Africa v. City of Philadelphia

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

9-9-1998

In Re: City of Phila

Precedential or Non-Precedential:

Docket 96-2127

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Filed September 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-2127

IN RE: CITY OF PHILADELPHIA LITIGATION

(D.C. Civil No. 85-cv-02745)

RAMONA AFRICA

v.

CITY OF PHILADELPHIA; WILLIE GOODE; LEO A.

BROOKS; GREGORE SAMBOR; WILLIAM RICHMOND;

FRANK POWELL, LT.; WILLIAM KLEIN, OFFICER;

MICHAEL TURSI, OFFICER; ALBERT REVEL, SGT.;

EDWARD CONNOR, SGT.; MORRIS DEMSKO, CORPORAL;

RICHARD REED, STATE TROOPER, Individually and in

their present and/or former official capacities

(D. C. Civil No. 87-cv-02678)

City of Philadelphia,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

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

Argued

January 27, 1998

Before: MANSMANN, COWEN and ALITO, Circuit Judges.

(Filed September 9, 1998)

Andre L. Dennis, Esquire (ARGUED)

Danielle Banks, Esquire

Stradley, Ronon, Stevens & Young

2600 One Commerce Square

Philadelphia, PA 19103

Counsel for Appellee

Judith E. Harris, Esquire (ARGUED)

Morgan, Lewis & Bockius

2000 One Logan Square

Philadelphia, PA 19103

Counsel for Appellant

OPINION OF THE COURT

MANSMANN, Circuit Judge.

On May 13, 1985, now more than thirteen years ago, the

City of Philadelphia police dropped a bomb on 6221 Osage

Avenue, a building occupied by several members of a group

called "MOVE," killing eleven of the thirteen people inside,

devastating the West Philadelphia community, and bringing

national attention to the actions taken that day by the City

of Philadelphia officials involved in the incident. This appeal

requires us to revisit that confrontation.

Only two parties have participated in this appeal,

whittled down from the dozens of plaintiffs and defendants

previously involved in this massive litigation. Here, the City

of Philadelphia appeals that portion of the judgment

entered against it and in favor of Ms. Ramona Africa on her

civil rights claim under 42 U.S.C. S 1983.1

The City's sole argument on appeal is that, as a matter

_________________________________________________________________

1. Ms. Africa has filed a separate appeal from that portion of the

judgment entered against her and in favor of William Richmond,

Philadelphia's former Fire Commissioner, and Gregore Sambor,

Philadelphia's former Police Commissioner, on her state law battery

claims. In a companion case decided today, we have affirmed the

judgment in favor of Richmond and Sambor. See In re City of Phila.

Litig., ___ F.3d ___ (3d Cir. 1998).

2

of law, its conduct did not amount to a seizure under the

Fourth Amendment. We hold that because the evidence

contained in the summary judgment record, upon which we

previously relied to determine that the City's actions were

sufficient to constitute a Fourth Amendment seizure, was

also presented at trial, we are bound under the law of the

case doctrine to our prior seizure determination.

Accordingly, in conformance with our prior holding, we are

required to reject the City's argument that its conduct was

legally insufficient to constitute a Fourth Amendment

seizure. We therefore will affirm the judgment entered on

Ms. Africa's civil rights claim against the City.

I.

The controversial events forming the basis of this

litigation were highly publicized and have been recounted in

several published opinions. See, e.g., In re City of Phila.

Litig., 49 F.3d 945 (3d Cir. 1995); In re City of Phila. Litig.,

938 F. Supp. 1278 (E.D. Pa. 1996); In re City of Phila. Litig.,

849 F. Supp. 331 (E.D. Pa. 1994); Africa v. City of Phila.,

809 F. Supp. 375 (E.D. Pa. 1992). Accordingly, we will

assume familiarity with this case and will present only an

abbreviated synopsis of the background relevant to this

appeal.

A.

On May 11, 1985, arrest warrants were issued for several

MOVE members, including Ms. Africa, and search warrants

were issued for 6221 Osage Avenue in West Philadelphia

upon a judicial finding of probable cause. After

Philadelphia's district attorney informed Philadelphia Mayor

Wilson Goode that the court had issued the warrants,

Goode instructed Police Commissioner Gregore Sambor to

execute the warrants.

