Africa v. City of Philadelphia

• Decision Date: 08 December 1992
• Docket Number: Master File No. 85-2745. No. 87-2678.
• Citation: 809 F. Supp. 375
• Parties: Ramona AFRICA v. The CITY OF PHILADELPHIA, W. Wilson Goode, Leo Brooks, Gregore Sambor, William Richmond, Lt. Frank Powell, Officer William Klein, Officer Michael Tursi, Sgt. Albert Revel, Sgt. Edward Connor, Edward G. Rendell, Corporal Morris Demsko, State Trooper Richard Reed.
• Court: U.S. District Court — Eastern District of Pennsylvania

809 F. Supp. 375

Ramona AFRICA v. The CITY OF PHILADELPHIA, W. Wilson Goode, Leo Brooks, Gregore Sambor, William Richmond, Lt. Frank Powell, Officer William Klein, Officer Michael Tursi, Sgt. Albert Revel, Sgt. Edward Connor, Edward G. Rendell, Corporal Morris Demsko, State Trooper Richard Reed.

Master File No. 85-2745. No. 87-2678.

United States District Court, E.D. Pennsylvania.

December 8, 1992.

Andre Dennis, Stradley, Ronon, Stevens, & Young, Philadelphia, PA, for Ramona Africa.

John D.J. Shellenberger, Philadelphia, PA, John G. Knorr, Chief Deputy Attys. Gen., Com. of Pennsylvania, Harrisburg, PA, for Richard Reed and Morris Demsko.

Nolan N. Atkinson, Jr., Frank E. Noyes, II, Duane, Morris & Heckscher, Philadelphia, PA, for W. Wilson Goode.

John W. Morris, Philadelphia, PA, for Gregore Sambor.

Steven R. Waxman, Leslie M. Gerstein, Fox, Rothschild, O'Brien & Frankel, Philadelphia, PA, for Leo Brooks.

Richard D. Malmed, Philadelphia, PA, for Frank Powell.

Peter C. Kennedy, Hecker Brown, Sherry & Johnson, Philadelphia, PA, for William Richmond.

Carl Oxholm, Philadelphia, PA, for William Klein.

Arlene F. Bell, Chief Deputy City Sol., Philadelphia, PA, for City defendants.

OPINION

LOUIS H. POLLAK, District Judge.

On March 26, 1992, Magistrate Judge Hall issued a Report and Recommendation recommending denial of motions for summary judgment on qualified immunity grounds filed by defendants W. Wilson Goode, Leo Brooks, Gregore Sambor, William Richmond, Frank Powell, William Klein, Morris Demsko, and Richard Reed.¹ The Report and Recommendation concluded that a determination of the "objective reasonableness" of these defendants' conduct was laden with genuine issues of material fact. Each of these defendants has filed objections to the recommended denial of summary judgment. For the reasons that follow, I am not at this time persuaded that summary judgment should be denied and instead think the matter should be remanded to Magistrate Judge Hall for further consideration in light of the views expressed in this Memorandum.

I Factual and Procedural History

This civil rights action, brought by MOVE member Ramona Africa pursuant to §§ 1983 and 1985, arises out of events that occurred on May 13, 1985, when police officers attempted to execute search and arrest warrants for plaintiff and other members of MOVE who resided at 6221 Osage Avenue in West Philadelphia. At the summary judgment stage, the court must take as true all evidence proffered by the nonmovant and make all justifiable inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Accordingly, for purposes of these summary judgment motions, the facts are as follows.

The warrants were issued pursuant to a judicial finding of probable cause that MOVE members had engaged in acts of harassment, disorderly conduct, and riot, made various terroristic threats, and were in possession of explosive or incendiary devices. The probable cause affidavit contained reports from neighbors that MOVE members had announced over a loudspeaker that they had wired the block around their residence with explosives and would blow it up if neighbors spoke with police or if the police took any action against MOVE. Similarly, a neighborhood resident was reported to have heard MOVE members state over their loudspeaker that if anyone in the neighborhood spoke with police "we will get you. We have guns, too." Affidavit of Probable Cause at 5.

After District Attorney Rendell² notified Mayor Goode that there was probable cause to search the MOVE residence and arrest its inhabitants, Mayor Goode told Police Commissioner Sambor to prepare a plan to enter the residence and execute the warrants. The initial scheme called for the use of water hoses directed at a bunker on the roof of the house and the drilling of holes in the walls of adjoining houses through which tear gas would be injected.

