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CITY OF PHILADELPHIA LITIG. v. CITY OF PHILADELPHI

December 13, 1995

In Re City of Philadelphia Litigation; RAMONA AFRICA
v.
CITY OF PHILADELPHIA, et al. LOUISE JAMES, Administratrix of the Estate of Frank James v. CITY OF PHILADELPHIA, et al. ALFONSO LEAPHART, Administrator of the Estate of VINCENT LEAPHART v. CITY OF PHILADELPHIA, et al.



The opinion of the court was delivered by: POLLAK

 Pollak, J.

 December 13, 1995

 Plaintiffs Ramona Africa, Louise James, and Alfonso Leaphart have moved to revise a portion of this court's order of January 5, 1994. In that order, summary judgment was granted to the City of Philadelphia on the decision by city officials to drop an explosive device on the MOVE residence at 6221 Osage Avenue, while summary judgment was denied on the decision to let the ensuing fire burn. In their present motions, plaintiffs seek to reinstate their claims arising from the dropping of the bomb.

 The motions are based on the plaintiffs' understanding of the Third Circuit's opinion in this case -- In re City of Philadelphia Litigation, 49 F.3d 945 (3d Cir. 1995) -- which suggested that these claims be reinstated. The City of Philadelphia defends against these motions on the basis of the doctrine of the "law of the case." For the reasons that follow, the motions will be granted.

 I. Factual and Procedural Background

 On May 13, 1985, the City of Philadelphia attempted to arrest certain members of the MOVE organization by dropping an explosive device on the roof of the MOVE residence at 6221 Osage Avenue. The bomb was used with the apparent intentions of destroying a rooftop bunker and creating a hole into which tear gas canisters could be dropped. Tragically, however, the bomb caused a fire, killing eleven of the thirteen occupants and destroying many of the surrounding homes. These lawsuits followed. The plaintiffs -- Ramona Africa, one of the survivors of the blaze; Louise James, suing both on behalf of her son Frank James, also known as Frank Africa, who perished in the conflagration at 6221 Osage, and in her capacity as owner of 6221 Osage; and Alfonso Leaphart, who sues on behalf of another person who died in the blaze, Vincent Leaphart, also known as John Africa -- assert that various state and federal rights were violated by defendant City of Philadelphia and several defendant city officials. The plaintiffs' primary federal claim arising under 42 U.S.C. ยง 1983 is that the bombing of the MOVE residence and the subsequent fire constituted an unreasonable seizure -- an excessive use of force in effecting an arrest -- in violation of the Fourth Amendment.

 In a bench opinion delivered January 3, 1994, the substance of which was entered as an order two days later, I applied the Fourth Amendment standard announced in Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), to analyze the defendants' summary judgment motions. In re City of Philadelphia Litigation, 849 F. Supp. 331 (E.D. Pa. 1994). In agreement with major aspects of the meticulous analysis contained in the October 6, 1993 Report and Recommendation of Magistrate Judge William F. Hall, I granted summary judgment to all defendants on the section 1983 claims challenging the decision to drop the bomb on the MOVE compound. However, I denied summary judgment on the claims against former Police Commissioner Gregore Sambor, former Fire Commissioner William Richmond, and former Managing Director Leo Brooks, as well as those claims against the City, arising from the decision by city officials to let the fire caused by the bomb to burn. Summary judgment was further granted to defendant Mayor W. Wilson Goode and defendant Police Lieutenant Frank Powell on all claims.

 Following the issuance of this opinion and order, final judgment was entered in favor of defendant Goode, making the dismissal of the claims against him immediately appealable. Under Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), the denial of qualified immunity is immediately appealable under the collateral order doctrine. Thus, the denial of immunity to defendants Sambor, Richmond, and Brooks was also appealable. Further, I certified for appeal the denial of summary judgment on the claims against the City based on letting the fire burn. *fn1" These issues were then appealed to the Third Circuit.

 On appeal, the Third Circuit divided on all the issues before it. In re City of Philadelphia Litigation, 49 F.3d 945 (3d Cir.), cert. denied, U.S. , 116 S. Ct. 176, 133 L. Ed. 2d 116 (1995). Two judges -- Judges Greenberg and Scirica -- concluded that Tennessee v. Garner was not the correct standard for analyzing the use of excessive force in effecting an arrest, but rather the applicable standard could be found in Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). Applying this standard, these two judges reversed the denial of qualified immunity to all the individual defendants, thus dismissing the federal claims against them. A second pairing of judges -- Judges Scirica and Lewis -- affirmed the denial of summary judgment against the City on the section 1983 claims. As a result of the Third Circuit's ruling, only the City faces the possibility of liability under section 1983.

 Although the issue was not one the appellate court was required to address, each of the three judges took occasion to discuss, in some measure, whether the decision to drop the bomb established a claim cognizable under the Fourth Amendment. Judge Scirica stated that summary judgment was inappropriately granted to the City on this claim: "I do not believe that as a matter of law no reasonable jury could conclude that the decision to employ the incendiary device was an excessive use of force." 49 F.3d at 974. Attached to this statement was the following footnote:

 
The district court analyzed the decision to drop the incendiary device separately from the decision to let the bunker burn. Unlike the district court, I see little distinction between dropping the incendiary device and letting the fire burn. Both actions were undertaken to effect the same result -- to enable the police to insert tear gas into the house in order to force the occupants out. The risk of fire existed from the moment the device was dropped, and very little time elapsed between dropping the device and deciding whether to respond to the fire.

 Id. at 974 n.2. Judge Lewis agreed that the decision to drop the bomb was cognizable under the Fourth Amendment:

 
I begin by setting forth my agreement with Judge Scirica that no distinction should be drawn between the decision to drop the incendiary device and the decision to let the fire burn. As Judge Scirica observes, both actions were undertaken to effect the same result, namely, to enable the police ...

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