The City evacuated residents from the Osage Avenue

neighborhood on May 12, 1985. At approximately 3:00 a.m.

the next morning, police and firefighters assumed their

positions surrounding 6221 Osage Avenue. At

approximately 5:30 a.m., Commissioner Sambor announced

over a bullhorn that the MOVE residents had fifteen

3

minutes to vacate the premises and surrender. MOVE

members responded over a loudspeaker with threats of

violence. After the allotted time elapsed, the City began

attempts to infuse the house with tear gas to force

evacuation.

Police entered adjoining houses in order to blow holes in

common walls for the insertion of tear gas canisters. During

the attempts to infuse the tear gas, MOVE membersfired

on police officers from within 6221 Osage Avenue and from

a wooden bunker located on the roof of the building. Due

to the gunfire and the fact that MOVE had fortified the

common walls, the infusion attempts proved ineffective. As

a result, the police retreated from the adjoining buildings.

Sometime around 4:00 p.m. that afternoon, City officials

met to discuss a new strategy. They concluded that any

further attempt to execute the warrants by gassing the

house would fail as long as the bunker on the roof afforded

MOVE members a tactical advantage. After considering

several alternatives, they agreed to drop a satchel

containing explosives onto the bunker from a helicopter.

The officials hoped that this "bomb" would disable the

bunker or blow a hole in the roof through which tear gas

could be inserted.2

Shortly after the police dropped the bomb, a fire broke

out on the roof. Upon learning of the fire, Police

Commissioner Gregore Sambor and Fire Commissioner

William Richmond conferred and determined that they

should let the fire burn until it neutralized the bunker.

Richmond's sworn testimony before the MOVE Commission

on October 30, 1985 regarding this conversation, which

was played to the jury, was as follows:

Commissioner Sambor said to me something to the

effect, "Can we control that fire?" And my response --

_________________________________________________________________

2. The term "bomb" may have connotations which do not accurately

reflect the properties of the device the City employed. Testimony

established that prior to the dropping of the device, the possibility of a

fire resulting from its application was determined to be negligible. In

addition, the explosives used were not encased in metal. For purposes of

simplicity, however, we will use the term "bomb" to denote the device the

City dropped on the bunker.

4

and I'm a cautious person by nature. I said, "I think we

can . . . ."

* * *

I told him essentially that, that I thought we could

contain the spread at that point. He said, "Let's let the

bunker burn to eliminate the high ground advantage

and the tactical advantage of the bunker," and I said,

"Okay." I acquiesced, I agreed.

This testimony was consistent with Sambor's testimony at

trial; Sambor testified that he asked Richmond if he could

control the fire if they "let the fire go to get the bunker" and

that Richmond responded in the affirmative.

Mayor Goode, who had returned to City Hall, never

authorized the use of fire as a police tactic and testified

that he would have ordered Richmond to put the fire out

immediately had anyone contacted him. Philadelphia

Managing Director Leo Brooks remained on the scene and

testified that he ordered Sambor to have the fire put out as

soon as he noticed the fire and was able to contact Sambor.

Brooks' testimony conflicted with other trial testimony,

however, that suggested that Brooks initially acquiesced in

the decision to let the fire burn. In re City of Phila. Litig.,

938 F. Supp. at 1289-90 n.10, 1292-93 n.13 (discussing

conflicting testimony).

Sometime after the City officials noticed thefire, Brooks

ordered Sambor to put the fire out and firefighters began

taking steps to fight the fire. The fire, however, burned out

of control despite the City's efforts to fight it. The roof

eventually caved in, the bunker dropped through to the

second floor, and the fire consumed the house and burned

numerous neighboring buildings. With the exception of Ms.

Africa and one child, who emerged from the house

approximately two hours after the bomb fell, everyone

inside the building perished. Ms. Africa was taken into

custody without resistance after evacuating the burning

building.

B.

The confrontation spawned scores of lawsuits, most of

which settled before trial. In re City of Phila. Litig., 938 F.

5

Supp. at 1280. Ms. Africa asserted several claims against

various defendants including the claim at issue in this

appeal, a claim based upon 42 U.S.C. S 1983 alleging an

unreasonable seizure in violation of the Fourth

Amendment.

