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IN RE CITY OF PHILADELPHIA LITIG.

January 25, 1994

In Re City of Philadelphia Litigation; RAMONA AFRICA
v.
CITY OF PHILADELPHIA, et al.


Pollak


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

POLLAK, J.

 What we have for consideration today are three cases growing out of the tragic events of May 13, 1985 in which, unhappily, as too many people in this city will recall, in an effort to arrest certain members of the MOVE organization, an explosive device was dropped on the MOVE residence at 6221 Osage Avenue. A fire ensued, and of the thirteen persons inside the MOVE dwelling on that late spring afternoon, only two, one child and one adult, survived. In addition to the destruction of that residence and eleven of the thirteen people within, there was a conflagration which consumed in substantial measure large numbers of adjacent homes.

 Much litigation has ensued. The bulk of it was consolidated in this court under the master caption Number 85-2745. That was a repository for the papers and numerous lawsuits, some of them brought by or on behalf of those at 6221 Osage Avenue, the bulk of them brought by or on behalf of adjacent property owners, against a large array of official defendants charged in one manner or another with violating federal and state legal norms. The large bulk of these cases have been settled. The three which are to be addressed today have not been settled. They all grow directly out of the events at 6221 Osage Avenue. The three cases in the order of their filing are Louise James v. The City of Philadelphia, et al., Civil Action No. 85-3528, Ramona Africa v. The City of Philadelphia. et al., Civil Action No. 87-2678, and Alfonso Leaphart v. The City of Philadelphia, et al., Civil Action No. 87-2756.

 In the James case, the plaintiff Louise James is suing on behalf of her son Frank James, also known as Frank Africa, who perished in the conflagration at 6221 Osage, and she is also suing in her capacity as owner of 6221 Osage. Alfonso Leaphart sues on behalf of another person who died in the blaze, Vincent Leaphart, also known as John Africa. Ramona Africa, who is present here in this courtroom, is the one adult who survived the blaze. She sues the City of Philadelphia and many individual defendants. We will first consider Ms. Africa's case.

 We consider her case, as we will in due course consider the cases of Ms. James and Mr. Leaphart, on the basis of the report and recommendation filed by my very distinguished former colleague Magistrate Judge William F. Hall, Jr. in October of 1993. I say, with regret, "former colleague" because as of December 31, 1993, Judge Hall's remarkable tenure as one of the important figures in the administration of justice in this district came to an end as he retired from office. Judge Hall has for many years contributed greatly to the vindication of the highest principles of the law, and his management of this extraordinary litigation, which has been consolidated under his supervision for these past many years, has been exemplary -- but exemplary in the style of a judge who knows only excellence.

 Those sued by Ms. Africa, in addition to the City of Philadelphia, numbered among them former Mayor Wilson Goode, former Managing Director Leo Brooks, former Police Commissioner Gregore Sambor, former Fire Commissioner William Richmond, former District Attorney Edward Rendell, Police Lieutenant Frank Powell, Officers William Klein, Michael Tursi, and Sergeants Albert Revel and Edward Connor of the Philadelphia Police Force, and finally Corporal Morris Demsko and State Trooper Richard Reed of the Pennsylvania State Police.

 The principal, though to be sure not the only, issues tendered by the motions for summary judgment were claims that the various defendants were protected from suit by doctrines of qualified immunity. In general, the doctrine of immunity provides that officials should be insulated from suits for torts arising out of their official activity and with which they are charged, provided that the allegedly tortious conduct is conduct which they could have reasonably supposed to have been lawful at the time committed. The purpose of doctrines of immunity, both absolute -- and in one instance, one of the defendants asserted absolute immunity -- and qualified immunity, the purpose of these doctrines is to make sure that public officials are able to carry out their duties without looking over their shoulder at every moment in fear that litigation may ensue from one or another action taken, purposefully and forcefully, to carry out their duties.

