                                                                                                                           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Precedential or Non-Precedential: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.

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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

                               17
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.

                               18
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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