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January 25, 1994

In Re City of Philadelphia Litigation; RAMONA AFRICA


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



 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.

 Ramona Africa's case, like its companion cases, precipitated years of discovery, of pretrial inquiry into the facts surrounding the events of May 13, 1985. After this extended period of discovery, the many defendants moved for summary judgment with respect to the several claims Ms. Africa presented. Her several claims may be briefly summarized as follows. There were three sets of federal claims, the first under Section 1983 of Title 42 in effect alleging that the assault on 6221 Osage violated her constitutional rights. Second, Ms. Africa alleged not only that she was physically assaulted by the bombing and the ensuing fire but that her First and Fourteenth Amendment rights to freedom of speech and freedom of religion were trespassed upon by the defendants. And the third of her federal claims was an allegation, pursuant to 42 U.S.C. § 1985(3), of a conspiracy among the defendants to deprive her of her entitlement to equal treatment under the laws. In addition, Ms. Africa alleged claims arising under Pennsylvania law, claims which essentially mirror her claims of assault, of grossly disproportionate use of force against her in violation of Section 1983, the first and principal of the federal claims.

 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 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, it was in the affirmative.

 Commissioner Richmond also gave testimony with respect to the decision to let the fire burn.


Q. I'm asking you could you have said -- I mean was it within your authority to have said no, I've got to put this fire out now and proceed to do what you could to put it out?


A. No, it was not within my authority. If there was a disagreement between Sambor and I, it would have been resolved at Brooks' level.


Q. So you're saying if you had disagreed with Commissioner Sambor's, premise to let the fire burn, that you would have gone to Brooks to have him decide what you should do.


A. That's correct.


Q. Did anybody on the scene that you know disagree with letting that fire burn?


A. There were only two people involved in that decision. The answer is no.


Q. I didn't ask you about the decision.


A. Not to my knowledge.


Q. Now, do you remember at all stating that you would characterize the decision to let the bunker burn as a strong recommendation from Police Commissioner Sambor?


A. I think, yes, that sounds familiar.



Q. Now, had the Police Commissioner not asked you that, and let you do what you wanted to do, told you it was up to you, what action would you have taken if any?


Mr. Kennedy [Mr. Richmond's attorney] Objection. It's hypothetical. You can


answer the question. It would be speculation on his part.


A. I would have started the squirts."

 We have then a decision taken at the request of Commissioner Sambor to get the rest of the bunker. Was it necessary in Tennessee v. Garner terms to get the rest of the bunker? Managing Director Brooks has testified that the bunker had to have been in effect substantially neutralized simply by the impact of the bomb on the roof. There is nothing in the record to show that the bunker had been utilized in any way as a fortification by those inside of the MOVE house after the dropping of the bomb -- or even to any significant extent or even at all for some substantial time before the dropping of the bomb. The testimony of Managing Director Brooks, who was apparently in a position to observe the rooftop fairly clearly, was that, after the dropping of the bomb, he saw no sign of life on the roof until a dog appeared coming up onto the roof through the hole in the roof and then walking away.

 The Commissioners have referred to the dangers to police and fire personnel from those inside the MOVE house. Quite evidently, concerns about how close fire fighters and their equipment could get to 6221 Osage imposed constraints on how effective various techniques of fighting the fire, once the fighting was agreed on to begin, would be. But 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 to continue until it totally consumed what remained of a bunker which was under Managing Director Brooks' perception substantially neutralized on the impact of the bomb. 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. And indeed, the very formulation by Police Commissioner Sambor seems to underscore that. By his statement, he said that he wanted to achieve the tactical superiority that would be obtained in removing the balance of the bunker if this could be accomplished without any loss of life. Without such assurance, he would not have made the request that he did. There is nothing in that characterization that would suggest that he felt that, constrained from letting the fire go forward to consume the balance of the bunker, he would be imposing on his personnel the grave dangers the mitigation of which justifies a Tennessee v. Garner decision to use deadly force.

 My analysis of this aspect of the case would, I think, be incomplete if I did not refer to the fact that before Judge Hall there was considerable reliance by the defendants on a case decided by a federal court in Arkansas in 1986, Ginter v. Stallcup, 641 F. Supp. 939, a case which was subsequently appealed to the Eighth Circuit, which affirmed in part and reversed in part, 869 F.2d 384. The Court of Appeals opinion is really not particularly significant for our purposes. The much more extended opinion is the district court opinion: It deals with a situation in which a woman sued FBI agents and other local police officers for a fire which had consumed her home when it was apparently being used as a place of refuge by one who was being pursued by the law officers for a violent crime and was perceived to be a very, very dangerous person indeed. And in the attempt to reach that armed accused, a hole was made in the roof, and not only tear gas but incendiary fuel was introduced inside. And there was discussion by the court as to whether that was a constitutionally permissible mechanism of law enforcement.