The individual defendants moved for summary judgment

on Ms. Africa's section 1983 claim arguing that there was

no constitutional violation, and, in the alternative, that they

were entitled to qualified immunity. In re City of Phila.

Litig., 849 F. Supp. at 355, 359. The district court granted

summary judgment on Ms. Africa's section 1983 claim in

favor of all defendants with respect to the decision to drop

the bomb. See In re City of Phila. Litig., 910 F. Supp. 212,

214 (E.D. Pa. 1995)(explaining the import of the January 3,

1994 bench opinion and the January 5, 1994 order). The

district court denied summary judgment, however, in favor

of defendants Richmond, Sambor and Brooks holding that

those defendants were not entitled to qualified immunity

with respect to their decision to let the fire burn. In re City

of Phila. Litig., 849 F. Supp. at 342, 345. In addition, the

court held that the City was not entitled to summary

judgment because Brooks, Sambor, and Richmond were

final policymakers whose decision to let the fire burn could

bind the City under Monell v. Department of Social Servs. of

the City of New York, 436 U.S. 658 (1978). Id. at 345-46.

In the days that followed, the parties filed various

motions requesting the court to facilitate an immediate

appeal. Finding that the interests of justice warranted

immediate appellate review, the court entered final

judgment pursuant to Fed. R. Civ. P. 54(b) on all claims in

favor of Goode and several other individual defendants, but

not Brooks, Richmond or Sambor. The court also certified

for interlocutory appeal under 28 U.S.C. S 1292(b) that

portion of its order denying summary judgment to the City.

Specifically, the court certified for appeal the issue of

whether Brooks, Richmond or Sambor are final

policymakers whose decision could bind the City for

purposes of Ms. Africa's section 1983 claim. In re City of

Phila. Litig., 1994 WL 46654, at *8 (E.D. Pa. Feb. 1, 1994).

The parties appealed.

6

We reversed in part, affirmed in part, and dismissed in

part for lack of jurisdiction. In re City of Phila. Litig., 49

F.3d 945 (3d Cir. 1995).3 With respect to the individual

defendants' appeal of the district court's order denying

them summary judgment on the basis of qualified

immunity, we unanimously determined the collateral order

doctrine as set forth in Mitchell v. Forsyth, 472 U.S. 511

(1985), provides us with jurisdiction to consider the

qualified immunity issue. Id. at 956-57.

In analyzing the qualified immunity issue, we applied the

familiar test announced in Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982), 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." In keeping

with the Harlow test, we first considered whether Ms. Africa

had alleged facts that stated an excessive force claim. See

Siegert v. Gilley, 500 U.S. 226, 232-33 (1991). We

concluded that Ms. Africa alleged a constitutional violation

by alleging that the defendants exerted excessive force in

attempting to effectuate her arrest by dropping a bomb on

the roof and letting the fire burn. In re City of Phila. Litig.,

49 F.3d at 962.

Having concluded that Ms. Africa alleged

unconstitutional conduct, we next examined the

undisputed factual record to determine whether Ms. Africa

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. Id. at 962-69, 973-75. As part of this inquiry, we

determined that under the summary judgment record as

examined in the light most favorable to Ms. Africa, the

evidence was sufficient to support a finding that the bomb

_________________________________________________________________

3. Our decision included opinions from each judge on the panel. See id.

at 948 (Opinion of Greenberg, J.), 973 (Opinion of Scirica, J.), 976

(Opinion of Lewis, J.). Because an agreement on any given issue of two

of the three judges constitutes our holding on that issue, our holdings

are found by compiling various statements found throughout the three

opinions.

7

and resulting fire effectuated a Fourth Amendment seizure

because they were the very instrumentalities set in motion

in order to arrest Ms. Africa. Id. at 973-74, 976; see also

Brower v. County of Inyo, 489 U.S. 593 (1989).

Once we determined that the summary judgment record

supported a Fourth Amendment seizure, we next examined

whether the individual defendants actions were objectively

reasonable as a matter of law. In re City of Phila. Litig., 49

F.3d at 965-69, 974, 976-78. We determined that they were

not. We found that under the summary judgment record, a

reasonable jury could conclude that the decision to use the

bomb was an excessive use of force. Id.

