hold such titles. The Commonwealth of
Pennsylvania and certain of its officials and employees also have
been parties to this litigation but they are not involved in
these appeals.
also appeal from the denial of their motions for summary judgment
on state claims asserted against them. The city itself appeals
from the denial of its motion for summary judgment.
The court is divided on the disposition of various
issues and on certain issues there are majorities consisting of
each of the three possible combination of judges. On other
issues the court is unanimous. In this opinion I will set forth
the ultimate conclusions reached and also will set forth the
majority view on some points and my own view on other points.
Judges Scirica and Lewis are filing separate opinions. As a
matter of convenience I largely will deliver this opinion in the
first person.
Judge Scirica and I conclude that all the individual
defendants are immune because their actions on May 13, 1985, did
not violate any clearly established constitutional rights of
plaintiff Ramona Africa and decedents Frank James and Vincent
Lopez Leaphart. Accordingly, we will affirm the grant of
summary judgment to defendants Wilson Goode, the mayor of the
city, and police officers Frank Powell and William Klein, and
will reverse the denial of summary judgment on the section 1983
claims to defendants Brooks, Sambor, and Richmond. Judges
Scirica and Lewis conclude that the City of Philadelphia is not
entitled to summary judgment on the section 1983 claims and
accordingly we will affirm the district court's denial of summary
judgment to the city on those claims. Judge Lewis and I conclude
that we do not have jurisdiction over the appeals from the
district court's denial of summary judgment for Brooks, Sambor
and Richmond on the state law claims based on letting the fire
burn. Accordingly, we dismiss those appeals.
There also is a related property claim before us filed
by Louise James seeking compensation for the destruction of the
MOVE house. For the reasons we discuss below we all conclude
that we do not have jurisdiction over the appeal from the
dismissal of that claim. Consequently, we will dismiss for lack
of jurisdiction James' appeal insofar as it relates to her
property claim.
I. FACTUAL BACKGROUND
Because the motions for summary judgment involved the
individual defendants' claims of entitlement to qualified
immunity, the district court indicated that its rulings were
based on the "plaintiff's well-documented version of the facts,"
as called for by Good v. Dauphin County Social Serv., 891 F.2d
1087, 1094-95 (3d Cir. 1989). This court since has clarified
that such a determination should be based on the undisputed facts
as revealed by the record and on the plaintiff's version of the
facts where there are disputes. Melo v. Hafer, 13 F.3d 736, 745
(3d Cir. 1994) ("If, after the summary judgment practice
prescribed by that rule, the undisputed facts of record
demonstrated entitlement to immunity, the Court would ignore the
bare allegations of the complaint and grant summary judgment on
grounds of immunity."); see also Brown v. Grabowski, 922 F.2d
1097, 1110-11 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111
S. Ct. 2827 (1991). In this case, the extensive record includes
the discovery and investigative reports from a state grand jury
and a special commission which studied the incident. These
materials are particularly significant because Ramona Africa, the
only surviving witness from inside the premises who has testified
for the plaintiffs as to the events that occurred on May 13,
1985, has limited knowledge of the facts because she was in the
cellar with the children for most of that day and did not hear
any of the announcements made by either police officers or MOVE
members. See app. at 1362-65.
The material undisputed facts are as follows. In 1978,
pursuant to a court order, the city attempted to evict MOVE
members from a residence in Powelton Village. However, the MOVE
members resisted and a gunfight broke out. As a result, one
police officer was killed and several other police officers and
fire fighters were wounded. Subsequently, nine MOVE members were
convicted for the murder of this officer.
In the early 1980's MOVE members took up residence at
6221 Osage Avenue, Philadelphia. By any standard they were a
disrupting neighborhood force. Some used loudspeakers to
communicate threats and dissatisfaction to their neighbors.
Furthermore, the Probable Cause Affidavit (the Affidavit)
supporting the issuance of the warrants executed on May 13, 1985,
states that a MOVE member had threatened Mayor Goode, calling him
"a nigger motherfucker" and indicating that "we have a bullet for
[Mayor Goode] . . . to blow his motherfucking head off. If we
have to, we will go down to City Hall and put six in his head."
App. at 2294. The Affidavit also states that the same MOVE
member announced, "[w]e will kill any motherfucking cop that
comes to the front, back or our goddamned roof," and threatened
two police officers that if they "come back around here again,
we'll kill you; put a bullet in your head." Id.
The Affidavit states further that several neighbors
said that "they heard MOVE members say over the loudspeakers that
they have wired the entire block with explosives and that if any
neighborhood resident speaks with the press, or if the police
take action against MOVE, MOVE will blow up the entire block."
App. at 2295. Neighborhood residents stated that they had seen a
MOVE member on the roof with a weapon or a gun. App. at 2296.
The Affidavit also notes that one of the MOVE members at 6221
Osage Avenue was on parole from a conviction for riot,
terroristic threats, and possession of an instrument of crime.
Id.
The Affidavit also states that in 1984, neighbors had
observed MOVE members carrying sandbags into the Osage Avenue
building. App. at 2301. The windows of the building had been
blocked with wooden slats, and aerial photographs showed that a
bunker had been constructed on its roof. App. at 1568, 2301.
The arrest and search warrants were issued on May 11,
1985, upon a judicial finding of probable cause. App. at 2291.
After District Attorney Edward Rendell informed Mayor Goode that
there was probable cause, the Mayor instructed Police
Commissioner Sambor to develop a plan to execute the warrants.
Goode testified that earlier that week, he attempted to negotiate
with certain MOVE members but they rebuffed him with a message,
"Now we are ready. Tell them to come on." App. at 897-901.
A few days prior to the confrontation, the Civil
Affairs Unit of the Police Department received a hand-written
letter signed with Ramona Africa's name.2 App. at 1739-53. The
letter warned that any police raids on MOVE would fail, and
threatened that "if [police officers] succeed in coming thru the
walls they are going to find smoke, gas, fire, and bullets.
Before we let you mutha fuckas make an example of us we will burn
this mutha fuckin house down and burn you up with us." App. at
1234, 1751.
Police Commissioner Sambor developed the initial plan
to execute the warrants, which was to evacuate the neighborhood,
request a peaceful surrender, and, if necessary, use tear gas to
force the MOVE members from the house. App. at 1985-86. Because
of the bunker on the roof, it was decided that the police would
make holes in the sides of the house and insert tear gas through
them rather than through the roof. App. at 1575-76, 1985. To
provide cover for the "insertion teams," i.e., the officers who
were to enter the adjoining houses and create the holes, the plan
provided for the fire department to aim water hoses at the bunker
while the police fired smoke canisters around the house. App. at
1456-58, 1771, 1986. Rather than having the officers drill holes
into the walls of the house, thereby exposing them to assault
2
. Ramona Africa denies having any knowledge of the letter, see
app. at 1360, but she does not deny that the police received the
letter prior to the day of confrontation.
while they were drilling, the plan called for "shape charges," or
small explosives, to be used to create the holes. App. at 1416,
1570, 1986-87. Once they created the holes, it was expected that
they would inject tear gas into the MOVE house and force out the
occupants. App. at 1419, 1570, 1987.
On May 12, 1985, the city evacuated the neighborhood
residents. App. at 2229. Beginning at approximately 3:00 a.m.
the next morning, police officers and fire fighters took up their
places around 6221 Osage Avenue. App. at 2230. At around 5:30
a.m., Police Commissioner Sambor announced over a bullhorn that
the police had arrest warrants for four persons in the house and
that they had 15 minutes to surrender. App. at 1609, 1764-69,
1856, 2036, 2230. MOVE members responded over the loudspeaker
that they would not surrender, and one yelled:
You're going to be laying in the street,
bleeding in the street. Come on in and get
us. We're going to kill you where you stay,
where you lay. We see you on the roof. We
know you're in those houses.
App. at 1093, 1777, 1791-92, 2037, 2230. After the 15 minutes
lapsed, the police began to fire tear gas and smoke projectiles
at the house while the fire department began to squirt water onto
the roof of the house to provide cover for the insertion teams.
App. at 1043-44, 1778-79, 2230, 2037-38.
A few minutes later, someone in the MOVE house fired
shots at the police. App. at 2038, 2230. Muzzle flashes were
seen from the bunker atop the roof. App. at 1780-85, 1791, 1797-
98, 1826-29, 2038. A massive gun battle followed for at least an
hour and a half. App. at 2041, 2230. Meanwhile, the insertion
teams had set off several explosions on both sides of the house.
App. at 2043-45, 2048-49, 2230. By mid-morning, the fronts of
the MOVE house and adjoining houses were damaged heavily. App.
at 1616-17, 2230-31. Yet, because they were under heavy gunfire
and because the walls of the MOVE house were fortified, the teams
could not create usable pathways through which tear gas could be
introduced successfully. App. at 959-61, 1878-91, 2043-50, 2230-
31. Consequently, the original plan was abandoned and the
officers on the insertion teams retreated. As they did so they
heard children's voices coming from the basement of the MOVE
house. App. at 2051. Still, MOVE members had not given any
indication that they would surrender. App. at 2231.
Around 4:00 p.m. that afternoon, Sambor, Brooks,
Richmond, and other city officials and police officers, discussed
alternative ways to remove the bunker and to proceed against the
MOVE members. App. at 971-75, 2060-61, 2231. They also
discussed whether to let the situation stand overnight and
continue their efforts to execute the warrants the next morning.
App. at 977-80, 998, 1004-05. But they determined that they
could not wait until morning because it would be too difficult to
keep the neighborhood secure through the night due, among other
factors, to the darkness and the exhaustion which likely would
set in on the officers who had been on duty since the night
before. Id. They also believed that MOVE members might escape
through tunnels rumored to have been dug under the neighborhood.
Id; app. at 1410-11, 1504, 1666-67.
Accordingly, the officials considered other means to
execute the warrants but they rejected all as too dangerous.
These included plans to use a crane to remove the bunker, to
attack from above the roof, to attack from the front or the back
of the house, and to place an explosive in the bunker. App. at
963, 2060-61. The officials then focused on a plan to drop a
"satchel charge" onto the bunker from a helicopter to destroy or
dislodge the bunker and create a hole in the roof. App. at 1131,
2061-62. The officials discussed the possibility that the
explosive could start a fire but they were satisfied that the
risk would be negligible. App. at 981, 1011, 1149, 1191, 2061-
62. Managing Director Brooks then informed Mayor Goode of the
plan to use the explosive, and Mayor Goode approved it.3 App. at
983-84, 1070, 2064-65, 2231. At about the same time, a group of
neighbors used a bullhorn to plead with the MOVE members to
surrender but received no response. App. at 966-68, 1852-54,
2231.
The plan to use the explosive went forward. App. at
2231. Klein constructed the device and Powell dropped it on the
roof of the MOVE house from a helicopter operated by state
troopers Richard Reed and Morris Demsko. App. at 2068, 2231.
Rather than destroying the bunker, however, the satchel seems to
have missed it entirely. App. at 1622-23, 2058.
3
. There is a dispute as to whether Mayor Goode knew that the
plan was to drop the explosive from a helicopter, but this is not
germane to my discussion because he knew and approved of dropping
the explosive onto the bunker.
Goode watched the explosion on television in his City
Hall office, Brooks and Sambor observed it from the balcony of a
nearby building, and Richmond saw it from Osage Avenue. Id. at
1156, 2097. Brooks described his observations as follows:
I observed an explosion that was from
our [vantage point,] a dust ball, in other
words a smoke ball. . . . It blew wood in
all directions. Then it was very -- then the
smoke rose. It was a very light gray smoke,
as the smoke rose away from it, the
helicopter was flying above it, and we could
see nothing there but a hole in the roof.
App. at 987.
Shortly after the explosion, observers saw a fire on
the roof. App. at 988. There is evidence that a detonation
caused the fire by igniting combustible liquid vapor. App. at
2058, 2311. Commissioner Sambor, who now was on Osage Avenue
with Commissioner Richmond, then asked Richmond, "if we let the
roof burn to get the bunker could we then subsequent to that
control the fire?" App. at 1072-73. Sambor testified:
I wanted to get the bunker. I wanted to be
able to somehow have tactical superiority
without sacrificing any lives if it were at
all possible. And in that vein I asked him -
- I'm a police officer. I am not a fire
fighter. I asked him for his concurrence,
that if we let the roof burn to get the
bunker, could we then control the fire. And
whatever the response was, it was in the
affirmative.
App. at 1073. Richmond's testimony corroborates this:
I told him essentially that, that I thought
we could contain the spread at that point.
He said, 'Let's let the bunker burn to
eliminate that high ground advantage and the
tactical advantage of the bunker,' and I
said, 'Okay' . . . . He made the
recommendation, . . . and I concurred.
App. at 1163. Richmond also testified that he had prepared the
fire fighters as soon as he knew of the fire. App. at 1157. But
because he did not know the positions of the police officers, if
any, around the area of the roof he first told an aide, "[g]et a
hold of the police and see what they want to do about this fire
on the roof." Id. Thus, the fire was allowed to burn until
Goode and Brooks ordered that it be extinguished.
The fire fighters, however, encountered many problems.
For example, there was a live electrical wire in the vicinity,
the water itself caused visibility problems, and the water caused
the fire to "bank," or invert, downward into the house. Id. at
1158-59, 2117-20. The fire then went out of control killing 11
people and destroying 61 houses. Ramona Africa and a young boy
were the only survivors from the house.
II. PROCEDURAL HISTORY
A. The Claims
Numerous suits were filed by property owners from the
neighborhood and on behalf of the occupants of 6221 Osage Avenue.
The court consolidated these cases for discovery under number 85-
2745, to be managed by a magistrate judge.
The defendants' answers raised affirmative defenses,
including immunity from liability. The individual defendants,
sued also in their official capacity as officers or employees of
the city (collectively, the city defendants), joined Ramona
Africa as an additional defendant. Africa then moved to dismiss
this third-party complaint but the court denied her motion. She
then joined in this action against the city defendants and the
City of Philadelphia, and her case was added to number 85-2745.
During the ensuing four and a half years most of the claims were
resolved. The remaining claims are Ramona Africa v. The City of
Philadelphia, et al., number 87-2678, Alfonso Leaphart v. The
City of Philadelphia, et al., number 87-2756, and Louise James v.
The City of Philadelphia, et al., number 85-3528.
Ramona Africa sued the City of Philadelphia and Mayor
Wilson Goode, Managing Director Leo Brooks, Police Commissioner
Gregore Sambor, Fire Commissioner William Richmond, District
Attorney Edward Rendell, City Police Lieutenant Frank Powell,
City Police Officers William Klein and Michael Tursi, City Police
Sergeants Albert Revel and Edward Connor, State Police Corporal
Morris Demsko, and State Trooper Richard Reed, in their official
capacities and individually. Africa claimed that: (1) the
defendants, in violation of 42 U.S.C. § 1983, deprived her of her
constitutional rights of freedom of religion, expression, and
association, of due process, of equal treatment under the law,
and of "freedom from excessive force, assault and bodily injury,"
app. at 102; (2) the defendants, in violation of 42 U.S.C. §
1985(3), conspired to deprive her of these constitutional rights;
and (3) the defendants violated state law in using unreasonable
force in the arrest in violation of section 1983. Africa seeks
compensatory and punitive damages. Her action against Rendell
was, however, dismissed on qualified immunity grounds and she
does not appeal from that dismissal.