 The court concluded that there was no "clearly established law" to lead to the conclusion that such a "burnout" as a means of forcing a fugitive out would violate the constitutional right of that person, that is, the fugitive. The district court went on to say:


The courts may, in response to such police tactics as were publicized in relation to the effort to apprehend persons in the M.O.V.E. Headquarters in Philadelphia, PA in 1985, conclude that such methods under such circumstances would violate the constitutional rights of the persons harmed. Indeed, courts might hold on the basis of the facts in this case that the use of fire to "burn out" a fugitive would violate the constitutional rights of the fugitive Kahl. But the point is that no court had so held prior to June 3, 1983.

 641 F. Supp. at 953 (footnote omitted).

 The events in suit in the Ramona Africa case and in the Leaphart and James cases as well took place not in June of 1983 but in May of 1985, two months after the Supreme Court had addressed the use of deadly force in Tennessee v. Garner. In this court, there has been no reliance on Ginter v. Stallcup, but I had thought it appropriate to address that aspect of the case since it has figured in the case's development up to the stage at which Judge Hall filed the report and recommendation which I am today reviewing. And indeed, he discusses and distinguishes Ginter v. Stallcup in his extensive and thoughtful opinion.

 Finally, I should say on this aspect of the case that some argument has been made to me in the extended and very valuable oral presentations in this court on December 28, 1993 -- that is to say just last Wednesday -- that the activities of Commissioners Sambor and Richmond must be judged on the basis of what they intended, and since there is no evidence that they intended the devastating and tragic consequences of the decision to let the fire burn, they must be insulated from liability. That is not the law of the Constitution. In Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), Chief Justice Rehnquist, reviewing prior decisions including earlier opinions of his own, had this to say at page 397. "As in other Fourth Amendment contexts, however, the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U.S. 128, 137-139, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978); see also Terry v. Ohio, supra, [392 U.S. 1] at 21 [ 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)] (in analyzing the reasonableness of a particular search or seizure, 'it is imperative that the facts be judged against an objective standard'). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force, nor will an officer's good intentions make an objectively unreasonable use of force constitutional."

 Accordingly, it is my view that Commissioners Sambor and Richmond are not entitled to summary judgment on grounds of qualified immunity for their decision to let the fire burn at all. Some argument has been made that Commissioner Richmond, because he was Fire Commissioner and not Police Commissioner, is entitled to have his conduct judged by a somewhat more relaxed standard than that of a veteran police officer. It is apparent that the Fire Commissioner, though he recognized his independent authority, was persuaded that the right course of action was the one to be taken by the senior police officer at the scene, the Commissioner himself. Managing Director Brooks' testimony makes it plain that he regarded the operation with respect to the assault on 6221 Osage as essentially a police operation, and this perhaps explains why his direct communication at the time of communicating his decision that the time had come to put out the fire was made to Commissioner Sambor. Commissioner Richmond opined that had there been no request made by Commissioner Sambor, he, Commissioner Richmond, "would have started the squirts." That is to say he would have moved at once to fight the fire, but he was prevailed on to acquiesce in a decision to let the fire go on for a while.

 In that respect, and turning back to the Pennsylvania statute, Section 508, which I have suggested in a significant sense has been given a measure of constitutional status by Tennessee v. Garner, it is of interest to remember that the statute is directed to the use of force in making an arrest by a "peace officer." And the statute goes on to explain the authority of "a peace officer or any other person whom he has summoned or directed to assist him." And in a sense transferring that almost quaint statutory language to the situation before us, we have Commissioner Sambor as a peace officer who has summoned Commissioner Richmond to assist him. But I think we disrespect the Constitution if we (1) suggest that a fire commissioner can subordinate his professional judgment that a fire should be fought but for the request of a police commissioner and (2) at the same time exculpate the fire commissioner from ensuing constitutional liability. And so I think when Commissioner Richmond as it were loaned himself to Commissioner Sambor, he must be held to have acquiesced in the same constitutional standards which Commissioner Sambor was obligated to observe even though Commissioner Richmond may not have been acquainted with the language of Justice White in Tennessee v. Garner.

