The opinion of the court was delivered by: WILLIAM F. HALL, JR.
REPORT AND RECOMMENDATION
UNITED STATES MAGISTRATE JUDGE
This is an action for damages brought by Ramona Africa, a MOVE member, pursuant to § 1983 and § 1985(3) of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(3). She has also raised claims based on state law and directed to our pendent jurisdiction. The main part of the plaintiff's suit is a claim of excessive force in the execution of search and seizure warrants, based on the action of the Philadelphia police and other City and state government officials on May 13, 1985. The plaintiff claims that this alleged constitutional tort not only caused her to suffer burns of her body, but also that the defendants' action that day deprived her of the freedom of religion and association guaranteed by the First Amendment of the federal constitution. The plaintiff further claims that the defendants' actions constituted a conspiracy to deprive her of her constitutional rights in violation of 42 U.S.C. § 1985(3). For the wrongs alleged, she seeks compensatory and punitive damages.
I. EXCESSIVE FORCE CLAIMS
A. The Act of Dropping the Bomb on the MOVE Residence.
On March 26, 1992 I filed a Report and Recommendation in which I recommended the 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. In the same Report and Recommendation it was recommended that the motions for summary judgment filed by defendants Michael Tursi, Albert Revel and Edward Connor should be granted on qualified immunity grounds. On August 18, 1992, the Honorable Louis H. Pollak entered an order approving and adopting the Recommendation pertaining to the latter defendants.
The remaining defendants filed timely objections to the Report and Recommendation; and on December 8, 1992, Judge Pollak issued a memorandum which in effect rejected the Recommendation and remanded the matter for further consideration.
The basis for my recommended denial of the defendants' motions for summary judgment was summarized by Judge Pollak in his memorandum as follows:
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. 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.
Memorandum, Pollak, J. at 5-6.
Based on his extensive analysis of the law governing qualified immunity determinations, Judge Pollak was not persuaded that summary judgment should be denied. Instead, he thought that the matter should be remanded to me for further consideration in light of the views expressed in his Memorandum. Id. at 2. The standard that Judge Pollak determined should have been applied was summarized in his Memorandum as follows:
The 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. See Good, 891 F.2d at 1092, 1094-95. If the answer to that question with respect to any of the defendants is in the affirmative, then summary judgment should be granted in his favor; by contrast, for those defendants to whom the answer is in the negative, summary judgment on qualified immunity grounds should be denied (though it may be raised anew once facts are further developed and explored at trial).
Accordingly, I will remand this case to Magistrate Hall so that he can apply the new standard discussed above, indicating on which parts of the record he is relying for plaintiff's version of the facts.
Id. at 17-18. (emphasis as in original) (footnotes omitted).
In my Report and Recommendation, as Judge Pollak noted, I viewed the dropping of the bomb and the decision to let the fire burn to be the critical conduct that precluded the grant of summary judgment on qualified immunity grounds for all of the defendants except Connor, Revel and Tursi. In reviewing the validity of the defendants' claim of immunity, I did not consider either the reports of the federal and state grand juries or the Report of the MOVE Special Investigation Commission. The City defendants objected to the Report and Recommendation based, in part, on their belief that it contained factual determinations which had no support in the record but were instead, derived from the MOVE Commission Report.
Objections of Defendants' City of Philadelphia, W. Wilson Goode, Leo Brooks, Gregore Sambor, William Richmond, Frank Powell to the Report and Recommendation at 3-4 (hereinafter, "City Defendants' objections").
Among those allegedly unsupported facts in pages 13 through 15 of the Report and Recommendation were the following assertions:
Implementation of Plan B began with the police creating a bomb consisting of "Tovex", an industrial explosive, and "C-4", a military explosive.
Report and Recommendation at 13. This statement was described as being specifically contradicted by the record. City Defendants' Objections at 3-4. The record, however, refutes that claim because in its pleadings, the City defendants admitted that the bomb consisted of "tovex" and "C-4."