Alfonso Leaphart sued on behalf of John Africa a/k/a
Vincent Lopez Leaphart, who perished in the fire. Leaphart
initially sued the same defendants as Ramona Africa as well as
certain others, but his suit was dismissed as to some of the
defendants prior to entry of the orders now on appeal.
Currently, the defendants in his case are the City of
Philadelphia, Mayor Goode, Commissioner Richmond, Lieutenant
Powell, and Officers Klein, Tursi, and Revel. Leaphart alleges
that they violated his decedent's rights under the First, Fourth,
and Fourteenth Amendments, in violation of 42 U.S.C. §§ 1983 and
1985(3).4 He seeks compensatory and punitive damages as well as
declaratory relief.
Louise James sued on behalf of her son Frank Africa
a/k/a Frank James, who perished in the fire, and on her own
behalf as owner of 6221 Osage Avenue. James currently sues the
City of Philadelphia, Mayor Goode, Commissioners Sambor and
Richmond, Managing Director Brooks, and Lieutenant Powell, for
compensatory and punitive damages. In her personal capacity, she
asserts a claim under the Fifth Amendment for the uncompensated
destruction of her property. On behalf of her son, she asserts a
section 1983 claim and a section 1985(3) claim based on the
4
. Leaphart also asserted a claim under the Fifth Amendment but
I do not deal separately with that claim inasmuch as the Supreme
Court indicated in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865
(1989), that excessive force claims should be considered under
the Fourth Amendment. I discuss this point later.
alleged deprivation of her son's constitutional rights and state
law claims. As is evident, some of the claims asserted by all
three plaintiffs against certain defendants are identical.
Accordingly, I will treat such similar claims together.
B. The District Court Rulings
In a March 26, 1992 report and recommendation, the
magistrate judge recommended that the court deny the motions for
summary judgment sought on qualified immunity grounds by Mayor
Goode, Managing Director Brooks, Commissioner Sambor,
Commissioner Richmond, Lieutenant Powell, Officer Klein, and
State Police Officers Demsko and Reed. See Africa v. City of
Philadelphia, 809 F. Supp. 375, 376-77 (E.D. Pa. 1992)
(hereinafter Africa I). He also recommended that the court grant
summary judgment in all three cases on qualified immunity grounds
to Officers Tursi, Revel, and Connor because they were involved
only with the attempted penetration of the sides of the house.
Id. at 377 n.5. The district court approved and adopted the
latter recommendations, and these orders have not been appealed.
Id.
But the district court remanded the remaining matters
to the magistrate judge for consideration under the guidelines
the Supreme Court set forth in Tennessee v. Garner, 471 U.S. 1,
105 S. Ct. 1694 (1985), stating as follows:
[T]he court must determine, on plaintiff's
well-documented version of the facts, whether
a reasonable officer in each defendant's
position, to the extent that this defendant
could be found to have some responsibility
for the use of force in question, could have
believed that the force employed was
necessary to protect the safety of himself or
others.
Africa I, 809 F. Supp. at 382 (citation omitted); In re City of
Philadelphia Litig., 849 F. Supp. 331, 337 (E.D. Pa. 1994)
(hereinafter Africa II).
On October 6, 1993, the magistrate judge issued another
report and recommendation. He analyzed the defendants' actions
as involving two separate decisions: the plan to drop the
explosive device onto the bunker and the decision to let the fire
burn. He concluded as follows:
[A] reasonable person in each of the
defendant's positions could have believed
that the use of an explosive device to remove
the bunker from the roof and to provide
access to the interior of the house for tear
gas was necessary to 'prevent death or
serious bodily injury' to the police officers
on the scene or other persons. In addition,
based on the information available to them
regarding MOVE's threat of violence and
MOVE's use of force in resisting arrest, they
could have believed that the use of the bomb
would be conduct that was consistent with the
principles embodied in Section 5085 [of the
Pennsylvania Crimes Code] and Garner.
5
. The Supreme Court cited the Pennsylvania Crimes Code in
Tennessee v. Garner, 471 U.S. at 17 n.18, 105 S. Ct. at 1704 n.18,
in developing the Court's constitutional standard. Section 508
states, in relevant part:
(1) A peace officer, or any person whom he
has summoned or directed to assist him, need
not retreat or desist from efforts to make a
lawful arrest because of resistance or
threatened resistance to the arrest. He is
justified in the use of any force which he
believes to be necessary to effect the arrest
and of any force which he believes to be
necessary to defend himself or another from
Africa II, 849 F. Supp. at 337, 357. Section 508 defines the
circumstances in which a police officer may use force in making
an arrest. Thus, the magistrate judge recommended that all
defendants be granted summary judgment in all three cases to the
extent that the plaintiffs sought to impose liability based on
the dropping of the explosive device.
The magistrate judge concluded, however, that under the
standards of Tennessee v. Garner and section 508 of the
Pennsylvania Crimes Code it was unreasonable to let the fire burn
after the bunker had been neutralized. Id. at 337, 359-61. He
also determined that Commissioners Sambor and Richmond made the
decision to let the fire burn but that the other city defendants
were not involved at this stage. Id. at 337, 360. Therefore, he
(..continued)
bodily harm while making the arrest.
However, he is justified in using deadly
force only when he believes that such force
is necessary to prevent death or serious
bodily injury to himself or such other
person, or when he believes both that:
(i) such force is necessary to
prevent the arrest from being
defeated by resistance or escape;
and
(ii) the person to be arrested has
committed or attempted a forcible
felony or is attempting to escape
and possesses a deadly weapon, or
otherwise indicates that he will
endanger human life or inflict
serious bodily injury unless
arrested without delay.
18 Pa. Cons. Stat. Ann. § 508(a) (1983).
recommended that the court deny summary judgment on qualified
immunity grounds for the two commissioners with respect to claims
based on letting the fire burn. Id. They objected to this
recommendation on the ground that the evidence demonstrated that
they had intended to let the fire consume only the bunker, which
they believed to pose a lingering threat. Id. at 339.
The magistrate judge further found that while the
defendants may be entitled to statutory immunity from state law
liability for acts performed in the scope of their duties, they
would not be entitled to immunity if they engaged in "willful
misconduct." Id. at 364. Accordingly, the magistrate judge
recommended that the court grant summary judgment on immunity
grounds with respect to the state claims to those individual
defendants involved only in the dropping of the explosive device.
Id. In these instances, the grant of summary judgment on the
federal claims demonstrated that the conduct of these defendants
did not, as a matter of state law, constitute "willful
misconduct." Id. Conversely, he recommended that those
defendants denied summary judgment on the federal claims also
should be denied summary judgment for the state claims. Id.
The district court adopted the magistrate judge's
recommendation as to the claims based on the dropping of the
explosive device. Id. at 338-39. In reviewing the
recommendation, however, the court "focused on the decision to
let the fire burn at all." Id. The court stated:
I cannot conclude that there is a
demonstration which leads to the judgment as
a matter of law that it was reasonable as a
matter of necessity, at the point after the
bomb was dropped and when a flame was first
visible, for the law enforcement officials to
permit flame [sic] to continue until it
totally consumed what remained of a bunker .
. . . That it might be convenient to have
let the balance of the bunker be consumed by
fire is perhaps a tenable view. That it was
necessary, in Tennessee v. Garner terms, I
can find no basis for concluding.
Id. at 340. Thus, the court concurred with the magistrate
judge's view that summary judgment should be denied to
Commissioners Sambor and Richmond with respect to claims based on
letting the fire burn. Id. at 342, 347.
During oral argument the district court raised the
question of "whether there was not some basis in the record for
concluding that conceivably Managing Director Brooks concurred
for a time in the decision to let the fire burn." Id. at 342.
Although Africa had not objected earlier to the magistrate
judge's finding that he had not concurred in that decision, she
decided to do so then. Id. In a further interview, Commissioner
Sambor indicated that when he explained to Brooks that they were
letting the fire burn the bunker, Brooks said, "only the bunker."
Id. at 343. Sambor said further that Brooks subsequently told
him to put the fire out. Attorneys for the city and for Brooks
argued that the plaintiffs waived this issue and that no other
evidence supports the allegation that Brooks was involved in the
decision to let the fire burn. The district court rejected these
arguments and denied the summary judgment which Brooks sought on
qualified immunity grounds with respect to claims based on the
decision to let the fire burn. Id. at 345, 347.
With regard to claims against the City of Philadelphia,
the city first argued that only Mayor Goode and Managing Director
Brooks had final decision-making authority and that it should not
be held responsible for their subordinates' unapproved decisions.
However, upon finding that Brooks could be denied qualified
immunity, the city changed its position and argued that only
Mayor Goode had final decision-making authority. Id. at 345.
The court reviewed the city's charter and concluded that the
suability of either Managing Director Brooks or the two
commissioners would be sufficient to hold the city suable on the
federal claim. Id. at 345-47.
The court also held, in accord with the magistrate
judge's recommendation, that all defendants were entitled to
summary judgment based on lack of evidence with respect to the
plaintiffs' claims under the First and Fourteenth Amendments and
under section 1985(3). In addition, the court held that the city
was entitled to summary judgment on the state law claims because
a recent Pennsylvania Supreme Court opinion established that the
city council did not have the authority to expand the scope of
the Pennsylvania Political Subdivision Tort Claims Act. This
Supreme Court ruling was critical as the viability of the
plaintiffs' state law claims depended on this expansion.
Finally, the court dismissed James' Fifth Amendment
claim because she did not allege that she had pursued relief
unsuccessfully under state law procedures such as those set forth
by the Pennsylvania eminent domain code. In re City of
Philadelphia (James v. City of Philadelphia), No. 85-3528, slip
op. at 11-13 (E.D. Pa. Feb. 1, 1994). James pointed out that she
had brought a federal suit, number 88-3881, for recovery of her
property losses under federal and state law. In that action she
alleged that she was the only person whose property had been
destroyed by the fire whom the city did not compensate and she
asserted that such treatment was discriminatory. Id. In
December 1988, the court dismissed number 88-3881 with prejudice
as to the federal claims on the grounds that they were barred by
the statute of limitations and it dismissed the state law claims
without prejudice. Id. James did not appeal from that ruling.
On January 3, 1994, one day before the district court rendered
its bench opinion in the case currently before us, James filed a
Motion for Reconsideration Nunc Pro Tunc of the 88-3881 decision
under both docket numbers, 88-3881 and 85-3528. The district
court denied this motion, reasoning that it had been five years
since the 88-3881 case had been decided and James had offered no
new evidence or reasons for reexamining that decision. Id. at
13.
On motion by the City, the district court certified as
final under Fed. R. Civ. P. 54(b) the dismissal of all claims
against Goode, Powell, Klein,6 Revel, Tursi, Connor, Demsko, and
Reed. App. at 682, 803. In addition, the court certified for
appeal under 28 U.S.C. § 1292(b) the issue "of the suability of
6
. Apparently, the district court has not certified as final
under Rule 54(b) the grant of summary judgment in favor of
Officer Klein in the suit brought by Alfonso Leaphart. This
point is of no importance because no appeal has been taken from
that order.
the City of Philadelphia, pursuant to 42 U.S.C. § 1983, on claims
arising from the decision to let the . . . fire burn." Id.
C. The Issues on Appeal
Ramona Africa appeals from the district court's final
order granting summary judgment in favor of Mayor Goode and
Officers Powell and Klein. Alfonso Leaphart appeals from the
final judgment granting summary judgment in favor of Mayor Goode.
Louise James appeals from the final judgment granting summary
judgment in favor of Mayor Goode and Officer Powell7 and in favor
of the City of Philadelphia with respect to the Fifth Amendment
property claim. James has appealed only from orders in the 85-
3528 case.
The City of Philadelphia appeals from the order denying
its motion for summary judgment with respect to the federal
claims based on section 1983. Managing Director Brooks and
Commissioners Sambor and Richmond appeal from the orders denying
their motions for summary judgment on qualified immunity grounds
with respect to the claims based on the decision to let the fire
burn and from the orders denying them summary judgment on the
state claims. We consolidated the appeals for briefing and
argument.8
7
. James' notice of appeal also states that she would be
appealing the grant of summary judgment in favor of Officer
Klein. App. at 823. I believe this is a clerical error because
Officer Klein was not a defendant in her action and because she
does not mention Officer Klein in her brief.
8
. The plaintiffs have not attempted to appeal from the district
court's order granting summary judgment in favor of the city on
III. JURISDICTION
The district court had jurisdiction over the federal
civil rights claims pursuant to 28 U.S.C. § 1343 (civil rights
action) and 28 U.S.C. § 1331 (federal question jurisdiction).
The district court also had supplemental jurisdiction based upon
28 U.S.C. § 1367 over the related state law claims.
A. Judgments Certified Under Rule 54(b)
We have jurisdiction pursuant to 28 U.S.C. § 1291 over
the appeals from the grants of summary judgment which the
district court certified as final judgments under Rule 54(b).
Gerardi v. Pelullo, 16 F.3d 1363, 1368-69 (3d Cir. 1994). These
final judgments include grants of summary judgment on qualified
immunity grounds with respect to all claims against Goode,
Powell, Klein,9 Tursi, Revel, Connor, Demsko, and Reed. As they
are properly before us, I shall review Africa's appeal from the
summary judgments in favor of Goode, Powell, and Klein;
Leaphart's appeal from the summary judgment in favor of Goode;
(..continued)
the state claims. Nor have any of the plaintiffs challenged on
appeal the grant of summary judgment, on grounds of insufficient
evidence, for all defendants as to claims based on alleged
violations of First and Fourteenth Amendment rights of the MOVE
members.
9
. As I have noted above, the district court certified as final
under Rule 54(b) its grant of summary judgment as to Ramona
Africa's claims against Officer Klein, but not as to Alfonso
Leaphart's claims. This decision, however, has not been
appealed.
and James' appeal from the summary judgment in favor of Goode and
Powell.
B. Denial of Summary Judgment Certified Under 28
U.S.C. § 1292(b)
In orders dated January 31, 1994, and February 1, 1994,
the district court stated as follows:
It is DECLARED to be the opinion of this
court that, within the intendment of 28
U.S.C. § 1292(b), (1) the issue, determined
adversely to the City of Philadelphia . . . ,
of the suability of the City of Philadelphia,
pursuant to 42 U.S.C. § 1983, on claims
arising from the decision to let the [MOVE]
fire burn, is one which involves a
controlling question of law as to which there
is substantial ground for difference of
opinion, and (2) that an immediate appeal
from that aspect of the . . . order, taken in
conjunction with anticipated appeals on
related question of qualified immunity of
certain individual defendants, may materially
advance the ultimate termination of the
litigation.
App. at 682, 802-03. This court then granted the city leave to
appeal and thus we have jurisdiction over the city's appeal.
C. Denial of Summary Judgment on Qualified Immunity
Grounds with Respect to Federal Claims
Generally, this court does not have jurisdiction to
review the denial of summary judgment because such decisions are
not final as required by 28 U.S.C. § 1291. Giuffre v. Bissell,
31 F.3d 1241, 1245 (3d Cir. 1994). In Mitchell v. Forsyth, 472
U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985), however, the Supreme
Court held that a denial of summary judgment on the ground of
qualified immunity is appealable under the collateral order
doctrine. "[A] decision of a district court is appealable if it
falls within 'that small class which finally determine claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of
the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.'" Id. at 524-25,
105 S.Ct. at 2814 (quoting Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546, 69 S. Ct. 1221, 1225 (1949)).
The Court found that qualified immunity is "an
entitlement not to stand trial or face the other burdens of
litigation" which would be "effectively lost if a case is
erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at
2815. Moreover, a district court's denial of qualified immunity
would be "effectively unreviewable on appeal from a final
judgment." Id. at 527, 105 S.Ct. at 2816. The Court also found
that this denial "conclusively determined the disputed question"
of a defendant's right not to stand trial on the plaintiff's
allegations, as required under Coopers & Lybrand v. Livesay, 437
U.S. 463, 468, 98 S. Ct. 2454, 2457 (1978). Finally, the Court
determined that "a claim of immunity is conceptually distinct
from the merits of the plaintiff's claim that his rights have
been violated," thus satisfying the requirement of being
"collateral" under Cohen. Mitchell v. Forsyth, 472 U.S. at 527-
28, 105 S. Ct. at 2816.