 On March 3, 1992, Judge Hall issued a report and recommendation concluding that former District Attorney Rendell, who was charged by Ms. Africa with having authorized search and arrest warrants of MOVE members without probable cause, was immune from suit on that complaint. It was Judge Hall's view that making such a decision as to the appropriateness of the warrants was exactly within the scope of District Attorney Rendell's official functions and that he was cloaked with immunity in making such decisions. On December 8, 1992, I sustained Judge Hall's report and recommendation with respect to former District Attorney Rendell and entered an order dismissing him from this lawsuit, granting summary judgment in his favor. I did not adopt exactly the same rationale as that propounded by Judge Hall. I concluded that Mr. Rendell was entitled to qualified, not absolute, immunity in a context in which, so it seemed to me, he did have probable cause to issue the warrants in question.

 On March 26, 1992, Judge Hall filed a report and recommendation which dealt with the claims of immunity of all of the other individual defendants and also the claim of the City of Philadelphia that it was exempt from suit. Judge Hall concluded that no immunity was owing to any of the defendants, with the exception of Officer Tursi and Sergeants Revel and Connor. Judge Hall reasoned that the responsibilities of those officers had to do with an attempt, which was abandoned, to drill holes into the walls adjacent to 6221 Osage with a view to injecting tear gas into 6221 in that fashion. When that tactic was unavailing, the decisions were taken at higher levels to proceed in the alternate fashion leading to the dropping of an explosive device to which I have referred. But since Officer Tursi and Sergeants Revel and Connor were not involved in those further decisions, Judge Hall concluded that they should be dropped from the case, and I approved their dismissal on August 18, 1992. However, Judge Hall concluded as to the other defendants who were implicated, except for Fire Commissioner Richmond, in the development and execution of the plan to drop a bomb on 6221 Osage, that that was a decision that could not have reasonably been thought to be an appropriate law enforcement measure.

 Just over a year ago, on December 8, 1992, I remanded this case to Judge Hall to reconsider it. I concluded that it was necessary to examine the case in the light of federal constitutional law as it stood on May 13, 1985, the day that the events sued on took place. In that connection, I pointed out that the United States Supreme Court, in the case of Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694, which was decided in March of 1985, just two months before the events at 6221 Osage, had formulated a rule of constitutional law construing the requirements of the Fourth Amendment as they applied to situations in which law enforcement officers were undertaking to deal with the flight of persons suspected of serious felonious conduct. The Supreme Court in Tennessee v. Garner had formulated a rule which for Pennsylvania peace officers could properly be regarded as effectively adopting the then prevailing provisions of Section 508 of the Pennsylvania Criminal Code.

 What the Supreme Court said in Tennessee v. Garner was the following:

 
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
 
It is not, however, unconstitutional on its face. Where 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. Thus, 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.

 471 U.S. at 11-12.

 I refer to Section 508 of the Pennsylvania Criminal Code. I do so because the Supreme Court in a footnote to its opinion in Tennessee v. Garner -- an opinion by Justice White, recently retired -- cited a number of state statutes embodying in a variety of verbal forms a rule approximating that adopted by the Supreme Court itself in Tennessee v. Garner. The Pennsylvania legislature had provided in Section 508 with respect to a peace officer's use of force in making an arrest -- and here I quote only 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 he believes to be necessary to defend himself or another from 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:
 
(1) 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.C.S. § 508.

 In remanding this case to Judge Hall in the light of the principles I have referred to, I said, "Therefore, 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." And I referred to a Third Circuit case [ Good v. Dauphin County Social Services, 891 F.2d 1087, 1092, 1094-95 (3d Cir. 1989)]. I went on, "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)."