 I have said that I conclude, as Judge Hall did, that the two Commissioners are not entitled to summary judgment on qualified immunity grounds though my analysis of the factual record differs in some respects from that pursued by Judge Hall since I have focused on the decision to let the fire go on at all. In one important respect, the case as it stood before Judge Hall has shifted as it has come before me. It will be recalled that Judge Hall recommended that summary judgment be granted in favor of Managing Director Brooks and Mayor Goode on the ground that neither one had any role in the decision to let the fire burn.

 On argument last Wednesday, I inquired of Mr. Dennis as backup counsel for Ms. Africa 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. Mr. Dennis was not, as I put the question, prepared to make that contention. He and Ms. Africa had not taken exception to Judge Hall's factual analysis as to that aspect of the case. I put it to Mr. Dennis that there was testimony of Commissioner Sambor, deposition testimony, which at least I read as saying that Managing Director Brooks had concurred in the decision to let the fire burn but only to reach the bunker. After giving that testimony some thought, Mr. Dennis said he would revise his position and would indeed take exception to that aspect of Judge Hall's decision. There were substantial and very understandable objections raised from counsel for the affected defendants. And the defendants most particularly affected were Mr. Brooks represented by Mr. Waxman and the City of Philadelphia represented by Ms. Hix -- Mr. Brooks potentially affected because the very question at issue was whether Judge Hall had been right in recommending qualified immunity for Mr. Brooks, the City of Philadelphia at least potentially affected because acquiescence by the Managing Director would change the context in which a decision would be made as to whether the City of Philadelphia was itself potentially liable for the conduct sued on. I was urged that the issue that I had raised and which was prompting Ms. Africa through counsel to change her position on was an issue which was waived. I was also urged very cogently by Mr. Waxman that he in representing Mr. Brooks was put at a substantial and very unhappy disadvantage by a question put at this eleventh hour phase. The City emphatically expressed similar concerns.

 It was agreed that Commissioner Sambor, Mr. Morris' client, would be reinterviewed on this very aspect of the case with a view to seeing whether I had misunderstood his testimony or whether he had misspoken himself or whether what I thought I had gleaned from his testimony was indeed close to his meaning. On December 29, a day after oral argument, I received the following letter from Mr. Morris. It runs as follows:


Dear Judge Pollak:


Yesterday's proceedings left an open question concerning the testimony of my client Gregore Sambor. The question has been answered. I have represented the following to other counsel (noted below) [counsel in question being Ms. Hix, Mr. Waxman, Mr. Dennis, and Mr. Fincourt Shelton who is counsel for plaintiff in the James case] and they have authorized me to represent to the Court as follows:


Mr. Sambor recalls two separate conversations with Mr. Brooks. In the first conversation, Brooks noted that he could see fire on the roof, and Sambor explained that they were letting the fire get the bunker. As stated in the deposition, Sambor says Brooks concurred saying, 'Only the bunker.' Brooks then called back a few minutes later and relayed the Mayor's order to put out the fire.


Obviously, this represents Mr. Sambor's recollection and not necessarily the position of other parties. However, counsel agree that it may be considered as a clarification of my client's deposition testimony. In light of this clarification, counsel await your advice as to whether we are to reconvene.

 I am indebted to all participating counsel for their prompt and effective efforts to clarify the record. I did not reconvene these proceedings given the information which Mr. Morris had so concisely presented. I felt that the record was complete. The argumentation before me had been extensive. I saw no reason to impose upon the parties and their lawyers for further argument before I reached my decision, and I scheduled today's session to announce my decision.

 I have received submissions subsequent to Mr. Morris' letter. I have heard from Mr. Dennis, who reemphasizes Ms. Africa's change of position. I have heard from Mr. Waxman and from Ms. Hix reemphasizing their view that there has been a waiver and that the clarification contained in Mr. Morris' letter of December 29 with respect to Commissioner Sambor's testimony should not be considered by me.

 Mr. Waxman further argues that there is no other testimony that suggests that Managing Director Brooks did play any role in the decision to let the fire burn, and that this reaffirmation in 1993 of 1991 deposition testimony should not be given any significant credence.

 I address, first, the question of waiver. The submission of the City is:


In Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1986), the United States Supreme Court ruled that the Court could determine that failure to object to a recommendation of a magistrate within the applicable time period constitutes a waiver of the objection. A situation, such as the one before this court, where plaintiff affirmatively states that she is not objecting to the recommendation compels the finding that the objection has been waived. The City defendants, therefore, respectfully request that plaintiff's request to revise her objections be denied.

