The opinion of the court was delivered by: POLLAK
May 13, 1985 was a day of tragedy in Philadelphia. That day marked the catastrophic culmination of a stand-off between the law enforcement authorities of the City of Philadelphia and the members of a group called "MOVE" who resided in a row house at 6221 Osage Avenue in the western part of Philadelphia.
The principal events of May 13 were these: Early in the morning, Police Commissioner Gregore Sambor, speaking through a bullhorn 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.
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.
Citing Brower, the City argues that no seizure can be found in the present cases because the explosive device and the subsequent fire were not employed with the immediate goal of capturing Ramona Africa, Frank Africa and John Africa. Rather, the explosive device was used in order to disable the rooftop bunker and to create holes in the roof into which tear gas could be dropped. The City further argues that, to the extent that the plaintiffs presented evidence that City officials intentionally allowed the fire to burn, the evidence suggested that the fire was allowed to burn only to disable the bunker. While disabling the bunker and creating holes in the roof may have been acts which were part of a plan whose ultimate goal was to seize certain persons inside the MOVE house, those acts are said to have been too far removed from the goal of seizure to amount to "instrumentalities set in motion or put in place in order to achieve that result."
The City's argument is not persuasive. Indeed, the substance of the argument has already been rejected by the Court of Appeals. See In re City of Philadelphia Litigation, 49 F.3d 945 (3d Cir. 1995). One of the rulings of this court that the Court of Appeals had occasion to address prior to trial was the denial of the City's motion for summary judgment on the section 1983 claim. Judge Greenberg agreed with the City's position that no seizure had occurred:
The destruction of the bunker was obviously a part of the officials' day-long effort to seize the MOVE members, but none of the officials intended it in itself to effectuate the seizure. Nor could they reasonably have intended the destruction of the bunker alone to be conclusive in any way, even though it may well have been reasonable to believe, as they did believe, that its destruction was an important objective.
49 F.3d at 963 (Opinion of Greenberg, J.). But Judges Scirica and Lewis -- each of whom filed a separate opinion -- disagreed with Judge Greenberg on this point. Judge Scirica wrote:
I believe there was a seizure under the Fourth Amendment. The Osage Avenue house was occupied by the subjects of the arrest warrant and the officials used force with the aim of gaining entry into the house or forcing the occupants out. The incendiary device was "the very instrumentality set in motion or put in place in order to achieve that result." Brower v. County of Inyo, 489 U.S. 593, 599, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989). In Brower, the Court noted that a Fourth Amendment seizure does not occur when the effect of seizure is purely fortuitous. . . . Thus, our inquiry is not whether the officials intended all the consequences of their use of the incendiary device, but whether they intended to use force to arrest these individuals. I conclude that they did, and because the MOVE members were harmed by the fire caused by the incendiary device, "the very instrumentality set in motion or put in place in order to" arrest the occupants of the house, I find a Fourth Amendment seizure.
49 F.3d at 974 (Opinion of Scirica, J.). And Judge Lewis wrote:
I also agree with Judge Scirica, for the reasons stated in his concurring and dissenting opinion, that the police effected a Fourth Amendment seizure in this case.
