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In re City of Philadelphia Litigation

September 09, 1998

RAMONA AFRICA
v.
CITY OF PHILADELPHIA; WILLIE GOODE; LEO A. BROOKS; GREGORE SAMBOR; WILLIAM RICHMOND; FRANK POWELL, LT.; WILLIAM KLEIN, OFFICER; MICHAEL TURSI, OFFICER; ALBERT REVEL, SGT.; EDWARD CONNOR, SGT.; MORRIS DEMSKO, CORPORAL; RICHARD REED, STATE TROOPER, INDIVIDUALLY AND IN THEIR PRESENT AND/OR FORMER OFFICIAL CAPACITIES (D. C. CIVIL NO. 87-CV-02678) CITY OF PHILADELPHIA, APPELLANT



(D.C. Civ. Nos. 85-cv-02745 & 87-cv-02678)

Before: Mansmann, Cowen and Alito, Circuit Judges.

The opinion of the court was delivered by: Mansmann, Circuit Judge.

IN RE: CITY OF PHILADELPHIA LITIGATION (D.C. Civil No. 85-cv-02745)

Appeal from the United States District Court for the Eastern District of Pennsylvania

Argued January 27, 1998

OPINION OF THE COURT

On May 13, 1985, now more than thirteen years ago, the City of Philadelphia police dropped a bomb on 6221 Osage Avenue, a building occupied by several members of a group called "MOVE," killing eleven of the thirteen people inside, devastating the West Philadelphia community, and bringing national attention to the actions taken that day by the City of Philadelphia officials involved in the incident. This appeal requires us to revisit that confrontation.

Only two parties have participated in this appeal, whittled down from the dozens of plaintiffs and defendants previously involved in this massive litigation. Here, the City of Philadelphia appeals that portion of the judgment entered against it and in favor of Ms. Ramona Africa on her civil rights claim under 42 U.S.C. § 1983.*fn1

The City's sole argument on appeal is that, as a matter of law, its conduct did not amount to a seizure under the Fourth Amendment. We hold that because the evidence contained in the summary judgment record, upon which we previously relied to determine that the City's actions were sufficient to constitute a Fourth Amendment seizure, was also presented at trial, we are bound under the law of the case doctrine to our prior seizure determination. Accordingly, in conformance with our prior holding, we are required to reject the City's argument that its conduct was legally insufficient to constitute a Fourth Amendment seizure. We therefore will affirm the judgment entered on Ms. Africa's civil rights claim against the City.

I.

The controversial events forming the basis of this litigation were highly publicized and have been recounted in several published opinions. See, e.g., In re City of Phila. Litig., 49 F.3d 945 (3d Cir. 1995); In re City of Phila. Litig., 938 F. Supp. 1278 (E.D. Pa. 1996); In re City of Phila. Litig., 849 F. Supp. 331 (E.D. Pa. 1994); Africa v. City of Phila., 809 F. Supp. 375 (E.D. Pa. 1992). Accordingly, we will assume familiarity with this case and will present only an abbreviated synopsis of the background relevant to this appeal.

A.

On May 11, 1985, arrest warrants were issued for several MOVE members, including Ms. Africa, and search warrants were issued for 6221 Osage Avenue in West Philadelphia upon a judicial finding of probable cause. After Philadelphia's district attorney informed Philadelphia Mayor Wilson Goode that the court had issued the warrants, Goode instructed Police Commissioner Gregore Sambor to execute the warrants.

The City evacuated residents from the Osage Avenue neighborhood on May 12, 1985. At approximately 3:00 a.m. the next morning, police and firefighters assumed their positions surrounding 6221 Osage Avenue. At approximately 5:30 a.m., Commissioner Sambor announced over a bullhorn that the MOVE residents had fifteen minutes to vacate the premises and surrender. MOVE members responded over a loudspeaker with threats of violence. After the allotted time elapsed, the City began attempts to infuse the house with tear gas to force evacuation.

Police entered adjoining houses in order to blow holes in common walls for the insertion of tear gas canisters. During the attempts to infuse the tear gas, MOVE membersfired on police officers from within 6221 Osage Avenue and from a wooden bunker located on the roof of the building. Due to the gunfire and the fact that MOVE had fortified the common walls, the infusion attempts proved ineffective. As a result, the police retreated from the adjoining buildings.

Sometime around 4:00 p.m. that afternoon, City officials met to discuss a new strategy. They concluded that any further attempt to execute the warrants by gassing the house would fail as long as the bunker on the roof afforded MOVE members a tactical advantage. After considering several alternatives, they agreed to drop a satchel containing explosives onto the bunker from a helicopter. The officials hoped that this "bomb" would disable the bunker or blow a hole in the roof through which tear gas could be inserted.*fn2

Shortly after the police dropped the bomb, a fire broke out on the roof. Upon learning of the fire, Police Commissioner Gregore Sambor and Fire Commissioner William Richmond conferred and determined that they should let the fire burn until it neutralized the bunker. Richmond's sworn testimony before the MOVE Commission on October 30, 1985 regarding this conversation, which was played to the jury, was as follows:

Commissioner Sambor said to me something to the effect, "Can we control that fire?" And my response -- and I'm a cautious person by nature. I said, "I think we can . . . ."

I told him essentially that, that I thought we could contain the spread at that point. He said, "Let's let the bunker burn to eliminate the high ground advantage and the tactical advantage of the bunker," and I said, "Okay." I acquiesced, I agreed.

This testimony was consistent with Sambor's testimony at trial; Sambor testified that he asked Richmond if he could control the fire if they "let the fire go to get the bunker" and that Richmond responded in the affirmative.

Mayor Goode, who had returned to City Hall, never authorized the use of fire as a police tactic and testified that he would have ordered Richmond to put the fire out immediately had anyone contacted him. Philadelphia Managing Director Leo Brooks remained on the scene and testified that he ordered Sambor to have the fire put out as soon as he noticed the fire and was able to contact Sambor. Brooks' testimony conflicted with other trial testimony, however, that suggested that Brooks initially acquiesced in the decision to let the fire burn. In re City of Phila. Litig., 938 F. Supp. at 1289-90 n.10, 1292-93 n.13 (discussing conflicting testimony).

Sometime after the City officials noticed thefire, Brooks ordered Sambor to put the fire out and firefighters began taking steps to fight the fire. The fire, however, burned out of control despite the City's efforts to fight it. The roof eventually caved in, the bunker dropped through to the second floor, and the fire consumed the house and burned numerous neighboring buildings. With the exception of Ms. Africa and one child, who emerged from the house approximately two hours after the bomb fell, ...


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