In Re: City Phila Litigation

• Court: Court of Appeals for the Third Circuit
• Decided: March 6, 1995
• Docket: 94-1277
• Status: Unknown

Opinion

Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit

3-6-1995

In Re: City Phila Litigation Precedential or Non-Precedential:

Docket 94-1277

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Recommended Citation "In Re: City Phila Litigation" (1995). 1995 Decisions. Paper 67. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/67

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Nos. 94-1277, 94-1278, 94-1279, 94-1280, 94-1322 and 94-1377

IN RE: CITY OF PHILADELPHIA LITIGATION (D.C. Civil No. 85-2745)

RAMONA AFRICA

v.

CITY OF PHILADELPHIA; WILLIE GOODE; LEO A. BROOKS; GREGORE SAMBOR; WILLIAM C. 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. 87-2678)

Leo A. Brooks, Appellant in No. 94-1277

Ramona Africa, Appellant in No. 94-1322

City of Philadelphia, Appellant in Nos. 94-1280 and 94-1377

William C. Richmond, Appellant in No. 94-1279

Gregore Sambor, Appellant in No. 94-1278

Nos. 94-1233, 94-1272, 94-1276, 94-1321 and 94-1378

IN RE: CITY OF PHILADELPHIA LITIGATION (D.C. Civil No. 85-2745) ALFONSO LEAPHART, Administrator of the Estate of VINCENT LOPEZ LEAPHART, a/k/a JOHN AFRICA

CITY OF PHILADELPHIA; W. WILSON GOODE, Mayor, City of Philadelphia; LEO A. BROOKS, Former Managing Director, City of Philadelphia; GREGORE J. SAMBOR, Former Police Commissioner, City of Philadelphia; WILLIAM C. RICHMOND, Fire Commissioner, City of Philadelphia; FRANK POWELL; WILLIAM KLEIN; MICHAEL TURSI; ALBERT REVEL; COMMONWEALTH OF PENNSYLVANIA; RICHARD THORNBURGH, Former Governor, Commonwealth of Pennsylvania; JAY COCHRAN, Commissioner of State Police, Commonwealth of Pennsylvania; RICHARD REED; MORRIS DEMSKO; E.I. DUPONT DE NEMOURS AND COMPANY

(D.C. Civil No. 87-2756)

Alfonso Leaphart, Administrator of the Estate of Vincent Lopez Leaphart, a/k/a John Africa, Appellant in No. 94-1321

City of Philadelphia, Appellant in Nos. 94-1378, 94-1233, and 94-1272

William C. Richmond, Appellant in No. 94-1276

Nos. 94-1229, 94-1230, 94-1231, 94-1232, 94-1320 and 94-1379

IN RE: CITY OF PHILADELPHIA LITIGATION (D.C. Civil No. 85-2745)

LOUISE JAMES

v. FRANK POWELL; GREGORE J. SAMBOR; LEO BROOKS; WILLIAM C. RICHMOND; W. WILSON GOODE; CITY OF PHILADELPHIA; STATE OF PENNSYLVANIA; DU PONT DE NEMOURS, E.I. & COMPANY

RAMONA JOHNSON AFRICA; ALPHONSO ROBBINS AFRICA, Third-Party Defendants

(D.C. Civil No. 85-3528)

Louise James, Administratrix of the Estate of Frank James, Appellant in No. 94-1320

City of Philadelphia, Appellant in Nos. 94-1229 and 94-1379

Gregore Sambor, Appellant in No. 94-1230

Leo A. Brooks, Appellant in No. 94-1231

William C. Richmond, Appellant in No. 94-1232

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Nos. 85-02745, 85-03528, 87-02678, 87-02756)

Argued November 3, 1994

BEFORE: GREENBERG, SCIRICA, and LEWIS, Circuit Judges

(Filed: March 6, l995)

André L. Dennis (argued) Jeffrey M. Lindy Raymond S. Wierciszewski Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103-7098

Attorneys for Appellant/Appellee Ramona Africa

Fincourt B. Shelton (argued) Fincourt B. Shelton and Associates Six North 9th Street, Suite 201 Darby, Pennsylvania 19023

Attorneys for Appellant/Appellee Louise James

Rosemarie Rhodes (argued) Harper & Paul 140 West Maplewood Avenue Philadelphia, PA 19144

Attorneys for Appellant/Appellee Alfonso Leaphart

Joseph A. Dworetzky, Acting City Solicitor Michael F. Eichert, Divisional Deputy City Solicitor E. Jane Hix (argued) Deputy City Solicitor City of Philadelphia Law Department 1600 Arch Street, 8th Floor Philadelphia, PA 19103

Attorneys for Appellant City of Philadelphia

Nolan N. Atkinson, Jr. (argued) Frank E. Noyes, II Duane, Morris & Heckscher 4200 One Liberty Place Philadelphia, PA 19103-7398

Attorneys for Appellee W. Wilson Goode Steven R. Waxman (argued) Kleinbard, Bell & Brecker 1900 Market Street, Suite 700 Philadelphia, PA 19103

Attorneys for Appellant Leo A. Brooks

John W. Morris (argued) One Penn Square West Suite 1300 Pennsylvania, PA 19102-4813

Attorney for Appellant Gregore Sambor

Peter C. Kennedy (argued) James M. Marsh Hecker Brown Sherry and Johnson 1700 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103

Attorneys for Appellant William C. Richmond

Richard D. Malmed Two Penn Center Plaza Suite 1920 15th & JFK Boulevard Philadelphia, PA 19102

Attorney for Appellee Frank Powell

E. Harris Baum John R. O'Donnell Zarwin & Baum, P.C. Suite 700 Four Penn Center Plaza 1616 John F. Kennedy Boulevard Philadelphia, PA 19103

Attorneys for Appellee William Klein

OPINION ANNOUNCING THE JUDGMENT OF THE COURT GREENBERG, Circuit Judge.

These consolidated appeals have been taken from

judgments and orders in three civil actions against the City of

Philadelphia and certain of its former officials and employees.

The plaintiffs' claims arose out of an attempt by the

Philadelphia Police Department on May 13, 1985, to execute search

warrants and arrest warrants at a premises in Philadelphia

occupied by a group known as MOVE. After hours of gunfire and

failed attempts to inject tear gas into the residence in which

the MOVE members had barricaded themselves, police officers

dropped an explosive device on the roof of the house. The

ensuing fire killed 11 persons, including five children, in the

residence and destroyed dozens of homes in the vicinity.

The plaintiffs appeal from the district court's grant

of summary judgment on qualified immunity grounds in favor of

certain of the defendants with respect to claims arising from the

dropping of the explosive device. Philadelphia Managing Director

Leo A. Brooks, Police Commissioner Gregore Sambor, and Fire

Commissioner William C. Richmond appeal from the district court's

denial of their motions for summary judgment on qualified

immunity grounds with respect to claims under 42 U.S.C. § 1983

arising from their alleged decisions to let the fire burn.1 They

1 . For simplicity and convenience, we will address these officials by the titles they held during the 1985 conflict even though they may no longer hold such titles. The Commonwealth of Pennsylvania and certain of its officials and employees also have been parties to this litigation but they are not involved in these appeals. also appeal from the denial of their motions for summary judgment

on state claims asserted against them. The city itself appeals

from the denial of its motion for summary judgment.

The court is divided on the disposition of various

issues and on certain issues there are majorities consisting of

each of the three possible combination of judges. On other

issues the court is unanimous. In this opinion I will set forth

the ultimate conclusions reached and also will set forth the

majority view on some points and my own view on other points.

Judges Scirica and Lewis are filing separate opinions. As a

matter of convenience I largely will deliver this opinion in the

first person.

Judge Scirica and I conclude that all the individual

defendants are immune because their actions on May 13, 1985, did

not violate any clearly established constitutional rights of

plaintiff Ramona Africa and decedents Frank James and Vincent

Lopez Leaphart. Accordingly, we will affirm the grant of

summary judgment to defendants Wilson Goode, the mayor of the

city, and police officers Frank Powell and William Klein, and

will reverse the denial of summary judgment on the section 1983

claims to defendants Brooks, Sambor, and Richmond. Judges

Scirica and Lewis conclude that the City of Philadelphia is not

entitled to summary judgment on the section 1983 claims and

accordingly we will affirm the district court's denial of summary

judgment to the city on those claims. Judge Lewis and I conclude

that we do not have jurisdiction over the appeals from the

district court's denial of summary judgment for Brooks, Sambor and Richmond on the state law claims based on letting the fire

burn. Accordingly, we dismiss those appeals.

There also is a related property claim before us filed

by Louise James seeking compensation for the destruction of the

MOVE house. For the reasons we discuss below we all conclude

that we do not have jurisdiction over the appeal from the

dismissal of that claim. Consequently, we will dismiss for lack

of jurisdiction James' appeal insofar as it relates to her

property claim.

I. FACTUAL BACKGROUND

Because the motions for summary judgment involved the

individual defendants' claims of entitlement to qualified

immunity, the district court indicated that its rulings were

based on the "plaintiff's well-documented version of the facts,"

as called for by Good v. Dauphin County Social Serv., 891 F.2d

1087, 1094-95 (3d Cir. 1989). This court since has clarified

that such a determination should be based on the undisputed facts

as revealed by the record and on the plaintiff's version of the

facts where there are disputes. Melo v. Hafer, 13 F.3d 736, 745 (3d Cir. 1994) ("If, after the summary judgment practice

prescribed by that rule, the undisputed facts of record

demonstrated entitlement to immunity, the Court would ignore the

bare allegations of the complaint and grant summary judgment on

grounds of immunity."); see also Brown v. Grabowski, 922 F.2d

1097, 1110-11 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S.Ct. 2827 (1991). In this case, the extensive record includes the discovery and investigative reports from a state grand jury

and a special commission which studied the incident. These

materials are particularly significant because Ramona Africa, the

only surviving witness from inside the premises who has testified

for the plaintiffs as to the events that occurred on May 13,

1985, has limited knowledge of the facts because she was in the

cellar with the children for most of that day and did not hear

any of the announcements made by either police officers or MOVE

members. See app. at 1362-65.

The material undisputed facts are as follows. In 1978,

pursuant to a court order, the city attempted to evict MOVE

members from a residence in Powelton Village. However, the MOVE

members resisted and a gunfight broke out. As a result, one

police officer was killed and several other police officers and

fire fighters were wounded. Subsequently, nine MOVE members were

convicted for the murder of this officer.

In the early 1980's MOVE members took up residence at

6221 Osage Avenue, Philadelphia. By any standard they were a

disrupting neighborhood force. Some used loudspeakers to

communicate threats and dissatisfaction to their neighbors.

Furthermore, the Probable Cause Affidavit (the Affidavit)

supporting the issuance of the warrants executed on May 13, 1985,

states that a MOVE member had threatened Mayor Goode, calling him

"a nigger motherfucker" and indicating that "we have a bullet for

[Mayor Goode] . . . to blow his motherfucking head off. If we

have to, we will go down to City Hall and put six in his head."

App. at 2294. The Affidavit also states that the same MOVE member announced, "[w]e will kill any motherfucking cop that

comes to the front, back or our goddamned roof," and threatened

two police officers that if they "come back around here again,

we'll kill you; put a bullet in your head." Id.

The Affidavit states further that several neighbors

said that "they heard MOVE members say over the loudspeakers that

they have wired the entire block with explosives and that if any

neighborhood resident speaks with the press, or if the police

take action against MOVE, MOVE will blow up the entire block."

App. at 2295. Neighborhood residents stated that they had seen a

MOVE member on the roof with a weapon or a gun. App. at 2296.

The Affidavit also notes that one of the MOVE members at 6221

Osage Avenue was on parole from a conviction for riot,

terroristic threats, and possession of an instrument of crime.

Id.

The Affidavit also states that in 1984, neighbors had

observed MOVE members carrying sandbags into the Osage Avenue

building. App. at 2301. The windows of the building had been

blocked with wooden slats, and aerial photographs showed that a

bunker had been constructed on its roof. App. at 1568, 2301.

The arrest and search warrants were issued on May 11,

1985, upon a judicial finding of probable cause. App. at 2291.

After District Attorney Edward Rendell informed Mayor Goode that

there was probable cause, the Mayor instructed Police

Commissioner Sambor to develop a plan to execute the warrants.

Goode testified that earlier that week, he attempted to negotiate with certain MOVE members but they rebuffed him with a message,

"Now we are ready. Tell them to come on." App. at 897-901.

A few days prior to the confrontation, the Civil

Affairs Unit of the Police Department received a hand-written

letter signed with Ramona Africa's name.2 App. at 1739-53. The

letter warned that any police raids on MOVE would fail, and

threatened that "if [police officers] succeed in coming thru the

walls they are going to find smoke, gas, fire, and bullets.

Before we let you mutha fuckas make an example of us we will burn

this mutha fuckin house down and burn you up with us." App. at

1234, 1751.

Police Commissioner Sambor developed the initial plan

to execute the warrants, which was to evacuate the neighborhood,

request a peaceful surrender, and, if necessary, use tear gas to

force the MOVE members from the house. App. at 1985-86. Because

of the bunker on the roof, it was decided that the police would

make holes in the sides of the house and insert tear gas through

them rather than through the roof. App. at 1575-76, 1985. To

provide cover for the "insertion teams," i.e., the officers who

were to enter the adjoining houses and create the holes, the plan

provided for the fire department to aim water hoses at the bunker

while the police fired smoke canisters around the house. App. at

1456-58, 1771, 1986. Rather than having the officers drill holes

into the walls of the house, thereby exposing them to assault

2 . Ramona Africa denies having any knowledge of the letter, see app. at 1360, but she does not deny that the police received the letter prior to the day of confrontation. while they were drilling, the plan called for "shape charges," or

small explosives, to be used to create the holes. App. at 1416,

1570, 1986-87. Once they created the holes, it was expected that

they would inject tear gas into the MOVE house and force out the

occupants. App. at 1419, 1570, 1987.

On May 12, 1985, the city evacuated the neighborhood

residents. App. at 2229. Beginning at approximately 3:00 a.m.

the next morning, police officers and fire fighters took up their

places around 6221 Osage Avenue. App. at 2230. At around 5:30

a.m., Police Commissioner Sambor announced over a bullhorn that

the police had arrest warrants for four persons in the house and

that they had 15 minutes to surrender. App. at 1609, 1764-69,

1856, 2036, 2230. MOVE members responded over the loudspeaker

that they would not surrender, and one yelled: You're going to be laying in the street, bleeding in the street. Come on in and get us. We're going to kill you where you stay, where you lay. We see you on the roof. We know you're in those houses.

App. at 1093, 1777, 1791-92, 2037, 2230. After the 15 minutes

lapsed, the police began to fire tear gas and smoke projectiles

at the house while the fire department began to squirt water onto

the roof of the house to provide cover for the insertion teams.

App. at 1043-44, 1778-79, 2230, 2037-38.

A few minutes later, someone in the MOVE house fired

shots at the police. App. at 2038, 2230. Muzzle flashes were

seen from the bunker atop the roof. App. at 1780-85, 1791, 1797-

98, 1826-29, 2038. A massive gun battle followed for at least an hour and a half. App. at 2041, 2230. Meanwhile, the insertion

teams had set off several explosions on both sides of the house.