We next analyzed whether the defendants reasonably

could have considered their actions to be lawful. Id. at 970-

72. We determined that they could. We reasoned that

because "[t]he 1985 MOVE confrontation was

unprecedented in the case law," it was not possible to say

that the unlawfulness of either dropping the bomb or

letting the fire burn should have been apparent to a

reasonable law enforcement official. Id. at 971-72. We

accordingly granted all individual defendants qualified

immunity.

In analyzing the City's liability in allowing thefire to

burn, we concluded that because the decisions of Brooks,

Richmond and Sambor could fairly be attributed to the City

under Monell v. Department of Social Servs., 436 U.S. 658

(1978), the City was not entitled to summary judgment. In

re City of Phila. Litig., 49 F.3d at 972, 975. We also

suggested that, in light of our holding on the City's liability

for allowing the fire to burn, Ms. Africa may wish to seek

relief from the district court's decision granting partial

summary judgment in favor of the City on the decision to

drop the bomb. Id. at 973.4 On remand, the district court

reinstated the "drop the bomb" claim against the City at

Ms. Africa's request. In re City of Phila. Litig., 910 F. Supp.

212, 216-18 (E.D. Pa. 1995).

Trial commenced on April 23, 1996 and continued into

_________________________________________________________________

4. Ms. Africa had not appealed the district court's ruling that the City

was entitled to summary judgment on the decision to drop the bomb. Id.

8

the summer of 1996. The City moved for judgment as a

matter of law at the close of the evidence on June 7, 1996,

contending that Ms. Africa was never seized in violation of

the Fourth Amendment. The court denied that motion. On

June 24, 1996, the jury returned a verdict in favor of Ms.

Africa and against the City on her section 1983 claim.

Following the verdict, the City orally renewed its motion

for judgment as a matter of law in open court under Fed.

R. Civ. P. 50(b). The court denied the City's motion. In re

City of Phila. Litig., 938 F. Supp. 1278, 1282-84 (E.D. Pa.

1996). In considering the City's motion, the court

interpreted our previous decision as holding that a jury

could reasonably find a seizure based on the summary

judgment record. The court specifically rejected the City's

position that, as a matter of law, no seizure occurred

because "the substance of the argument has already been

rejected by the Court of Appeals." Id. at 1283. Noting that

the trial evidence did not materially deviate from the

summary judgment evidence before us, the court

interpreted our prior decision as precluding relitigation of

the seizure issue. Id. at 1284. Accordingly, the district court

entered final judgment against the City on Ms. Africa's

section 1983 claim by order dated August 27, 1996. The

City filed this timely appeal.

II.

In this appeal, the primary inquiry before us is the extent

to which we are now bound by our prior determination

that, under the summary judgment record, the City seized

Ms. Africa. Specifically, we must determine the extent to

which that prior determination controls our resolution of

the City's assertion that its conduct was legally insufficient

to constitute a Fourth Amendment seizure. To resolve this

issue, we must initially determine whether our prior

determination constitutes the law of the case.

Under the law of the case doctrine, one panel of an

appellate court generally will not reconsider questions that

another panel has decided on a prior appeal in the same

case. The doctrine is designed to protect traditional ideals

such as finality, judicial economy and jurisprudential

9

integrity. Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 816 (1988); Arizona v. California, 460 U.S. 605,

618-19 (1983). The law of the case doctrine, however, acts

to preclude review of only those legal issues that the court

in a prior appeal actually decided, either expressly or by

implication; it does not apply to dicta. Coca-Cola Bottling

Co. of Shreveport, Inc. v. Coca-Cola Co., 988 F.2d 414, 429

(3d Cir. 1993).

In addition, the law of the case doctrine does not restrict

a court's power but rather governs its exercise of discretion.

Public Interest Research Group of New Jersey, Inc. v.

Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997).

Accordingly, we have recognized that the doctrine does not

preclude our reconsideration of previously decided issues in

extraordinary circumstances such as where: (1) new

evidence is available; (2) a supervening new law has been

announced; or (3) the earlier decision was clearly erroneous

and would create manifest injustice. Id. at 116-17.

In order to determine whether the law of the case

doctrine governs our resolution of this appeal, we therefore

must determine: (1) whether our prior determination on

seizure was dicta; and (2) whether this case falls into any

of the categories of extraordinary circumstances which

would free us from the constraints of the law of the case

doctrine.