As set forth in the Report and Recommendation, many lawsuits, separate from the present one, were filed in this court following the events of May 13, 1985. The defendants filed answers and other pleadings. In their answers they raised affirmative defenses including that of qualified immunity. Those lawsuits were consolidated by Judge Pollak under Civil Action No. 85-2745. The City defendants then joined Ms. Africa as an additional defendant. Her motion to dismiss the third party complaint was denied.
On May 7, 1987, Ms. Africa filed this action, and on May 27, 1987, it was added to the consolidated Civil Action No. 85-2745 (Document No. 3). However, the City defendants did not file an answer to Ms. Africa's action until December 10, 1991 (Document No. 16). In their answers, the defendants asserted affirmative defenses which included qualified immunity. In response, the plaintiff moved to strike the affirmative defenses on the grounds that the defendants' answer was not timely filed. (Civil Action No. 85-2745, Document No. 646). The defendants then filed a response in opposition to the plaintiff's motion to strike (which was ultimately denied) averring, inter alia, that:
All pending cases arising out of the May 13, 1985 MOVE incident in the federal court system have been consolidated under the Master File No. 85-2745.
As the attached pleadings clearly indicate, plaintiff was fully aware of all affirmative defenses, even prior to filing the subject law suit (emphasis as in the original).
City Defendants' Response to Plaintiff's Reply in Support of its Motion to Strike Defendants' Affirmative Defense (sic) at 3.
The City defendants attached to its response Exhibits "B" through "K" and averred that "[the attached Exhibits] indicate that both the plaintiff and her counsel received pleadings which made them well aware of all [of] the City Defendants' affirmative defenses." Id. "Exhibit G" is the Answer of Defendants Powell, Klein, Tursi, and Revel in Daniel Gaddie, et al. v. Frank Powell, et al., Civil Action No. 85-6531 dated January 20, 1986. In the following paragraphs of the answer, details of the bomb were given:
7. Denied as stated. It is admitted that defendant Powell was the commanding officer of the Bomb Disposal Unit and that he did drop a satchel charge unto the roof of 6221 Osage Avenue on May 13, 1985. Otherwise denied.
30. Admitted in part; denied in part. Defendant Klein admits that the satchel charge contained both Tovex and C-4. Otherwise, denied. (Emphasis added).
Id., Exhibit G. Exhibit I is the answer of defendants, Goode, Brooks, Tate, White, Sambor, Richmond, Powell, Klein, Tursi, Revel, and the City of Philadelphia in Cassandra Carter, et al. v. City of Philadelphia, Civil Action No. 85-6558. In the answer, the defendants provided further details about the bomb as follows:
95. Denied as stated. It is admitted that defendant Powell did drop a satchel charge onto the roof of the MOVE house from a helicopter owned by the Commonwealth of Pennsylvania and piloted by defendants Reed and Demsko; that this occurred at approximately 5:30 p.m. on May 13, 1985; and that defendant Klein did construct the charge with Tovex and C-4. Otherwise, all allegations set forth in this paragraph are denied. (Emphasis added).
Id., Exhibit I. It is noteworthy that in paragraph 96 of the defendants' answer in Exhibit I, the defendants admitted that "the office of the Fire Marshal [had] issued a report concluding that the fire was caused by the mechanical ignition of combustible liquid vapor, occurring as a result of detonation."
Evidence that the bomb consisted of Tovex and C-4 is also found in the deposition of defendant Klein on July 10, 1991.
Q. Now, you also testified that Sambor and Brooks believed they wanted to know what two pounds of plastique would do?
A. Yes, I believe it was Brooks wanted to know it.
Q. So. Brooks wanted to know what two pounds of plastique would do. You felt like, in talking about plastique, he was talking about C-4?