App. at 2043-45, 2048-49, 2230. By mid-morning, the fronts of

the MOVE house and adjoining houses were damaged heavily. App.

at 1616-17, 2230-31. Yet, because they were under heavy gunfire

and because the walls of the MOVE house were fortified, the teams

could not create usable pathways through which tear gas could be

introduced successfully. App. at 959-61, 1878-91, 2043-50, 2230-

31. Consequently, the original plan was abandoned and the

officers on the insertion teams retreated. As they did so they

heard children's voices coming from the basement of the MOVE

house. App. at 2051. Still, MOVE members had not given any

indication that they would surrender. App. at 2231.

Around 4:00 p.m. that afternoon, Sambor, Brooks,

Richmond, and other city officials and police officers, discussed

alternative ways to remove the bunker and to proceed against the

MOVE members. App. at 971-75, 2060-61, 2231. They also

discussed whether to let the situation stand overnight and

continue their efforts to execute the warrants the next morning.

App. at 977-80, 998, 1004-05. But they determined that they

could not wait until morning because it would be too difficult to

keep the neighborhood secure through the night due, among other

factors, to the darkness and the exhaustion which likely would

set in on the officers who had been on duty since the night

before. Id. They also believed that MOVE members might escape

through tunnels rumored to have been dug under the neighborhood.

Id; app. at 1410-11, 1504, 1666-67. Accordingly, the officials considered other means to

execute the warrants but they rejected all as too dangerous.

These included plans to use a crane to remove the bunker, to

attack from above the roof, to attack from the front or the back

of the house, and to place an explosive in the bunker. App. at

963, 2060-61. The officials then focused on a plan to drop a

"satchel charge" onto the bunker from a helicopter to destroy or

dislodge the bunker and create a hole in the roof. App. at 1131,

2061-62. The officials discussed the possibility that the

explosive could start a fire but they were satisfied that the

risk would be negligible. App. at 981, 1011, 1149, 1191, 2061-

62. Managing Director Brooks then informed Mayor Goode of the

plan to use the explosive, and Mayor Goode approved it.3 App. at

983-84, 1070, 2064-65, 2231. At about the same time, a group of

neighbors used a bullhorn to plead with the MOVE members to

surrender but received no response. App. at 966-68, 1852-54,

2231.

The plan to use the explosive went forward. App. at

2231. Klein constructed the device and Powell dropped it on the

roof of the MOVE house from a helicopter operated by state

troopers Richard Reed and Morris Demsko. App. at 2068, 2231.

Rather than destroying the bunker, however, the satchel seems to

have missed it entirely. App. at 1622-23, 2058.

3 . There is a dispute as to whether Mayor Goode knew that the plan was to drop the explosive from a helicopter, but this is not germane to my discussion because he knew and approved of dropping the explosive onto the bunker. Goode watched the explosion on television in his City

Hall office, Brooks and Sambor observed it from the balcony of a

nearby building, and Richmond saw it from Osage Avenue. Id. at

1156, 2097. Brooks described his observations as follows: I observed an explosion that was from our [vantage point,] a dust ball, in other words a smoke ball. . . . It blew wood in all directions. Then it was very -- then the smoke rose. It was a very light gray smoke, as the smoke rose away from it, the helicopter was flying above it, and we could see nothing there but a hole in the roof.

App. at 987.

Shortly after the explosion, observers saw a fire on

the roof. App. at 988. There is evidence that a detonation

caused the fire by igniting combustible liquid vapor. App. at

2058, 2311. Commissioner Sambor, who now was on Osage Avenue

with Commissioner Richmond, then asked Richmond, "if we let the

roof burn to get the bunker could we then subsequent to that

control the fire?" App. at 1072-73. Sambor testified: 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 fire fighter. 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 was, it was in the affirmative.

App. at 1073. Richmond's testimony corroborates this: 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 that high ground advantage and the tactical advantage of the bunker,' and I said, 'Okay' . . . . He made the recommendation, . . . and I concurred.

App. at 1163. Richmond also testified that he had prepared the

fire fighters as soon as he knew of the fire. App. at 1157. But

because he did not know the positions of the police officers, if

any, around the area of the roof he first told an aide, "[g]et a

hold of the police and see what they want to do about this fire

on the roof." Id. Thus, the fire was allowed to burn until

Goode and Brooks ordered that it be extinguished.

The fire fighters, however, encountered many problems.

For example, there was a live electrical wire in the vicinity,

the water itself caused visibility problems, and the water caused

the fire to "bank," or invert, downward into the house. Id. at

1158-59, 2117-20. The fire then went out of control killing 11

people and destroying 61 houses. Ramona Africa and a young boy

were the only survivors from the house.

II. PROCEDURAL HISTORY

A. The Claims

Numerous suits were filed by property owners from the

neighborhood and on behalf of the occupants of 6221 Osage Avenue.

The court consolidated these cases for discovery under number 85-

2745, to be managed by a magistrate judge.

The defendants' answers raised affirmative defenses,

including immunity from liability. The individual defendants,

sued also in their official capacity as officers or employees of the city (collectively, the city defendants), joined Ramona

Africa as an additional defendant. Africa then moved to dismiss

this third-party complaint but the court denied her motion. She

then joined in this action against the city defendants and the

City of Philadelphia, and her case was added to number 85-2745.

During the ensuing four and a half years most of the claims were

resolved. The remaining claims are Ramona Africa v. The City of

Philadelphia, et al., number 87-2678, Alfonso Leaphart v. The

City of Philadelphia, et al., number 87-2756, and Louise James v.

The City of Philadelphia, et al., number 85-3528.

Ramona Africa sued the City of Philadelphia and Mayor

Wilson Goode, Managing Director Leo Brooks, Police Commissioner

Gregore Sambor, Fire Commissioner William Richmond, District

Attorney Edward Rendell, City Police Lieutenant Frank Powell,

City Police Officers William Klein and Michael Tursi, City Police

Sergeants Albert Revel and Edward Connor, State Police Corporal

Morris Demsko, and State Trooper Richard Reed, in their official

capacities and individually. Africa claimed that: (1) the

defendants, in violation of 42 U.S.C. § 1983, deprived her of her

constitutional rights of freedom of religion, expression, and

association, of due process, of equal treatment under the law,

and of "freedom from excessive force, assault and bodily injury,"

app. at 102; (2) the defendants, in violation of 42 U.S.C. §

1985(3), conspired to deprive her of these constitutional rights;

and (3) the defendants violated state law in using unreasonable

force in the arrest in violation of section 1983. Africa seeks

compensatory and punitive damages. Her action against Rendell was, however, dismissed on qualified immunity grounds and she

does not appeal from that dismissal.

Alfonso Leaphart sued on behalf of John Africa a/k/a

Vincent Lopez Leaphart, who perished in the fire. Leaphart

initially sued the same defendants as Ramona Africa as well as

certain others, but his suit was dismissed as to some of the

defendants prior to entry of the orders now on appeal.

Currently, the defendants in his case are the City of

Philadelphia, Mayor Goode, Commissioner Richmond, Lieutenant

Powell, and Officers Klein, Tursi, and Revel. Leaphart alleges

that they violated his decedent's rights under the First, Fourth,

and Fourteenth Amendments, in violation of 42 U.S.C. §§ 1983 and

1985(3).4 He seeks compensatory and punitive damages as well as

declaratory relief.

Louise James sued on behalf of her son Frank Africa

a/k/a Frank James, who perished in the fire, and on her own

behalf as owner of 6221 Osage Avenue. James currently sues the

City of Philadelphia, Mayor Goode, Commissioners Sambor and

Richmond, Managing Director Brooks, and Lieutenant Powell, for

compensatory and punitive damages. In her personal capacity, she

asserts a claim under the Fifth Amendment for the uncompensated

destruction of her property. On behalf of her son, she asserts a

section 1983 claim and a section 1985(3) claim based on the

4 . Leaphart also asserted a claim under the Fifth Amendment but I do not deal separately with that claim inasmuch as the Supreme Court indicated in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989), that excessive force claims should be considered under the Fourth Amendment. I discuss this point later. alleged deprivation of her son's constitutional rights and state

law claims. As is evident, some of the claims asserted by all

three plaintiffs against certain defendants are identical.

Accordingly, I will treat such similar claims together.

B. The District Court Rulings

In a March 26, 1992 report and recommendation, the

magistrate judge recommended that the court deny the motions for

summary judgment sought on qualified immunity grounds by Mayor

Goode, Managing Director Brooks, Commissioner Sambor,

Commissioner Richmond, Lieutenant Powell, Officer Klein, and

State Police Officers Demsko and Reed. See Africa v. City of

Philadelphia, 809 F. Supp. 375, 376-77 (E.D. Pa. 1992)

(hereinafter Africa I). He also recommended that the court grant

summary judgment in all three cases on qualified immunity grounds

to Officers Tursi, Revel, and Connor because they were involved

only with the attempted penetration of the sides of the house.

Id. at 377 n.5. The district court approved and adopted the

latter recommendations, and these orders have not been appealed.

Id. But the district court remanded the remaining matters

to the magistrate judge for consideration under the guidelines

the Supreme Court set forth in Tennessee v. Garner, 471 U.S. 1,

105 S.Ct. 1694 (1985), stating as follows: [T]he 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.

Africa I, 809 F. Supp. at 382 (citation omitted); In re City of

Philadelphia Litig., 849 F. Supp. 331, 337 (E.D. Pa. 1994)

(hereinafter Africa II).

On October 6, 1993, the magistrate judge issued another

report and recommendation. He analyzed the defendants' actions

as involving two separate decisions: the plan to drop the

explosive device onto the bunker and the decision to let the fire

burn. He concluded as follows: [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 threat 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 5085 [of the Pennsylvania Crimes Code] and Garner.

5 . The Supreme Court cited the Pennsylvania Crimes Code in Tennessee v. Garner, 471 U.S. at 17 n.18, 105 S.Ct. at 1704 n.18, in developing the Court's constitutional standard. Section 508 states, 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 which he believes to be necessary to defend himself or another from Africa II, 849 F. Supp. at 337, 357. Section 508 defines the

circumstances in which a police officer may use force in making

an arrest. Thus, the magistrate judge recommended that all

defendants be granted summary judgment in all three cases to the

extent that the plaintiffs sought to impose liability based on

the dropping of the explosive device.

The magistrate judge concluded, however, that under the

standards of Tennessee v. Garner and section 508 of the

Pennsylvania Crimes Code it was unreasonable to let the fire burn

after the bunker had been neutralized. Id. at 337, 359-61. He

also determined that Commissioners Sambor and Richmond made the

decision to let the fire burn but that the other city defendants

were not involved at this stage. Id. at 337, 360. Therefore, he

(..continued) 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:

(i) 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. Cons. Stat. Ann. § 508(a) (1983). recommended that the court deny summary judgment on qualified

immunity grounds for the two commissioners with respect to claims

based on letting the fire burn. Id. They objected to this

recommendation on the ground that the evidence demonstrated that

they had intended to let the fire consume only the bunker, which

they believed to pose a lingering threat. Id. at 339.

The magistrate judge further found that while the

defendants may be entitled to statutory immunity from state law

liability for acts performed in the scope of their duties, they

would not be entitled to immunity if they engaged in "willful

misconduct." Id. at 364. Accordingly, the magistrate judge

recommended that the court grant summary judgment on immunity

grounds with respect to the state claims to those individual

defendants involved only in the dropping of the explosive device.

Id. In these instances, the grant of summary judgment on the

federal claims demonstrated that the conduct of these defendants

did not, as a matter of state law, constitute "willful

misconduct." Id. Conversely, he recommended that those

defendants denied summary judgment on the federal claims also

should be denied summary judgment for the state claims. Id. The district court adopted the magistrate judge's

recommendation as to the claims based on the dropping of the

explosive device. Id. at 338-39. In reviewing the

recommendation, however, the court "focused on the decision to

let the fire burn at all." Id. The court stated: 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 [sic] to continue until it totally consumed what remained of a bunker . . . . 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.

Id. at 340. Thus, the court concurred with the magistrate

judge's view that summary judgment should be denied to

Commissioners Sambor and Richmond with respect to claims based on

letting the fire burn. Id. at 342, 347.

During oral argument the district court raised the

question of "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." Id. at 342.

Although Africa had not objected earlier to the magistrate

judge's finding that he had not concurred in that decision, she

decided to do so then. Id. In a further interview, Commissioner

Sambor indicated that when he explained to Brooks that they were

letting the fire burn the bunker, Brooks said, "only the bunker."

Id. at 343. Sambor said further that Brooks subsequently told

him to put the fire out. Attorneys for the city and for Brooks

argued that the plaintiffs waived this issue and that no other

evidence supports the allegation that Brooks was involved in the

decision to let the fire burn. The district court rejected these

arguments and denied the summary judgment which Brooks sought on

qualified immunity grounds with respect to claims based on the

decision to let the fire burn. Id. at 345, 347. With regard to claims against the City of Philadelphia,

the city first argued that only Mayor Goode and Managing Director

Brooks had final decision-making authority and that it should not

be held responsible for their subordinates' unapproved decisions.

However, upon finding that Brooks could be denied qualified

immunity, the city changed its position and argued that only

Mayor Goode had final decision-making authority. Id. at 345.

The court reviewed the city's charter and concluded that the

suability of either Managing Director Brooks or the two

commissioners would be sufficient to hold the city suable on the

federal claim. Id. at 345-47.

The court also held, in accord with the magistrate

judge's recommendation, that all defendants were entitled to

summary judgment based on lack of evidence with respect to the

plaintiffs' claims under the First and Fourteenth Amendments and

under section 1985(3). In addition, the court held that the city

was entitled to summary judgment on the state law claims because

a recent Pennsylvania Supreme Court opinion established that the

city council did not have the authority to expand the scope of

the Pennsylvania Political Subdivision Tort Claims Act. This

Supreme Court ruling was critical as the viability of the

plaintiffs' state law claims depended on this expansion.

Finally, the court dismissed James' Fifth Amendment

claim because she did not allege that she had pursued relief

unsuccessfully under state law procedures such as those set forth

by the Pennsylvania eminent domain code. In re City of Philadelphia (James v. City of Philadelphia), No. 85-3528, slip op. at 11-13 (E.D. Pa. Feb. 1, 1994). James pointed out that she

had brought a federal suit, number 88-3881, for recovery of her

property losses under federal and state law. In that action she

alleged that she was the only person whose property had been

destroyed by the fire whom the city did not compensate and she

asserted that such treatment was discriminatory. Id. In

December 1988, the court dismissed number 88-3881 with prejudice

as to the federal claims on the grounds that they were barred by

the statute of limitations and it dismissed the state law claims

without prejudice. Id. James did not appeal from that ruling.

On January 3, 1994, one day before the district court rendered

its bench opinion in the case currently before us, James filed a

Motion for Reconsideration Nunc Pro Tunc of the 88-3881 decision

under both docket numbers, 88-3881 and 85-3528. The district

court denied this motion, reasoning that it had been five years

since the 88-3881 case had been decided and James had offered no

new evidence or reasons for reexamining that decision. Id. at

13.