Therefore, we all agree that we have jurisdiction to
consider the appeals taken by Brooks, Sambor, and Richmond from
the district court's denial of summary judgment on qualified
immunity grounds with respect to federal claims based on letting
the fire burn. See Giuffre v. Bissell, 31 F.3d at 1245; Hynson
v. City of Chester Legal Dept., 864 F.2d 1026, 1028-29 (3d Cir.
1988).
D. Denial of Summary Judgment on Immunity Grounds
with Respect to State Law Claims
I now address the question of whether we have
jurisdiction over the appeals from the district court's denial of
summary judgment for Brooks, Sambor, and Richmond on the state
law claims based on letting the fire burn. I conclude that we do
not have such jurisdiction and, as Judge Lewis agrees, he joins
in the determination dismissing this aspect of the appeals. The
district court did not certify this order under either Rule 54(b)
or section 1292(b).10 Nor, I think, is this issue so intertwined
with those raised by the appeals properly before us that we
should assert pendent appellate jurisdiction over it. See
National Union Fire Ins. Co. v. City Savings, F.S.B., 28 F.3d
376, 382 n.4 (3d Cir. 1994); Kershner v. Mazurkiewicz, 670 F.2d
440, 449 (3d Cir. 1982).
10
. I am not suggesting that the court could have certified the
denial of summary judgment under Rule 54(b).
I therefore consider whether we may assert jurisdiction
over these appeals under the collateral order doctrine. In this
inquiry Brown v. Grabowski, 922 F.2d 1097, is instructive. In
that case, the district court denied qualified immunity to the
defendant police officers on plaintiff's pendent tort claims
under New Jersey law. On appeal, this court noted that the
determination of appellate jurisdiction over the state claims
requires "(1) a predicate inquiry into whether the federal law of
qualified official immunity ultimately governs appealability in
this instance; and (2) a subsequent inquiry into the nature of
the qualified immunity that New Jersey law confers upon state
officials." Id. at 1106.
In Brown this court concurred with the Courts of
Appeals for the Fifth and Sixth Circuits that "the parties . . .
in a federal action such as this one involving pendent state
claims, are bound by federal procedural rules governing appeals,
including the collateral order doctrine." Id. (citing Sorey v.
Kellett, 849 F.2d 960, 962 (5th Cir. 1988); Marrical v. Detroit
News, Inc., 805 F.2d 169, 172 (6th Cir. 1986)). However, it is
state law that provides the substantive doctrine of immunity.
The court also concluded that "the denial of a claim of qualified
immunity premised upon state law is appealable only if the state
has conferred an underlying substantive immunity from suits
arising from the performance of official duties." Id. at 1106-07
(citing Marrical, 805 F.2d at 172; Sorey, 849 F.2d at 962). It
is immunity from suits, rather than mere immunity from liability,
that would make such an order appealable. Giuffre v. Bissell, 31
F.3d at 1248.
In Brown v. Grabowski this court looked at the New
Jersey Tort Claims Act, New Jersey case law on immunity, and New
Jersey's doctrinal and procedural rules concerning interlocutory
appeals to determine the scope of the state immunity. 922 F.2d
at 1107. Thus, here I look to the Pennsylvania law of official
immunity to ascertain whether we have jurisdiction over the three
officials' appeals from the denial of summary judgment on the
state law claims arising from the decision to allow the fire to
burn.
In this case, the district court did not elaborate on
the state law claims but seemed to adopt the magistrate judge's
approach. The magistrate judge stated that although
Pennsylvania's Political Subdivision Tort Claims Act (PSTCA)
grants immunity to the city's employees to the same extent that
the city is immune, such immunity would not apply if "it is
judicially determined that the act of the employee caused the
injury and that such act constituted a crime, actual fraud,
actual malice or willful misconduct." Africa II, 849 F. Supp. at
364 (citing 42 Pa. Cons. Stat. Ann. §§ 8545 & 8550 (1982)).
Thus, the magistrate judge recommended that those defendants who
were to be granted summary judgment on claims based on dropping
the explosive device and letting the fire burn should be entitled
also to assert immunity under the PSTCA because "they have
demonstrated, as a matter of law, that their conduct did not
constitute a crime, actual fraud, actual malice or willful
misconduct." Id. As to those defendants whose motions for
summary judgment were to be denied as to claims based on letting
the fire burn, however, the magistrate judge recommended that
they be denied summary judgment on the state claims as well.
This is because "they cannot show as matter of law that their
decision did not constitute willful misconduct." Id.
Although I do not find guidance on the point in the
opinions of the Pennsylvania Supreme Court, the Commonwealth
Court of Pennsylvania has ruled that an order denying a summary
judgment sought on statutory immunity grounds is not appealable
immediately. Bollinger v. Obrecht, 552 A.2d 359 (Pa. Commw. Ct.
1989), appeal denied, 588 A.2d 511 (Pa. 1990). This ruling
strongly implies that such immunity is only from liability,
despite the fact that the court went on to say it need not reach
the issue of whether Pennsylvania law confers immunity from suit
rather than from liability. The Commonwealth Court noted that
Pennsylvania courts have followed Cohen's collateral order
doctrine but ruled that Mitchell v. Forsyth was not controlling
because it involved only federal immunity. Id. at 362-63. Id.
at 363 & n.5. The court explained:
In Pennsylvania, immunity is governed by
statute. The merits of a plaintiff's cause
of action against government agencies and
officers are likewise governed by the same
statute. Thus, a trial court analyzing an
immunity claim is actually deciding the same
issues that will arise in the underlying
action. Unlike matters of federal official
immunity, the trial court's interlocutory
order denying an immunity claim under
Pennsylvania law, is not separate from and
collateral to the main cause of action.
Id. at 363. But as Mitchell noted, when immunity from suit is
involved, the opposite result should be reached.
Later cases consistently have followed Bollinger v.
Obrecht. See, e.g., Farber v. Pennsbury Sch. Dist., 571 A.2d 546
(Pa. Commw. Ct. 1990) (quashing appeal as interlocutory from
denial of motion for summary judgment on grounds of governmental
immunity); Brown v. Philadelphia, 560 A.2d 309 (Pa. Commw. Ct.
1989) (same), appeal denied, 600 A.2d 540 (Pa. 1991); McKinney v.
Philadelphia, 552 A.2d 1169 (Pa. Commw. Ct. 1989) (same), aff'd,
569 A.2d 351 (Pa. 1990); Gwiszcz v. Philadelphia, 550 A.2d 880
(Pa. Commw. Ct. 1988) (same). Indeed, the language of the PSTCA
supports the Commonwealth Court's reasoning as the act seems to
be directed at liability, referring to immunity as only a defense
to such liability rather than as a right to be free from suits.11
11
. The relevant sections of the PSTCA read as follows:
§ 8545. Official liability generally
An employee of a local agency is liable
for civil damages on account of any injury to
a person or property caused by acts of the
employee which are within the scope of his
office or duties only to the same extent as
his employing local agency and subject to the
limitations imposed by this subchapter.
§ 8546. Defense of official immunity
In any action brought against an
employee of a local agency for damages on
account of an injury to a person or property
based upon claims arising from, or reasonably
related to, the office or the performance of
the duties of the employee, the employee may
assert on his own behalf, or the local agency
may assert on his behalf:
(1) Defenses which are available at
common law to the employee.
The fact that interlocutory orders may be appealable by
permission of the appellate court, under the Pennsylvania Rules
of Appellate Procedure, is irrelevant to my inquiry. See Wareham
v. Jeffes, 564 A.2d 1314, 1318 n.8 (Pa. Commw. Ct. 1989) (noting
that denial of summary judgment on grounds of sovereign immunity
would be interlocutory and unappealable except by permission).
See also Lancie v. Giles, 572 A.2d 827, 829 n.3 (Pa. Commw. Ct.
(..continued)
(2) The defense that the conduct of the
employee which gave rise to the claim was
authorized or required by law, or that he in
good faith reasonably believed the conduct
was authorized or required by law.
(3) The defense that the act of the
employee which gave rise to the claim was
within the policymaking discretion granted to
the employee by law. For purposes of this
subsection, all acts of members of the
governing body of a local agency or of the
chief executive officer thereof are deemed to
be within the policymaking discretion granted
to such person by law.
§ 8550. Willful misconduct
In any action against a local agency or
employee thereof for damages on account of an
injury caused by the act of the employee in
which it is judicially determined that the
act of the employee caused the injury and
that such act constituted a crime, actual
fraud, actual malice or willful misconduct,
the provisions of sections 8545 (relating to
official liability generally), 8546 (relating
to defense of official immunity), 8548
(relating to indemnity) and 8549 (relating to
limitation on damages) shall not apply.
42 Pa. Cons. Stat. Ann. §§ 8545, 8546 & 8550 (1982).
1990) (Commonwealth Court granted defendants permission to appeal
from interlocutory order denying summary judgment on state
statutory immunity grounds).12 First, whereas Pennsylvania
appellate courts may grant permission to appeal from
interlocutory and otherwise unappealable orders, absent a
certification by the district court under 28 U.S.C. § 1292(b), we
cannot do so. In fact, the exercise of discretion to withhold
such permission effectively will negate a claim of immunity from
suit. Second, as we stated in Brown v. Grabowski, federal rules
govern this federal action. 922 F.2d at 1106. Therefore,
Bollinger v. Obrecht is dispositive here. To recap, under Brown
v. Grabowski, the right to an interlocutory appeal "can only
exist where the state has extended an underlying substantive
right to be free from the burdens of litigation," 922 F.2d at
1107 (quoting Marrical, 805 F.2d at 172). Bollinger demonstrates
that Pennsylvania has not done that. Thus, because immunity is
not a separate or collateral issue from the underlying claim
under Pennsylvania law, we have no jurisdiction over the appeals
by Brooks, Sambor, and Richmond from the district court's order
denying them summary judgment on the state law claims. We
therefore will dismiss their appeals from the district court's
orders denying summary judgment as to the state law claims.
12
. Because that case involved both federal qualified immunity
and state statutory immunity, the court also noted in dictum that
given Bollinger's holding, "[w]here the motion is partially based
on qualified immunity, the issue becomes more difficult in light
of the U.S. Supreme Court's emphasis on the appealability of
denials of summary judgment as a necessary part of fulfilling the
purpose of qualified immunity." Lancie v. Giles, 572 A.2d at 829
n.3 (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806).
E. Grant of Summary Judgment with Respect to James'
Property Claims in Favor of the City
James appeals from the district court's grant of
partial summary judgment in favor of the City of Philadelphia
with respect to her claim based on the uncompensated destruction
of property. James argues that in refusing to compensate her on
the same basis as her neighbors, the city discriminated against
her and has been enriched unjustly at her expense. We all agree,
however, that James has not set forth any jurisdictional basis
which permits us to consider her property arguments as there are
claims remaining in the district court and thus her appeal is not
from a final judgment.
As I indicated above, James brought a separate federal
civil rights suit, number 88-3881, seeking damages for her
property, the thrust of which was that her treatment, "as
allegedly the only person in the neighborhood of destroyed houses
or damaged houses who was not offered to be compensated . . . ,
was discriminatory in terms that were unconstitutional." App. at
815. The court dismissed these federal claims with prejudice
because they were barred by the statute of limitations and it
dismissed the state claims without prejudice. James did not
appeal from this judgment.
In the case now before us, number 85-3528, the
magistrate judge recommended that the court grant partial summary
judgment as to the property issue in favor of the city because
the takings claim could not stand "without an appropriate
allegation of unsuccessful resort to state procedures pursuant to
Pennsylvania's eminent domain code." Id. James, however, asked
the district court either to disregard the recommendation or to
reopen the 1988 case, nunc pro tunc, because she believed the
court had decided it erroneously. Id. The district court agreed
with the magistrate judge's recommendation and declined to reopen
the 1988 case.
James' present appeal is from the decision rendered in
number 85-3528 as her notice of appeal makes no mention of number
88-3881. Consequently, she cannot contest directly the court's
refusal to reconsider the 1988 case. Nevertheless, what James
argues now is strongly reminiscent of her allegations in the 1988
suit -- that the denial of compensation for her property is
discriminatory and violates her equal protection and First
Amendment rights and that the city has been enriched unjustly.
James devotes a large part of her appellate effort to the
allegations that she has been denied equal protection and has
been the victim of unlawful discrimination. She asserts
repeatedly that she is "a member of the class of individuals,
such class consisting of the victims of the Osage Avenue fire."
James Br. at 37, 38. She directs this argument to the magistrate
judge's conclusion that she neither has alleged nor shown that
the city's action was "based on any class-based invidiously
discriminatory animus." See app. at 792-93.13 However, the
13
. Actually it is difficult to see how there can be merit to
this claim as all the other homeowners received compensation.
magistrate judge made this statement in explaining why the claims
under section 1985(3) on behalf of James' deceased son must fail.
Thus, his comments were not addressed to her property claim in
case 85-3528. These misdirected arguments by James support the
city's suggestion that she is attempting to incorporate the
number 88-3881 case into the present one. To the extent that
James is attempting now to appeal from that December 1988
dismissal, we must reject the attempt for lack of jurisdiction.
See United States v. Rivera Const. Co., 863 F.2d 293, 298-99 (3d
Cir. 1988) ("where the order or judgment upon which the appellant
seeks review is neither directly nor indirectly referred to in
the notice of appeal, then the issue is not fairly raised and the
Court of Appeals does not acquire jurisdiction").
Furthermore, we see no basis to exercise jurisdiction
over James' appeal from the judgment in favor of the city in
number 85-3528 on the uncompensated destruction of property
claims. The collateral order doctrine has nothing to do with the
claim and the district court did not enter a certification with
respect to the order under either Rule 54(b) or 28 U.S.C. §
1292(b).
F. Scope of Appellate Review
We exercise plenary review over all appeals properly
before us because they are all from grants or denials of summary
judgment. See Petruzzi's IGA Supermarkets, Inc. v. Darling-
Delaware Co., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 114
S. Ct. 554 (1993) (grant of summary judgment); Giuffre v. Bissell,
31 F.3d at 1251 (denial of summary judgment on qualified immunity
grounds); Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir. 1994)
(in banc) (same). Moreover, we have plenary review over the
grant or denial of qualified immunity because it is an issue of
law. Giuffre v. Bissell, 31 F.3d at 1254. Thus, I will consider
whether there are genuine issues as to material facts and whether
the defendants are entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c).
IV. QUALIFIED IMMUNITY
Courts determine whether a defendant is entitled to
qualified immunity by balancing the important policy of
compensating individuals for deprivation of their rights against
"the need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the
vigorous exercise of official authority." Harlow v. Fitzgerald,
457 U.S. 800, 807, 102 S. Ct. 2727, 2732 (1982) (quoting Butz v.
Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2910 (1978)). In
making this balance, courts recognize that officials often must
"act swiftly and firmly at the risk that action deferred will be
futile or constitute virtual abdication of office." Scheuer v.
