1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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"In Re: City Phila Litigation" (1995). 1995 Decisions. Paper 67.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/67
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 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 

v. 

 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 

v. 

 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. DarlingDelaware 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 

"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." 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 threestep 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. 

V. 

 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. 

 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. 

V. 

 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.