On motion by the City, the district court certified as

final under Fed. R. Civ. P. 54(b) the dismissal of all claims

against Goode, Powell, Klein,6 Revel, Tursi, Connor, Demsko, and

Reed. App. at 682, 803. In addition, the court certified for

appeal under 28 U.S.C. § 1292(b) the issue "of the suability of

6 . Apparently, the district court has not certified as final under Rule 54(b) the grant of summary judgment in favor of Officer Klein in the suit brought by Alfonso Leaphart. This point is of no importance because no appeal has been taken from that order. the City of Philadelphia, pursuant to 42 U.S.C. § 1983, on claims

arising from the decision to let the . . . fire burn." Id.

C. The Issues on Appeal

Ramona Africa appeals from the district court's final

order granting summary judgment in favor of Mayor Goode and

Officers Powell and Klein. Alfonso Leaphart appeals from the

final judgment granting summary judgment in favor of Mayor Goode.

Louise James appeals from the final judgment granting summary

judgment in favor of Mayor Goode and Officer Powell7 and in favor

of the City of Philadelphia with respect to the Fifth Amendment

property claim. James has appealed only from orders in the 85-

3528 case.

The City of Philadelphia appeals from the order denying

its motion for summary judgment with respect to the federal

claims based on section 1983. Managing Director Brooks and

Commissioners Sambor and Richmond appeal from the orders denying

their motions for summary judgment on qualified immunity grounds

with respect to the claims based on the decision to let the fire

burn and from the orders denying them summary judgment on the

state claims. We consolidated the appeals for briefing and

argument.8

7 . James' notice of appeal also states that she would be appealing the grant of summary judgment in favor of Officer Klein. App. at 823. I believe this is a clerical error because Officer Klein was not a defendant in her action and because she does not mention Officer Klein in her brief. 8 . The plaintiffs have not attempted to appeal from the district court's order granting summary judgment in favor of the city on III. JURISDICTION

The district court had jurisdiction over the federal

civil rights claims pursuant to 28 U.S.C. § 1343 (civil rights

action) and 28 U.S.C. § 1331 (federal question jurisdiction).

The district court also had supplemental jurisdiction based upon

28 U.S.C. § 1367 over the related state law claims.

A. Judgments Certified Under Rule 54(b)

We have jurisdiction pursuant to 28 U.S.C. § 1291 over

the appeals from the grants of summary judgment which the

district court certified as final judgments under Rule 54(b).

Gerardi v. Pelullo, 16 F.3d 1363, 1368-69 (3d Cir. 1994). These

final judgments include grants of summary judgment on qualified

immunity grounds with respect to all claims against Goode,

Powell, Klein,9 Tursi, Revel, Connor, Demsko, and Reed. As they

are properly before us, I shall review Africa's appeal from the

summary judgments in favor of Goode, Powell, and Klein;

Leaphart's appeal from the summary judgment in favor of Goode;

(..continued) the state claims. Nor have any of the plaintiffs challenged on appeal the grant of summary judgment, on grounds of insufficient evidence, for all defendants as to claims based on alleged violations of First and Fourteenth Amendment rights of the MOVE members. 9 . As I have noted above, the district court certified as final under Rule 54(b) its grant of summary judgment as to Ramona Africa's claims against Officer Klein, but not as to Alfonso Leaphart's claims. This decision, however, has not been appealed. and James' appeal from the summary judgment in favor of Goode and

Powell.

B. Denial of Summary Judgment Certified Under 28

U.S.C. § 1292(b)

In orders dated January 31, 1994, and February 1, 1994,

the district court stated as follows: It is DECLARED to be the opinion of this court that, within the intendment of 28 U.S.C. § 1292(b), (1) the issue, determined adversely to the City of Philadelphia . . . , of the suability of the City of Philadelphia, pursuant to 42 U.S.C. § 1983, on claims arising from the decision to let the [MOVE] fire burn, is one which involves a controlling question of law as to which there is substantial ground for difference of opinion, and (2) that an immediate appeal from that aspect of the . . . order, taken in conjunction with anticipated appeals on related question of qualified immunity of certain individual defendants, may materially advance the ultimate termination of the litigation.

App. at 682, 802-03. This court then granted the city leave to

appeal and thus we have jurisdiction over the city's appeal.

C. Denial of Summary Judgment on Qualified Immunity

Grounds with Respect to Federal Claims

Generally, this court does not have jurisdiction to

review the denial of summary judgment because such decisions are

not final as required by 28 U.S.C. § 1291. Giuffre v. Bissell,

31 F.3d 1241, 1245 (3d Cir. 1994). In Mitchell v. Forsyth, 472

U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985), however, the Supreme Court held that a denial of summary judgment on the ground of

qualified immunity is appealable under the collateral order

doctrine. "[A] decision of a district court is appealable if it

falls within 'that small class which finally determine claims of

right separable from, and collateral to, rights asserted in the

action, too important to be denied review and too independent of

the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.'" Id. at 524-25,

105 S.Ct. at 2814 (quoting Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 546, 69 S.Ct. 1221, 1225 (1949)).

The Court found that qualified immunity is "an

entitlement not to stand trial or face the other burdens of

litigation" which would be "effectively lost if a case is

erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at

2815. Moreover, a district court's denial of qualified immunity

would be "effectively unreviewable on appeal from a final

judgment." Id. at 527, 105 S.Ct. at 2816. The Court also found

that this denial "conclusively determined the disputed question"

of a defendant's right not to stand trial on the plaintiff's

allegations, as required under Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457 (1978). Finally, the Court

determined that "a claim of immunity is conceptually distinct

from the merits of the plaintiff's claim that his rights have

been violated," thus satisfying the requirement of being

"collateral" under Cohen. Mitchell v. Forsyth, 472 U.S. at 527-

28, 105 S.Ct. at 2816. Therefore, we all agree that we have jurisdiction to

consider the appeals taken by Brooks, Sambor, and Richmond from

the district court's denial of summary judgment on qualified

immunity grounds with respect to federal claims based on letting

the fire burn. See Giuffre v. Bissell, 31 F.3d at 1245; Hynson

v. City of Chester Legal Dept., 864 F.2d 1026, 1028-29 (3d Cir.

1988).

D. Denial of Summary Judgment on Immunity Grounds

with Respect to State Law Claims

I now address the question of whether we have

jurisdiction over the appeals from the district court's denial of

summary judgment for Brooks, Sambor, and Richmond on the state

law claims based on letting the fire burn. I conclude that we do

not have such jurisdiction and, as Judge Lewis agrees, he joins

in the determination dismissing this aspect of the appeals. The

district court did not certify this order under either Rule 54(b)

or section 1292(b).10 Nor, I think, is this issue so intertwined

with those raised by the appeals properly before us that we

should assert pendent appellate jurisdiction over it. See National Union Fire Ins. Co. v. City Savings, F.S.B., 28 F.3d

376, 382 n.4 (3d Cir. 1994); Kershner v. Mazurkiewicz, 670 F.2d

440, 449 (3d Cir. 1982).

10 . I am not suggesting that the court could have certified the denial of summary judgment under Rule 54(b). I therefore consider whether we may assert jurisdiction

over these appeals under the collateral order doctrine. In this

inquiry Brown v. Grabowski, 922 F.2d 1097, is instructive. In

that case, the district court denied qualified immunity to the

defendant police officers on plaintiff's pendent tort claims

under New Jersey law. On appeal, this court noted that the

determination of appellate jurisdiction over the state claims

requires "(1) a predicate inquiry into whether the federal law of

qualified official immunity ultimately governs appealability in

this instance; and (2) a subsequent inquiry into the nature of

the qualified immunity that New Jersey law confers upon state

officials." Id. at 1106.

In Brown this court concurred with the Courts of

Appeals for the Fifth and Sixth Circuits that "the parties . . .

in a federal action such as this one involving pendent state

claims, are bound by federal procedural rules governing appeals,

including the collateral order doctrine." Id. (citing Sorey v.

Kellett, 849 F.2d 960, 962 (5th Cir. 1988); Marrical v. Detroit

News, Inc., 805 F.2d 169, 172 (6th Cir. 1986)). However, it is

state law that provides the substantive doctrine of immunity.

The court also concluded that "the denial of a claim of qualified

immunity premised upon state law is appealable only if the state

has conferred an underlying substantive immunity from suits

arising from the performance of official duties." Id. at 1106-07 (citing Marrical, 805 F.2d at 172; Sorey, 849 F.2d at 962). It

is immunity from suits, rather than mere immunity from liability, that would make such an order appealable. Giuffre v. Bissell, 31

F.3d at 1248.

In Brown v. Grabowski this court looked at the New

Jersey Tort Claims Act, New Jersey case law on immunity, and New

Jersey's doctrinal and procedural rules concerning interlocutory

appeals to determine the scope of the state immunity. 922 F.2d

at 1107. Thus, here I look to the Pennsylvania law of official

immunity to ascertain whether we have jurisdiction over the three

officials' appeals from the denial of summary judgment on the

state law claims arising from the decision to allow the fire to

burn.

In this case, the district court did not elaborate on

the state law claims but seemed to adopt the magistrate judge's

approach. The magistrate judge stated that although

Pennsylvania's Political Subdivision Tort Claims Act (PSTCA)

grants immunity to the city's employees to the same extent that

the city is immune, such immunity would not apply if "it is

judicially determined that the act of the employee caused the

injury and that such act constituted a crime, actual fraud,

actual malice or willful misconduct." Africa II, 849 F. Supp. at

364 (citing 42 Pa. Cons. Stat. Ann. §§ 8545 & 8550 (1982)).

Thus, the magistrate judge recommended that those defendants who

were to be granted summary judgment on claims based on dropping

the explosive device and letting the fire burn should be entitled

also to assert immunity under the PSTCA because "they have

demonstrated, as a matter of law, that their conduct did not

constitute a crime, actual fraud, actual malice or willful misconduct." Id. As to those defendants whose motions for

summary judgment were to be denied as to claims based on letting

the fire burn, however, the magistrate judge recommended that

they be denied summary judgment on the state claims as well.

This is because "they cannot show as matter of law that their

decision did not constitute willful misconduct." Id.

Although I do not find guidance on the point in the

opinions of the Pennsylvania Supreme Court, the Commonwealth

Court of Pennsylvania has ruled that an order denying a summary

judgment sought on statutory immunity grounds is not appealable

immediately. Bollinger v. Obrecht, 552 A.2d 359 (Pa. Commw. Ct.

1989), appeal denied, 588 A.2d 511 (Pa. 1990). This ruling

strongly implies that such immunity is only from liability,

despite the fact that the court went on to say it need not reach

the issue of whether Pennsylvania law confers immunity from suit

rather than from liability. The Commonwealth Court noted that

Pennsylvania courts have followed Cohen's collateral order

doctrine but ruled that Mitchell v. Forsyth was not controlling

because it involved only federal immunity. Id. at 362-63. Id.

at 363 & n.5. The court explained: In Pennsylvania, immunity is governed by statute. The merits of a plaintiff's cause of action against government agencies and officers are likewise governed by the same statute. Thus, a trial court analyzing an immunity claim is actually deciding the same issues that will arise in the underlying action. Unlike matters of federal official immunity, the trial court's interlocutory order denying an immunity claim under Pennsylvania law, is not separate from and collateral to the main cause of action. Id. at 363. But as Mitchell noted, when immunity from suit is

involved, the opposite result should be reached.

Later cases consistently have followed Bollinger v.

Obrecht. See, e.g., Farber v. Pennsbury Sch. Dist., 571 A.2d 546

(Pa. Commw. Ct. 1990) (quashing appeal as interlocutory from

denial of motion for summary judgment on grounds of governmental

immunity); Brown v. Philadelphia, 560 A.2d 309 (Pa. Commw. Ct.

1989) (same), appeal denied, 600 A.2d 540 (Pa. 1991); McKinney v.

Philadelphia, 552 A.2d 1169 (Pa. Commw. Ct. 1989) (same), aff'd,

569 A.2d 351 (Pa. 1990); Gwiszcz v. Philadelphia, 550 A.2d 880

(Pa. Commw. Ct. 1988) (same). Indeed, the language of the PSTCA

supports the Commonwealth Court's reasoning as the act seems to

be directed at liability, referring to immunity as only a defense

to such liability rather than as a right to be free from suits.11 11 . The relevant sections of the PSTCA read as follows:

§ 8545. Official liability generally An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter.

§ 8546. Defense of official immunity In any action brought against an employee of a local agency for damages on account of an injury to a person or property based upon claims arising from, or reasonably related to, the office or the performance of the duties of the employee, the employee may assert on his own behalf, or the local agency may assert on his behalf:

(1) Defenses which are available at common law to the employee. The fact that interlocutory orders may be appealable by

permission of the appellate court, under the Pennsylvania Rules

of Appellate Procedure, is irrelevant to my inquiry. See Wareham

v. Jeffes, 564 A.2d 1314, 1318 n.8 (Pa. Commw. Ct. 1989) (noting

that denial of summary judgment on grounds of sovereign immunity

would be interlocutory and unappealable except by permission).

See also Lancie v. Giles, 572 A.2d 827, 829 n.3 (Pa. Commw. Ct.

(..continued)

(2) The defense that the conduct of the employee which gave rise to the claim was authorized or required by law, or that he in good faith reasonably believed the conduct was authorized or required by law.

(3) The defense that the act of the employee which gave rise to the claim was within the policymaking discretion granted to the employee by law. For purposes of this subsection, all acts of members of the governing body of a local agency or of the chief executive officer thereof are deemed to be within the policymaking discretion granted to such person by law.

§ 8550. Willful misconduct In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.

42 Pa. Cons. Stat. Ann. §§ 8545, 8546 & 8550 (1982). 1990) (Commonwealth Court granted defendants permission to appeal

from interlocutory order denying summary judgment on state

statutory immunity grounds).12 First, whereas Pennsylvania

appellate courts may grant permission to appeal from

interlocutory and otherwise unappealable orders, absent a

certification by the district court under 28 U.S.C. § 1292(b), we

cannot do so. In fact, the exercise of discretion to withhold

such permission effectively will negate a claim of immunity from

suit. Second, as we stated in Brown v. Grabowski, federal rules

govern this federal action. 922 F.2d at 1106. Therefore,

Bollinger v. Obrecht is dispositive here. To recap, under Brown

v. Grabowski, the right to an interlocutory appeal "can only

exist where the state has extended an underlying substantive

right to be free from the burdens of litigation," 922 F.2d at

1107 (quoting Marrical, 805 F.2d at 172). Bollinger demonstrates

that Pennsylvania has not done that. Thus, because immunity is

not a separate or collateral issue from the underlying claim

under Pennsylvania law, we have no jurisdiction over the appeals

by Brooks, Sambor, and Richmond from the district court's order

denying them summary judgment on the state law claims. We

therefore will dismiss their appeals from the district court's

orders denying summary judgment as to the state law claims. 12 . Because that case involved both federal qualified immunity and state statutory immunity, the court also noted in dictum that given Bollinger's holding, "[w]here the motion is partially based on qualified immunity, the issue becomes more difficult in light of the U.S. Supreme Court's emphasis on the appealability of denials of summary judgment as a necessary part of fulfilling the purpose of qualified immunity." Lancie v. Giles, 572 A.2d at 829 n.3 (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806). E. Grant of Summary Judgment with Respect to James'

Property Claims in Favor of the City

James appeals from the district court's grant of

partial summary judgment in favor of the City of Philadelphia

with respect to her claim based on the uncompensated destruction

of property. James argues that in refusing to compensate her on

the same basis as her neighbors, the city discriminated against

her and has been enriched unjustly at her expense. We all agree,

however, that James has not set forth any jurisdictional basis

which permits us to consider her property arguments as there are

claims remaining in the district court and thus her appeal is not

from a final judgment.