Rhodes, 416 U.S. 232, 246, 94 S. Ct. 1683, 1691 (1974). Thus,
"government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at
2738.
Siegert v. Gilley, 500 U.S. 226, 231, 111 S. Ct. 1789,
1793 (1991), instructs that before a court addresses a claim of
qualified immunity, it first should determine whether a plaintiff
has alleged "a violation of a constitutional right at all." See
Acierno v. Cloutier, 40 F.3d at 606 n.7; D.R. by L.R. v. Middle
Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d
Cir. 1992) (in banc), cert. denied, 113 S. Ct. 1045 (1993).
Deciding "this purely legal question permits courts expeditiously
to weed out suits which fail the test without requiring a
defendant who rightly claims qualified immunity to engage in
expensive and time consuming preparation to defend the suit on
its merits." Siegert v. Gilley, 500 U.S. at 232, 111 S.Ct. at
1793.
Furthermore, for there to be liability, the right
alleged to have been violated "must have been 'clearly
established' in a more particularized, and hence more relevant,
sense." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.
3034, 3039 (1987). While the abstract right to be free from
unreasonable seizure clearly is established, for qualified
immunity purposes the right must be considered on a more specific
level: "[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing
violates that right." Id.
Consequently, I consider whether the particularized
constitutional right asserted was "'clearly established' at the
time the defendants acted." Acierno v. Cloutier, 40 F.3d at 606
(citing Siegert v. Gilley, 500 U.S. at 232, 111 S.Ct. at 1793);
Harlow v. Fitzgerald, 457 U.S. at 817-19, 102 S.Ct. at 2738. If
the law is not established clearly when an official acts, he is
entitled to qualified immunity because he "could not reasonably
be expected to anticipate subsequent legal developments, nor
could he fairly be said to 'know' that the law forbade conduct
not previously identified as unlawful." Id. On the other hand,
if the law was established clearly, the official still may obtain
qualified immunity if he claims "extraordinary circumstances and
can prove that he neither knew nor should have known of the
relevant legal standard." Id. In other words, "[d]efendants
will not be immune if, on an objective basis, it is obvious that
no reasonably competent officer would have concluded that [the
action was lawful]; but if officers of reasonable competence
could disagree on this issue, immunity should be recognized."14
Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986).
14
. Some of the decisions of this court may have rephrased this
test in that they may be read to place a heavier burden on the
official seeking immunity than is warranted by the Supreme
Court's formulation of the issue. In Good v. Dauphin County
Social Serv., this court accurately described the test as whether
"reasonable officials in the defendants' position at the relevant
time could have believed, in light of what was in the decided
case law, that their conduct would be lawful." 891 F.2d at 1092
(emphasis added). This court later misquoted Good, however, to
say that "qualified immunity does not apply if 'reasonable
officials in the defendants' position at the relevant time could
have believed, in light of what was in the decided case law, that
their conduct would be unlawful.'" Abdul-Akbar v. Watson, 4 F.3d
195, 202 (3d Cir. 1993) (emphasis added); Acierno v. Cloutier, 40
F.3d at 616 (quoting Abdul-Akbar v. Watson). My point is that
reasonable officials could believe that a certain course of
conduct is unlawful and they also might believe it is lawful.
A. Allegation of a Constitutional Violation
In Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865,
1871 (1989), the Court held "that all claims that law enforcement
officers have used excessive force -- deadly or not -- in the
course of an arrest, investigation stop, or other 'seizure' of a
free citizen should be analyzed under the Fourth Amendment and
its 'reasonableness' standard, rather than under a 'substantive
due process' approach." Thus, the general right central to this
case is the right to be free from unreasonable seizure of the
person under the Fourth Amendment, in particular seizure with
unreasonable force.
Siegert v. Gilley, however, demands more than
conclusory allegations that defendants violated a certain
constitutional right. For example, Siegert asserted that his
rights under the Due Process Clause of the Fifth Amendment were
violated when Gilley maliciously made unkind comments regarding
his abilities to a prospective employer. Siegert v. Gilley, 500
U.S. at 232, 111 S.Ct. at 1793. Because defamation is not a
constitutional deprivation, the Supreme Court concluded that
Siegert failed not only to allege a violation of a clearly
(..continued)
Thus, though unintended, these cases could support a rule that
would deny immunity even when "officers of reasonable competence
could disagree on this issue," so long as a reasonable officer
could believe that the conduct would be unlawful. See Malley v.
Briggs, 475 U.S. at 341, 106 S.Ct. at 1096. This reading would
place a greater burden on the officials to demonstrate that they
have qualified immunity than is warranted. Of course, to the
extent that such reading conflicts with Supreme Court precedents,
it cannot be followed. Good properly states the law.
established constitutional right but failed to allege a
"violation of any constitutional right at all." Id. at 233-34,
111 S.Ct. at 1794. Similarly, in D.R. by L.R. v. Middle Bucks
Area Vocational Technical Sch., two public school students sued
because some of their classmates allegedly molested them. 972
F.2d at 1364. This court accepted the plaintiffs' statement that
they had a "liberty interest in their personal bodily integrity
protected by the Fourteenth Amendment," but held that the
school's alleged conduct did not amount to a constitutional
violation. 972 F.2d at 1368.
In essence, here the plaintiffs allege that the
defendants exerted excessive force in attempting to arrest
plaintiff Africa and decedents Leaphart and James, by dropping
the explosive on the roof of the MOVE residence and by letting
the fire burn. On the face of the complaint, I believe
plaintiffs have met the threshold required by Siegert v. Gilley
by alleging a constitutional violation. Judges Scirica and Lewis
agree with this conclusion.
B. Violation of a Constitutional Right
I now consider on the undisputed facts, Melo v. Hafer,
13 F.3d at 745; Good v. Dauphin County Social Serv., 891 F.2d at
1094-95, whether the individual defendants are entitled to
qualified immunity. In this section, "B. Violation of a
Constitutional Right," I write only for myself. First, I ask
whether plaintiff Africa and decedents Leaphart and James
possessed a "clearly established" constitutional right to be free
from the forces allegedly exerted by the individual defendants
under the circumstances that existed on May 13, 1985. As the
defendants point out, they did not direct force at the person of
any of the prospective arrestees. Rather, they directed the
force at destruction of property so that police officers could
inject tear gas into the house to effect a peaceful arrest -- one
in which neither police officers nor MOVE members would be
injured seriously. There is no evidence on the substantially
developed record that anyone intended otherwise. In fact, there
is evidence indicating that the defendants were concerned with
not harming the people inside the house.
The district court, however, refused to consider the
officials' argument that they intended only to destroy the
bunker. See Africa II, 849 F. Supp. at 341-42. The court stated
that Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, requires use
of an "objective legal reasonableness" test in a Fourth Amendment
excessive force case. While this formulation is accurate, I
disagree with its application by the district court. In Graham
v. Connor, the plaintiff allegedly sustained physical injuries
when police officers grabbed and cuffed him, threw him on his
companion's car, and threw him headfirst into the police car.
Id. at 389-90, 109 S.Ct. at 1868. Thus, as is usually true in
excessive force cases, the police officers' intent to apply force
to the person of Graham was clear. The Supreme Court held that
the court of appeals erred when it considered whether the
officers "acted in good faith or maliciously and sadistically for
the very purpose of causing harm," as the case should have been
analyzed under a Fourth Amendment "objective reasonableness"
standard. Id. at 395-97, 109 S.Ct. at 1871-72 (internal
quotation marks omitted). Therefore, although the Supreme Court
did find the "underlying intent or motivation" irrelevant, this
reference was to the officers' motivations for carrying out the
direct application of the force to the arrestee's person. Graham
v. Connor, 490 U.S. at 397, 109 S.Ct. at 1872. But here the
issue before us concerns the more fundamental question of whether
the officers applied force to the MOVE members at all.
On this point, another Supreme Court decision, Brower
v. County of Inyo, 489 U.S. 593, 109 S. Ct. 1378 (1989), is
instructive. In that case, the plaintiffs brought a section 1983
action alleging that the police effected an unreasonable seizure
of the decedent by putting up a roadblock into which the decedent
fatally crashed the stolen car he was driving. Id. at 594, 109
S.Ct. at 1380. The Supreme Court explained:
[A] Fourth Amendment seizure does not occur
whenever there is a governmentally caused
termination of an individual's freedom of
movement . . . , nor even whenever there is a
governmentally caused and governmentally
desired termination of an individual's
freedom of movement . . . , but only when
there is a governmental termination of
freedom of movement through means
intentionally applied.
Id. at 596-97, 109 S.Ct. at 1381. In that case, the Court held
that there was a Fourth Amendment seizure because the decedent
was stopped by the blockade, "the very instrumentality set in
motion or put in place in order to achieve that result." Id. at
599, 109 S.Ct. at 1382.
But this case is different, as the officials did not
intend to apply any force to the persons of the MOVE members when
they dropped the explosive device and allowed the fire to burn.
Thus, while their subjective thoughts as to the lawfulness of
their conduct is irrelevant under Anderson v. Creighton, 483 U.S.
at 641, 107 S.Ct. at 3040, what is not irrelevant is the
officials' intention only to destroy the bunker and perhaps part
of the roof so that they could inject tear gas into the house.
In my analysis, I ask whether it is enough for a Fourth
Amendment seizure that the MOVE members were stopped by "the very
instrumentality set in motion or put in place [the destruction of
the bunker] in order to achieve that result." Brower v. County
of Inyo, 489 U.S. at 599, 109 S. Ct. at 1382. The Supreme Court
cautioned that "[i]n determining whether the means that
terminates the freedom of movement is the very means that the
government intended we cannot draw too fine a line." Id. at 598,
109 S. Ct. 1382. In this sense, a court must look to the
officials' intent of why they wanted to destroy the bunker and to
create a hole in the roof to see whether the destruction of the
bunker was set in motion "in order to achieve" the seizure.15
15
. I also point out that the defendants' contention that they
intended the fire to be localized would not necessarily be
conclusive on the issue of what their intent really was. Thus, a
court could find in a case in which a massive force was used to
achieve a limited result that the officials' intent was to
effectuate a seizure with the use of the force. In this case,
however, there is no basis to conclude that the defendants'
intent in dropping the explosive or allowing the fire to burn was
other than to permit the introduction of the tear gas.
Nor is this a case in which the police action was "likely to
cause injury to the occupants" of the residence. Carroll v.
The destruction of the bunker was obviously a part of the
officials' day-long effort to seize the MOVE members, but none of
the officials intended it in itself to effectuate the seizure.
Nor could they reasonably have intended the destruction of the
bunker alone to be conclusive in any way, even though it may well
have been reasonable to believe, as they did believe, that its
destruction was an important objective.
Thus, this case differs from Brower because there the
police set up the blockade to stop a motoring felon.
Consequently, in Brower, the decedent "was meant to be stopped by
the physical obstacle of the roadblock -- and . . . he was so
stopped." Id. at 599, 109 S.Ct. at 1382. But in this case, it
cannot be said that the defendants intended to seize the MOVE
members by destroying the bunker. Nor were they so seized. From
the allegations and the evidence on record, we only can say that
those who were alive immediately before 5:30 that afternoon were
seized, i.e. killed, not by the explosive, nor by the burning of
the bunker, but by the fire that continued despite efforts of the
fire department. See Carroll v. Borough of State College, 854 F.
Supp. 1184, 1190 (M.D. Pa. 1994) (holding that to constitute
(..continued)
Borough of State College, 854 F. Supp. 1184, 1190 (M.D. Pa.
1994), aff'd, F.3d (3d Cir. 1995) (table); see
typescript at 14-16 (officials reasonably believed risk of fire
was negligible and fire, once started, could be contained);
typescript at 60 (officials had no reason to know that fire could
lead to serious injury). Therefore, we are not presented with a
situation where the defendants' subjective intent is at odds with
the objective likelihood that injury would result from their
actions. I need not decide how I would consider the case if we
were presented with such facts.
seizure, police action must be "direct" cause of injury), aff'd,
F.3d (3d Cir. 1995) (table).
Accordingly, this is a case of "a governmentally caused
and [perhaps] governmentally desired termination of an
individual's freedom of movement," but not "through means
intentionally applied." See id. at 597, 109 S.Ct. at 1381
(emphasis omitted). Consequently, there was no Fourth Amendment
seizure in this case. Thus, on this ground alone I am
constrained to vote to reverse the district court's denial of
qualified immunity to Brooks, Sambor, and Richmond, and to affirm
the district court insofar as it granted the other defendants
qualified immunity. In my view what it gets down to, after years
of litigation, is uncomplicated: the plaintiffs have no federal
case against any defendant by reason of any injury Ramona Africa
may have suffered or by reason of the deaths of John and Frank
Africa because there was no seizure. The determinative legal
issue is as simple as that.
In reaching this result I take note of Fagan v. City of
Vineland, 22 F.3d 1296, 1305 n.5. (3d Cir. 1994) (in banc), in
which we considered a police pursuit case under the due process
clause of the Fourteenth Amendment, and held that if there is not
a seizure a substantive due process "shocks the conscience" claim
may be asserted against the police. See also Carroll v. Borough
of State College, 854 F. Supp. at 1192 n.8. In this case,
however, I do not consider whether we could undertake a due
process clause analysis as the plaintiffs present their cases as
involving excessive force under the Fourth Amendment rather than
as implicating substantive due process principles. Indeed, in
her reply brief, Ramona Africa expressly contested the argument
some of the defendants advanced that we should apply the "shocks
the conscience" test we adopted in Fagan.16
Nevertheless, Fagan is significant here for a different
reason. Fagan involved a high speed chase resulting in death and
injuries both to innocent third parties and to persons in the
vehicle the police were pursuing when the pursued vehicle hit a
truck. Thus, there can be no doubt that there was in Fagan, in
the words of Brower v. County of Inyo, 489 U.S. at 596-97, 109
S. Ct. at 1381, a government caused and desired termination of an
individual's freedom of movement. Yet not a single member of our
sharply divided in banc court in Fagan suggested that the proper
analysis in that case should have centered on the Fourth
Amendment protection against unreasonable seizures. Rather, we
divided on whether to recover under the substantive due process
clause, the plaintiffs had to present proofs satisfying the
"shocks the conscience" standard or whether "reckless
indifference" was sufficient. In so defining the issue we were
undoubtedly correct because Fagan did not involve, in the words
of Brower, "a governmental termination of freedom of movement
through means intentionally applied." Id. That Fagan did not
involve such a termination is obvious as the police did not
16
. In any event, in view of my conclusions, with respect to the
reasonableness of the defendants' activities, it is evident that
I would conclude that the city defendants did not engage in
conduct which "shocks the conscience."
intend that the fleeing driver stop his vehicle by colliding with
another vehicle. Thus, Fagan differed from Brower because in
Brower the police set up the blockade to stop the decedent and it
did so. The difference between the cases was so clear that in
Fagan we did not even discuss Brower.
I point out the foregoing because if, as is the case,
this court unanimously treated the situation in Fagan as not
involving a seizure even though the collision was a direct
product of the chase, then how could this case possibly involve a
seizure? The answer is manifest: there was no seizure here.