A.

The City contends that the prior panel's seizure analysis

is dicta because a determination on whether a seizure

existed under the summary judgment record was not

required for our resolution of the issues on appeal.

Specifically, the City asserts that the prior panel only had

jurisdiction to determine: 1) whether the district court had

properly granted summary judgment on the grounds of

qualified immunity in favor of certain defendants; 2)

whether the district court had improperly denied summary

judgment on the grounds of qualified immunity to certain

other defendants; and 3) whether the district court had

improperly denied the City summary judgment on the

federal claim by finding that the City could be held liable

10

for the individual defendants' actions. The City argues that

because the court's seizure analysis was not required for its

resolution of any of these issues, that analysis is dicta and

therefore does not bind us under the law of the case

doctrine. The City also contends that it would be unfair for

us to apply the prior panel's determination on seizure to

the City because the City did not brief the issue in the prior

appeal and because the issue arose in the context of the

individual defendants' appeal of the district court's qualified

immunity ruling. We disagree with both contentions.

It is axiomatic that the qualified immunity inquiry

focuses on whether an official's conduct violated clearly

established constitutional rights of which a reasonable

person would have known. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). It is equally clear that the threshold

determinations which inform a court's qualified immunity

analysis are whether the plaintiff has asserted a violation of

a constitutional right and whether that constitutional right

was clearly established at the time the defendants allegedly

violated that right. Siegert v. Gilley, 500 U.S. 226, 232

(1991). In determining whether a defendant's conduct

impinged upon clearly established constitutional rights, the

courts are required to conduct more than a generalized

inquiry into whether an abstract constitutional right is

implicated. Anderson v. Creighton, 483 U.S. 635, 639-40

(1987). The level of specificity required must establish that

the contours of the constitutional right alleged are

sufficiently clear that a reasonable official would

understand that his actions violate that right. Id. at 640.

Accordingly, a court's determination as to whether an

official's conduct violated clearly established law must be

premised upon an application of the facts as alleged by the

plaintiff to the constitutional standards which were clearly

established at the time of the official's conduct. See

Crawford-El v. Britton, 118 S. Ct. 1584, 1597 (1998)(noting

that in resolving the threshold issue of qualified immunity,

"the court must determine whether, assuming the truth of

the plaintiff 's allegations, the official's conduct violated

clearly established law."); Grant v. City of Pittsburgh, 98

F.3d 116, 121-22 (3d Cir. 1996)(holding that the qualified

immunity inquiry requires an analysis of the summary

judgment record, in the light most favorable to the plaintiff,

11

to establish if the specific actions alleged violated a clearly

established constitutional right).

The prior panel therefore was required to determine

whether the actions of the City officials, as alleged by Ms.

Africa, violated her Fourth Amendment right to be free from

an unreasonable seizure as that right was understood at

the time by reasonable City officials. Inherent in this

inquiry is the determination of whether the City officials'

alleged actions rise to the level of a Fourth Amendment

violation; if the alleged actions are insufficient to amount to

a Fourth Amendment violation, the City officials' actions

could not possibly violate a clearly established

constitutional right. Resolution of the question of whether

there was a Fourth Amendment violation based upon the

summary judgment record therefore was integral to the

court's qualified immunity analysis.

This conclusion is amply supported by the decisions of

our sister courts of appeals that have resolved the qualified

immunity inquiry by holding that the defendants were

entitled to qualified immunity because their alleged conduct

did not rise to the level of a constitutional violation. See,

e.g., Jones v. Collins, 132 F.3d 1048, 1052 (5th Cir.