As I indicated above, James brought a separate federal

civil rights suit, number 88-3881, seeking damages for her

property, the thrust of which was that her treatment, "as

allegedly the only person in the neighborhood of destroyed houses

or damaged houses who was not offered to be compensated . . . ,

was discriminatory in terms that were unconstitutional." App. at

815. The court dismissed these federal claims with prejudice

because they were barred by the statute of limitations and it

dismissed the state claims without prejudice. James did not

appeal from this judgment.

In the case now before us, number 85-3528, the

magistrate judge recommended that the court grant partial summary

judgment as to the property issue in favor of the city because

the takings claim could not stand "without an appropriate allegation of unsuccessful resort to state procedures pursuant to

Pennsylvania's eminent domain code." Id. James, however, asked

the district court either to disregard the recommendation or to

reopen the 1988 case, nunc pro tunc, because she believed the

court had decided it erroneously. Id. The district court agreed

with the magistrate judge's recommendation and declined to reopen

the 1988 case.

James' present appeal is from the decision rendered in

number 85-3528 as her notice of appeal makes no mention of number

88-3881. Consequently, she cannot contest directly the court's

refusal to reconsider the 1988 case. Nevertheless, what James

argues now is strongly reminiscent of her allegations in the 1988

suit -- that the denial of compensation for her property is

discriminatory and violates her equal protection and First

Amendment rights and that the city has been enriched unjustly.

James devotes a large part of her appellate effort to the

allegations that she has been denied equal protection and has

been the victim of unlawful discrimination. She asserts

repeatedly that she is "a member of the class of individuals,

such class consisting of the victims of the Osage Avenue fire."

James Br. at 37, 38. She directs this argument to the magistrate

judge's conclusion that she neither has alleged nor shown that

the city's action was "based on any class-based invidiously

discriminatory animus." See app. at 792-93.13 However, the

13 . Actually it is difficult to see how there can be merit to this claim as all the other homeowners received compensation. magistrate judge made this statement in explaining why the claims

under section 1985(3) on behalf of James' deceased son must fail.

Thus, his comments were not addressed to her property claim in

case 85-3528. These misdirected arguments by James support the

city's suggestion that she is attempting to incorporate the

number 88-3881 case into the present one. To the extent that

James is attempting now to appeal from that December 1988

dismissal, we must reject the attempt for lack of jurisdiction.

See United States v. Rivera Const. Co., 863 F.2d 293, 298-99 (3d

Cir. 1988) ("where the order or judgment upon which the appellant

seeks review is neither directly nor indirectly referred to in

the notice of appeal, then the issue is not fairly raised and the

Court of Appeals does not acquire jurisdiction").

Furthermore, we see no basis to exercise jurisdiction

over James' appeal from the judgment in favor of the city in

number 85-3528 on the uncompensated destruction of property

claims. The collateral order doctrine has nothing to do with the

claim and the district court did not enter a certification with

respect to the order under either Rule 54(b) or 28 U.S.C. §

1292(b).

F. Scope of Appellate Review We exercise plenary review over all appeals properly

before us because they are all from grants or denials of summary

judgment. See Petruzzi's IGA Supermarkets, Inc. v. Darling- Delaware Co., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 114

S.Ct. 554 (1993) (grant of summary judgment); Giuffre v. Bissell, 31 F.3d at 1251 (denial of summary judgment on qualified immunity

grounds); Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir. 1994)

(in banc) (same). Moreover, we have plenary review over the

grant or denial of qualified immunity because it is an issue of

law. Giuffre v. Bissell, 31 F.3d at 1254. Thus, I will consider

whether there are genuine issues as to material facts and whether

the defendants are entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c).

IV. QUALIFIED IMMUNITY

Courts determine whether a defendant is entitled to

qualified immunity by balancing the important policy of

compensating individuals for deprivation of their rights against

"the need to protect officials who are required to exercise their

discretion and the related public interest in encouraging the

vigorous exercise of official authority." Harlow v. Fitzgerald,

457 U.S. 800, 807, 102 S.Ct. 2727, 2732 (1982) (quoting Butz v.

Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910 (1978)). In

making this balance, courts recognize that officials often must

"act swiftly and firmly at the risk that action deferred will be

futile or constitute virtual abdication of office." Scheuer v. Rhodes, 416 U.S. 232, 246, 94 S.Ct. 1683, 1691 (1974). Thus,

"government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at

2738.

Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789,

1793 (1991), instructs that before a court addresses a claim of

qualified immunity, it first should determine whether a plaintiff

has alleged "a violation of a constitutional right at all." See

Acierno v. Cloutier, 40 F.3d at 606 n.7; D.R. by L.R. v. Middle

Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d

Cir. 1992) (in banc), cert. denied, 113 S.Ct. 1045 (1993).

Deciding "this purely legal question permits courts expeditiously

to weed out suits which fail the test without requiring a

defendant who rightly claims qualified immunity to engage in

expensive and time consuming preparation to defend the suit on

its merits." Siegert v. Gilley, 500 U.S. at 232, 111 S.Ct. at

1793.

Furthermore, for there to be liability, the right

alleged to have been violated "must have been 'clearly

established' in a more particularized, and hence more relevant,

sense." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.

3034, 3039 (1987). While the abstract right to be free from

unreasonable seizure clearly is established, for qualified

immunity purposes the right must be considered on a more specific

level: "[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing

violates that right." Id. Consequently, I consider whether the particularized

constitutional right asserted was "'clearly established' at the time the defendants acted." Acierno v. Cloutier, 40 F.3d at 606

(citing Siegert v. Gilley, 500 U.S. at 232, 111 S.Ct. at 1793);

Harlow v. Fitzgerald, 457 U.S. at 817-19, 102 S.Ct. at 2738. If

the law is not established clearly when an official acts, he is

entitled to qualified immunity because he "could not reasonably

be expected to anticipate subsequent legal developments, nor

could he fairly be said to 'know' that the law forbade conduct

not previously identified as unlawful." Id. On the other hand,

if the law was established clearly, the official still may obtain

qualified immunity if he claims "extraordinary circumstances and

can prove that he neither knew nor should have known of the

relevant legal standard." Id. In other words, "[d]efendants

will not be immune if, on an objective basis, it is obvious that

no reasonably competent officer would have concluded that [the

action was lawful]; but if officers of reasonable competence

could disagree on this issue, immunity should be recognized."14

Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986).

14 . Some of the decisions of this court may have rephrased this test in that they may be read to place a heavier burden on the official seeking immunity than is warranted by the Supreme Court's formulation of the issue. In Good v. Dauphin County Social Serv., this court accurately described the test as whether "reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful." 891 F.2d at 1092 (emphasis added). This court later misquoted Good, however, to say that "qualified immunity does not apply if 'reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be unlawful.'" Abdul-Akbar v. Watson, 4 F.3d 195, 202 (3d Cir. 1993) (emphasis added); Acierno v. Cloutier, 40 F.3d at 616 (quoting Abdul-Akbar v. Watson). My point is that reasonable officials could believe that a certain course of conduct is unlawful and they also might believe it is lawful. A. Allegation of a Constitutional Violation

In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865,

1871 (1989), the Court held "that all claims that law enforcement

officers have used excessive force -- deadly or not -- in the

course of an arrest, investigation stop, or other 'seizure' of a

free citizen should be analyzed under the Fourth Amendment and

its 'reasonableness' standard, rather than under a 'substantive

due process' approach." Thus, the general right central to this

case is the right to be free from unreasonable seizure of the

person under the Fourth Amendment, in particular seizure with

unreasonable force.

Siegert v. Gilley, however, demands more than

conclusory allegations that defendants violated a certain

constitutional right. For example, Siegert asserted that his

rights under the Due Process Clause of the Fifth Amendment were

violated when Gilley maliciously made unkind comments regarding

his abilities to a prospective employer. Siegert v. Gilley, 500

U.S. at 232, 111 S.Ct. at 1793. Because defamation is not a

constitutional deprivation, the Supreme Court concluded that

Siegert failed not only to allege a violation of a clearly (..continued) Thus, though unintended, these cases could support a rule that would deny immunity even when "officers of reasonable competence could disagree on this issue," so long as a reasonable officer could believe that the conduct would be unlawful. See Malley v. Briggs, 475 U.S. at 341, 106 S.Ct. at 1096. This reading would place a greater burden on the officials to demonstrate that they have qualified immunity than is warranted. Of course, to the extent that such reading conflicts with Supreme Court precedents, it cannot be followed. Good properly states the law. established constitutional right but failed to allege a

"violation of any constitutional right at all." Id. at 233-34,

111 S.Ct. at 1794. Similarly, in D.R. by L.R. v. Middle Bucks

Area Vocational Technical Sch., two public school students sued

because some of their classmates allegedly molested them. 972

F.2d at 1364. This court accepted the plaintiffs' statement that

they had a "liberty interest in their personal bodily integrity

protected by the Fourteenth Amendment," but held that the

school's alleged conduct did not amount to a constitutional

violation. 972 F.2d at 1368.

In essence, here the plaintiffs allege that the

defendants exerted excessive force in attempting to arrest

plaintiff Africa and decedents Leaphart and James, by dropping

the explosive on the roof of the MOVE residence and by letting

the fire burn. On the face of the complaint, I believe

plaintiffs have met the threshold required by Siegert v. Gilley

by alleging a constitutional violation. Judges Scirica and Lewis

agree with this conclusion.

B. Violation of a Constitutional Right I now consider on the undisputed facts, Melo v. Hafer,

13 F.3d at 745; Good v. Dauphin County Social Serv., 891 F.2d at

1094-95, whether the individual defendants are entitled to

qualified immunity. In this section, "B. Violation of a

Constitutional Right," I write only for myself. First, I ask

whether plaintiff Africa and decedents Leaphart and James

possessed a "clearly established" constitutional right to be free from the forces allegedly exerted by the individual defendants

under the circumstances that existed on May 13, 1985. As the

defendants point out, they did not direct force at the person of

any of the prospective arrestees. Rather, they directed the

force at destruction of property so that police officers could

inject tear gas into the house to effect a peaceful arrest -- one

in which neither police officers nor MOVE members would be

injured seriously. There is no evidence on the substantially

developed record that anyone intended otherwise. In fact, there

is evidence indicating that the defendants were concerned with

not harming the people inside the house.

The district court, however, refused to consider the

officials' argument that they intended only to destroy the

bunker. See Africa II, 849 F. Supp. at 341-42. The court stated

that Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, requires use

of an "objective legal reasonableness" test in a Fourth Amendment

excessive force case. While this formulation is accurate, I

disagree with its application by the district court. In Graham

v. Connor, the plaintiff allegedly sustained physical injuries

when police officers grabbed and cuffed him, threw him on his

companion's car, and threw him headfirst into the police car.

Id. at 389-90, 109 S.Ct. at 1868. Thus, as is usually true in

excessive force cases, the police officers' intent to apply force

to the person of Graham was clear. The Supreme Court held that

the court of appeals erred when it considered whether the

officers "acted in good faith or maliciously and sadistically for

the very purpose of causing harm," as the case should have been analyzed under a Fourth Amendment "objective reasonableness"

standard. Id. at 395-97, 109 S.Ct. at 1871-72 (internal

quotation marks omitted). Therefore, although the Supreme Court

did find the "underlying intent or motivation" irrelevant, this

reference was to the officers' motivations for carrying out the

direct application of the force to the arrestee's person. Graham

v. Connor, 490 U.S. at 397, 109 S.Ct. at 1872. But here the

issue before us concerns the more fundamental question of whether

the officers applied force to the MOVE members at all.

On this point, another Supreme Court decision, Brower

v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378 (1989), is

instructive. In that case, the plaintiffs brought a section 1983

action alleging that the police effected an unreasonable seizure

of the decedent by putting up a roadblock into which the decedent

fatally crashed the stolen car he was driving. Id. at 594, 109

S.Ct. at 1380. The Supreme Court explained: [A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement . . . , nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement . . . , but only when there is a governmental termination of freedom of movement through means intentionally applied.

Id. at 596-97, 109 S.Ct. at 1381. In that case, the Court held

that there was a Fourth Amendment seizure because the decedent

was stopped by the blockade, "the very instrumentality set in

motion or put in place in order to achieve that result." Id. at

599, 109 S.Ct. at 1382. But this case is different, as the officials did not

intend to apply any force to the persons of the MOVE members when

they dropped the explosive device and allowed the fire to burn.

Thus, while their subjective thoughts as to the lawfulness of

their conduct is irrelevant under Anderson v. Creighton, 483 U.S.

at 641, 107 S.Ct. at 3040, what is not irrelevant is the

officials' intention only to destroy the bunker and perhaps part

of the roof so that they could inject tear gas into the house.

In my analysis, I ask whether it is enough for a Fourth

Amendment seizure that the MOVE members were stopped by "the very

instrumentality set in motion or put in place [the destruction of

the bunker] in order to achieve that result." Brower v. County

of Inyo, 489 U.S. at 599, 109 S.Ct. at 1382. The Supreme Court

cautioned that "[i]n 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." Id. at 598,

109 S.Ct. 1382. In this sense, a court must look to the

officials' intent of why they wanted to destroy the bunker and to

create a hole in the roof to see whether the destruction of the

bunker was set in motion "in order to achieve" the seizure.15 15 . I also point out that the defendants' contention that they intended the fire to be localized would not necessarily be conclusive on the issue of what their intent really was. Thus, a court could find in a case in which a massive force was used to achieve a limited result that the officials' intent was to effectuate a seizure with the use of the force. In this case, however, there is no basis to conclude that the defendants' intent in dropping the explosive or allowing the fire to burn was other than to permit the introduction of the tear gas.

Nor is this a case in which the police action was "likely to cause injury to the occupants" of the residence. Carroll v. 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.

Thus, this case differs from Brower because there the

police set up the blockade to stop a motoring felon.

Consequently, in Brower, the decedent "was meant to be stopped by

the physical obstacle of the roadblock -- and . . . he was so

stopped." Id. at 599, 109 S.Ct. at 1382. But in this case, it

cannot be said that the defendants intended to seize the MOVE

members by destroying the bunker. Nor were they so seized. From

the allegations and the evidence on record, we only can say that

those who were alive immediately before 5:30 that afternoon were

seized, i.e. killed, not by the explosive, nor by the burning of

the bunker, but by the fire that continued despite efforts of the

fire department. See Carroll v. Borough of State College, 854 F.

Supp. 1184, 1190 (M.D. Pa. 1994) (holding that to constitute

(..continued) Borough of State College, 854 F. Supp. 1184, 1190 (M.D. Pa. 1994), aff'd, F.3d (3d Cir. 1995) (table); see typescript at 14-16 (officials reasonably believed risk of fire was negligible and fire, once started, could be contained); typescript at 60 (officials had no reason to know that fire could lead to serious injury). Therefore, we are not presented with a situation where the defendants' subjective intent is at odds with the objective likelihood that injury would result from their actions. I need not decide how I would consider the case if we were presented with such facts. seizure, police action must be "direct" cause of injury), aff'd,

F.3d (3d Cir. 1995) (table).