Q. Now, when you made the bomb, you had two pounds of Tovex and one and-a-quarter pounds of C-4?
Q. Well, if the discussion was about two pounds of explosive, how did it go to three and-a-quarter pounds?
A. Let's go back a little tiny bit. He [Brooks] asked what would two pounds of plastique do. I told him C-4 comes in pound and-a-quarter. It was my impression we were going to use two-and-a-half pounds of C-4 in the bomb. When I went back into the box, all I could find was the C-4 that I had. I had to add Tovex to it because I couldn't find anything else. That's how Tovex got into it.
Q. Rather than adding one and-a-quarter pound of C-4, you added Tovex to the one and-a-quarter pound?
A. Yes. Tovex, I've never even heard of before the year before -- I knew about it for about a year. All my career, I never even heard of Tovex until probably 1984.
Q. So, it was something relatively --
A. I didn't know, you know, I didn't use it whole lot. If I used it a couple times, it was a lot. I just didn't know what it done, or what it was really -- my impression it was used for mining, Tovex.
Q. So, you were prepared to use two pounds of something you weren't even --
A. Two and-a-half. I know it was C-4.
Q. I'm talking about two pounds of Tovex?
Q. And you didn't really know what --
A. No. I felt it was less powerful than C-4. How much less powerful, I didn't know.
Q. Less powerful in conjunction with one and-a-quarter pounds of C-4?
Q. When you had this discussion with Managing Director Brooks, was Lieutenant Powell present also?
Q. Is it your understanding he heard this conversation as well?
Deposition of Defendant Klein at 66-67.
The depositions of Lieutenant Powell and Officer Klein differ somewhat as to who actually manufactured or constructed the bomb as distinguished from the question of who created or designed it. Officer Klein stated that although it was his impression that the bomb was to consist of two and one-half pounds of C-4, he discovered that he had only one and one quarter pounds of C-4 and that he had to add Tovex to it because he could not find anything else. Deposition of Officer Klein, July 10, 1991 at 67. Lieutenant Powell, on the other hand, testified that he told Commissioner Sambor that instead of putting shrapnel in the bomb, an ingredient he said Sambor had suggested, he put Tovex in the bomb because they had plenty of Tovex. Deposition of Powell, July 10, 1991, at 26. In any event, there can be no dispute that a bomb consisting of military
and commercial explosives, i.e., C-4 and Tovex, was dropped on the roof of the MOVE residence by Lieutenant Powell.
It is fair to conclude, therefore, that when the police resorted to the use of the bomb after having failed to penetrate the MOVE house through the adjoining house in order to infiltrate it with tear gas, they had introduced an increased and unconventional level of violent force. It may also be fairly said that one of the undeniable characteristics of that tactic is that it applied to the roof of an urban rowhouse
explosive components of industrial and military strength.
After the bomb was dropped, a fire started. There is evidence in the record that the fire was caused by the detonation of the bomb. See supra at 8. Moreover, there is evidence that once started, the fire was allowed to burn out of control on the orders of either Police Commissioner Sambor or Fire Commissioner Richmond.
In that regard, Commissioner Sambor testified as follows before the MOVE Special Investigation Commission:
Q. Let me ask you this. At five of 6:00 that evening did you tell the Fire Commissioner to let the bunker burn?
A. I did not order the Fire Commissioner to do anything. I requested of him that if we let the roof burn to get the bunker could we then subsequent to that control the fire.
Q. If we consider the word "tells" as something other than order is it accurate?
A. Yes, sir. It was a recommendation and a request. 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 firefighter. 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.
Q. Do you know whether by that hour, which is actually 6:27 in the evening, whether or not there had been any order to put the fire out?
A. Yes, sir. To the best of my recollection, the Managing Director sometime prior to that and sometime prior, subsequent to our discussion, whether it was five minutes, ten minutes, I don't recall.
Q. After that order was given to put the fire out and turn the water on, did you convey that order to anyone else?
A. The Fire Commissioner was still there.
Q. And once that order was given, was it carried out?
A. There was water turned on, sir, and it was also turned off again, and turned on again and turned off again, because of conditions at the scene. I did not pay specific attention to the duration or the frequency.
Q. Who made the decision to turn off the water once it had ...