1998)(determining on interlocutory appeal that the

defendant was entitled to qualified immunity because the

summary judgment evidence, construed in the light most

favorable to the plaintiff, indicates that the defendant did

not violate plaintiff 's constitutional rights); Latta v. Keryte,

118 F.3d 693, 699 (10th Cir. 1997)(granting qualified

immunity to defendants in part because plaintiff had not

established a Fourth Amendment seizure); Roe v. Sherry,

91 F.3d 1270, 1273-74 (9th Cir. 1996)(granting qualified

immunity to defendants because plaintiff had not

established the violation of a constitutional right). As

illustrated by these cases, the prior panel could have

disposed of the qualified immunity issue by holding that

the defendants' alleged conduct did not rise to the level of

a constitutional violation. In fact, one of the three judges on

the prior panel would have so held. See In re Phila. Litig.,

49 F.3d at 962-65 (Greenberg, J., dissenting in part).

Accordingly, the panel's seizure determination was

necessarily subsumed within the court's analysis of the

12

qualified immunity issue and therefore does not constitute

dicta to which the law of the case doctrine would not apply.5

Furthermore, we are not persuaded by the City's

secondary argument that applying the prior panel's seizure

ruling to the City would be unfair because that issue was

analyzed with respect to the individual defendants and

because the City did not brief the issue. The City's appeal

was before us because the district court certified its order

denying the City's motion for summary judgment pursuant

to 28 U.S.C. S 1292(b). As the Court made clear in Yamaha

Motor Corp. v. Calhoun, 516 U.S. 199, 204 (1996), appellate

courts may exercise jurisdiction over any question that is

fairly included in an order certified for interlocutory appeal;

our jurisdiction is not limited to examining only that

_________________________________________________________________

5. We need not be detained by the City's argument that because our

jurisdiction over the issue of qualified immunity was premised upon the

collateral order doctrine, we lacked jurisdiction to determine the seizure

issue under Mitchell v. Forsyth, 472 U.S. 511 (1985). In Mitchell, the

Court emphasized that the denial of qualified immunity is appealable

under the collateral order doctrine because a question of immunity is

separable from the merits of the underlying action. Mitchell, 472 U.S. at

527-29. The Court in Mitchell also recognized, however, that while an

immunity claim is conceptually distinct from the merits of the plaintiff

's

claim, courts must nonetheless consider plaintiff's factual allegations in

resolving the immunity issue. Id. at 528-29. It is clear from a close

reading of Mitchell and from subsequent qualified immunity

jurisprudence that while the collateral order doctrine does not afford

jurisdiction to determine the ultimate merits of a constitutional claim,

the collateral order doctrine does afford courts the jurisdiction to

effectively examine the merits of a claim for qualified immunity by

determining whether, under the summary judgment record as examined

in the light most favorable to the plaintiff, the defendant's actions

violate

a clearly established constitutional right. Furthermore, we have already

implicitly rejected the City's argument on this point in Brown v.

Grabowski, 922 F.2d 1097, 1109-11(3d Cir. 1990), where we held that

nothing in Mitchell precludes our review of whether the evidence adduced

by the plaintiff as to the conduct of the defendants substantiates the

violation of a cognizable constitutional claim. We therefore are confident

that the prior panel had jurisdiction under the collateral order doctrine

to determine whether, under the largely undisputed summary judgment

record examined in the light most favorable to Ms. Africa, the City

officials' actions were sufficient to constitute a Fourth Amendment

seizure.

13

question that the district court has identified in its

certification. Had the prior panel concluded that a seizure

had not occurred as a matter of law, the panel could have

disposed of the City's appeal on that basis. Accordingly, the

City had fair warning that the seizure issue could be

considered on appeal and nothing precluded the City from

briefing the issue.

B.

Having determined that our prior seizure determination is

not dicta and is therefore subject to the law of the case

doctrine, we turn to our evaluation of whether any of the

traditional exceptions to the law of the case doctrine apply

to free us from its constraints. Specifically, wefind it

necessary to examine two of our three previously recognized

exceptional circumstances: whether new evidence is

available and whether our prior decision was clearly

erroneous and would work a manifest injustice.

1.

The district court concluded that the evidence presented

at trial did not significantly deviate from the summary

judgment record and the City has not challenged that

assessment on appeal. In re Phila. Litig., 938 F. Supp. at

1284. After independently reviewing the trial testimony and

the summary judgment record, we also find that the

evidence presented at each of these stages of this

proceeding was substantially similar. Compare In re Phila.

Litig., 49 F.3d at 948-52 (recounting the factual

background from the summary judgment record upon

which the first panel based its decision) with our recitation

of the facts as adduced at trial, supra, Section I-A.