The city defendants no more intended to burn down the building
than the Fagan defendants intended to cause a crash. If we were
to hold otherwise we would have to conclude that every member of
this court undertook an incomplete analysis in Fagan. While I
recognize that the significance of Fagan is somewhat diminished
by the circumstance that on appeal the plaintiffs there asserted
only due process constitutional contentions, nevertheless we as a
panel should give the greatest respect to our recent unanimous in
banc analysis in Fagan.17
C. Excessive Force
17
. In fact, the district court in Fagan explicitly held that
"[n]o seizure occurred in this case," Fagan v. City of Vineland,
804 F. Supp. 591, 598 n.6 (D.N.J. 1992), and the plaintiffs did
not appeal from the finding, which, after Brower, clearly was
correct. See also Campbell v. White, 916 F.2d 421, 423, (7th
Cir. 1990) cert. denied, 499 U.S. 922, 111 S. Ct. 1314 (1991);
Frye v. Town of Akron, 759 F. Supp. 1320, 1323 (N.D. Ind. 1991).
I will now assume that there was a Fourth Amendment
seizure. I nevertheless conclude that the city defendants are
entitled to qualified immunity as their acts were reasonable as a
matter of law. Judge Scirica joins in this section, "C.
Excessive Force," but only for the limited purpose of agreeing
that Tennessee v. Garner is inapplicable and that the appropriate
inquiry is the reasonableness of the city defendants' acts. He
thus disagrees with my conclusion that the city defendants are
not liable for a Fourth Amendment violation on the basis of their
acts being reasonable as a matter of law. Nevertheless, I
conclude that there was no Fourth Amendment violation and under
Siegert v. Gilley, 500 U.S. at 231, 111 S.Ct. at 1793, the
defendants are entitled to summary judgment on the federal
claims.
As indicated, the magistrate judge concluded and the
district court agreed, that "a reasonable person in each of the
defendant's positions could have believed that the use of an
explosive device . . . was necessary to 'prevent death or serious
bodily injury' to the police officers on the scene or other
person." Africa II, 849 F. Supp. at 337, 357 (citing Tennessee
v. Garner). With regard to the fire, the magistrate judge did
not address explicitly the reasonableness of the decision to let
the fire consume the bunker but found that "after the fire had
destroyed the roof-top bunker, there remained [no] reasonable
basis for the police to believe that allowing the fire to burn
was necessary to quell some perceived imminent peril." Africa
II, 849 F. Supp. at 359. The defendants point out, however, that
the record includes no evidence that the officials allowed the
fire to burn after it had consumed the bunker. The district
court held that letting the fire burn at all, regardless of
whether it was intended only to destroy the bunker, as a matter
of law, was not "reasonable as a matter of necessity." Africa
II, 849 F. Supp. at 340. The court drew this conclusion from the
facts that apparently no MOVE member had been using the bunker
offensively after the police dropped the explosive, that Brooks
saw no sign of life on the roof except a dog, and that the
bunker, "under Managing Director Brooks' perception, [was]
substantially neutralized on the impact of the bomb." Id.18
Thus, the court stated, "[t]hat it might be convenient to have
let the balance of the bunker be consumed by fire is perhaps a
tenable view. That it was necessary, in Tennessee v. Garner
terms, I can find no basis for concluding." Id.
The district court erred in applying Tennessee v.
Garner to require that the use of force be necessary in this
case. Just as an application of "deadly force" may not result in
death, the fact that a seizure results in death does not
18
. In his opinion Judge Lewis indicates that the "intention of
the defendant officials in dropping the explosive device [and] to
blast the bunker from atop the roof . . . must be considered in
light of the fact that the defendant officials had no way of
knowing whether the bunker was occupied at the time the explosive
device was deployed." Typescript at 3. This statement is wrong
for, as the district court explained, nothing in the record
demonstrates that the bunker had been used at all for a
substantial time before the dropping of the bomb. Africa II, 849
F. Supp. at 340. Obviously the defendants who had the premises
under constant observation thought that the bunker was empty when
Powell dropped the device and that was the fact.
necessarily mean that "deadly force" has been applied. See,
e.g., Robinette v. Barnes, 854 F.2d 909, 912-13 (6th Cir. 1988)
(holding that "deadly force" was not used when police dog attack
resulted in death of suspected felon); Ryder v. City of Topeka,
814 F.2d 1412, 1416-17 & n.11 (10th Cir. 1987) (noting that
gunshot which did not kill suspect constitutes "deadly force").
For example, the Model Penal Code defines "deadly force" as
"force which the actor uses with the purpose of causing or which
he knows to create a substantial risk of causing death or serious
bodily harm." Model Penal Code § 3.11(2) (1994); see also
Matthews v. Jones, 35 F.3d 1046, 1050-51 (6th Cir. 1994)
(applying Model Penal Code definition to find police dog attack
not application of deadly force); Robinette v. Barnes, 854 F.2d
at 912-13 (same). In dropping the explosive on the roof and
letting the fire consume the bunker, the city defendants did not
act with the "purpose of causing . . . death or serious bodily
harm" to the MOVE members in the house but only with the purpose
of destroying the bunker. Nor did they have reason to "know"
that such actions would "create a substantial risk of causing
death or serious bodily harm." Therefore, the district court
simply should have asked whether, in light of all the surrounding
circumstances, the use of such force was reasonable.19
19
. Judge Lewis concludes that the individual defendants used
deadly force and that therefore Tennessee v. Garner applies. But
in reaching his conclusion that the individual defendants had
reason to know that their actions created a substantial risk of
causing death or serious bodily harm, Judge Lewis relies more on
his intuitive sense of what the police and firefighters "must"
have known than on an analysis of what the record evidence shows
in this case. See Judge Lewis' dissent at 2 ("[t]he force
In Brower v. County of Inyo, the Supreme Court stated
that to have a claim under section 1983, plaintiffs must allege
that the seizure was unreasonable, which they did in that case by
alleging that the roadblock was set in a way likely to kill the
decedent. Id. at 599, 109 S.Ct. at 1382-83. In instructing on
how a court should consider the reasonableness of the seizure,
the Court said:
This should be contrasted with the situation
that would obtain if the sole claim of
unreasonableness were that there was no
probable cause for the stop. In that case,
if [decedent] had had the opportunity to stop
voluntarily at the roadblock, but had
negligently or intentionally driven into it,
then, because of lack of proximate causality,
respondents, though responsible for depriving
him of his freedom of movement, would not be
liable for his death.
Id. (citations omitted).
Application of the reasonableness standard in a Fourth
Amendment seizure case "requires careful attention to the facts
and circumstances of each particular case, including the severity
(..continued)
embodied in the incendiary device and in the fire was, by any
sensible standard, 'deadly' force"; Dissent at 3 ("To me, this
constitutes deadly force, for I cannot imagine how anyone can
conclude that a device such as this was not capable of taking
human life -- which, in fact, it ultimately did."); Dissent at 3
("I believe the city defendants, who were professional law
enforcement and fire-fighting personnel, had every reason to know
that their actions created a substantial risk of death or serious
bodily injury to the MOVE members . . . .") Notwithstanding
Judge Lewis' intuitions, the record in this case, as detailed in
the text, indicates that quite the opposite is true: The police
and firefighters had every reason to believe that their actions
did not create a substantial risk of death or serious bodily
injury.
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight." Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872.20
Moreover, the standard of reasonableness "must be judged from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight." Id. The various officers'
and officials' intents and motives are irrelevant. Id. at 397,
109 S. Ct. at 1872. In reviewing the officers' actions, a court
should bear in mind that "great weight is given to his
determination and the matter is to be judged on the facts as they
appeared then and not merely in the light of the event." Scheuer
v. Rhodes, 416 U.S. at 248, 94 S.Ct. at 1692 (quoting Moyer v.
Peabody, 212 U.S. 78, 85, 29 S. Ct. 235, 237 (1909)).
I therefore examine first the information possessed by
the various officials at the time of the events at issue to
determine if their conduct was objectively reasonable. See
Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. at 3040. In
this objective reasonableness analysis, I primarily consider the
case from the perspective of Brooks, Sambor, and Richmond as they
were the supervisory officials on the site. It is fair to say
that at the beginning of May 13, 1985, the defendants knew or
reasonably believed the following: (1) MOVE had been involved in
20
. Although the Court decided Graham v. Connor four years after
the MOVE confrontation, it still controls our determination of
whether there was a Fourth Amendment violation. Only when we
decide whether the law was established clearly do we need to
limit our survey of the law to that which predates May 13, 1985.
a prior episode of violence against the police which resulted in
a death of a police officer; (2) at least one MOVE member had
been seen earlier with a gun; (3) MOVE members had threatened
police officers and neighbors with violence and use of guns and
explosives; (4) MOVE members may have dug tunnels under their
house; and (5) it was likely that MOVE members would resist
arrest.
From their experiences on the morning of May 13, 1985,
it is fair to say that these same defendants knew or reasonably
believed the following: (1) certain MOVE members expressed that
they would not surrender peacefully and threatened to kill the
police officers; (2) certain MOVE members were shooting at the
police; (3) some of the gunfire seemed to have come from the
bunker atop the roof; (4) efforts at creating holes on the sides
of the MOVE house and injecting tear gas into the house were
unsuccessful; (5) there were children in the basement of the MOVE
house; and (6) MOVE members have made no signs that they were
willing to surrender.
It is simply beyond argument that a reasonable officer
on the scene possessing the above information would believe that
there were armed and dangerous people inside the MOVE house who
posed a serious threat to the life and safety of officers and
neighbors, should they escape. Furthermore, although the
plaintiffs contend that there had been no gunfire from the MOVE
house for hours before the use of the explosive, I believe this
fact, if true, would be irrelevant. No reasonable officer would
think that the danger finally had subsided and that police
officers could come to the house safely and arrest the occupants
merely because the MOVE members had held their fire for several
hours.21
Of course, it is irrelevant that only a few weapons
were found in the rubble afterwards, that Ramona Africa never
fired a gun, and that Ramona Africa was not involved in the 1978
confrontation. The first two allegations are not something that
any of the officials or officers had any reason to know with any
degree of certainty at the time and, in any event, a person with
a single weapon can fire a fatal shot. Thus, this case would be
no different even if the defendants believed all along that there
were only a few weapons in the premises. The allegations
regarding Africa's peaceful nature are also irrelevant because
even if the defendants were aware of them, they would have been
justified in believing that the other persons in the house were
armed and dangerous.22 The presence of one peacefully inclined
occupant could have in no way impacted on the overall situation.
21
. I thus find Judge Lewis' assertion that because "several
hours had elapsed between the cessation of gunfire from within
the MOVE dwelling and the dropping of the incendiary device by
the police" to be beside the point. Dissent at 10-11. The fact
of the matter is that, in light of the massive gun battle earlier
in the day, which in turn must be seen in light of MOVE members'
consistent threatening conduct, the police had every reason to
believe that the MOVE members could begin shooting again at any
moment. It seems self-evident to me that the inquiry should
focus on the police officers' reasonable belief about the threat
of violence, not on the fortuitous fact that at the moment the
bomb was dropped bullets were not descending from the building.
22
. In fact she was not inclined peacefully as, according to
certain of the briefs, she was convicted of riot and conspiracy
for her participation in this episode.
Once it was clear that the insertion teams could not
complete their mission, and that the MOVE members still were not
cooperating, it cannot be said that it was anything but
reasonable for the officials to develop alternative ways to
proceed in their mission to arrest these dangerous people. Nor
can it be said that it was unreasonable for the defendants to
choose to attempt to conclude the stand-off, or at least destroy
the bunker, by sundown given the higher risks they perceived to
be coming with nightfall.23
The record shows that the defendants had discussed
various ways of neutralizing the bunker, which all perceived as a
great danger to the officers below, and of effectively inserting
tear gas into the house. And when they focused on the option of
using a helicopter to drop an explosive on the bunker to
neutralize it and to create a hole in the roof, they also
discussed the potential for fire and for injury to the people in
the house. They believed from their inquiries of Powell, an
officer in the Bomb Squad, that these risks were very low. Was
this belief reasonable given the fact that at least certain of
the defendants had known that there was a possibility, or at
least a threat by MOVE, that there was incendiary and/or
explosive materials in the house? I cannot say that a reasonable
officer could not have held such a belief that the risks were
23
. While Judge Lewis concludes that the individual defendants
used excessive force, he offers no explanation of what
alternatives were available. Apparently he is willing to have
mandated an indefinite standoff.
low. First, the defendants were entitled to rely on the
statements of Officer Powell regarding the characteristics of the
explosive. Second, explosives had been used on the sides of the
house in the morning without causing any fires. And third, these
officials believed that they had seen muzzle flashes on the roof,
which could have led them to believe that a small spark may not
be terribly dangerous, especially given the fact that the roof
had been well doused with water all day. Thus, I do not think it
unreasonable for them to have believed that explosives could be
used to eliminate the bunker.24
I believe that the decision to let the fire consume the
bunker was not an unreasonable use of force. Barna v. City of
Perth Amboy, 42 F.3d 809, 820 (3d Cir. 1994). There is no
question that the bunker still was standing after the explosive
was deployed. In fact, the explosive missed it altogether. The
only basis in the record for the district court's conclusion that
the bunker was "substantially neutralized on the impact of the
bomb," appears to derive from Brooks' testimony. Brooks
testified that when he told Sambor to put the fire out, he said,
"[Y]ou've accomplished your mission, put out the fire." App. at
1016. That the bunker substantially was neutralized was, as I
24
. Nor am I persuaded to reach a different conclusion by the
fact that the satchel contained certain explosive materials
generally used only by the military. Whatever was in the satchel
was not enough to do much structural damage upon explosion since
the bunker was still standing. To say that the explosive was
"military strength," I believe, is quite misleading.
read the record, solely Brooks' expectation of the effect of the
explosive. Brooks testified:
Q. Now, when you say the bomb would
neutralize the bunker even if it didn't knock
it off, what do you mean?
A. It would be very difficult to stay
up there.
Q. Well, did you feel there was any
discussion that if there were any human being
inside that bunker, he would be injured or
killed to the point or injured to the point
that he would not be able to take offensive
action?
A. I think so.
App. at 986. The district court incorrectly concluded from
Brooks' statements that the explosion in fact neutralized the
bunker.
Furthermore, there is no evidence that either Sambor or
Richmond believed the bunker had been neutralized when they
agreed to let the fire burn it. Looking from each defendant's
position, a court must assess the reasonableness of the actions
of Brooks, Sambor, and Richmond based on the information and
beliefs they each held at the time. A court must take care not
to impute one official's beliefs and information to another
official to hold his actions unreasonable in the circumstances.
In this case, I see that although Brooks may have thought that
the mission was accomplished by the explosion, Sambor and
Richmond believed differently. In Brooks' case, then, it may be
rational to go on to determine whether letting the fire burn down
a seemingly neutralized bunker was reasonable. But a reasonable
official in the position of the other officials surely did not
have to have this state of mind. Both Sambor and Richmond were
on the street when Brooks called them about the fire. They
testified that they saw smoke, but no flames. And the bunker
still was standing. From Sambor's and Richmond's point of view,
the explosive did not neutralize the bunker, thus explaining the
need to "get the bunker." There may not have been anyone in the
bunker after the explosion, but this was also the case before the
explosion. Surely this fact cannot be taken as assurance that no
one would emerge soon from inside the house and perhaps resume
the offensive position taken in the morning. Indeed, the
district court implicitly found, and I concur, that the absence
of people on the roof or in the bunker did not render
unreasonable the earlier decision to use the explosive to "get
the bunker." This same reasoning should apply after the
explosion. The bunker, for these two officials, was still as
justifiable a target as it was before the explosion.