 The City's reliance on Thomas v. Arn does not seem to me persuasive. Thomas v. Arn was a case in which the Supreme Court approved a rule adopted by the Sixth Circuit under which one who fails to file objections to a magistrate's report and recommendation within a specified ten-day period forfeits the right to seek review by the court of appeals of the magistrate's rulings with respect to which no exception has been taken. Thomas v. Arn arose in the context of exactly that -- a lawyer who, notwithstanding that the lawyer had been given an extension of time to file exceptions, did not do so. The district court, on reviewing the magistrate's report and recommendation, nonetheless decided on its own initiative to examine the report and recommendation in extenso and approved it.

 The petitioner then went to the Court of Appeals to challenge the adverse ruling. And the Court of Appeals, relying on the procedural rule which it had announced in an earlier case as an exercise of its supervisory authority said, by not filing your exception within the stated time, or within the extended time, you, petitioner, lost your entitlement to get appellate review by this Court. The Supreme Court of the United States said that was an acceptable procedural rule if the Sixth Circuit wanted to have such a rule. That would be a rule that a court of appeals could or could not adopt as it chose.

 In the course of the opinion in Thomas v. Arn, which approved the Sixth Circuit's decision -- an opinion which was not unanimous -- Justice Marshall, who wrote for the Court, said:


The District Judge has jurisdiction over the case at all times. He retains full authority to decide whether to refer a case to the magistrate, to review the magistrate's report and to enter judgment. Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge sua sponte or at the request of a party under a de novo or any other standard.


So said Justice Marshall for the Court in 1986.

 The Court of Appeals for the Third Circuit has had occasion to consider this general problem subsequent to Thomas v. Arn. In Henderson v. Carlson, which was a year later, 812 F.2d 874, 878 (3d Cir. 1987), our Court of Appeals was pointing out that, unlike some other circuits, our Court of Appeals has not adopted a rule such as that adopted by the Sixth Circuit. The Third Circuit could understand why such a rule might be adopted, but it had found no reason to preclude appellate review by it even in the curious situation in which a lawyer failed in his or her professional duty to file exceptions to a magistrate's report.

 In the course of its opinion the Third Circuit said this:


Leaving to one side the baggage that the rule carries, we detect a more fundamental problem with the waiver rule. Whether or not objections are made to the magistrate's report, under § 636(b)1(C) the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." While this statutory provision may not require, in the absence of objections, the district court to review the magistrate's report before accepting it, see Arn, 106 S. Ct. at 472, we believe that the better practice is for the district judge to afford some level of review to dispositive legal issues raised by the report. "The authority -- and the responsibility -- to make an informed, final determination . . . remains with the judge." Mathews v. Weber, 423 U.S. 261, 271, 96 S. Ct. 549, 554, 46 L. Ed. 2d 483 (1976). Given this responsibility, it must be assumed that the normal practice of the district judge is to give some reasoned consideration to the magistrate's report before adopting it as the decision of the court.


  Under this advice from the Supreme Court as to what a district judge may do and additional advice from the Court of Appeals as to what a district judge ought to do, it seems to me I would be derelict if I concluded that I could not look at the record as it existed on December 28 and as subsequently clarified on December 29 in making my decision on whether to sustain this aspect of Judge Hall's report and recommendation. I find no ground for concluding, since counsel have had the opportunity, all of them, of seeing that the matter was appropriately put to Commissioner Sambor, and have also had the opportunity of commenting on Commissioner Sambor's clarifying statement, that any prejudice ensues to any party, and most particularly to the City and Managing Director Brooks, by my considering the record as now clarified. I do so.

  And, on that basis, it is clear to me that Managing Director Brooks is not entitled to qualified immunity at this stage since a jury may conclude that he indeed acquiesced for at least a time in the decision to let the fire burn. Of course, a jury may conclude otherwise but that will be in the province of the jury. The matter should not be withheld from jury cognizance.

  With Managing Director Brooks remaining in the case, we consider the question of the City's suability. I have already explained the City's position that final decision-making authority lies with the Mayor and the Managing Director. The record as enlarged by Commissioner Sambor's statement of December 29 permits -- it doesn't compel, but permits -- the possibility of a decision by a jury that Managing Director Brooks was a participant in the decision to let the fire burn.

  The City's latest submission contends that only the Mayor had final decision-making authority and that when the matter came to the Mayor's attention he said, no, the fire should be fought at once. Thus, in the City's revised view, the Managing Director does not have sufficient authority to implicate the City.