The sole significant exception to this conclusion relates to

trial testimony offered by Mayor Goode. At trial, Goode

testified that immediately prior to a press conference

regarding the May 13, 1985 events, Goode confronted

Richmond and Sambor as they were walking down the hall

towards the Mayor's Reception Room and asked them who

gave the order to let the fire burn. Goode testified that

Sambor responded that he had given the order and that he

14

was trying to get MOVE members out of the building. It is

not evident that similar testimony from the summary

judgment record was drawn to the prior panel's attention in

the initial appeal.

Even though this additional evidence may not have been

considered in the prior panel's analysis, we do notfind that

this "new evidence" warrants a departure from the law of

the case doctrine. This additional evidence acts only to

support the prior panel's conclusion that a seizure

occurred; it does not detract from the evidence at the

summary judgment stage upon which the panel relied.

Accordingly, because all of the summary judgment evidence

upon which the panel relied in determining that the City

had effectuated a seizure was presented at trial, the

exceptional circumstance of new evidence does not apply to

preclude the application of the law of the case doctrine to

this case.

2.

We turn now to the exceptional circumstance presented

when a prior determination is clearly erroneous and would

work a manifest injustice. In determining whether we

should refuse to treat our prior decision as law of the case

under this exception, we are reminded that the question of

whether Ms. Africa was seized as a matter of law is not

before us as a matter of first impression. The prior panel,

to which we owe a certain degree of deference, has already

ruled on this issue. Our current task is to evaluate that

prior determination solely for clear error. It is therefore

incumbent upon the City to persuade us not only that our

prior decision was wrong, but that it was clearly wrong and

that adherence to that decision would create manifest

injustice. This the City has failed to do.

At this stage of the litigation, we need only address the

merits of the City's seizure argument to the degree

necessary to determine whether the prior panel's decision

was clearly wrong. The City contends that under Brower v.

County of Inyo, 489 U.S. 593 (1989), their conduct does not

constitute a seizure as a matter of law. Specifically, the City

argues that the bomb was not intended to effectuate Ms.

15

Africa's seizure but rather was a measure taken solely

against the bunker. Accordingly, Ms. Africa's freedom of

movement, the City argues, was not terminated through the

very means intentionally applied to effectuate her seizure as

required by Brower.

In Brower, the Supreme Court set forth the current

standard for evaluating Fourth Amendment seizures. The

Court ruled that a police effectuated roadblock specifically

designed to stop a fleeing suspect constitutes a seizure

under the Fourth Amendment. In so holding, the Court

noted that violation of the Fourth Amendment requires an

intentional acquisition of physical control and that

although a seizure occurs even when an unintended person

or thing is the object of the detention, the detention itself

must be willful. Brower, 489 U.S. at 596.

To further explicate the intent element necessary for a

Fourth Amendment seizure, the Court offered the following

hypotheticals:

Thus, if a parked and unoccupied police car slips its

brake and pins a passerby against a wall, it is likely

that a tort has occurred, but not a violation of the

Fourth Amendment. And the situation would not

change if the passerby happened, by lucky chance, to

be a serial murderer for whom there was an

outstanding arrest warrant -- even if, at the time he

was thus pinned, he was in the process of running

away from two pursuing constables. It is clear, in other

words, that a Fourth Amendment seizure does not

occur whenever there is a governmentally caused

termination of an individual's freedom of movement

(the innocent passerby), nor even whenever there is a

governmentally caused and governmentally desired

termination of an individual's freedom of movement

(the fleeing felon), but only when there is a

governmental termination of freedom of movement

through means intentionally applied. That is the reason

there was no seizure [when a suspect lost control and

crashed during a police chase.] The pursuing police car

sought to stop the suspect only by the show of

authority represented by flashing lights and continuing

pursuit; and though he was in fact stopped, he was

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stopped by a different means -- his loss of control of

his vehicle and the subsequent crash. If, instead of

that, the police cruiser had pulled alongside thefleeing

care and sideswiped it, producing the crash, then the

termination of the suspect's freedom of movement

would have been a seizure.

Id. at 596-97(emphasis in original). The Court also made

clear that in determining whether the means that

terminates the freedom of movement is the very means the

government intended, it is impractical to conduct an

inquiry into an officer's subjective intent. As clarified by the

Court:

In determining whether the means that terminates the

freedom of movement is the very means that the

government intended we cannot draw too fine a line, or

we will be driven to saying that one is not seized who

has been stopped by the accidental discharge of a gun

with which he was meant only to be bludgeoned, or by

a bullet in the heart that was meant only for the leg.

