outside 6221 Osage Avenue, announced that the police had arrest warrants for four named MOVE members and directed that those inside the house come out. That directive was not complied with. Subsequently, there was massive police gunfire directed at 6221 Osage Avenue. According to the police, there was also gunfire directed at the police from the MOVE house, some of the gunfire coming from a wooden bunker on the roof. When the gunfire subsided, police officers entered the houses immediately adjacent to 6221 Osage Avenue and attempted to make holes through the common walls with a view to injecting tear gas into the MOVE house so that the MOVE residents would come out. The efforts to make holes in the walls (efforts involving the use of "shaped" explosive charges) were unsuccessful. In the late afternoon, a police helicopter dropped an explosive device on the roof of 6221 Osage Avenue. According to the police, the purposes of this act were two-fold: first, to create a hole in the roof through which tear gas could be injected, and, second, to disable the roof-top bunker which, as a site for possible further gunfire from the MOVE house, was perceived as a threat to police and others in the 6200 block of Osage Avenue and neighboring areas. Not long after the explosive device was dropped, the roof of 6221 Osage Avenue caught fire. The fire consumed the MOVE residence and eleven of the thirteen persons inside died; among the dead were five children. The fire spread to, and consumed in whole or in part, scores of neighboring buildings, but there were no other fatalities.
The disaster devastated the West Philadelphia community, numbed the whole city, and stunned the entire nation. It was also the catalyst of scores of lawsuits brought in, or removed to, this court. Of those lawsuits, all but three settled.
The three remaining lawsuits were consolidated for trial.
One of these lawsuits has been brought by Ramona Africa, a MOVE member who was one of the four occupants of 6221 Osage Avenue for whom the police had arrest warrants. Ms. Africa was one of two occupants (the other was a teenage boy) who managed to survive the fire and to emerge alive, at which point they were taken into police custody. The other two lawsuits have been brought by (1) Alfonso Leaphart as administrator of the estate of his brother John Africa (whose pre-MOVE name was Vincent Leaphart), and (2) Louise James Africa as administratrix of the estate of her son Frank Africa (whose pre-MOVE name was Frank James); both John Africa (the founder of MOVE) and Frank Africa (who, like Ramona Africa, was one of the four occupants of the MOVE house for whom the police had arrest warrants) died in the fire. In all three lawsuits, federal jurisdiction attached by virtue of federal claims under 42 U.S.C. § 1983; to the federal claims were annexed so-called "supplemental," 28 U.S.C. § 1367,
state law claims.
Each of the plaintiffs brought a section 1983 claim against the City of Philadelphia. These claims have alleged, in substance, that the City, through its officials, in the course of efforts to apprehend and arrest certain MOVE members, (1) dropped an explosive device on the MOVE house at 6221 Osage Avenue and then, (2) pursuant to a tactical decision taken by Police Commissioner Gregore Sambor and Fire Commissioner William Richmond, for a period of time deliberately refrained from taking effective steps to extinguish the ensuing fire. This course of action, so the three plaintiffs contended, was in excess of appropriate law enforcement methods and therefore constituted, in each of the three instances, an "unreasonable seizure" within the meaning of the Fourth Amendment. Ramona Africa has claimed that the fire caused her severe physical and emotional injuries. The estates of John Africa and Frank Africa have alleged that the fire caused the deaths of the decedents.
The supplemental state law claims of Ms. Africa and the estates of John Africa and Frank Africa have focused on the alleged deliberate decision of Commissioners Sambor and Richmond -- the two individual defendants, who are, in the terminology of 28 U.S.C. § 1367, "additional parties" -- to delay, for a period of time, commencing effective efforts to fight the fire. It has been the contention of the plaintiffs that the implementation of this decision -- resulting in injuries to Ramona Africa and the deaths of John Africa and Frank Africa -- constituted, in each instance, a "battery" under the laws of the Commonwealth of Pennsylvania. In pursuing their supplemental state law claims of battery, Ramona Africa and the estate of Frank Africa have named both Commissioner Sambor and Commissioner Richmond as defendants. In pursuing its supplemental state law claim of battery, the estate of John Africa has named only Commissioner Richmond as a defendant.
Trial in these consolidated lawsuits commenced in late April of 1996 and took approximately two months. On June 24th the jury returned its verdicts. The jury found the City of Philadelphia liable to each of the plaintiffs pursuant to the section 1983 claims. The jury also found in favor of the plaintiffs on the state law claims: i.e., Commissioners Sambor and Richmond were found liable both to Ramona Africa and to the estate of Frank Africa; and Commissioner Richmond (the only defendant in the state law claim of the estate of John Africa) was also found liable to the estate of John Africa.