Accordingly, this is a case of "a governmentally caused

and [perhaps] governmentally desired termination of an

individual's freedom of movement," but not "through means

intentionally applied." See id. at 597, 109 S.Ct. at 1381

(emphasis omitted). Consequently, there was no Fourth Amendment

seizure in this case. Thus, on this ground alone I am

constrained to vote to reverse the district court's denial of

qualified immunity to Brooks, Sambor, and Richmond, and to affirm

the district court insofar as it granted the other defendants

qualified immunity. In my view what it gets down to, after years

of litigation, is uncomplicated: the plaintiffs have no federal

case against any defendant by reason of any injury Ramona Africa

may have suffered or by reason of the deaths of John and Frank

Africa because there was no seizure. The determinative legal

issue is as simple as that.

In reaching this result I take note of Fagan v. City of

Vineland, 22 F.3d 1296, 1305 n.5. (3d Cir. 1994) (in banc), in

which we considered a police pursuit case under the due process

clause of the Fourteenth Amendment, and held that if there is not

a seizure a substantive due process "shocks the conscience" claim

may be asserted against the police. See also Carroll v. Borough of State College, 854 F. Supp. at 1192 n.8. In this case,

however, I do not consider whether we could undertake a due

process clause analysis as the plaintiffs present their cases as

involving excessive force under the Fourth Amendment rather than as implicating substantive due process principles. Indeed, in

her reply brief, Ramona Africa expressly contested the argument

some of the defendants advanced that we should apply the "shocks

the conscience" test we adopted in Fagan.16

Nevertheless, Fagan is significant here for a different

reason. Fagan involved a high speed chase resulting in death and

injuries both to innocent third parties and to persons in the

vehicle the police were pursuing when the pursued vehicle hit a

truck. Thus, there can be no doubt that there was in Fagan, in

the words of Brower v. County of Inyo, 489 U.S. at 596-97, 109

S.Ct. at 1381, a government caused and desired termination of an

individual's freedom of movement. Yet not a single member of our

sharply divided in banc court in Fagan suggested that the proper

analysis in that case should have centered on the Fourth

Amendment protection against unreasonable seizures. Rather, we

divided on whether to recover under the substantive due process

clause, the plaintiffs had to present proofs satisfying the

"shocks the conscience" standard or whether "reckless

indifference" was sufficient. In so defining the issue we were

undoubtedly correct because Fagan did not involve, in the words of Brower, "a governmental termination of freedom of movement

through means intentionally applied." Id. That Fagan did not

involve such a termination is obvious as the police did not

16 . In any event, in view of my conclusions, with respect to the reasonableness of the defendants' activities, it is evident that I would conclude that the city defendants did not engage in conduct which "shocks the conscience." intend that the fleeing driver stop his vehicle by colliding with

another vehicle. Thus, Fagan differed from Brower because in

Brower the police set up the blockade to stop the decedent and it

did so. The difference between the cases was so clear that in

Fagan we did not even discuss Brower.

I point out the foregoing because if, as is the case,

this court unanimously treated the situation in Fagan as not

involving a seizure even though the collision was a direct

product of the chase, then how could this case possibly involve a

seizure? The answer is manifest: there was no seizure here.

The city defendants no more intended to burn down the building

than the Fagan defendants intended to cause a crash. If we were

to hold otherwise we would have to conclude that every member of

this court undertook an incomplete analysis in Fagan. While I

recognize that the significance of Fagan is somewhat diminished

by the circumstance that on appeal the plaintiffs there asserted

only due process constitutional contentions, nevertheless we as a

panel should give the greatest respect to our recent unanimous in

banc analysis in Fagan.17

C. Excessive Force

17 . In fact, the district court in Fagan explicitly held that "[n]o seizure occurred in this case," Fagan v. City of Vineland, 804 F. Supp. 591, 598 n.6 (D.N.J. 1992), and the plaintiffs did not appeal from the finding, which, after Brower, clearly was correct. See also Campbell v. White, 916 F.2d 421, 423, (7th Cir. 1990) cert. denied, 499 U.S. 922, 111 S.Ct. 1314 (1991); Frye v. Town of Akron, 759 F. Supp. 1320, 1323 (N.D. Ind. 1991). I will now assume that there was a Fourth Amendment

seizure. I nevertheless conclude that the city defendants are

entitled to qualified immunity as their acts were reasonable as a

matter of law. Judge Scirica joins in this section, "C.

Excessive Force," but only for the limited purpose of agreeing

that Tennessee v. Garner is inapplicable and that the appropriate

inquiry is the reasonableness of the city defendants' acts. He

thus disagrees with my conclusion that the city defendants are

not liable for a Fourth Amendment violation on the basis of their

acts being reasonable as a matter of law. Nevertheless, I

conclude that there was no Fourth Amendment violation and under

Siegert v. Gilley, 500 U.S. at 231, 111 S.Ct. at 1793, the

defendants are entitled to summary judgment on the federal

claims.

As indicated, the magistrate judge concluded and the

district court agreed, that "a reasonable person in each of the

defendant's positions could have believed that the use of an

explosive device . . . was necessary to 'prevent death or serious

bodily injury' to the police officers on the scene or other

person." Africa II, 849 F. Supp. at 337, 357 (citing Tennessee v. Garner). With regard to the fire, the magistrate judge did

not address explicitly the reasonableness of the decision to let

the fire consume the bunker but found that "after the fire had

destroyed the roof-top bunker, there remained [no] reasonable

basis for the police to believe that allowing the fire to burn

was necessary to quell some perceived imminent peril." Africa II, 849 F. Supp. at 359. The defendants point out, however, that the record includes no evidence that the officials allowed the

fire to burn after it had consumed the bunker. The district

court held that letting the fire burn at all, regardless of

whether it was intended only to destroy the bunker, as a matter

of law, was not "reasonable as a matter of necessity." Africa

II, 849 F. Supp. at 340. The court drew this conclusion from the

facts that apparently no MOVE member had been using the bunker

offensively after the police dropped the explosive, that Brooks

saw no sign of life on the roof except a dog, and that the

bunker, "under Managing Director Brooks' perception, [was]

substantially neutralized on the impact of the bomb." Id.18

Thus, the court stated, "[t]hat 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." Id.

The district court erred in applying Tennessee v.

Garner to require that the use of force be necessary in this

case. Just as an application of "deadly force" may not result in

death, the fact that a seizure results in death does not

18 . In his opinion Judge Lewis indicates that the "intention of the defendant officials in dropping the explosive device [and] to blast the bunker from atop the roof . . . must be considered in light of the fact that the defendant officials had no way of knowing whether the bunker was occupied at the time the explosive device was deployed." Typescript at 3. This statement is wrong for, as the district court explained, nothing in the record demonstrates that the bunker had been used at all for a substantial time before the dropping of the bomb. Africa II, 849 F. Supp. at 340. Obviously the defendants who had the premises under constant observation thought that the bunker was empty when Powell dropped the device and that was the fact. necessarily mean that "deadly force" has been applied. See,

e.g., Robinette v. Barnes, 854 F.2d 909, 912-13 (6th Cir. 1988)

(holding that "deadly force" was not used when police dog attack

resulted in death of suspected felon); Ryder v. City of Topeka,

814 F.2d 1412, 1416-17 & n.11 (10th Cir. 1987) (noting that

gunshot which did not kill suspect constitutes "deadly force").

For example, the Model Penal Code defines "deadly force" as

"force which the actor uses with the purpose of causing or which

he knows to create a substantial risk of causing death or serious

bodily harm." Model Penal Code § 3.11(2) (1994); see also

Matthews v. Jones, 35 F.3d 1046, 1050-51 (6th Cir. 1994)

(applying Model Penal Code definition to find police dog attack

not application of deadly force); Robinette v. Barnes, 854 F.2d

at 912-13 (same). In dropping the explosive on the roof and

letting the fire consume the bunker, the city defendants did not

act with the "purpose of causing . . . death or serious bodily

harm" to the MOVE members in the house but only with the purpose

of destroying the bunker. Nor did they have reason to "know"

that such actions would "create a substantial risk of causing

death or serious bodily harm." Therefore, the district court

simply should have asked whether, in light of all the surrounding

circumstances, the use of such force was reasonable.19

19 . Judge Lewis concludes that the individual defendants used deadly force and that therefore Tennessee v. Garner applies. But in reaching his conclusion that the individual defendants had reason to know that their actions created a substantial risk of causing death or serious bodily harm, Judge Lewis relies more on his intuitive sense of what the police and firefighters "must" have known than on an analysis of what the record evidence shows in this case. See Judge Lewis' dissent at 2 ("[t]he force In Brower v. County of Inyo, the Supreme Court stated

that to have a claim under section 1983, plaintiffs must allege

that the seizure was unreasonable, which they did in that case by

alleging that the roadblock was set in a way likely to kill the

decedent. Id. at 599, 109 S.Ct. at 1382-83. In instructing on

how a court should consider the reasonableness of the seizure,

the Court said: This should be contrasted with the situation that would obtain if the sole claim of unreasonableness were that there was no probable cause for the stop. In that case, if [decedent] had had the opportunity to stop voluntarily at the roadblock, but had negligently or intentionally driven into it, then, because of lack of proximate causality, respondents, though responsible for depriving him of his freedom of movement, would not be liable for his death.

Id. (citations omitted).

Application of the reasonableness standard in a Fourth

Amendment seizure case "requires careful attention to the facts

and circumstances of each particular case, including the severity

(..continued) embodied in the incendiary device and in the fire was, by any sensible standard, 'deadly' force"; Dissent at 3 ("To me, this constitutes deadly force, for I cannot imagine how anyone can conclude that a device such as this was not capable of taking human life -- which, in fact, it ultimately did."); Dissent at 3 ("I believe the city defendants, who were professional law enforcement and fire-fighting personnel, had every reason to know that their actions created a substantial risk of death or serious bodily injury to the MOVE members . . . .") Notwithstanding Judge Lewis' intuitions, the record in this case, as detailed in the text, indicates that quite the opposite is true: The police and firefighters had every reason to believe that their actions did not create a substantial risk of death or serious bodily injury. of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by

flight." Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872.20

Moreover, the standard of reasonableness "must be judged from the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight." Id. The various officers'

and officials' intents and motives are irrelevant. Id. at 397,

109 S.Ct. at 1872. In reviewing the officers' actions, a court

should bear in mind that "great weight is given to his

determination and the matter is to be judged on the facts as they

appeared then and not merely in the light of the event." Scheuer

v. Rhodes, 416 U.S. at 248, 94 S.Ct. at 1692 (quoting Moyer v.

Peabody, 212 U.S. 78, 85, 29 S.Ct. 235, 237 (1909)).

I therefore examine first the information possessed by

the various officials at the time of the events at issue to

determine if their conduct was objectively reasonable. See

Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. at 3040. In

this objective reasonableness analysis, I primarily consider the

case from the perspective of Brooks, Sambor, and Richmond as they

were the supervisory officials on the site. It is fair to say

that at the beginning of May 13, 1985, the defendants knew or

reasonably believed the following: (1) MOVE had been involved in

20 . Although the Court decided Graham v. Connor four years after the MOVE confrontation, it still controls our determination of whether there was a Fourth Amendment violation. Only when we decide whether the law was established clearly do we need to limit our survey of the law to that which predates May 13, 1985. a prior episode of violence against the police which resulted in

a death of a police officer; (2) at least one MOVE member had

been seen earlier with a gun; (3) MOVE members had threatened

police officers and neighbors with violence and use of guns and

explosives; (4) MOVE members may have dug tunnels under their

house; and (5) it was likely that MOVE members would resist

arrest.

From their experiences on the morning of May 13, 1985,

it is fair to say that these same defendants knew or reasonably

believed the following: (1) certain MOVE members expressed that

they would not surrender peacefully and threatened to kill the

police officers; (2) certain MOVE members were shooting at the

police; (3) some of the gunfire seemed to have come from the

bunker atop the roof; (4) efforts at creating holes on the sides

of the MOVE house and injecting tear gas into the house were

unsuccessful; (5) there were children in the basement of the MOVE

house; and (6) MOVE members have made no signs that they were

willing to surrender.

It is simply beyond argument that a reasonable officer

on the scene possessing the above information would believe that

there were armed and dangerous people inside the MOVE house who

posed a serious threat to the life and safety of officers and

neighbors, should they escape. Furthermore, although the

plaintiffs contend that there had been no gunfire from the MOVE

house for hours before the use of the explosive, I believe this

fact, if true, would be irrelevant. No reasonable officer would

think that the danger finally had subsided and that police officers could come to the house safely and arrest the occupants

merely because the MOVE members had held their fire for several

hours.21

Of course, it is irrelevant that only a few weapons

were found in the rubble afterwards, that Ramona Africa never

fired a gun, and that Ramona Africa was not involved in the 1978

confrontation. The first two allegations are not something that

any of the officials or officers had any reason to know with any

degree of certainty at the time and, in any event, a person with

a single weapon can fire a fatal shot. Thus, this case would be

no different even if the defendants believed all along that there

were only a few weapons in the premises. The allegations

regarding Africa's peaceful nature are also irrelevant because

even if the defendants were aware of them, they would have been

justified in believing that the other persons in the house were

armed and dangerous.22 The presence of one peacefully inclined

occupant could have in no way impacted on the overall situation.

21 . I thus find Judge Lewis' assertion that because "several hours had elapsed between the cessation of gunfire from within the MOVE dwelling and the dropping of the incendiary device by the police" to be beside the point. Dissent at 10-11. The fact of the matter is that, in light of the massive gun battle earlier in the day, which in turn must be seen in light of MOVE members' consistent threatening conduct, the police had every reason to believe that the MOVE members could begin shooting again at any moment. It seems self-evident to me that the inquiry should focus on the police officers' reasonable belief about the threat of violence, not on the fortuitous fact that at the moment the bomb was dropped bullets were not descending from the building. 22 . In fact she was not inclined peacefully as, according to certain of the briefs, she was convicted of riot and conspiracy for her participation in this episode. Once it was clear that the insertion teams could not

complete their mission, and that the MOVE members still were not

cooperating, it cannot be said that it was anything but

reasonable for the officials to develop alternative ways to

proceed in their mission to arrest these dangerous people. Nor

can it be said that it was unreasonable for the defendants to

choose to attempt to conclude the stand-off, or at least destroy

the bunker, by sundown given the higher risks they perceived to

be coming with nightfall.23

The record shows that the defendants had discussed

various ways of neutralizing the bunker, which all perceived as a

great danger to the officers below, and of effectively inserting

tear gas into the house. And when they focused on the option of

using a helicopter to drop an explosive on the bunker to

neutralize it and to create a hole in the roof, they also

discussed the potential for fire and for injury to the people in

the house. They believed from their inquiries of Powell, an

officer in the Bomb Squad, that these risks were very low. Was this belief reasonable given the fact that at least certain of

the defendants had known that there was a possibility, or at

least a threat by MOVE, that there was incendiary and/or

explosive materials in the house? I cannot say that a reasonable

officer could not have held such a belief that the risks were

23 . While Judge Lewis concludes that the individual defendants used excessive force, he offers no explanation of what alternatives were available. Apparently he is willing to have mandated an indefinite standoff. low. First, the defendants were entitled to rely on the

statements of Officer Powell regarding the characteristics of the

explosive. Second, explosives had been used on the sides of the

house in the morning without causing any fires. And third, these

officials believed that they had seen muzzle flashes on the roof,

which could have led them to believe that a small spark may not

be terribly dangerous, especially given the fact that the roof

had been well doused with water all day. Thus, I do not think it

unreasonable for them to have believed that explosives could be

used to eliminate the bunker.24

I believe that the decision to let the fire consume the

bunker was not an unreasonable use of force. Barna v. City of

Perth Amboy, 42 F.3d 809, 820 (3d Cir. 1994). There is no

question that the bunker still was standing after the explosive

was deployed. In fact, the explosive missed it altogether. The

only basis in the record for the district court's conclusion that

the bunker was "substantially neutralized on the impact of the

bomb," appears to derive from Brooks' testimony. Brooks

testified that when he told Sambor to put the fire out, he said,

"[Y]ou've accomplished your mission, put out the fire." App. at

1016. That the bunker substantially was neutralized was, as I

24 . Nor am I persuaded to reach a different conclusion by the fact that the satchel contained certain explosive materials generally used only by the military. Whatever was in the satchel was not enough to do much structural damage upon explosion since the bunker was still standing. To say that the explosive was "military strength," I believe, is quite misleading. read the record, solely Brooks' expectation of the effect of the

explosive. Brooks testified: 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.

