Africa v. City of Philadelphia

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 , 109 S.Ct. 1865, 1871 , 104 L.Ed.2d 443 (1989), rather, than in Tennessee v. Garner, 471 U.S. 1, 11 , 105 S.Ct. 1694, 1701 , 85 L.Ed.2d 1 (1985), 1 I do not believe that as a matter of law no reason *974 able jury could conclude that the decision to employ the incendiary device was an excessive use of force. 2 Accordingly, 'with Judge 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 , 109 S.Ct. 1378, 1382 , 103 L.Ed.2d 628 (1989). In Brower , the Court noted that a Fourth Amendment seizure does not occur when the effect of seizure is purely fortuitous. 3 But the Court 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 , 109 S.Ct. at 1382. 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, 109 S.Ct. at 1382.

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. 4 Also, the reasonableness of the officials’ views of 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.

*975 III.

Because I cannot say, as a matter of law, that there has been no Fourth Amendment violation, Monell v. Department of Social Services, 486 U.S. 658 , 691, 98 S.Ct. 2018, 2036 , 56 L.Ed.2d 611 (1978), does not relieve the city of liability. Under City of St. Louis v. Praprotnik, 485 U.S. 112, 127 , 108 S.Ct. 915, 926 , 99 L.Ed.2d 107 (1988), and Pembaur v. City of Cincinnati, 475 U.S. 469, 481 , 106 S.Ct. 1292, 1299 , 89 L.Ed.2d 452 (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 eases, and I hold the city responsible for the acts of these officials. Furthermore, under Owen v. City of Independence, 445 U.S. 622, 650 , 100 S.Ct. 1398, 1415 , 63 L.Ed.2d 673 (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.

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), ce rt. denied, 501 U.S. 1218 , 111 S.Ct. 2827 , 115 L.Ed.2d 997 (1991), we concluded that a denial of a claim of qualified immunity premised upon New Jersey state law was not appealable. But in Brown we conducted a three-step, inquiry: First we looked to the statute, then we looked to interpretations of that statute by the state’s courts, and finally we looked to see whether the state disfavored interlocutory appeals. In Brown , after reviewing the statute and case law, we believed the appealability issue could go either way. But because New Jersey had a policy strongly disfavoring interlocutory appeals, we dismissed for lack of jurisdiction. Applying the same analysis here, I would reach the opposite conclusion.

I agree that the language of Pennsylvania’s Political Subdivision Tort Claims Act does not contemplate immunity from suit but only immunity from liability. But that is not necessarily ‘ dispositive. My reading of Brawn 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, 132 Pa.Cmwlth. 255 , 572 A.2d 827 , 829 n. 3 (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. 5 Pennsylvania’s Political Subdivision Tort Claims Act denies immunity to an employee of a local agency when the 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 *976 least was aware that it was substantially certain to follow, so that such desire can be implied.” King v. Breach, 115 Pa.Cmwlth. 355 , 540 A.2d 976, 981 (1988) (citing Evans v. Philadelphia Transp. Co., 418 Pa. 567 , 212 A.2d 440 (1965)).

Recently, in Renk v. City of Pittsburgh, 537 Pa. 68 , 641 A.2d 289, 294 (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 Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865, 1871 , 104 L.Ed.2d 443 (1989), 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 , 109 S.Ct. at 1871 (citation omitted).

I believe Tennessee v. Garner, 471 U.S. 1, 11 , 105 S.Ct. 1694, 1701 , 85 L.Ed.2d 1 (1985) 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 .

. The district court analyzed the decision to drop the incendiary device separately from the decision to let the bunker bum. Unlike the district court, I see little distinction between dropping the incendiary device and letting the fire bum. 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.

. 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 , 109 S.Ct. 1378, 1381 , 103 L.Ed.2d 628 (1989). The intent referred to in the phrase, “through means 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.

.The degree of risk posed by the use of the incendiary device is disputed. But questions about the contents of the incendiary 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.