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December 8, 1992


The opinion of the court was delivered by: LOUIS H. POLLAK

 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. *fn1" 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.


 Factual and Procedural History

 This civil rights action, brought by MOVE member Ramona Africa pursuant to ยงยง 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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (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.

 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. *fn3" 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. *fn4"

 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.


 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. *fn5" 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, ...

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