Thus, the question for Sambor and Richmond becomes, if
they each believed that the bomb failed to neutralize the bunker,
whether it was reasonable for them to let the fire carry out that
objective. Again, a court needs to approach this question from
the separate position of these two individuals. From Sambor's
point of view, he had a confirmation from an experienced fire
fighter that the fire could be controlled. He knew that many
fire fighters were at hand and ready to "start the squirts." It
seems clear that a reasonable police official in Sambor's
position could have believed that a controlled fire was a
reasonable means to destroy a bunker which still posed a threat.
Richmond's point of view, although he also knew that he
had plenty of fire fighters ready to put out the fire at his
command, is more problematic.25 It is undisputed that
photographs showing cans marked "gasoline" on the roof were
passed around in a prior meeting of officials at which Richmond
was present. However, there is no evidence that any official
from either the police department or fire department knew that
there was gasoline on the rooftop prior to the disaster on May
13, 1985. Furthermore, Richmond knew on May 13, 1985, that cans
marked "gasoline" on another MOVE house in Chester, Pennsylvania,
actually contained water. Richmond admits, however, that it
would have been unreasonable to let the fire burn if he knew
there was gasoline on the roof. Given the information possessed
by Richmond at the time, including the fact that he was there not
to fight any fires that he may see, as would be his normal
duties, but to lend support to the police effort, we cannot say
that this "split-second judgment -- in circumstances that are
tense, uncertain, and rapidly evolving --" was not objectively
reasonable under the Fourth Amendment. See Graham v. Connor, 490
U.S. at 397, 109 S.Ct. at 1872.
I look at Brooks' situation based on plaintiffs'
version of the facts and assume arguendo that he believed the
25
. The evidence shows, and the district court found, that
Richmond played no part in the decision to drop the explosive on
the bunker.
bunker to have been effectively neutralized by the explosive and
that he concurred, at least for a time, in the decision to let
the fire burn the bunker. Nevertheless, I do not believe that
this decision, even taken in this light, would be unreasonable.
The objective, it must be remembered, was to destroy the bunker
which still was standing and could be reoccupied.
To summarize, I find that the record does not indicate
that there was a Fourth Amendment seizure of the MOVE members, a
conclusion which in itself in my view ends the federal aspects of
the case. I further would hold that even if there was a Fourth
Amendment seizure, the defendants' decisions to destroy the
bunker by dropping the explosive and allowing the fire to burn
were not objectively unreasonable under the Fourth Amendment. I
thus conclude that the city defendants are entitled to summary
judgment on the federal claims.
D. Apparent Lawfulness of the Conduct
I will assume, however, that the defendants did effect
a Fourth Amendment seizure, and I will assume further that the
seizure was unreasonable. I then inquire whether the city
defendants still are entitled to qualified immunity on the basis
that they reasonably could have considered their conduct would be
lawful. I have no difficulty concluding that they are entitled
to such immunity. Judge Scirica comes to the same conclusion and
thus he joins in this section "D. Apparent Lawfulness of the
Conduct," of the opinion.
In Harlow v. Fitzgerald, the Supreme Court held that
"government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." 457 U.S. at 818, 102 S. Ct. at 2738 (citations omitted).
The Court later explained:
The contours of the right must be
sufficiently clear that a reasonable official
would understand that what he is doing
violates that right. This is not to say that
an official action is protected by qualified
immunity unless the very action in question
has previously been held unlawful, but it is
to say that in the light of pre-existing law
the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039
(citations omitted).
Thus, the relevant question here is "the objective
(albeit fact-specific) question whether a reasonable officer
could have believed" the use of the explosive and of the fire to
destroy the bunker, based on the information the defendants then
possessed, to be reasonable under the Fourth Amendment, that is,
"to be lawful, in light of clearly established law" as of May 13,
1985. See id.
This court has interpreted the standard of "clearly
established law" to require "some but not precise factual
correspondence between relevant precedents and the conduct at
issue," and that "[a]lthough officials need not predict the
future course of constitutional law, they are required to relate
established law to analogous factual settings." Ryan v.
Burlington County, 860 F.2d 1199, 1208-09 (3d Cir. 1988), cert.
denied, 490 U.S. 1020, 109 S. Ct. 1745 (1989) (quoting People of
Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139,
144 (3d Cir. 1984)).
The district court relied and the plaintiffs rely on
Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, and section 508
of the Crimes Code as the "clearly established law" which should
have been related by the defendants to the factual setting facing
them. The defendants argue correctly that violation of state law
is in itself not determinative in this section 1983 action. See
Brown v. Grabowski, 922 F.2d at 1113. Yet I do not fault the
district court for referring to Pennsylvania law, as the court
cited that law to show that its violation could be considered in
determining the scope of the clearly established constitutional
right of an arrestee. Thus, the state law could help define the
scope of federal law. And, indeed, the Supreme Court did cite
section 508 in developing its constitutional standard.
But the defendants argue quite persuasively that the
district court erred in relying on Tennessee v. Garner. In that
case, decided less than two months prior to May 13, 1985, a
police officer shot and killed an unarmed teenage burglary
suspect to prevent his escape. Tennessee v. Garner, 471 U.S. at
3-4, 105 S. Ct. 1697. The Court held that "[t]he use of deadly
force to prevent the escape of all felony suspects, whatever the
circumstances, is constitutionally unreasonable." Id. at 11, 105
S.Ct. at 1701. However, "[w]here the officer has probable cause
to believe that the suspect poses a threat of serious physical
harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly
force." Id. The Court concluded that "if the suspect threatens
the officer with a weapon or there is probable cause to believe
that he has committed a crime involving the infliction or
threatened infliction of serious physical harm, deadly force may
be used if necessary to prevent escape, and if, where feasible,
some warning has been given." Id. at 11-12, 105 S.Ct. at 1701.
I agree with the defendants that Tennessee v. Garner is
far from an analogous case. We are concerned here with the use
of the explosive and the burning of the bunker to provide a safe
means to inject tear gas into a house to arrest the armed and
dangerous occupants barricaded inside. There is only a very
broad and vague similarity between Tennessee v. Garner and this
case: there was use of great force in both in some aspect of the
process of effectuating an arrest. As can be expected, extensive
research has revealed no case that justly can be deemed
analogous.
This court's cases do not support use of such an
attenuated connection as the district court seemed to have done
here with its use of Tennessee v. Garner. For example, in Ryan
v. Burlington County, 860 F.2d at 1208-09, this court extended
the clearly established law regarding rights of inmates to deny
qualified immunity to defendants even though prior case did not
involve officials in the precise positions held by the
defendants. And in Good v. Dauphin County Social Serv., 891 F.2d
at 1094-95, this court applied clearly established case law
regarding warrantless searches to a case where the novelty was
that the search was to prevent child abuse. In Sourbeer v.
Robinson, 791 F.2d 1094, 1103-04 (3d Cir. 1986), cert. denied,
483 U.S. 1032, 107 S. Ct. 3276 (1987), this court affirmed the
district court's reliance on clearly established law regarding
the due process rights of sentenced inmates to hold that
defendants were on notice as to similar rights of an unsentenced
inmate. In Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987),
this court applied the clearly established law that prohibited
dismissal of public employees in retaliation for political speech
or association to a case where the employee was demoted.
Similarly, in Burns v. County of Cambria, 971 F.2d 1015, 1024-25
(3d Cir. 1992), cert. denied, 113 S. Ct. 1049 (1993), this court
applied that same law to the dismissal of deputy sheriffs in
particular.
At the defendants' behest, both the district court and
the magistrate judge examined Ginter v. Stallcup, 641 F. Supp.
939 (E.D. Ark. 1986), as a possible factual precedent. That case
involved an effort by local police officers and FBI agents to
capture a fugitive charged with murder who was hiding in a
residence and apparently was firing at the officers with
automatic weapons. The officers introduced tear gas and diesel
fuel into a vent on the roof of the house and set fire to it.
The district court concluded that there was no "clearly
established law" prior to the event that would hold that "the use
of fire to 'burn out' a fugitive would violate the constitutional
rights of the fugitive." Id. at 953. On appeal, the Court of
Appeals for the Sixth Circuit upheld the grant of qualified
immunity to the two defendant officers with respect to the claim
of unnecessary destruction of property, on the basis that unless
the officers knew of the fugitive's death before the fire, they
had not been shown to have acted unreasonably in setting the
fire. Ginter v. Stallcup, 869 F.2d 384, 389 (8th Cir. 1989).
But Ginter v. Stallcup, as the district court in this
case pointed out, was decided in 1986, though it involved an
event that took place in June 1983, which was before the MOVE
episode. In these circumstances, Ginter v. Stallcup could not
possibly be used to demonstrate clearly established law as of May
13, 1985. Furthermore, as the magistrate judge noted, Ginter v.
Stallcup involved "a handful of police officers [who] had to take
immediate action against an armed murderer" as opposed to the
situation here, where "the police presence . . . was on a massive
and well-equipped scale." Id. at 360. While Ginter v. Stallcup
is easily distinguishable, the fact that it is as factually close
a case as anyone can find offers some insight for our inquiry as
to whether the alleged unlawfulness here was "apparent."
Nevertheless, I recognize that in certain instances the
alleged act is so obviously wrongful that all reasonable
officials would consider it unlawful, regardless of whether the
act itself was addressed by case law. For example, in Stoneking
v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989), public
schools officials were sued for allegedly condoning two teachers'
acts of sexual misconduct against students. This court did not
require that there be an analogous case in which sexual abuse of
a student or the allowing of such abuse was held to have violated
the student's constitutional rights. Rather, it "seem[ed]
ludicrous to be obliged to consider whether it was 'clearly
established' that it was impermissible for school teachers and
staff to sexually molest students." Id. at 726-27. In other
words, the alleged act of condoning sexual misconduct by teachers
against students so clearly violated the student's constitutional
rights that the unlawfulness of this act was apparent, even in
the absence of an analogous case. The Stoneking approach
sensibly precludes an official from obtaining summary judgment if
he acts in a way that no other official has acted because other
officials recognize the acts to be clearly unlawful. Of course,
that approach has no place in this case.
Overall, it is clear that even if somehow a court found
that there was an unreasonable seizure in this case, it could not
possibly say, in the words of Anderson v. Creighton, "that in the
light of pre-existing law the unlawfulness" of either dropping
the explosive or letting the fire burn should have been apparent.
483 U.S. at 640, 107 S. Ct. at 3039. The 1985 MOVE confrontation
was unprecedented in the case law. The exceptional circumstances
here constitute precisely the kind of situation that requires the
firm and swift official action which must be shielded by
qualified immunity. I conclude that there was no clearly
established law as of May 13, 1985, which would have required the
officials to choose an alternative approach to execute the
warrants. Thus, as Judge Scirica joins in this section of the
opinion the city defendants, meaning the individual defendants,
are entitled to qualified immunity on the federal claims.
V. LIABILITY OF THE CITY
The district court concluded that Brooks' concurrence
in the decision to let the bunker burn means that the city is
suable under section 1983. Alternatively, even if Brooks did not
concur, the district court found that decisions made by Sambor or
Richmond were sufficient so that the city could be held liable.
Because I would hold that the city defendants are entitled to
summary judgment on the federal claims on the grounds that their
actions did not amount to constitutional violations, as there was
no seizure at all, I would hold that the city also is entitled to
summary judgment on the federal claims. Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036
(1978) (municipalities cannot be held liable under section 1983
"unless action pursuant to official municipal policy of some
nature caused a constitutional tort"); Kentucky v. Graham, 473
U.S. 159, 171, 105 S. Ct. 3099, 3108 (1985) (plaintiffs who did
not prevail in official-capacity action was not "entitled to look
for relief, both on the merits and for fees, to the governmental
entity"). While this court indicated in Fagan v. City of
Vineland, 22 F.3d 1283, 1291-94 (3d Cir. 1994), that in some
circumstances a city may be liable even though its officers are
not liable, I see no basis here to impose independent liability
on the city. See City of Los Angeles v. Heller, 475 U.S. 796,
799, 106 S. Ct. 1571, 1573 (1986). Judges Scirica and Lewis
disagree with this conclusion for the reasons they express and
thus we will affirm the order denying the city summary judgment.
VI. GRANT OF SUMMARY JUDGMENT IN FAVOR OF GOODE,
POWELL, AND KLEIN AS TO THE STATE LAW CLAIMS
In light of the conclusions Judge Scirica and I have
reached with respect to qualified immunity and in light of the
reasons Judge Scirica is setting forth separately, we will affirm
the judgments in favor of Goode, Powell, and Klein on the state
law claims. The magistrate judge explained, and the district
court summarily agreed, that as employees of the city, officials
are entitled to statutory immunity unless "it is judicially
determined that the act of the employee caused the injury and
that such act constituted a crime, actual fraud, actual malice or
willful misconduct." 42 Pa. Cons. Stat. Ann. § 8550 (1982). I
agree as well. Thus, in my view the finding that the dropping of
the explosive was lawful establishes that Goode, Powell, and
Klein did not lose their immunity under this section.
VII. CONCLUSION
I cannot conclude our opinion without an overview of
the matter. In retrospect, there can be no doubt that the
defendants' actions had tragic consequences. Yet there is not
the slightest doubt that it was MOVE and not the defendants who
put the forces in motion which created the tragedy for the MOVE
members placed the defendants in an impossible situation.
Because of their obvious contempt for the orderly implementation
of the judicial process, they forced the defendants to undertake
a military-type operation. In a country operating under an
organized legal system the response of a person confronted with
an arrest warrant must be to surrender. Unfortunately the
occupants of the MOVE house did not recognize this obvious truth.
Finally, I point out that the courts must recognize that in
certain instances the civil authorities are required to take
strong steps to enforce the law and maintain public order. The
Constitution does not preclude these steps.
In view of the conclusions I have set forth and in my
view of the conclusions set forth by Judge Scirica and Judge
Lewis, the orders for summary judgment with respect to all claims
in favor of defendants Goode, Powell, and Klein will be affirmed.
The orders denying summary judgment with respect to all federal
claims in favor of Brooks, Sambor, and Richmond, will be reversed
and on remand the district court should enter summary judgment in
their favor on those claims. The order denying the city summary
judgment will be affirmed but on the further proceedings on
remand the district court shall consider the claims against the
city in accordance with the reasonableness standard Judge Scirica
and I have adopted. We note that the district court granted the
city partial summary judgment with respect to the dropping of the
bomb and that no appeal from that order is pending.
Nevertheless, the rationale adopted by Judge Scirica and Judge
Lewis leads to the conclusion that the city was not entitled to
summary judgment on that point. Thus, while we do not disturb
that unappealed summary judgment, we observe that the plaintiffs
might want to seek relief from it in the district court under
Fed. R. Civ. P. 54(b) or Fed. R. Civ. P. 60(b)(6). The appeals
by Brooks, Sambor, and Richmond from the denial of summary
judgment on immunity grounds on the state law claims will be
dismissed for lack of jurisdiction as will James' appeal from the
order of the district court granting the city summary judgment on
her uncompensated property damage claim. We will remand the
matter for further proceedings consistent with this opinion and
for disposition of the remaining claims. The parties will bear
their own costs on this appeal.
In Re: City of Philadelphia Litigation
No. 94-1277, etc.
SCIRICA, Circuit Judge, concurring and dissenting.