App. at 986. The district court incorrectly concluded from

Brooks' statements that the explosion in fact neutralized the

bunker.

Furthermore, there is no evidence that either Sambor or

Richmond believed the bunker had been neutralized when they

agreed to let the fire burn it. Looking from each defendant's

position, a court must assess the reasonableness of the actions

of Brooks, Sambor, and Richmond based on the information and

beliefs they each held at the time. A court must take care not

to impute one official's beliefs and information to another

official to hold his actions unreasonable in the circumstances.

In this case, I see that although Brooks may have thought that

the mission was accomplished by the explosion, Sambor and

Richmond believed differently. In Brooks' case, then, it may be

rational to go on to determine whether letting the fire burn down

a seemingly neutralized bunker was reasonable. But a reasonable official in the position of the other officials surely did not

have to have this state of mind. Both Sambor and Richmond were

on the street when Brooks called them about the fire. They

testified that they saw smoke, but no flames. And the bunker

still was standing. From Sambor's and Richmond's point of view,

the explosive did not neutralize the bunker, thus explaining the

need to "get the bunker." There may not have been anyone in the

bunker after the explosion, but this was also the case before the

explosion. Surely this fact cannot be taken as assurance that no

one would emerge soon from inside the house and perhaps resume

the offensive position taken in the morning. Indeed, the

district court implicitly found, and I concur, that the absence

of people on the roof or in the bunker did not render

unreasonable the earlier decision to use the explosive to "get

the bunker." This same reasoning should apply after the

explosion. The bunker, for these two officials, was still as

justifiable a target as it was before the explosion.

Thus, the question for Sambor and Richmond becomes, if

they each believed that the bomb failed to neutralize the bunker,

whether it was reasonable for them to let the fire carry out that

objective. Again, a court needs to approach this question from

the separate position of these two individuals. From Sambor's

point of view, he had a confirmation from an experienced fire

fighter that the fire could be controlled. He knew that many

fire fighters were at hand and ready to "start the squirts." It

seems clear that a reasonable police official in Sambor's position could have believed that a controlled fire was a

reasonable means to destroy a bunker which still posed a threat.

Richmond's point of view, although he also knew that he

had plenty of fire fighters ready to put out the fire at his

command, is more problematic.25 It is undisputed that

photographs showing cans marked "gasoline" on the roof were

passed around in a prior meeting of officials at which Richmond

was present. However, there is no evidence that any official

from either the police department or fire department knew that

there was gasoline on the rooftop prior to the disaster on May

13, 1985. Furthermore, Richmond knew on May 13, 1985, that cans

marked "gasoline" on another MOVE house in Chester, Pennsylvania,

actually contained water. Richmond admits, however, that it

would have been unreasonable to let the fire burn if he knew

there was gasoline on the roof. Given the information possessed

by Richmond at the time, including the fact that he was there not

to fight any fires that he may see, as would be his normal

duties, but to lend support to the police effort, we cannot say

that this "split-second judgment -- in circumstances that are

tense, uncertain, and rapidly evolving --" was not objectively

reasonable under the Fourth Amendment. See Graham v. Connor, 490

U.S. at 397, 109 S.Ct. at 1872.

I look at Brooks' situation based on plaintiffs'

version of the facts and assume arguendo that he believed the

25 . The evidence shows, and the district court found, that Richmond played no part in the decision to drop the explosive on the bunker. bunker to have been effectively neutralized by the explosive and

that he concurred, at least for a time, in the decision to let

the fire burn the bunker. Nevertheless, I do not believe that

this decision, even taken in this light, would be unreasonable.

The objective, it must be remembered, was to destroy the bunker

which still was standing and could be reoccupied.

To summarize, I find that the record does not indicate

that there was a Fourth Amendment seizure of the MOVE members, a

conclusion which in itself in my view ends the federal aspects of

the case. I further would hold that even if there was a Fourth

Amendment seizure, the defendants' decisions to destroy the

bunker by dropping the explosive and allowing the fire to burn

were not objectively unreasonable under the Fourth Amendment. I

thus conclude that the city defendants are entitled to summary

judgment on the federal claims.

D. Apparent Lawfulness of the Conduct

I will assume, however, that the defendants did effect

a Fourth Amendment seizure, and I will assume further that the

seizure was unreasonable. I then inquire whether the city

defendants still are entitled to qualified immunity on the basis

that they reasonably could have considered their conduct would be

lawful. I have no difficulty concluding that they are entitled

to such immunity. Judge Scirica comes to the same conclusion and

thus he joins in this section "D. Apparent Lawfulness of the

Conduct," of the opinion. In Harlow v. Fitzgerald, the Supreme Court held that

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known." 457 U.S. at 818, 102 S.Ct. at 2738 (citations omitted).

The Court later explained: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039 (citations omitted).

Thus, the relevant question here is "the objective

(albeit fact-specific) question whether a reasonable officer

could have believed" the use of the explosive and of the fire to

destroy the bunker, based on the information the defendants then

possessed, to be reasonable under the Fourth Amendment, that is,

"to be lawful, in light of clearly established law" as of May 13,

1985. See id.

This court has interpreted the standard of "clearly

established law" to require "some but not precise factual

correspondence between relevant precedents and the conduct at

issue," and that "[a]lthough officials need not predict the

future course of constitutional law, they are required to relate established law to analogous factual settings." Ryan v.

Burlington County, 860 F.2d 1199, 1208-09 (3d Cir. 1988), cert.

denied, 490 U.S. 1020, 109 S.Ct. 1745 (1989) (quoting People of

Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139,

144 (3d Cir. 1984)).

The district court relied and the plaintiffs rely on

Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, and section 508

of the Crimes Code as the "clearly established law" which should

have been related by the defendants to the factual setting facing

them. The defendants argue correctly that violation of state law

is in itself not determinative in this section 1983 action. See

Brown v. Grabowski, 922 F.2d at 1113. Yet I do not fault the

district court for referring to Pennsylvania law, as the court

cited that law to show that its violation could be considered in

determining the scope of the clearly established constitutional

right of an arrestee. Thus, the state law could help define the

scope of federal law. And, indeed, the Supreme Court did cite

section 508 in developing its constitutional standard.

But the defendants argue quite persuasively that the

district court erred in relying on Tennessee v. Garner. In that

case, decided less than two months prior to May 13, 1985, a

police officer shot and killed an unarmed teenage burglary

suspect to prevent his escape. Tennessee v. Garner, 471 U.S. at

3-4, 105 S.Ct. 1697. The Court held that "[t]he use of deadly

force to prevent the escape of all felony suspects, whatever the

circumstances, is constitutionally unreasonable." Id. at 11, 105 S.Ct. at 1701. However, "[w]here 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." Id. The Court concluded that "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." Id. at 11-12, 105 S.Ct. at 1701.

I agree with the defendants that Tennessee v. Garner is

far from an analogous case. We are concerned here with the use

of the explosive and the burning of the bunker to provide a safe

means to inject tear gas into a house to arrest the armed and

dangerous occupants barricaded inside. There is only a very

broad and vague similarity between Tennessee v. Garner and this

case: there was use of great force in both in some aspect of the

process of effectuating an arrest. As can be expected, extensive

research has revealed no case that justly can be deemed

analogous.

This court's cases do not support use of such an

attenuated connection as the district court seemed to have done

here with its use of Tennessee v. Garner. For example, in Ryan

v. Burlington County, 860 F.2d at 1208-09, this court extended

the clearly established law regarding rights of inmates to deny

qualified immunity to defendants even though prior case did not

involve officials in the precise positions held by the

defendants. And in Good v. Dauphin County Social Serv., 891 F.2d at 1094-95, this court applied clearly established case law

regarding warrantless searches to a case where the novelty was

that the search was to prevent child abuse. In Sourbeer v.

Robinson, 791 F.2d 1094, 1103-04 (3d Cir. 1986), cert. denied,

483 U.S. 1032, 107 S.Ct. 3276 (1987), this court affirmed the

district court's reliance on clearly established law regarding

the due process rights of sentenced inmates to hold that

defendants were on notice as to similar rights of an unsentenced

inmate. In Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987),

this court applied the clearly established law that prohibited

dismissal of public employees in retaliation for political speech

or association to a case where the employee was demoted.

Similarly, in Burns v. County of Cambria, 971 F.2d 1015, 1024-25

(3d Cir. 1992), cert. denied, 113 S.Ct. 1049 (1993), this court

applied that same law to the dismissal of deputy sheriffs in

particular.

At the defendants' behest, both the district court and

the magistrate judge examined Ginter v. Stallcup, 641 F. Supp.

939 (E.D. Ark. 1986), as a possible factual precedent. That case

involved an effort by local police officers and FBI agents to

capture a fugitive charged with murder who was hiding in a

residence and apparently was firing at the officers with

automatic weapons. The officers introduced tear gas and diesel

fuel into a vent on the roof of the house and set fire to it.

The district court concluded that there was no "clearly

established law" prior to the event that would hold that "the use

of fire to 'burn out' a fugitive would violate the constitutional rights of the fugitive." Id. at 953. On appeal, the Court of

Appeals for the Sixth Circuit upheld the grant of qualified

immunity to the two defendant officers with respect to the claim

of unnecessary destruction of property, on the basis that unless

the officers knew of the fugitive's death before the fire, they

had not been shown to have acted unreasonably in setting the

fire. Ginter v. Stallcup, 869 F.2d 384, 389 (8th Cir. 1989).

But Ginter v. Stallcup, as the district court in this

case pointed out, was decided in 1986, though it involved an

event that took place in June 1983, which was before the MOVE

episode. In these circumstances, Ginter v. Stallcup could not

possibly be used to demonstrate clearly established law as of May

13, 1985. Furthermore, as the magistrate judge noted, Ginter v.

Stallcup involved "a handful of police officers [who] had to take

immediate action against an armed murderer" as opposed to the

situation here, where "the police presence . . . was on a massive

and well-equipped scale." Id. at 360. While Ginter v. Stallcup

is easily distinguishable, the fact that it is as factually close

a case as anyone can find offers some insight for our inquiry as

to whether the alleged unlawfulness here was "apparent."

Nevertheless, I recognize that in certain instances the

alleged act is so obviously wrongful that all reasonable

officials would consider it unlawful, regardless of whether the

act itself was addressed by case law. For example, in Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989), public

schools officials were sued for allegedly condoning two teachers'

acts of sexual misconduct against students. This court did not require that there be an analogous case in which sexual abuse of

a student or the allowing of such abuse was held to have violated

the student's constitutional rights. Rather, it "seem[ed]

ludicrous to be obliged to consider whether it was 'clearly

established' that it was impermissible for school teachers and

staff to sexually molest students." Id. at 726-27. In other

words, the alleged act of condoning sexual misconduct by teachers

against students so clearly violated the student's constitutional

rights that the unlawfulness of this act was apparent, even in

the absence of an analogous case. The Stoneking approach

sensibly precludes an official from obtaining summary judgment if

he acts in a way that no other official has acted because other

officials recognize the acts to be clearly unlawful. Of course,

that approach has no place in this case.

Overall, it is clear that even if somehow a court found

that there was an unreasonable seizure in this case, it could not

possibly say, in the words of Anderson v. Creighton, "that in the

light of pre-existing law the unlawfulness" of either dropping

the explosive or letting the fire burn should have been apparent.

483 U.S. at 640, 107 S.Ct. at 3039. The 1985 MOVE confrontation

was unprecedented in the case law. The exceptional circumstances

here constitute precisely the kind of situation that requires the

firm and swift official action which must be shielded by

qualified immunity. I conclude that there was no clearly

established law as of May 13, 1985, which would have required the

officials to choose an alternative approach to execute the

warrants. Thus, as Judge Scirica joins in this section of the opinion the city defendants, meaning the individual defendants,

are entitled to qualified immunity on the federal claims.

V. LIABILITY OF THE CITY

The district court concluded that Brooks' concurrence

in the decision to let the bunker burn means that the city is

suable under section 1983. Alternatively, even if Brooks did not

concur, the district court found that decisions made by Sambor or

Richmond were sufficient so that the city could be held liable.

Because I would hold that the city defendants are entitled to

summary judgment on the federal claims on the grounds that their

actions did not amount to constitutional violations, as there was

no seizure at all, I would hold that the city also is entitled to

summary judgment on the federal claims. Monell v. New York City

Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036

(1978) (municipalities cannot be held liable under section 1983

"unless action pursuant to official municipal policy of some

nature caused a constitutional tort"); Kentucky v. Graham, 473

U.S. 159, 171, 105 S.Ct. 3099, 3108 (1985) (plaintiffs who did

not prevail in official-capacity action was not "entitled to look

for relief, both on the merits and for fees, to the governmental

entity"). While this court indicated in Fagan v. City of Vineland, 22 F.3d 1283, 1291-94 (3d Cir. 1994), that in some

circumstances a city may be liable even though its officers are

not liable, I see no basis here to impose independent liability

on the city. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573 (1986). Judges Scirica and Lewis disagree with this conclusion for the reasons they express and

thus we will affirm the order denying the city summary judgment.

VI. GRANT OF SUMMARY JUDGMENT IN FAVOR OF GOODE, POWELL, AND KLEIN AS TO THE STATE LAW CLAIMS

In light of the conclusions Judge Scirica and I have

reached with respect to qualified immunity and in light of the

reasons Judge Scirica is setting forth separately, we will affirm

the judgments in favor of Goode, Powell, and Klein on the state

law claims. The magistrate judge explained, and the district

court summarily agreed, that as employees of the city, officials

are entitled to statutory immunity unless "it is judicially

determined that the act of the employee caused the injury and

that such act constituted a crime, actual fraud, actual malice or

willful misconduct." 42 Pa. Cons. Stat. Ann. § 8550 (1982). I

agree as well. Thus, in my view the finding that the dropping of

the explosive was lawful establishes that Goode, Powell, and

Klein did not lose their immunity under this section.