On May 13, 1985, Police Commissioner Sambor put this plan into operation. The MOVE members resisted, and gunfire was exchanged between the police and the MOVE members. After the original tear gas scheme was tried and failed, resort was had to another scheme — one in which an explosive device would be used to dislodge the bunker from the roof of the MOVE residence so that tear gas could be introduced through a hole in the roof. Pursuant to this plan, Pennsylvania State Troopers Morris Demsko and Richard Reed transported Philadelphia Police Lt. Frank Powell and a bomb — made of "Tovex", an industrial explosive, and "C-4," a military explosive — in a helicopter to the MOVE residence, and the bomb was dropped on the bunker from the helicopter. A fire ensued, which was allowed to burn in hopes of destroying the bunker.³ The fire spread out of control, destroying the MOVE residence and killing five of the six children and six of the seven MOVE adults who were inside the house. Plaintiff, who suffered burns, was the only adult to survive. The fire also destroyed sixty-one other houses and damaged many others.

Following these events, Mayor Goode set up a Special Investigation Committee to probe the occurrences of that day. Property owners brought actions against the instant defendants, claiming a variety of injuries from the destruction of their property. Other actions were brought on behalf of Louise James, the owner of the MOVE house, and by the estates of the MOVE adults and children who passed away in the fire. Subsequently, I consolidated these actions.⁴

On May 7, 1987, Ms. Africa filed this action, claiming that defendants had deprived her of various constitutional rights. After more than four years of discovery, the City and State defendants each filed a motion for summary judgment, contending that the principle of qualified immunity precluded their liability for money damages. Plaintiff responded that defendants were not entitled to qualified immunity as a matter of law, or, alternatively, that material issues of fact precluded resolution of the qualified immunity questions prior to trial.

II Magistrate Judge Hall's Recommendations

In his Report and Recommendation, Magistrate Judge Hall decided that the defendants involved either in the plan to drop the bomb on the MOVE residence or in the decision to let the bunker burn should not be granted qualified immunity at the summary judgment stage.⁵ On his view, the qualified immunity question was inextricably intertwined with the unresolved merits of plaintiff's excessive force claim, since each turned on the same question — whether, under the totality of the circumstances, the use of force in question was "objectively reasonable." Applying this unitary standard of objective reasonableness, Magistrate Judge Hall found that there was sufficient record evidence to support a jury finding that the use of the bomb constituted excessive force and that each of the remaining defendants, with the exception of Fire Commissioner William Richmond, was involved in the plan to drop the bomb. Similarly, Magistrate Judge Hall determined that a juror could conclude that allowing the fire to continue to burn to facilitate the arrest of the MOVE occupants was objectively unreasonable, and that the decision had been made or approved by defendants Sambor, Richmond, Brooks, and Goode. Accordingly, Magistrate Judge Hall recommended that a decision on whether the movants had qualified immunity for the harm caused by the dropping of the bomb and ensuing fire should await trial.

III Legal Analysis

Defendants bear the burden of showing that they are entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982); Stoneking v. Bradford Area School Dist., 882 F.2d 720, 726 (3d Cir. 1989), cert. denied sub nom Smith v. Stoneking, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1991); Ryan v. Burlington County, 860 F.2d 1199, 1204 n. 9 (3d Cir. 1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989). "Whether an official may prevail in his qualified immunity defense depends upon the `objective reasonableness of his conduct as measured by reference to clearly established law'." Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Therefore, in deciding whether to grant summary judgment based on qualified immunity, a court must address the state of the law at the time of the incident and determine whether the officer acted reasonably in light of the "clearly established" law and the information he possessed at that time.

A. The Status of the Law of Excessive Force on May 13, 1985

In order to defeat defendants' qualified immunity, plaintiff must establish that the constitutional right which she alleges (the right not to be subjected to excessive force in the course of an arrest) was sufficiently well established at the time of the MOVE incident such that a reasonable official engaging in the conduct for which plaintiff seeks damages would have understood that his actions violated plaintiff's constitutional rights. See Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39; Good v. Dauphin County Social Services, 891 F.2d 1087, 1092 (3d Cir.1989).⁶ Defendants make much of the fact that Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) — the opinion from which Magistrate Judge Hall drew the contours of the constitutional right to be free from excessive uses of physical force during an arrest — was not decided until four years after the events in question. Be that as it may, defendants cannot deny that even before Graham the "contours of the rights" relied upon by plaintiff were sufficiently clear that the defendants "should have known what the Constitution required of them." Good, 891 F.2d at 1092.

As early as 1972, the Third Circuit noted...