  The Charter describes the various functions of the major figures in the City. Of course, the Mayor is the chief executive of the City, but the Managing Director, as stated in Section 5.5-100 of the Home Rule Charter, is said to have the following authority:


The Managing Director shall exercise supervision over all activities of those departments whose heads he appoints and the boards and commissions connected with such departments and shall be the contact officer between the Mayor and such departments, boards and commissions.

  Pa. Code, 351 § 5.5-100.

  The officers who are appointed by the Managing Director include the Police Commissioner and the Fire Commissioner. The annotation to the section that I have read states that:


The Managing Director, appointed by the Mayor, is the Mayor's personal assistant and has under his charge the departments of the City rendering municipal services to the people of the City. The Managing Director has the duty of supervising these departments and the boards and commissions connected with them. He appoints, with the approval of the Mayor, the heads of all such departments. The department heads are responsible to the Managing Director who in turn is responsible to the Mayor. To vest authority commensurate with the responsibility given to him, the Managing Director is made the contact officer between the Mayor and the departments, boards and commissions under his supervision; service department heads will thus report to their superior, the Managing Director, and not to the Mayor.

  Confirmation of this in practice is certainly reflected in Commissioner Richmond's testimony that, in the event of a dispute between himself and Commissioner Sambor, the matter would be referred to Managing Director Brooks.

  I conclude that the suability of Managing Director Brooks means also that the City is suable by virtue of the potential determination that Managing Director Brooks concurred for a time in the fire.

  The City's argument that only the Mayor had authority to make a final decision, and that the Mayor, when he made his decision, vetoed letting the fire burn, seems to me to carry the actual structure of the management of a great city's affairs into an obscure metaphysical never-never-land. The suggestion would be that under the Constitution as implemented by Congress in Section 1983 of Title 42, no decisions are ever made except by the very highest decision-maker, in this instance, the Mayor of the City of Philadelphia.

  Given the careful delineation of authority made by the Home Rule Charter which places critical responsibility in commissioners themselves for the departments they head and even more critical decisional authority in the hands of the Managing Director, I reject the view of the City that without the acquiescence of Mayor Goode there can be no potential liability on the City's part with respect to the Section 1983 claim.

  My analysis has been predicated on a view of the record that recognizes that a fact-finder could find that there had been acquiescence by the Managing Director in the decision to let the fire burn. I recognize that this is a highly contested factual issue and it may well be that a fact-finder would find, as Managing Director Brooks, certainly through his counsel, insists, that he had no such participation.

  In view of that state of the record, I would add that if we assume the Managing Director did not participate in the decision to let the fire burn, and instead that we had a scenario in which the decision was made by the two Commissioners jointly, and only after some time passed the Managing Director stepped in and, first on his own authority, and then on the Mayor's authority, said fight the fire -- if we assume that to be the accurate factual scenario, it is my conclusion that within the teaching of the cases that have followed Monell and that have undertaken to elucidate where finality lies, and I have in mind Pembaur [ Pembaur v. Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986)] and the case whose name escapes me, but Ms. Hix will remember because she and I talked about it, Pro --

  MS. HIX: Propratnik.

  THE COURT: Propratnik [ St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988)] yes. Within the authority of those two cases, in the organization of the City of Philadelphia, under its Home Rule Charter, the statutory authority of the two Commissioners is of such consequence that during the period in which they make effective decisions, they must be regarded as having the authority to make final decisions within the meaning of those cases. I stress the fact that § 3.3 - 101 of the Home Rule Charter provides that:


Each department shall have as its head an officer who either personally or by deputy or by a duly authorized agent or employee of the department, and subject at all times to the provisions of this charter, shall exercise the powers and perform the duties vested in and imposed upon the department.

  Pa. Code. 351 § 3.3-101.

  Under § 5.5-200:


The Police Department shall have the power and its duty shall be to perform the following functions:


(a) Law Enforcement. It shall preserve the public peace, prevent and detect crime . . . .

  Pa. Code. 351 § 5.5-200.

  As to the fire department, § 5.5-400 provides:


The fire department shall have the power and its duty shall be to perform the following functions:


(a) Fires. It shall extinguish fires at any place within the limits of the City . . .

  Pa. Code 351 § 5.5-400.

  So that if it were the case that the Commissioners made the decision without any overt acquiescence of the Managing Director until the point arrived at which that decision was superseded, I would conclude that they had sufficient authority to make final decisions attributable to the City of Philadelphia.