Compensatory damages having been sought by all three plaintiffs both under the section 1983 claims and under the state law claims, the jury awarded $ 500,000 to each of the plaintiffs; the jury was not asked to, and did not undertake to, apportion these awards among the three defendants. Punitive damages having been sought under the state law claims against Commissioners Sambor and Richmond, the jury fashioned identical punitive damages awards against each of the two defendants; the awards were in the sum of one dollar ($ 1.00) per week for eleven years to each plaintiff in whose favor judgment would be entered.
Now before the court are three issues:
The first issue, which arises in the context of the section 1983 claims against the City of Philadelphia, is whether, notwithstanding the jury's verdicts, the City is entitled to judgment as a matter of law in its favor and against all three plaintiffs.
The second issue, which arises in the context of the state law claims against Commissioners Sambor and Richmond, is whether, notwithstanding the jury's verdicts, either of these two defendants is entitled to a determination by this court that he is, as a matter of state law, entitled to official immunity from liability to any of the three plaintiffs.
The third issue is whether the plaintiffs are entitled to "delay damages" in addition to the damages awarded by the jury.
On June 7, 1996, the City of Philadelphia moved for judgment as a matter of law on the section 1983 claims. At a subsequent conference on the record with counsel, this motion was denied. Following the jury verdicts in favor of all three plaintiffs and against the City on the section 1983 claims, the City renewed its motion for judgment as a matter of law.
The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In bringing their excessive force claims, plaintiffs asserted that dropping the bomb and letting the fire burn amounted to "unreasonable . . . seizures" of Ramona Africa, of Frank Africa, and of John Africa. In order to prove their respective section 1983 claims, it was incumbent on plaintiffs to show (1) that there were "seizures" within the meaning of the Fourth Amendment, and (2) that the seizures were, within the meaning of the Amendment, "unreasonable." See Brower v. County of Inyo, 489 U.S. 593, 599, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989) ("'Seizure' alone is not enough for § 1983 liability; the seizure must be 'unreasonable.'").
In its motion, the City contends that judgment must be entered in its favor because the evidence at trial demonstrated that no Fourth Amendment "seizure" occurred. In ruling on this motion, the court must apply the same standard applicable to a motion for summary judgment. That is, the motion must be denied unless, viewing the evidence in the light most favorable to the plaintiffs, no reasonable jury could have found liability on the part of the City. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
The City argues that none of the plaintiffs was "seized" because the explosive device and the subsequent fire were not instrumentalities employed to effectuate a "seizure." As the City puts it, in its memorandum submitted in support of its motion for judgment as a matter of law, no seizure occurred because "neither the explosive device nor the fire were intentionally applied by the police against the Plaintiffs as a means of stopping them, nor were they designed to make the Plaintiffs choose between capture or death by fire." City Memorandum at 7. The City also argues that, even if Ramona Africa and Frank Africa can be said to have been "seized," John Africa was not "seized" because, unlike Ramona Africa and Frank Africa, John Africa was not the subject of an arrest warrant and therefore was not a target of the police activities of May 13, 1985. According to the City, "a 'seizure' under the Fourth Amendment may be found only if the plaintiff was the intended object of police pursuit or force." Id. at 4. Because, viewed in the light of the evidence presented at trial, neither of these arguments comports with governing Fourth Amendment jurisprudence, the City's motion will be denied.
A. Whether the Explosive Device and the Subsequent Fire Were "Means Intentionally Applied" by the City in Order to Effectuate a "Seizure"
In Brower v. County of Inyo, 489 U.S. 593, 597, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989), the Supreme Court stated that a "seizure," within the meaning of the Fourth Amendment, occurs "when there is a governmental termination of freedom of movement through means intentionally applied " (emphasis in original). Brower arose following a high-speed chase in which the crime suspect was killed by crashing into a police roadblock. The suspect's estate brought a claim against the police officers, alleging that the use of the roadblock was unreasonable and violated the Fourth Amendment. The Supreme Court held that a seizure occurred if the roadblock was intentionally applied in order to bring the suspect into custody. In so holding, the Court stated:
Nor do we think it possible, in determining whether there has been a seizure in a case such as this, to distinguish between a roadblock that is designed to give the oncoming driver the option of a voluntary stop (e.g., one at the end of a long straightaway), and a roadblock that is designed precisely to produce a collision (e.g., one located just around a bend). In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.