 Against that background, Judge Hall considered the case anew, and on October 6, 1993, he issued a new report and recommendation. In his new report, Judge Hall concluded that the dropping of the bomb could, notwithstanding the events that ensued, have been thought, at the time of the decision to drop the bomb, to have been a reasonable device for accomplishing the purposes which the police officers were responsible for accomplishing. "I conclude," said Judge Hall, "that 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 threats 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 508 and Garner. "

 In that connection, Judge Hall had before him a great deal of testimony about the course of planning which led to the decision to drop a bomb. There was, as I have indicated, an initial plan to attempt to gain access to 6221 Osage Avenue by breaching the walls and thereby introducing tear gas with a view to bringing those in the house outside. That plan turned out not to be feasible, and then there was developed the plan which Police Commissioner Sambor adopted -- and got the agreement of Managing Director Brooks, who in turn got the agreement of the Mayor -- to try the dropping of an explosive device with a view to (1) removing a bunker that had been built on the top of the house and which the fire department had been unsuccessful in removing by squirting very forceful streams of water on it during the day, and also (2) making a hole in the roof through which tear gas could be introduced. It was in that context that Judge Hall reached the legal conclusion that I have quoted.

 In Judge Hall's analysis, he went on to consider what he found to be "a different matter," that is to say the decision, once the bomb had been dropped and fire ensued a number of minutes later, to let the fire continue to burn. It was Judge Hall's conclusion that to permit the fire to burn after the bunker on top of the house had been essentially neutralized could no longer be regarded as in any sense a reasonable law enforcement purpose under the standards of Tennessee v. Garner and Pennsylvania Criminal Code Section 508. It was Judge Hall's conclusion that the decision to let the fire continue to burn was one made jointly by Police Commissioner Sambor and Fire Commissioner Richmond. It was Judge Hall's conclusion that there was no evidence that Managing Director Brooks acquiesced in this decision and no evidence that the Mayor acquiesced. Indeed, the decision to fight the fire was made by directive of Managing Director Brooks to Police Commissioner Sambor who in turn relayed that either to the Deputy Fire Commissioner or the Fire Commissioner himself. And Managing Director Brooks heard almost simultaneously from the Mayor and relayed to the Commissioners the Mayor's determination that the fire must not be permitted to go unfought, that it was time for the fire to be addressed directly. Unhappily, as we know, the efforts to fight the fire, once those efforts got underway, were unavailing for a very long time. And enormous devastation ensued, not only at 6221 itself, the rooftop of which apparently had gasoline in a drum or drums on top of it, but also in surrounding houses.

 Judge Hall concluded therefore that the federal claims were entertainable as against Commissioners Sambor and Richmond since they had jointly made the decision not to fight the fire right away. But Judge Hall recommended that the federal claims not be pursued as against the Mayor and the Managing Director since they were, on Judge Hall's analysis of the facts, uninvolved in the decision to let the fire burn. Judge Hall concluded that the decisions of the Police Commissioner and Fire Commissioner to let the fire burn for a time were decisions which in turn entitled Ms. Africa to sue the City of Philadelphia. The argument against suit against the City is essentially this, and it was this that the City pressed vigorously and has continued to press. Under the federal law governing a Section 1983 claim, a municipality is responsible for the constitutional torts, for example the alleged unlawful behavior, of its employees, where there is a demonstration that the municipality has essentially condoned a pattern or practice of unconstitutional conduct or, if there be no such pattern or practice of unconstitutional conduct, if, as in the present case, there be simply a single instance of allegedly unconstitutional conduct, that that conduct had been approved at the highest levels of municipal policy-making.

 The position of the City has been that decisions in which the Managing Director and the Mayor did not concur were not decisions made at the highest level of municipal policy-making within the meaning of the Supreme Court cases -- Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), and those which have followed Monell -- which explicate these doctrines. Judge Hall concluded that the Commissioners were placed high enough in the scale of authority so that their decisions were chargeable to the City under federal law.

 Judge Hall also concluded that Commissioners Sambor and Richmond were suable under state law since there is liability for municipal officers for what is called, among other things, "willful misconduct." It was Judge Hall's view that a jury might so characterize the conduct of the Commissioners. That at least was a factual determination which was tenable on the record, and therefore, they were suable. And Judge Hall concluded also that the City of Philadelphia could be sued under state law at least with respect to the alleged misconduct of Commissioner Sambor, since, as of the time of Judge Hall's report and recommendation, there appeared to be a basis in the city code for acquiescence by the City of Philadelphia in liability for misconduct, tortious misconduct, by police officers. This is an issue which we will come back to later.