I agree with Judge Greenberg that all individual
defendants are entitled to qualified immunity. Although I agree
that the proper analysis on the use of excessive force in
effecting an arrest is found in Graham v. Connor, 490 U.S. 386,
395 (1989), rather than in Tennessee v. Garner, 471 U.S. 1, 11
(1984),26 I do not believe that as a matter of law no reasonable
jury could conclude that the decision to employ the incendiary
device was an excessive use of force.27 Accordingly, with Judge
26
. In Graham v. Connor, 490 U.S. 386, 395 (1988), the Court
held, "[A]ll claims that law enforcement officers have used
excessive force--deadly or not--in the course of an arrest,
investigatory stop, or other ``seizure' of a free citizen should
be analyzed under the Fourth Amendment and its ``reasonableness'
standard . . . ." Applying this standard to determine "whether
the force used to effect a particular seizure is ``reasonable'
under the Fourth Amendment requires a careful balancing of ``the
nature and quality of the intrusion on the individual's Fourth
Amendment interests' against the countervailing governmental
interests at stake." Id. at 396 (citation omitted).
I believe Tennessee v. Garner, 471 U.S. 1, 11 (1984) is
limited by its facts. Garner assessed the reasonableness of
force used in a particular factual setting but did not provide
the definitive reasonableness test for all seizures involving the
use of deadly force. Although I believe the police may have used
deadly force against the MOVE members, that confrontation is
readily distinguishable from the situation in Garner.
27
. The district court analyzed the decision to drop the
incendiary device separately from the decision to let the bunker
burn. Unlike the district court, I see little distinction
between dropping the incendiary device and letting the fire burn.
Both actions were undertaken to effect the same result -- to
enable the police to insert tear gas into the house in order to
force the occupants out. The risk of fire existed from the
moment the device was dropped, and very little time elapsed
between dropping the device and deciding whether to respond to
the fire.
Lewis, I hold that the federal claims asserting an
unconstitutional seizure in violation of the Fourth Amendment
against the City of Philadelphia survive summary judgment and may
proceed to trial.
Furthermore, I would hold that we may consider an
interlocutory appeal of the denial of state immunity when the
state immunity question is bound up with federal qualified
immunity and that the individual defendants are entitled to
summary judgment on the state claims because the officials'
conduct did not rise to the level of willful misconduct.
I.
I believe there was a seizure under the Fourth
Amendment. The Osage Avenue house was occupied by the subjects
of the arrest warrant and the officials used force with the aim
of gaining entry into the house or forcing the occupants out.
The incendiary device was "the very instrumentality set in motion
or put in place in order to achieve that result." Brower v.
County of Inyo, 489 U.S. 593, 599 (1989). In Brower, the Court
noted that a Fourth Amendment seizure does not occur when the
effect of seizure is purely fortuitous.28 But the Court
28
. To illustrate the point, the Court laid out two scenarios:
(1) where a parked and unoccupied police car slips its brake and
pins an innocent passerby against a wall; and (2) where the
accidentally pinned passerby happens to be a serial murderer for
whom there is an outstanding arrest warrant. The Court said
there could be no seizure in either case because there was no
"governmental termination of freedom of movement through means
intentionally applied." Brower v. County of Inyo, 489 U.S. 593,
597 (1989). The intent referred to in the phrase, "through means
cautioned that we cannot say there was not a seizure when an
individual is "stopped by the accidental discharge of a gun with
which he was meant only to be bludgeoned, or by a bullet in the
heart that was meant only for the leg." Id. at 598-99. Thus,
our inquiry is not whether the officials intended all the
consequences of their use of the incendiary device, but whether
they intended to use force to arrest these individuals. I
conclude that they did, and because the MOVE members were harmed
by the fire caused by the incendiary device, "the very
instrumentality set in motion or put in place in order to" arrest
the occupants of the house, I find a Fourth Amendment seizure.
Id. at 599.
II.
I do not believe that we can say, as a matter of law,
that no reasonable jury could conclude that the decision to use
the incendiary device was an excessive use of force. Both the
reasonableness of the decision to end the confrontation before
nightfall rather than allow the stand-off to continue and the
reasonableness of the choice of means to end the stand-off --
eliminating the bunker with an incendiary device -- are questions
of fact.29 Also, the reasonableness of the officials' views of
(..continued)
intentionally applied," does not go to the intent of seizure. It
is irrelevant that the serial murderer's arrest was otherwise
intended. What matters is whether the means -- e.g., the car --
was intentionally applied to this individual.
29
. The degree of risk posed by the use of the incendiary device
is disputed. But questions about the contents of the incendiary
the threat of the bunker after the incendiary device was dropped
and the reasonableness of their decision to let the fire burn the
bunker are questions of fact. Accordingly, I find summary
judgment is inappropriate on the question of whether the
plaintiffs' Fourth Amendment rights were violated by an
unreasonably excessive use of force. Of course, as stated, I
believe all individual defendants are entitled to qualified
immunity.
III.
Because I cannot say, as a matter of law, that there
has been no Fourth Amendment violation, Monell v. Department of
Social Services, 436 U.S. 658, 691 (1978), does not relieve the
city of liability. Under City of St. Louis v. Praprotnik, 485
U.S. 112, 127 (1988), and Pembauer v. City of Cincinnati, 475
U.S. 469, 481 (1986), we must consider whether the acts of the
municipal officers may be attributed to the city. I believe that
their actions meet the standards outlined in those cases, and I
hold the city responsible for the acts of these officials.
Furthermore, under Owen v. City of Independence, 445 U.S. 622,
650 (1980), the city does not have qualified immunity from
liability even if it can show that the officials themselves are
entitled to immunity from personal liability under § 1983.
(..continued)
device and the awareness of the officials that gasoline or other
explosives may have been in the vicinity of the bunker are
properly left to the trier of fact.
IV.
Under the facts here, I believe we may consider an
appeal of the district court's denial of a claim of state
immunity. In Brown v. Grabowski, 922 F.2d 1097, 1109 (3d Cir.
1990), cert. denied, 501 U.S. 1218 (1991), we concluded that a
denial of a claim of qualified immunity premised upon New Jersey
state law was not appealable. But in Brown we conducted a three-
step inquiry: First we looked to the statute, then we looked to
interpretations of that statute by the state's courts, and
finally we looked to see whether the state disfavored
interlocutory appeals. In Brown, after reviewing the statute and
case law, we believed the appealability issue could go either
way. But because New Jersey had a policy strongly disfavoring
interlocutory appeals, we dismissed for lack of jurisdiction.
Applying the same analysis here, I would reach the opposite
conclusion.
I agree that the language of Pennsylvania's Political
Subdivision Tort Claims Act does not contemplate immunity from
suit but only immunity from liability. But that is not
necessarily dispositive. My reading of Brown is that when there
are issues of federal immunity along with issues of state
immunity, we are required to take a closer look at a state's
approach to immunity. In Pennsylvania, that closer look embraces
Lancie v. Giles, 572 A.2d 827, 829 n.3 (Pa. Commw. Ct. 1990).
Lancie noted that the United States Supreme Court's emphasis on
the appealability of summary judgments denying federal qualified
immunity makes the issue of appealability of denials of state
statutory immunity more difficult when cases also involve issues
of federal immunity. The Pennsylvania Supreme Court has not
addressed this question, but in the absence of guidance from the
state supreme court, we should look to decisions from the lower
state courts. See Wisniewski v. Johns-Manville Corp., 759 F.2d
271, 273-74 (3d Cir. 1985) ("Although lower state court decisions
are not controlling on an issue on which the highest court of the
state has not spoken, federal courts must attribute significant
weight to these decisions in the absence of any indication that
the highest state court would rule otherwise."). I believe this
signal from Lancie is strong enough to tip the balance in favor
of hearing the interlocutory appeal of the denial of summary
judgment on the state law immunity claims.
I also would grant summary judgment on the state
immunity question because, as a matter of law, the individual
defendants' conduct did not rise to the level of willful
misconduct.30 Pennsylvania's Political Subdivision Tort Claims
Act denies immunity to an employee of a local agency when the
30
. The district court granted summary judgment to the city on
the state law claims because it found that the city had not
properly made itself suable beyond the categories of cases
contemplated by the Pennsylvania Political Subdivision Tort
Claims Act. The statute sets out a list of eight acts that may
result in the imposition of liability on a local agency.
Effecting arrest of individuals is not one of the enumerated
actions.
employee's action constituted "a crime, actual fraud, actual
malice or willful misconduct." 42 Pa. Cons. Stat. § 8550 (1990).
Pennsylvania courts have defined "willful misconduct" to mean
"conduct whereby the actor desired to bring about the result that
followed or at least was aware that it was substantially certain
to follow, so that such desire can be implied." King v. Breach,
540 A.2d 976, 981 (Pa. Commw. Ct. 1988) (citing Evans v.
Philadelphia Transp. Co., 212 A.2d 440 (Pa. 1965)).
Recently, in Renk v. City of Pittsburgh, 641 A.2d 289,
294 (Pa. 1994), the Pennsylvania Supreme Court rejected the City
of Pittsburgh's exclusive reliance on a jury finding in a federal
action that an officer was liable for using excessive force to
establish willful misconduct. This indicates that the
Pennsylvania Supreme Court requires a higher standard than
excessive force for finding willful misconduct sufficient to
defeat immunity under the Tort Claims Act. Furthermore, I
believe the statement in Lancie about the difficulty created by
differing state and federal standards on immunity signals that
Pennsylvania will defer to the federal standard and deny immunity
only where the actor had reason to know that his actions violated
clearly established rights.
V.
Except as otherwise noted, I join Judge Greenberg's
holdings, even though I do not agree with every detail of his
opinion.
In re: City of Philadelphia Litigation
Nos. 94-1229 through 94-1233, 94-1272, 94-1276 through 94-1280,
94-1320, 94-1321, 94-1322, 94-1377, 94-1378 and 94-1379
LEWIS, Circuit Judge, concurring and dissenting.
I join in Parts II and III of Judge Greenberg's opinion
and in Part I (Factual Background) insofar as it recounts the
undisputed facts as revealed and supported by the record. For
the reasons I discuss below, however, I do not join in Parts IV
through VII of Judge Greenberg's opinion.
I.
I begin by setting forth my agreement with Judge
Scirica that no distinction should be drawn between the decision
to drop the incendiary device and the decision to let the fire
burn. As Judge Scirica observes, both actions were undertaken to
effect the same result, namely, to enable the police to insert
tear gas into the house in order to force the MOVE occupants out.
I also agree with Judge Scirica, for the reasons stated in his
concurring and dissenting opinion, that the police effected a
Fourth Amendment seizure in this case.
Finally, I join Judge Scirica in holding that the
federal claims asserting an unconstitutional seizure in violation
of the Fourth Amendment against the City of Philadelphia survive
summary judgment and may proceed to trial. However, I do not
agree with either Judge Scirica or Judge Greenberg that Graham v.
Connor, 490 U.S. 386 (1989), provides the proper analytic
framework for assessing the constitutionality of the use of force
in this case. Instead, it is plain to me that Tennessee v.
Garner, 471 U.S. 1 (1985), provides the proper test.
II.
THE MAJORITY'S ERRONEOUS CONCLUSION
AS TO THE APPLICABLE STANDARD
Judge Greenberg concludes that the city defendants' use
of the incendiary device and ensuing fire to effect the seizure
of the MOVE occupants did not constitute deadly force. While
Judge Scirica acknowledges that deadly force may have been used
against the MOVE members, he believes that Garner is limited by
its facts and distinguishable from the confrontation here. See
Judge Scirica's concurring and dissenting opinion Typescript at 1
n.1. Thus, the majority concludes that the district court erred
in applying Garner, a case involving the use of deadly force, to
assess the constitutionality of the use of force against MOVE.
Instead, the majority holds that the district court should have
applied the reasonableness test described in Graham, a case
involving the use of non-deadly force, to test the
constitutionality of the use of force in this case. In so
holding, I believe Judge Greenberg misapprehends the nature of
the force contained in the incendiary device and the ensuing
roof-top fire, and I believe that Judge Scirica overly limits
Garner's reach.
A.
The force embodied in the incendiary device and in the
fire was, by any sensible standard, "deadly" force. It should
not escape our attention that the destructive device in question
was a bomb capable of blasting a hole in the roof of a city
building. This lethal device could and did accomplish a degree
of destruction well beyond that which even bullets fired from a
high-powered weapon could achieve. To me, this constitutes
deadly force, for I cannot imagine how anyone can conclude that a
device such as this was not capable of taking human life --
which, in fact, it ultimately did. Contrary to the conclusion
drawn by the majority, I believe the city defendants, who were
professional law enforcement and fire-fighting personnel, had
every reason to know that their actions created a substantial
risk of death or serious bodily injury to the MOVE members
residing at 6221 Osage Avenue. See Model Penal Code § 3.11(2)
(defining "deadly force" as "force which the actor uses with the
purpose of causing or which he [or she] knows to create a
substantial risk of causing death or serious bodily harm")
(emphasis supplied).
Moreover, I would conclude that the dropping of the
explosive device would have constituted the use of deadly force
even had no fire ensued as a result of this act. The intention
of the defendant officials in dropping the explosive device was
to blast the bunker from atop the roof. This intention must be
considered in light of the fact that the defendant officials had
no way of knowing whether the bunker was occupied at the time the
explosive device was deployed. The only viable conclusion, given
the bomb's purpose and the reasonable (and unexplored)
possibility that the bunker was occupied at the time the bomb was
dropped, is that in dropping the explosive device, the defendant
officials knew that they were creating a substantial risk of
causing death or serious bodily harm. Had the defendant
officials' objective to blast the bunker from the roof been
fulfilled, and had the bunker been occupied at the moment of
impact, the bunker's occupant or occupants would have been
forcibly thrown from the roof of 6221 Osage to the street below.
The substantiality of the risk of death or serious bodily injury
from such a fall is self-evident and beyond debate.
In light of reason, experience and the applicable
standard, I could not disagree more strenuously with Judge
Greenberg's conclusion that in dropping the explosive device onto
the roof of an occupied building and in letting a fire spread
upon that occupied building's roof, the city defendants did not
use deadly force. In addition, and putting aside the fact that a
fire ensued, I cannot accept Judge Greenberg's conclusion that in
dropping the device to blast the bunker off of the roof, city
officials did not know they were creating a substantial risk of
death or serious bodily harm.
B.
The majority concludes that Garner is inapplicable and
that "the appropriate inquiry is the reasonableness of the city
defendants' acts." Maj. Op. Typescript at 52. I am perplexed by
this conclusion, for in reaching its holding regarding the
constitutionality of deadly force used in the course of an
arrest, the Supreme Court in Garner applied and relied upon the
reasonableness test embodied in the Fourth Amendment. See
Garner, 471 U.S. at 7-12 ("there can be no question that
apprehension by the use of deadly force is a seizure subject to
the reasonableness requirement of the Fourth Amendment").