We think it enough for a seizure that a person be

stopped by the very instrumentality set in motion or

put in place in order to achieve that result.

Id. at 598-99.

In our prior decision, we applied the teachings of Brower

and determined that there had been a seizure based upon

the summary judgment record. Specifically, we held that

the bomb was the very instrumentality set in motion in

order to achieve the seizure of the MOVE members. In re

Phila. Litig., 49 F.3d at 974. We analogized this situation to

one of the hypotheticals offered by the Brower Court, i.e.,

the seizure that results when a person is stopped by the

accidental discharge of a gun with which he was meant

only to be bludgeoned. Id. We reasoned that our inquiry is

not whether the officials intended all of the consequences of

their use of the bomb, but rather whether they intended to

use force to arrest the MOVE members. We concluded that

they did and that the City actions therefore amounted to a

seizure under Brower. Id. (citing Brower, 489 U.S. at 599).

We find this to be a plausible reading of Brower. While

courts have struggled with conflicting language in Brower

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and have often reached contrary results, we think it

reasonable to read Brower as focusing on the objective

intent of officials to use force to effectuate a seizure and the

subsequent seizure flowing from the use of that force,

rather than upon the subjective intent of officials to

effectuate a seizure by the exact use of force they have

chosen to employ. See generally, Keller v. Frink, 745 F.

Supp. 1428 (S.D. Ind. 1990)(applying Brower to hold that a

jury could find that an officer seized a fleeing suspects

when he fired his weapon at the suspects' van, purportedly

to identify it for future identification, and inadvertently shot

the driver in the back). While the prior panel's seizure

analysis was certainly not mandated by Brower, neither

was it precluded by Brower. Accordingly, wefind that our

prior seizure determination was not clearly erroneous.

Because we find that our prior seizure determination is

not clearly erroneous, the exceptional circumstance of a

clearly erroneous decision that would work a manifest

injustice does not apply to preclude the application of the

law of the case doctrine. Even if we were to conclude that

our prior decision was clearly erroneous, however, we

would nevertheless adhere to that ruling because it does

not create a manifest injustice in this case. As previously

noted, Mayor Goode testified at trial that Sambor told him

that he let the fire burn to force the MOVE members out of

the house. Were we to assume the veracity of this

testimony, which we must, we would easily conclude that,

under any reading of Brower, the jury could reasonably

conclude that the City effectuated a seizure of Ms. Africa in

this case. Accordingly, adherence to our prior seizure

analysis, even if erroneous under the summary judgment

record, does not create a manifest injustice as applied post-

trial in light of Goode's trial testimony.

Because our prior holding on the seizure issue is not

dicta and because none of our traditionally recognized

exceptional circumstances preclude application of the law

of the case doctrine to that determination, we find that our

prior determination that the City seized Ms. Africa under

the summary judgment record is the law of this case.

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III.

Our determination that our prior seizure ruling is subject

to the law of the case doctrine, however, does not end our

inquiry. While we have determined that we are bound by

our prior ruling, the question we have yet to answer is the

extent to which our prior panel's holding that a seizure

occurred under the summary judgment record binds us in

our determination of whether the City is entitled to

judgment as a matter of law post-trial.

We recognize that the issue currently before us is not

identical to the issue we previously determined. As

previously noted, however, the evidence contained in the

summary judgment record upon which we previously relied

to determine that the City's actions were sufficient to

constitute a Fourth Amendment seizure, was also presented

at trial. In addition, nothing presented at trial detracted

from the summary judgment evidence upon which we

based our seizure determination. We therefore find that

because the evidence was at least as strong at trial on the

issue of seizure as it was at the summary judgment stage,

our prior ruling that a seizure occurred controls our

resolution of this appeal. Accordingly, we hold that the

City's actions were legally sufficient to constitute a seizure.

Any other ruling would insufficiently adhere to our prior

resolution of the seizure issue which is the law of this case.

IV.

For the foregoing reasons, we will affirm the judgment

entered against the City on Ms. Africa's section 1983 claim.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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