VII. CONCLUSION

I cannot conclude our opinion without an overview of

the matter. In retrospect, there can be no doubt that the

defendants' actions had tragic consequences. Yet there is not

the slightest doubt that it was MOVE and not the defendants who

put the forces in motion which created the tragedy for the MOVE

members placed the defendants in an impossible situation. Because of their obvious contempt for the orderly implementation

of the judicial process, they forced the defendants to undertake

a military-type operation. In a country operating under an

organized legal system the response of a person confronted with

an arrest warrant must be to surrender. Unfortunately the

occupants of the MOVE house did not recognize this obvious truth.

Finally, I point out that the courts must recognize that in

certain instances the civil authorities are required to take

strong steps to enforce the law and maintain public order. The

Constitution does not preclude these steps.

In view of the conclusions I have set forth and in my

view of the conclusions set forth by Judge Scirica and Judge

Lewis, the orders for summary judgment with respect to all claims

in favor of defendants Goode, Powell, and Klein will be affirmed.

The orders denying summary judgment with respect to all federal

claims in favor of Brooks, Sambor, and Richmond, will be reversed

and on remand the district court should enter summary judgment in

their favor on those claims. The order denying the city summary

judgment will be affirmed but on the further proceedings on

remand the district court shall consider the claims against the

city in accordance with the reasonableness standard Judge Scirica

and I have adopted. We note that the district court granted the

city partial summary judgment with respect to the dropping of the

bomb and that no appeal from that order is pending.

Nevertheless, the rationale adopted by Judge Scirica and Judge

Lewis leads to the conclusion that the city was not entitled to

summary judgment on that point. Thus, while we do not disturb that unappealed summary judgment, we observe that the plaintiffs

might want to seek relief from it in the district court under

Fed. R. Civ. P. 54(b) or Fed. R. Civ. P. 60(b)(6). The appeals

by Brooks, Sambor, and Richmond from the denial of summary

judgment on immunity grounds on the state law claims will be

dismissed for lack of jurisdiction as will James' appeal from the

order of the district court granting the city summary judgment on

her uncompensated property damage claim. We will remand the

matter for further proceedings consistent with this opinion and

for disposition of the remaining claims. The parties will bear

their own costs on this appeal.

In Re: City of Philadelphia Litigation

No. 94-1277, etc.

SCIRICA, Circuit Judge, concurring and dissenting. I agree with Judge Greenberg that all individual

defendants are entitled to qualified immunity. Although I agree

that the proper analysis on the use of excessive force in

effecting an arrest is found in Graham v. Connor, 490 U.S. 386,

395 (1989), rather than in Tennessee v. Garner, 471 U.S. 1, 11

(1984),26 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.27 Accordingly, with Judge 26 . In Graham v. Connor, 490 U.S. 386, 395 (1988), the Court held, "[A]ll claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard . . . ." Applying this standard to determine "whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396 (citation omitted). I believe Tennessee v. Garner, 471 U.S. 1, 11 (1984) is limited by its facts. Garner assessed the reasonableness of force used in a particular factual setting but did not provide the definitive reasonableness test for all seizures involving the use of deadly force. Although I believe the police may have used deadly force against the MOVE members, that confrontation is readily distinguishable from the situation in Garner. 27 . 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. Lewis, I hold that the federal claims asserting an

unconstitutional seizure in violation of the Fourth Amendment

against the City of Philadelphia survive summary judgment and may

proceed to trial.

Furthermore, I would hold that we may consider an

interlocutory appeal of the denial of state immunity when the

state immunity question is bound up with federal qualified

immunity and that the individual defendants are entitled to

summary judgment on the state claims because the officials'

conduct did not rise to the level of willful misconduct.

I.

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 (1989). In Brower, the Court

noted that a Fourth Amendment seizure does not occur when the

effect of seizure is purely fortuitous.28 But the Court

28 . To illustrate the point, the Court laid out two scenarios: (1) where a parked and unoccupied police car slips its brake and pins an innocent passerby against a wall; and (2) where the accidentally pinned passerby happens to be a serial murderer for whom there is an outstanding arrest warrant. The Court said there could be no seizure in either case because there was no "governmental termination of freedom of movement through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 597 (1989). The intent referred to in the phrase, "through means cautioned that we cannot say there was not a seizure when an

individual is "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." Id. at 598-99. 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.

Id. at 599.

II.

I do not believe that we can say, as a matter of law,

that no reasonable jury could conclude that the decision to use

the incendiary device was an excessive use of force. Both the

reasonableness of the decision to end the confrontation before

nightfall rather than allow the stand-off to continue and the

reasonableness of the choice of means to end the stand-off --

eliminating the bunker with an incendiary device -- are questions

of fact.29 Also, the reasonableness of the officials' views of (..continued) intentionally applied," does not go to the intent of seizure. It is irrelevant that the serial murderer's arrest was otherwise intended. What matters is whether the means -- e.g., the car -- was intentionally applied to this individual. 29 . The degree of risk posed by the use of the incendiary device is disputed. But questions about the contents of the incendiary the threat of the bunker after the incendiary device was dropped

and the reasonableness of their decision to let the fire burn the

bunker are questions of fact. Accordingly, I find summary

judgment is inappropriate on the question of whether the

plaintiffs' Fourth Amendment rights were violated by an

unreasonably excessive use of force. Of course, as stated, I

believe all individual defendants are entitled to qualified

immunity.

III.

Because I cannot say, as a matter of law, that there

has been no Fourth Amendment violation, Monell v. Department of

Social Services, 436 U.S. 658, 691 (1978), does not relieve the

city of liability. Under City of St. Louis v. Praprotnik, 485

U.S. 112, 127 (1988), and Pembauer v. City of Cincinnati, 475

U.S. 469, 481 (1986), we must consider whether the acts of the

municipal officers may be attributed to the city. I believe that

their actions meet the standards outlined in those cases, and I

hold the city responsible for the acts of these officials.

Furthermore, under Owen v. City of Independence, 445 U.S. 622,

650 (1980), the city does not have qualified immunity from

liability even if it can show that the officials themselves are

entitled to immunity from personal liability under § 1983. (..continued) device and the awareness of the officials that gasoline or other explosives may have been in the vicinity of the bunker are properly left to the trier of fact. IV.

Under the facts here, I believe we may consider an

appeal of the district court's denial of a claim of state

immunity. In Brown v. Grabowski, 922 F.2d 1097, 1109 (3d Cir.

1990), cert. denied, 501 U.S. 1218 (1991), we concluded that a

denial of a claim of qualified immunity premised upon New Jersey

state law was not appealable. But in Brown we conducted a three-

step inquiry: First we looked to the statute, then we looked to

interpretations of that statute by the state's courts, and

finally we looked to see whether the state disfavored

interlocutory appeals. In Brown, after reviewing the statute and

case law, we believed the appealability issue could go either

way. But because New Jersey had a policy strongly disfavoring

interlocutory appeals, we dismissed for lack of jurisdiction.

Applying the same analysis here, I would reach the opposite

conclusion.

I agree that the language of Pennsylvania's Political

Subdivision Tort Claims Act does not contemplate immunity from

suit but only immunity from liability. But that is not

necessarily dispositive. My reading of Brown is that when there are issues of federal immunity along with issues of state

immunity, we are required to take a closer look at a state's

approach to immunity. In Pennsylvania, that closer look embraces

Lancie v. Giles, 572 A.2d 827, 829 n.3 (Pa. Commw. Ct. 1990).

Lancie noted that the United States Supreme Court's emphasis on the appealability of summary judgments denying federal qualified

immunity makes the issue of appealability of denials of state

statutory immunity more difficult when cases also involve issues

of federal immunity. The Pennsylvania Supreme Court has not

addressed this question, but in the absence of guidance from the

state supreme court, we should look to decisions from the lower

state courts. See Wisniewski v. Johns-Manville Corp., 759 F.2d

271, 273-74 (3d Cir. 1985) ("Although lower state court decisions

are not controlling on an issue on which the highest court of the

state has not spoken, federal courts must attribute significant

weight to these decisions in the absence of any indication that

the highest state court would rule otherwise."). I believe this

signal from Lancie is strong enough to tip the balance in favor

of hearing the interlocutory appeal of the denial of summary

judgment on the state law immunity claims.

I also would grant summary judgment on the state

immunity question because, as a matter of law, the individual

defendants' conduct did not rise to the level of willful

misconduct.30 Pennsylvania's Political Subdivision Tort Claims

Act denies immunity to an employee of a local agency when the

30 . The district court granted summary judgment to the city on the state law claims because it found that the city had not properly made itself suable beyond the categories of cases contemplated by the Pennsylvania Political Subdivision Tort Claims Act. The statute sets out a list of eight acts that may result in the imposition of liability on a local agency. Effecting arrest of individuals is not one of the enumerated actions. employee's action constituted "a crime, actual fraud, actual

malice or willful misconduct." 42 Pa. Cons. Stat. § 8550 (1990).

Pennsylvania courts have defined "willful misconduct" to mean

"conduct whereby the actor desired to bring about the result that

followed or at least was aware that it was substantially certain

to follow, so that such desire can be implied." King v. Breach,

540 A.2d 976, 981 (Pa. Commw. Ct. 1988) (citing Evans v.

Philadelphia Transp. Co., 212 A.2d 440 (Pa. 1965)).

Recently, in Renk v. City of Pittsburgh, 641 A.2d 289,

294 (Pa. 1994), the Pennsylvania Supreme Court rejected the City

of Pittsburgh's exclusive reliance on a jury finding in a federal

action that an officer was liable for using excessive force to

establish willful misconduct. This indicates that the

Pennsylvania Supreme Court requires a higher standard than

excessive force for finding willful misconduct sufficient to

defeat immunity under the Tort Claims Act. Furthermore, I

believe the statement in Lancie about the difficulty created by

differing state and federal standards on immunity signals that

Pennsylvania will defer to the federal standard and deny immunity

only where the actor had reason to know that his actions violated

clearly established rights.

Except as otherwise noted, I join Judge Greenberg's

holdings, even though I do not agree with every detail of his

opinion. In re: City of Philadelphia Litigation Nos. 94-1229 through 94-1233, 94-1272, 94-1276 through 94-1280, 94-1320, 94-1321, 94-1322, 94-1377, 94-1378 and 94-1379

LEWIS, Circuit Judge, concurring and dissenting. I join in Parts II and III of Judge Greenberg's opinion

and in Part I (Factual Background) insofar as it recounts the

undisputed facts as revealed and supported by the record. For

the reasons I discuss below, however, I do not join in Parts IV

through VII of Judge Greenberg's opinion.

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 to insert

tear gas into the house in order to force the MOVE occupants out.

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.

Finally, I join Judge Scirica in holding that the

federal claims asserting an unconstitutional seizure in violation

of the Fourth Amendment against the City of Philadelphia survive

summary judgment and may proceed to trial. However, I do not

agree with either Judge Scirica or Judge Greenberg that Graham v.

Connor, 490 U.S. 386 (1989), provides the proper analytic framework for assessing the constitutionality of the use of force

in this case. Instead, it is plain to me that Tennessee v.

Garner, 471 U.S. 1 (1985), provides the proper test.

II. THE MAJORITY'S ERRONEOUS CONCLUSION AS TO THE APPLICABLE STANDARD

Judge Greenberg concludes that the city defendants' use

of the incendiary device and ensuing fire to effect the seizure

of the MOVE occupants did not constitute deadly force. While

Judge Scirica acknowledges that deadly force may have been used

against the MOVE members, he believes that Garner is limited by

its facts and distinguishable from the confrontation here. See

Judge Scirica's concurring and dissenting opinion Typescript at 1

n.1. Thus, the majority concludes that the district court erred

in applying Garner, a case involving the use of deadly force, to

assess the constitutionality of the use of force against MOVE.

Instead, the majority holds that the district court should have

applied the reasonableness test described in Graham, a case involving the use of non-deadly force, to test the

constitutionality of the use of force in this case. In so

holding, I believe Judge Greenberg misapprehends the nature of

the force contained in the incendiary device and the ensuing

roof-top fire, and I believe that Judge Scirica overly limits

Garner's reach.

A. The force embodied in the incendiary device and in the

fire was, by any sensible standard, "deadly" force. It should

not escape our attention that the destructive device in question

was a bomb capable of blasting a hole in the roof of a city

building. This lethal device could and did accomplish a degree

of destruction well beyond that which even bullets fired from a

high-powered weapon could achieve. To me, this constitutes

deadly force, for I cannot imagine how anyone can conclude that a

device such as this was not capable of taking human life --

which, in fact, it ultimately did. Contrary to the conclusion

drawn by the majority, I believe the city defendants, who were

professional law enforcement and fire-fighting personnel, had

every reason to know that their actions created a substantial

risk of death or serious bodily injury to the MOVE members

residing at 6221 Osage Avenue. See Model Penal Code § 3.11(2)

(defining "deadly force" as "force which the actor uses with the

purpose of causing or which he [or she] knows to create a

substantial risk of causing death or serious bodily harm")

(emphasis supplied).

Moreover, I would conclude that the dropping of the

explosive device would have constituted the use of deadly force

even had no fire ensued as a result of this act. The intention

of the defendant officials in dropping the explosive device was

to blast the bunker from atop the roof. This intention must be

considered in light of the fact that the defendant officials had no way of knowing whether the bunker was occupied at the time the

explosive device was deployed. The only viable conclusion, given

the bomb's purpose and the reasonable (and unexplored)

possibility that the bunker was occupied at the time the bomb was

dropped, is that in dropping the explosive device, the defendant

officials knew that they were creating a substantial risk of

causing death or serious bodily harm. Had the defendant

officials' objective to blast the bunker from the roof been

fulfilled, and had the bunker been occupied at the moment of

impact, the bunker's occupant or occupants would have been

forcibly thrown from the roof of 6221 Osage to the street below.

The substantiality of the risk of death or serious bodily injury

from such a fall is self-evident and beyond debate.

In light of reason, experience and the applicable

standard, I could not disagree more strenuously with Judge

Greenberg's conclusion that in dropping the explosive device onto

the roof of an occupied building and in letting a fire spread

upon that occupied building's roof, the city defendants did not

use deadly force. In addition, and putting aside the fact that a

fire ensued, I cannot accept Judge Greenberg's conclusion that in

dropping the device to blast the bunker off of the roof, city

officials did not know they were creating a substantial risk of

death or serious bodily harm.

B. The majority concludes that Garner is inapplicable and

that "the appropriate inquiry is the reasonableness of the city

defendants' acts." Maj. Op. Typescript at 52. I am perplexed by

this conclusion, for in reaching its holding regarding the

constitutionality of deadly force used in the course of an

arrest, the Supreme Court in Garner applied and relied upon the

reasonableness test embodied in the Fourth Amendment. See

Garner, 471 U.S. at 7-12 ("there can be no question that

apprehension by the use of deadly force is a seizure subject to

the reasonableness requirement of the Fourth Amendment").