The majority implies that Garner and Graham are
incompatible cases. In fact, Garner and Graham are complementary
cases. As the district court noted, the Supreme Court in Garner
for the first time analyzed within the reasonableness framework
of the Fourth Amendment an excessive force claim arising in the
context of an arrest. See Africa v. City of Philadelphia, 809
F. Supp. 375, 379 (E.D. Pa. 1992) (explaining that prior to
Garner, excessive force claims were analyzed under the "shocks
the conscience" standard). In doing so, the Court squarely
addressed the very issue we confront here, namely, the
constitutionality of the use of deadly force by law enforcement
officials in the course of an arrest. In Graham, the Court
merely "ma[de] explicit what was implicit in Garner's analysis,"
by holding that "all claims that law enforcement officers have
used excessive force -- deadly or not -- in the course of an
arrest . . . should be analyzed under the Fourth Amendment and
its ``reasonableness' standard . . . ." Graham, 490 U.S. at 395
(emphasis in original). The Court then proceeded to apply the
reasonableness test to the use of non-deadly force, as it had
already done with regard to the use of deadly force in Garner.
Taken together, then, Garner and Graham establish the
following set of complementary principles: (1) the
reasonableness test under the Fourth Amendment is to be used when
assessing the constitutionality of police employment of force in
the context of an arrest; (2) when the force employed constitutes
"deadly force," the constitutionality of its use is to be
determined according to the reasonableness test set forth in
Garner, and such force is deemed unreasonable unless it is
"necessary to prevent the [suspect's] escape and the officer has
probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or
others[,]" Garner, 471 U.S. at 3; and (3) when the force employed
is non-deadly, the constitutionality of its use is to be assessed
according to the factors enumerated in Graham. Thus, while
Garner and Graham do establish a complementary set of principles,
Garner is appropriately applied to situations, such as this one,
involving the use of deadly force, whereas Graham speaks to and
controls situations involving the use of non-deadly force. They
share a focus upon the use of excessive force, but it is the
nature and degree of that excessive force which dictates their
respective applications.
Accordingly, while I agree with Judge Scirica that as a
matter of law, a reasonable jury could, under Graham, conclude
that the decision to employ the incendiary device was an
excessive use of force, because I believe that this case involves
the use of deadly force, and in light of my understanding of the
relationship between Garner and Graham, I think the proper test
for determining the constitutionality of the use of force in this
case is found in Garner, and not in Graham.31
Our disagreement as to applicable test is not without
considerable significance. As should be clear, if Graham is the
appropriate standard by which to determine the constitutionality
of the use of force here, then general reasonableness factors
would guide a jury's determination as to whether excessive force
was used. By stark contrast, Garner would not invite a jury to
be guided by the more flexible general reasonableness standard.
Garner imposes a stricter standard governing police conduct and
the use of excessive force -- and with good reason, since the
intrusiveness of deadly force is qualitatively distinct from all
other forms of excessive force. Accordingly, Garner defines and
31
. I agree with Judge Scirica that under Graham, a jury
question exists as to whether excessive force was used in this
case. However, as I have stated, I do not believe that Graham
controls this case. I believe that Garner controls, and under
Garner, it is clear to me that the deadly force used here was
excessive as a matter of law and, therefore, unlawful.
explains the reasonableness of the excessive force to which it is
addressed -- deadly force -- in narrower terms. In other words,
while the reasonableness inquiry is a common component with
regard to both standards, that inquiry is, and should be, more
precise and exacting when deadly force has been used. Thus, if
Garner were applied, a jury would be asked more pointedly to
determine whether the deadly force employed was reasonable
because it was necessary to prevent the escape of suspects
believed to pose a significant threat of death or serious
physical injury to the police or others. It is this test, and
not the more lenient Graham standard, by which the propriety of
the law enforcement officers' decisions in this case should be
gauged. And, as I have already indicated, I believe that under
Garner only one reasonable conclusion can be reached here: the
city defendants used excessive force.
III.
THE MAJORITY'S ERRONEOUS CONCLUSION
AS TO THE APPLICABILITY OF QUALIFIED IMMUNITY
The majority states that it has no difficulty
concluding that the individual defendants are entitled to
qualified immunity because they reasonably could have considered
their conduct to be lawful. Maj. Op. Typescript at 66. I
disagree. I would hold that the individual defendants are not
entitled to qualified immunity. Further, I believe that the
source of the majority's error here flows directly from its
misunderstanding and misapplication of our construction of the
term "clearly established law," in the wake of the Supreme
Court's decision in Harlow v. Fitzgerald, 457 U.S. 800 (1981),
which first articulated that standard.
As the majority correctly observes, the relevant
question here is whether a reasonable officer, possessing the
same information as did the defendants, could have believed that
the use of the incendiary device and fire to destroy the bunker
was reasonable under the Fourth Amendment, that is, "lawful, in
light of clearly established law" as of May 13, 1985. See
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Accordingly,
our task is to determine what the "clearly established law"
governing the defendants' actions was on that date. The majority
argues that there was no clearly-established law on the date in
question which would have required the officials to choose an
alternative approach to executing the warrants. Maj. Op.
Typescript at 73. In failing to grasp the breadth of the
"clearly established law" standard, and in thus failing, once
again, to recognize the applicability of Tennessee v. Garner to
the events in question, the majority has erred.
As I have already noted, in Garner, which admittedly
was decided a mere 48 days prior to the events in question,32 the
32
. While the majority's analysis does not depend upon or even
address this point, I do not believe the close temporal proximity
between the decision in Garner and the events in question to be
relevant or controlling. In a recent opinion, the Court of
Appeals for the Sixth Circuit observed that while the circuits
Supreme Court held that where an arresting officer has probable
cause to believe that the suspect poses a threat of death or
serious physical harm, either to the officer or to others, it is
(..continued)
"have struggled to decide how long after a decision state
officials have to become familiar with ``the law,' . . . no rule
has emerged." Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir.
1994). That court went on to hold that a "rule of reason" should
apply in each case with respect to official compliance with new
decisions. Id. I believe it to be not only reasonable, but
legally correct, that once the Supreme Court has announced a
decision which governs the behavior of government or society,
unless the Court states otherwise, it's holding becomes the law
of the land when the judgment is entered and is binding upon
those affected by it. We have, in effect, acknowledged this in
Good v. Dauphin County Social Services, 891 F.2d 1087, 1092 (3d
Cir. 1989) (stating that the ultimate issue in the "clearly
established law" inquiry is whether, despite the absence of a
case applying established principles to the same facts,
"reasonable officials in the defendants' position at the relevant
time could have believed, in light of what was in the decided
case law, that their conduct would be lawful") (emphasis
supplied). Moreover, and perhaps more important, as the district
court noted, the decision in Tennessee v. Garner in significant
respects mirrored, and in fact relied in part upon, section 508
of the Pennsylvania Criminal Code with respect to a peace
officer's use of force in making an arrest. See In re City of
Philadelphia Litigation, 849 F. Supp. 331, 336 (E.D. Pa. 1994).
Thus, Garner hardly represented a novel twist in the law
governing the defendants' actions: that law was already on the
books. In fact, it would appear that section 508 squarely
covered the actions taken by the defendants here. See 18 Pa.C.S.
§ 508 (providing that a peace officer is justified in using
deadly force "only when he [or she] believes that such force is
necessary to prevent death or serious bodily injury to himself or
. . . other[s] . . . or when he [or she] believes both that:
(1) such force is necessary to prevent the arrest from being
defeated by resistance or escape; and (2) the person to be
arrested has committed or attempted to commit a forcible felony
or is attempting to escape and possesses a deadly weapon, or
otherwise indicates that he [or she] will endanger human life or
inflict serious bodily injury unless arrested without delay").
not constitutionally unreasonable to prevent escape by using
deadly force. Garner, 471 U.S. at 11.
Thus, if the suspect threatens the officer
with a weapon or there is probable cause to
believe that he [or she] has committed a
crime involving the infliction or threatened
infliction of serious physical harm, deadly
force may be used if necessary to prevent
escape, and if, where feasible, some warning
has been given.
Garner, 471 U.S. at 11-12.
In concluding that Garner bears an insufficient factual
correspondence to be deemed the "clearly established law"
applicable to this case, the majority runs counter to our
traditional broad application of Harlow v. Fitzgerald's "clearly
established law" standard. See, e.g., People of Three Mile
Island v. Nuclear Reg. Com'rs, 747 F.2d 139, 144-45 (3d Cir.
1984); Stoneking v. Bradford Area School District, 882 F.2d 720,
726 (3d Cir. 1989). Although we have recognized that we cannot
expect executive officials to anticipate the evolution of
constitutional law, we do demand that they apply general,
well-developed legal principles in analogous factual settings,
i.e., in settings bearing some, but not necessarily precise,
factual correlation to the applicable precedent. See People of
Three Mile Island, 747 F.2d at 144.
Yet the situation we face here is identical to the
situation the Supreme Court confronted in Garner: a case of
police use of deadly force in carrying out a seizure of a person
or persons actively resisting arrest. Even in their particulars,
Garner and our case are compellingly analogous. Obviously, this
case involves the use of deadly force against a group of armed
and dangerous adults barricaded inside a house, while Garner
involved the use of deadly force against an unarmed teenager who
was running from the police. However, it bears emphasizing that
in our case several hours had elapsed between the cessation of
gunfire from within the MOVE dwelling and the dropping of the
incendiary device by the police. Like Garner, the police simply
were not facing a "shoot or be shot" (or a "drop bomb or be
shot") situation at the moment the bomb was dropped. Indeed,
this case is easier than Garner. In Garner, the Court determined
that seizure by deadly force of a fleeing suspect was not worth
the costs: it was better to let the suspect escape. Garner, 471
U.S. at 11. In our case, the suspects were not even fleeing. At
the time the destructive device was deployed, the MOVE contingent
(including several children) was not only barricaded inside a
house, but was also surrounded and greatly outnumbered by
well-equipped law enforcement personnel. Thus, unlike Garner,
escape here was not even a reasonable or realistic possibility.
As the Court in Garner recognized, "[i]f subsequent arrest [is]
assured, no one would argue the use of deadly force was
justified." Garner, 471 U.S. at 9 n.8.
Based upon these considerations, I would hold that
reasonable officials in the defendants' position at the relevant
time could not have believed, in light of Garner, that their
conduct would be lawful.
Even where the officials in question should have been
aware of the "clearly established" governing law, we have
explained that executive officials are still entitled to
qualified immunity "if based on the information available to them
they could have believed their conduct would be consistent" with
that clearly established law. See Good, 891 F.2d at 1092.
However, I believe it would have been readily apparent to any
reasonable official who possessed the same information as did the
individual defendants on May 13, 1985, that at the time the
explosive device was dropped, deadly force was not necessary to
prevent the escape of the occupants of 6221 Osage Avenue.
Support for the counter-argument, so far as I can
gather, is summed up by the majority in the following factors:
(1) nightfall would render securing the neighborhood too
difficult; (2) fatigue was setting in among the police personnel
who had been on duty since the night before; and (3) certain
members of the police appear to have believed that tunnels had
been dug from the basement of the MOVE house. See Maj. Op.
Typescript at 13. With respect to the nightfall factor, the
entire block, including 6221 Osage Avenue, could have been
illuminated artificially as are highway projects regularly. One
can counter that these lights could then have been shot out by
MOVE members. But I think a modicum of police ingenuity could
have seen to it that the lights were placed at angles rendering
them unsusceptible to gunfire. With respect to police fatigue,
this, one presumes, could reasonably have been counteracted by
the replacement of tired officers with fresh personnel.
And finally, with regard to the rumored tunnels,
support in the record for a reasonable belief in the existence of
escape tunnels is flimsy at best. The majority suggests that the
defendants believed that MOVE members might have eluded capture
through escape tunnels rumored to have been dug under the
neighborhood. I would agree that had the defendants reasonably
believed that MOVE had constructed escape tunnels underneath the
neighborhood, the dropping of an explosive device might
reasonably have been perceived as necessary to prevent the escape
of the MOVE members under cover of the coming night. However,
the record as I read it does not support the view that the
defendants actually believed that MOVE had constructed escape
tunnels under the neighborhood; at most, it merely suggests a
belief, based upon a statement that fifteen bushels of dirt had
been deposited by MOVE members on a curb for disposal, that the
MOVE members might have dug a tunnel to a neighboring house.
First of all, digging an escape tunnel to a neighboring house is
different from digging an escape tunnel "under the neighborhood"
to some unknown outlet. But more importantly, even if the record
supported the existence of such a belief, I would have no
difficulty in concluding that it was unreasonable, indeed,
far-fetched, in light of the evidence before us. It is fantasy
to believe that fifteen bushels of dirt, even to a neighboring
house, an escape tunnel makes.
Thus, I would hold that the individual defendants are
not entitled to qualified immunity even when the factual
information available to them on May 13, 1985, is taken into
consideration.
IV.
Since I would hold that none of the individual
defendants are entitled to qualified immunity in relation to the
section 1983 claims against them, I would reverse the grant of
summary judgment in favor of Goode, Powell and Klein as to the
state law claims against these defendants.
V.
Judge Greenberg observes that in reaching my conclusion
that the individual defendants used excessive force, I offer "no
explanation of what alternatives were available," and am
"[a]pparently . . . willing to have mandated an indefinite
standoff." See Maj. Op. Typescript at 61 n.23. This is in part
true and largely irrelevant. It is certainly true that I am
willing to "mandate" that which is reasonable and lawful. An
"indefinite standoff," among other options, qualifies. But it is
not our primary purpose here to provide alternatives to unlawful
police action. Instead, we are to evaluate the lawfulness of
what did occur on May 13, 1985. We should only countenance the
lawful resolution of that unfortunate incident. Thus, the larger
point here is that Judge Greenberg, and to a lesser extent, Judge
Scirica and I simply disagree, based upon our understanding of
the record and the law, as to whether the dropping of the
incendiary device was lawful.
In concluding that the defendant officials in this case
used excessive force, I do not mean to imply that situations law
enforcement officers confront daily are not fraught with
difficulty and do not frequently require split-second decisions
involving matters of life and death. To the contrary, law
enforcement officers are forced to digest a steady diet of some
of the most impossible choices under some of the most pressing
circumstances and unforgiving conditions. We should, of course,
be concerned for and sensitive to their fundamental mission,
which is to ensure the protection and preservation of society.
But this, too, must be said: it is hardly debatable in
a civilized constitutional democracy that in the final analysis,
the goal of the enforcement of law, and thus, the maintenance of
public order, is not promoted through the use of deadly force in
effecting seizures. As the Supreme Court has observed, the use
of deadly force, in fact, frustrates the interest in enforcement
of law through fair and objective judicial determination of guilt
and punishment. Garner, 471 U.S. at 9. It is partly because the
use of deadly force "is a self-defeating way of apprehending a
suspect and so setting the criminal justice mechanism in motion"
that the Constitution, as interpreted by the Supreme Court, so
narrowly circumscribes its use. See Garner, 471 U.S. at 10.
The majority in Part VII states that "courts must
recognize that in certain instances the civil authorities are
required to take strong steps to enforce the law and maintain
public order[,]" and that "[t]he Constitution does not preclude
these steps." Maj. Op. Typescript at 75. The danger inherent in
this statement, which the majority appears to adopt as a precept
of constitutional jurisprudence, lies in its breadth. I am
deeply troubled by the necessary implication of the majority's
statement, which is that the Constitution does not preclude that
which is perceived as necessary or expedient to enforce the law
and maintain public order. I hold a different view. I believe
it to be beyond dispute that the Constitution precludes many acts
which might, even reasonably, be deemed "necessary" for the
enforcement of law and the maintenance of public order. In
determining what it does and does not preclude, we cannot engraft
upon the Constitution our own predilections as to what that
document, as a matter of perceived social necessity, ought or
ought not permit law enforcement officials to do in the name of
law and order.
CONCLUSION
For the above reasons, I respectfully concur and
dissent.