 In this court, on review of Judge Hall's report and recommendation, we are faced with exceptions taken both by Ms. Africa through her backup counsel Mr. Dennis on the one hand and with exceptions taken by the City, by Commissioner Sambor and Commissioner Richmond, and by those other defendants who have not yet been dropped from the case under Judge Hall's analysis. No exceptions were taken, of course, by Mayor Goode or Managing Director Brooks since the report and recommendation had cleared them of liability.

 The first matter to be considered is plaintiff's exceptions to Judge Hall's determination that the decision to drop an explosive device, a bomb, notwithstanding its tragic consequences, could, when taken on the basis of the information known to those who made the decision at the time it was decided, have been deemed reasonable under the standards of Tennessee v. Garner. The question is an extremely close one. One cannot but be deeply troubled trying to imagine the stresses which could have led decision-makers to authorize so extraordinary a law enforcement measure. However, I am persuaded that, as close as the issue is, Judge Hall's analysis of that aspect of the case is correct and that qualified immunity is available to the defendants, as Judge Hall concluded, with respect to the decision to drop the explosive device.

 We turn next to the decision to let the fire burn. Here, of course, the exceptions are taken principally by Commissioners Sambor and Richmond since Judge Hall concluded that that was an untenable decision under the Tennessee v. Garner standards. He could not find a necessity which warranted letting the fire burn. In particular, the Commissioners challenge Judge Hall's analysis on the basis of what they read his decision to be, namely that Commissioners Sambor and Richmond decided to let the fire burn after the bunker on the top of 6221 had been effectively neutralized. It is argued that there is no evidence to support that construction of the decision made by the Commissioners. The evidence shows rather, so it is contended, that the decision made by the Commissioners was to let the fire burn until the bunker was neutralized, at which point efforts would be made to combat the blaze.

 In reviewing this record and the recommended decision as contained in Judge Hall's report and recommendation, I have focused on the decision to let the fire burn at all. It appears that no flame was detected for a number of minutes after the bomb itself fell on the rooftop. The bomb itself fell at about 5:30. At some later point, fire was visible. The record, I think, is uncertain as to whether that would have been twenty of six, quarter of six, ten of six, somewhere in that neighborhood. And the ambiguities of course involve where one observes from and what constituted evidence of fire. However, in addressing the decision to let the fire burn at all, which is the view that I am addressing in this decision, I start with the testimony of Managing Director Brooks who in effect had been the superintendent of Police Commissioner Sambor's decision to drop the bomb, a decision that had to be ratified of course by the Managing Director and in turn by the Mayor before being carried out.

 Managing Director Brooks gave the following testimony on October 16, 1985 before the MOVE Commission, the Commission appointed by the Mayor and chaired by William H. Brown, III, to inquire into the events of May 13, 1985. The questioner was William B. Lytton.

 
Q. Now, as I understand what you said with regard to the effect that this explosive device would have, you said it might blow the bunker off the roof, is that correct?
 
A. Yes, it was an expectation that, because the bunker protruded by some 12 to 20 inches off the edge of that roof, it might fall off.
 
Q. Now, if the bunker didn't fall off, but you had the hole in the roof, what were you going to do?
 
A. Well, the bunker would have been -- by dropping that explosive on that roof, the bunker would have been pretty much neutralized even if it didn't knock it off.
 
Q. What would you have done? What was the plan if -- let's say the bomb drops, the hole is in the roof, the bunker is still there. What do you do next?
 
A. The teams were on the ends of the roof and they would then proceed up to the hole and insert the tear gas, the concussion devices and the smoke.
 
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.

 What was the decision taken by Commissioner Sambor and Commissioner Richmond? In testimony of Commissioner Sambor, the Commissioner was asked whether he had instructed 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 ...

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