The majority implies that Garner and Graham are

incompatible cases. In fact, Garner and Graham are complementary

cases. As the district court noted, the Supreme Court in Garner

for the first time analyzed within the reasonableness framework

of the Fourth Amendment an excessive force claim arising in the

context of an arrest. See Africa v. City of Philadelphia, 809

F. Supp. 375, 379 (E.D. Pa. 1992) (explaining that prior to

Garner, excessive force claims were analyzed under the "shocks

the conscience" standard). In doing so, the Court squarely

addressed the very issue we confront here, namely, the

constitutionality of the use of deadly force by law enforcement

officials in the course of an arrest. In Graham, the Court merely "ma[de] explicit what was implicit in Garner's analysis,"

by holding that "all claims that law enforcement officers have

used excessive force -- deadly or not -- in the course of an arrest . . . should be analyzed under the Fourth Amendment and

its `reasonableness' standard . . . ." Graham, 490 U.S. at 395

(emphasis in original). The Court then proceeded to apply the

reasonableness test to the use of non-deadly force, as it had

already done with regard to the use of deadly force in Garner.

Taken together, then, Garner and Graham establish the

following set of complementary principles: (1) the

reasonableness test under the Fourth Amendment is to be used when

assessing the constitutionality of police employment of force in

the context of an arrest; (2) when the force employed constitutes

"deadly force," the constitutionality of its use is to be

determined according to the reasonableness test set forth in

Garner, and such force is deemed unreasonable unless it is

"necessary to prevent the [suspect's] escape and the officer has

probable cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or

others[,]" Garner, 471 U.S. at 3; and (3) when the force employed

is non-deadly, the constitutionality of its use is to be assessed

according to the factors enumerated in Graham. Thus, while

Garner and Graham do establish a complementary set of principles, Garner is appropriately applied to situations, such as this one,

involving the use of deadly force, whereas Graham speaks to and

controls situations involving the use of non-deadly force. They

share a focus upon the use of excessive force, but it is the nature and degree of that excessive force which dictates their

respective applications.

Accordingly, while I agree with Judge Scirica that as a

matter of law, a reasonable jury could, under Graham, conclude

that the decision to employ the incendiary device was an

excessive use of force, because I believe that this case involves

the use of deadly force, and in light of my understanding of the

relationship between Garner and Graham, I think the proper test

for determining the constitutionality of the use of force in this

case is found in Garner, and not in Graham.31

Our disagreement as to applicable test is not without

considerable significance. As should be clear, if Graham is the

appropriate standard by which to determine the constitutionality

of the use of force here, then general reasonableness factors

would guide a jury's determination as to whether excessive force

was used. By stark contrast, Garner would not invite a jury to

be guided by the more flexible general reasonableness standard.

Garner imposes a stricter standard governing police conduct and

the use of excessive force -- and with good reason, since the

intrusiveness of deadly force is qualitatively distinct from all

other forms of excessive force. Accordingly, Garner defines and

31 . I agree with Judge Scirica that under Graham, a jury question exists as to whether excessive force was used in this case. However, as I have stated, I do not believe that Graham controls this case. I believe that Garner controls, and under Garner, it is clear to me that the deadly force used here was excessive as a matter of law and, therefore, unlawful. explains the reasonableness of the excessive force to which it is

addressed -- deadly force -- in narrower terms. In other words,

while the reasonableness inquiry is a common component with

regard to both standards, that inquiry is, and should be, more

precise and exacting when deadly force has been used. Thus, if

Garner were applied, a jury would be asked more pointedly to

determine whether the deadly force employed was reasonable

because it was necessary to prevent the escape of suspects

believed to pose a significant threat of death or serious

physical injury to the police or others. It is this test, and

not the more lenient Graham standard, by which the propriety of

the law enforcement officers' decisions in this case should be

gauged. And, as I have already indicated, I believe that under

Garner only one reasonable conclusion can be reached here: the

city defendants used excessive force.

III. THE MAJORITY'S ERRONEOUS CONCLUSION AS TO THE APPLICABILITY OF QUALIFIED IMMUNITY

The majority states that it has no difficulty

concluding that the individual defendants are entitled to

qualified immunity because they reasonably could have considered

their conduct to be lawful. Maj. Op. Typescript at 66. I

disagree. I would hold that the individual defendants are not

entitled to qualified immunity. Further, I believe that the

source of the majority's error here flows directly from its misunderstanding and misapplication of our construction of the

term "clearly established law," in the wake of the Supreme

Court's decision in Harlow v. Fitzgerald, 457 U.S. 800 (1981),

which first articulated that standard.

As the majority correctly observes, the relevant

question here is whether a reasonable officer, possessing the

same information as did the defendants, could have believed that

the use of the incendiary device and fire to destroy the bunker

was reasonable under the Fourth Amendment, that is, "lawful, in

light of clearly established law" as of May 13, 1985. See

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Accordingly,

our task is to determine what the "clearly established law"

governing the defendants' actions was on that date. The majority

argues that there was no clearly-established law on the date in

question which would have required the officials to choose an

alternative approach to executing the warrants. Maj. Op.

Typescript at 73. In failing to grasp the breadth of the

"clearly established law" standard, and in thus failing, once

again, to recognize the applicability of Tennessee v. Garner to

the events in question, the majority has erred.

As I have already noted, in Garner, which admittedly was decided a mere 48 days prior to the events in question,32 the

32 . While the majority's analysis does not depend upon or even address this point, I do not believe the close temporal proximity between the decision in Garner and the events in question to be relevant or controlling. In a recent opinion, the Court of Appeals for the Sixth Circuit observed that while the circuits Supreme Court held that where an arresting officer has probable

cause to believe that the suspect poses a threat of death or

serious physical harm, either to the officer or to others, it is

(..continued) "have struggled to decide how long after a decision state officials have to become familiar with `the law,' . . . no rule has emerged." Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir. 1994). That court went on to hold that a "rule of reason" should apply in each case with respect to official compliance with new decisions. Id. I believe it to be not only reasonable, but legally correct, that once the Supreme Court has announced a decision which governs the behavior of government or society, unless the Court states otherwise, it's holding becomes the law of the land when the judgment is entered and is binding upon those affected by it. We have, in effect, acknowledged this in Good v. Dauphin County Social Services, 891 F.2d 1087, 1092 (3d Cir. 1989) (stating that the ultimate issue in the "clearly established law" inquiry is whether, despite the absence of a case applying established principles to the same facts, "reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful") (emphasis supplied). Moreover, and perhaps more important, as the district court noted, the decision in Tennessee v. Garner in significant respects mirrored, and in fact relied in part upon, section 508 of the Pennsylvania Criminal Code with respect to a peace officer's use of force in making an arrest. See In re City of Philadelphia Litigation, 849 F. Supp. 331, 336 (E.D. Pa. 1994). Thus, Garner hardly represented a novel twist in the law governing the defendants' actions: that law was already on the books. In fact, it would appear that section 508 squarely covered the actions taken by the defendants here. See 18 Pa.C.S. § 508 (providing that a peace officer is justified in using deadly force "only when he [or she] believes that such force is necessary to prevent death or serious bodily injury to himself or . . . other[s] . . . or when he [or she] believes both that: (1) such force is necessary to prevent the arrest from being defeated by resistance or escape; and (2) the person to be arrested has committed or attempted to commit a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he [or she] will endanger human life or inflict serious bodily injury unless arrested without delay"). not constitutionally unreasonable to prevent escape by using

deadly force. Garner, 471 U.S. at 11. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he [or she] 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.

Garner, 471 U.S. at 11-12. In concluding that Garner bears an insufficient factual

correspondence to be deemed the "clearly established law"

applicable to this case, the majority runs counter to our

traditional broad application of Harlow v. Fitzgerald's "clearly

established law" standard. See, e.g., People of Three Mile

Island v. Nuclear Reg. Com'rs, 747 F.2d 139, 144-45 (3d Cir.

1984); Stoneking v. Bradford Area School District, 882 F.2d 720,

726 (3d Cir. 1989). Although we have recognized that we cannot

expect executive officials to anticipate the evolution of

constitutional law, we do demand that they apply general,

well-developed legal principles in analogous factual settings,

i.e., in settings bearing some, but not necessarily precise,

factual correlation to the applicable precedent. See People of

Three Mile Island, 747 F.2d at 144.

Yet the situation we face here is identical to the

situation the Supreme Court confronted in Garner: a case of

police use of deadly force in carrying out a seizure of a person or persons actively resisting arrest. Even in their particulars,

Garner and our case are compellingly analogous. Obviously, this

case involves the use of deadly force against a group of armed

and dangerous adults barricaded inside a house, while Garner

involved the use of deadly force against an unarmed teenager who

was running from the police. However, it bears emphasizing that

in our case several hours had elapsed between the cessation of

gunfire from within the MOVE dwelling and the dropping of the

incendiary device by the police. Like Garner, the police simply

were not facing a "shoot or be shot" (or a "drop bomb or be

shot") situation at the moment the bomb was dropped. Indeed,

this case is easier than Garner. In Garner, the Court determined

that seizure by deadly force of a fleeing suspect was not worth

the costs: it was better to let the suspect escape. Garner, 471

U.S. at 11. In our case, the suspects were not even fleeing. At

the time the destructive device was deployed, the MOVE contingent

(including several children) was not only barricaded inside a

house, but was also surrounded and greatly outnumbered by

well-equipped law enforcement personnel. Thus, unlike Garner,

escape here was not even a reasonable or realistic possibility.

As the Court in Garner recognized, "[i]f subsequent arrest [is] assured, no one would argue the use of deadly force was

justified." Garner, 471 U.S. at 9 n.8.

Based upon these considerations, I would hold that

reasonable officials in the defendants' position at the relevant time could not have believed, in light of Garner, that their

conduct would be lawful.

Even where the officials in question should have been

aware of the "clearly established" governing law, we have

explained that executive officials are still entitled to

qualified immunity "if based on the information available to them

they could have believed their conduct would be consistent" with

that clearly established law. See Good, 891 F.2d at 1092.

However, I believe it would have been readily apparent to any

reasonable official who possessed the same information as did the

individual defendants on May 13, 1985, that at the time the

explosive device was dropped, deadly force was not necessary to

prevent the escape of the occupants of 6221 Osage Avenue.

Support for the counter-argument, so far as I can

gather, is summed up by the majority in the following factors:

(1) nightfall would render securing the neighborhood too

difficult; (2) fatigue was setting in among the police personnel

who had been on duty since the night before; and (3) certain

members of the police appear to have believed that tunnels had

been dug from the basement of the MOVE house. See Maj. Op. Typescript at 13. With respect to the nightfall factor, the

entire block, including 6221 Osage Avenue, could have been

illuminated artificially as are highway projects regularly. One

can counter that these lights could then have been shot out by

MOVE members. But I think a modicum of police ingenuity could have seen to it that the lights were placed at angles rendering

them unsusceptible to gunfire. With respect to police fatigue,

this, one presumes, could reasonably have been counteracted by

the replacement of tired officers with fresh personnel.

And finally, with regard to the rumored tunnels,

support in the record for a reasonable belief in the existence of

escape tunnels is flimsy at best. The majority suggests that the

defendants believed that MOVE members might have eluded capture

through escape tunnels rumored to have been dug under the

neighborhood. I would agree that had the defendants reasonably

believed that MOVE had constructed escape tunnels underneath the

neighborhood, the dropping of an explosive device might

reasonably have been perceived as necessary to prevent the escape

of the MOVE members under cover of the coming night. However,

the record as I read it does not support the view that the

defendants actually believed that MOVE had constructed escape

tunnels under the neighborhood; at most, it merely suggests a

belief, based upon a statement that fifteen bushels of dirt had

been deposited by MOVE members on a curb for disposal, that the

MOVE members might have dug a tunnel to a neighboring house. First of all, digging an escape tunnel to a neighboring house is

different from digging an escape tunnel "under the neighborhood"

to some unknown outlet. But more importantly, even if the record

supported the existence of such a belief, I would have no

difficulty in concluding that it was unreasonable, indeed, far-fetched, in light of the evidence before us. It is fantasy

to believe that fifteen bushels of dirt, even to a neighboring

house, an escape tunnel makes.

Thus, I would hold that the individual defendants are

not entitled to qualified immunity even when the factual

information available to them on May 13, 1985, is taken into

consideration.

IV.

Since I would hold that none of the individual

defendants are entitled to qualified immunity in relation to the

section 1983 claims against them, I would reverse the grant of

summary judgment in favor of Goode, Powell and Klein as to the

state law claims against these defendants.

Judge Greenberg observes that in reaching my conclusion

that the individual defendants used excessive force, I offer "no

explanation of what alternatives were available," and am

"[a]pparently . . . willing to have mandated an indefinite

standoff." See Maj. Op. Typescript at 61 n.23. This is in part

true and largely irrelevant. It is certainly true that I am

willing to "mandate" that which is reasonable and lawful. An

"indefinite standoff," among other options, qualifies. But it is

not our primary purpose here to provide alternatives to unlawful

police action. Instead, we are to evaluate the lawfulness of

what did occur on May 13, 1985. We should only countenance the lawful resolution of that unfortunate incident. Thus, the larger

point here is that Judge Greenberg, and to a lesser extent, Judge

Scirica and I simply disagree, based upon our understanding of

the record and the law, as to whether the dropping of the

incendiary device was lawful.

In concluding that the defendant officials in this case

used excessive force, I do not mean to imply that situations law

enforcement officers confront daily are not fraught with

difficulty and do not frequently require split-second decisions

involving matters of life and death. To the contrary, law

enforcement officers are forced to digest a steady diet of some

of the most impossible choices under some of the most pressing

circumstances and unforgiving conditions. We should, of course,

be concerned for and sensitive to their fundamental mission,

which is to ensure the protection and preservation of society.

But this, too, must be said: it is hardly debatable in

a civilized constitutional democracy that in the final analysis,

the goal of the enforcement of law, and thus, the maintenance of

public order, is not promoted through the use of deadly force in

effecting seizures. As the Supreme Court has observed, the use

of deadly force, in fact, frustrates the interest in enforcement

of law through fair and objective judicial determination of guilt

and punishment. Garner, 471 U.S. at 9. It is partly because the

use of deadly force "is a self-defeating way of apprehending a

suspect and so setting the criminal justice mechanism in motion" that the Constitution, as interpreted by the Supreme Court, so

narrowly circumscribes its use. See Garner, 471 U.S. at 10.

The majority in Part VII states that "courts must

recognize that in certain instances the civil authorities are

required to take strong steps to enforce the law and maintain

public order[,]" and that "[t]he Constitution does not preclude

these steps." Maj. Op. Typescript at 75. The danger inherent in

this statement, which the majority appears to adopt as a precept

of constitutional jurisprudence, lies in its breadth. I am

deeply troubled by the necessary implication of the majority's

statement, which is that the Constitution does not preclude that

which is perceived as necessary or expedient to enforce the law

and maintain public order. I hold a different view. I believe

it to be beyond dispute that the Constitution precludes many acts

which might, even reasonably, be deemed "necessary" for the

enforcement of law and the maintenance of public order. In

determining what it does and does not preclude, we cannot engraft

upon the Constitution our own predilections as to what that

document, as a matter of perceived social necessity, ought or

ought not permit law enforcement officials to do in the name of

law and order.

CONCLUSION

For the above reasons, I respectfully concur and

dissent.