  With the balance of this case, I will undertake to be brief. You have all shown extraordinary patience in staying with me this long. I agree with Judge Hall that Ms. Africa's claims under the First and Fourteenth Amendments are unavailing since there is no evidence to substantiate her claim that her free speech and freedom of religion interests were being violated by the defendants or any of them. So, too, the conspiracy charge under Section 1985(3) fails for the reasons presented by Judge Hall. There is no evidence of a racial or class or caste-based conspiracy against Ms. Africa.

  With respect to the claims under state law, I conclude that Commissioners Sambor and Richmond are suable on the state law claims since they could be perceived as having engaged in "willful misconduct," to use the state statutory term. I do not say that that is in any sense a necessary reading of the record, but it is simply that that is a factual question which ultimately is to be addressed by a jury.

  So, too, in view of my decision to address this record in its more broadly clarified status with respect to Managing Director Brooks, though Judge Hall would have dismissed him from liability on the state claims, I believe that he is not entitled to summary judgment with respect to the state claims.

  The City is, however, right, though not for the reasons argued before Judge Hall, that it, the City, is not liable on the state law claims. Before Judge Hall, the City relied upon the relatively recent -- I think it was 1990 -- repealer by the City Council of a City ordinance which expanded the area of suability of the City with respect to the conduct of police officers beyond that contemplated by the state statute that deals with the tort liability of political subdivisions.

  Relying on the repealer, the City argued that Ms. Africa could not sue the City because her case was pending at the time of the repealer. Judge Hall rightly rejected that argument in the face of the then applicable law since both decisions of the Commonwealth Court and, indeed, of this court had recognized that there were remarkable constitutional problems presented by a retrospective attempt to insulate oneself from liability for actions that had already taken place.

  However, on November 3, 1993, the Supreme Court of Pennsylvania in the case called, Philadelphia v. Gray, 534 Pa. 467, 633 A.2d 1090, came to the interesting conclusion that the City Council of Philadelphia had never had authority to expand the categories of cases in which it could be suable beyond those contemplated by the Pennsylvania Political Subdivision Tort Claims Act. And, so for that reason, as Judge Hall recognized in a report and recommendation issued subsequent to the Ramona Africa report, the City is insulated from liability on the state claims.

  That completes my analysis of the problems to be addressed on review of Judge Hall's report and recommendation. And, I will embody what I have announced in a written order, which I will undertake to file tomorrow.

  [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 849 F. Supp. 331.]

  We have remaining the matters to be addressed in the Leaphart and James suits. It is later in the day than I had anticipated that it would be when we got underway. I had hoped to deal with the Leaphart and James actions this afternoon too, but I will not trespass on your patience further. I will undertake to rule tomorrow on those two cases if Ms. Bozzelli will tell me when I am allowed to come in here.

  MS. BOZZELLI: Any time in the morning is fine, Judge.

  THE COURT: With respect to those counsel who are interested in attending, would tomorrow morning at some early hour be agreeable to you, 9:00?

  MS. HIX: Your Honor, with respect to the City, the earlier the better because I am scheduled to be in a hearing at 10:00 tomorrow.

  THE COURT: Would you prefer that it is 8:30?

  MS. HIX: 8:30 would be fine. Earlier is fine.

  MS. RHODES: Your Honor, 8:30 is fine with me because I am scheduled to be in Superior Court at 10:00 tomorrow morning.

  MR. SHELTON: I am scheduled at 9:30 in Upper Darby, so I don't know whether you're going to do the James matter first or Leaphart matter first.

  THE COURT: I'll be glad to address the James matter first if that will simplify things for you. How long do you think it will take you to get from here to there.

  MR. SHELTON: Without breaking the law?

  THE COURT: I would encourage you to think of it that way, yes.

  MR. SHELTON: Probably 20 minutes; 30 minutes.

  THE COURT: Thirty minutes would be sufficient. All right. So 8:30. I will promise you that I will not be as long-winded tomorrow as I have been today.

  MR. SHELTON: Fine, Your Honor.

  THE COURT: So we will meet tomorrow at -- Mr. Atkinson, I beg your pardon?

  MR. ATKINSON: 8:30 is fine.

  THE COURT: It is fine?

  MR. ATKINSON: It is fine.

  THE COURT: Anybody else have any difficulties with that? All right. I thank you all and we will reconvene at 8:30.

  Louis H. Pollak, J.


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