49 F.3d at 976 (Opinion of Lewis, J.).
In reliance on the expressed views of Judges Scirica and Lewis, plaintiffs, in submitting proposed points for charge, argued that I should instruct the jury as a matter of law that Ramona Africa, Frank Africa and John Africa had been "seized" within the meaning of the Fourth Amendment. But I did not agree. In my view, the issue the Court of Appeals had addressed, in the excerpts quoted above, was whether this court had erred in denying summary judgment in favor of the defendant City of Philadelphia, not whether partial summary judgment (i.e., summary judgment on the issue of seizure) should have been granted in favor of the plaintiffs. To be sure, Judge Scirica stated, "I find a Fourth Amendment seizure," and Judge Lewis agreed that "the police effected a Fourth Amendment seizure." But I was of the view (and I remain of the view) that the statements of Judges Scirica and Lewis (and, likewise, the disagreeing statement of Judge Greenberg) must be understood as conclusions of law deriving from a set of alleged facts which, for purposes of reviewing a denial of summary judgment, the Court of Appeals took to be undisputed. As a result, the opinions of Judges Scirica and Lewis signify that, in their joint view, a jury could reasonably find a seizure on the facts as the Third Circuit understood them. In short, I understand Judges Scirica and Lewis as having held, on the basis of the appellate record, that if a jury found that City officials, for the purpose of apprehending persons inside the Osage Avenue house, had employed an explosive device that triggered a fire, and that the fire had harmed persons inside the house, then the jury could conclude that persons harmed by this course of conduct had been "seized." The evidence presented at trial did not significantly deviate from the version of the facts that the Court of Appeals took as given in addressing the seizure issue. Thus, evidence was presented that would support a finding that City officials dropped the explosive device and then allowed the fire to burn, in Judge Scirica's words, "with the aim of gaining entry into the house or forcing the occupants out." 49 F.3d at 974. Since two members of the Court of Appeals panel held that the use of the explosive device and fire for these purposes could support a finding that a seizure occurred, that holding binds this court. Thus, the City's contention that this court must conclude, as a matter of law, that no seizures occurred, must be rejected.
B. Whether John Africa Was "Seized" Even Though He Was Not the Subject of an Arrest Warrant
The City also advances the more limited argument 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 hence was not a person the police intended to apprehend.
The City is correct in contending that intentionality is a key ingredient of a Fourth Amendment seizure. "Violation of the Fourth Amendment," said the Court in Brower, "requires an intentional acquisition of physical control." 489 U.S. at 596. And, shortly after the decision in Brower, the First Circuit held that a police officer who, aiming at a fleeing suspect, accidentally shot the suspect's hostage, could not be found to have "seized" the hostage in contravention of the Fourth Amendment. Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 797 (1st Cir. 1990). Similarly, the Fourth Circuit held that a bystander accidentally shot by a police officer aiming at the tires of the car in which a suspect was fleeing had no cognizable Fourth Amendment claim against the officer. Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991). Both the First and Fourth Circuits found dispositive Brower's insistence on intentionality. As the Fourth Circuit put it, Brower "means that a fourth amendment seizure may occur notwithstanding that the person restrained was mistakenly thought to be another, because he nevertheless is the intended object of the specific act of physical restraint. But it does not mean . . . that a seizure occurs just so long as the act of restraint itself is intended (here the act of shooting) though it restrains one not intended to be restrained." Rucker, 946 F.2d at 281.
Assuming, as I do, that Rucker and Landol-Rivera are proper explications of Brower, they do not support the City's argument that the jury could not properly find that John Africa was an intended object of the measures pursued by the Philadelphia police on May 13, 1985, and, hence, that the harm which befell him was a "seizure" within the meaning of the Fourth Amendment.
This is the Police Commissioner, we have warrants for the arrest of Frank James Africa, Ramona Johnson Africa, Theresa Brooks Africa, and Conrad Hampton Africa for various violations of the criminal statutes of Pennsylvania. We do not wish to harm anyone, all occupants have 15 minutes to peaceably evacuate the premises and surrender. This is your only notice, the 15 minutes starts now.
Plaintiff Ramona Africa Exh. 1.
It should be noted that the use of the term "all occupants" (in the sentence "We do not wish to harm anyone, all occupants have 15 minutes to peaceably evacuate the premises and surrender") was advertent. According to Commissioner Sambor, the term "all occupants" was substituted for "you" at a meeting with Managing Director Brooks on the evening of May 12, some hours prior to the Commissioner's early morning bullhorn announcement. The pertinent testimony of Commissioner Sambor is as follows:
A. In the beginning, I had written this is police commissioner and I had "the" written above it. And I had my name, Sambor. And down further, we do not wish to harm anyone, you have 15 minutes. I changed that to read "all occupants" from just the word you.
Q. Commissioner Sambor, is it fair to state that as you had initially prepared it, this announcement was directing four ...