Judge's Immunity Ruling Poses Question About The Move Trial Two Former Officials Won't Be Held Liable. So Why Did The Case Go To The Jury?

Posted: September 01, 1996

Could officials use fire against the radical group MOVE, fueling a disaster that left 11 people dead and a neighborhood in ruins - and still not be liable for damages?

Last week, a judge said they could.

Partially nullifying an earlier jury verdict, U.S. District Judge Louis H. Pollak on Tuesday wrote a dramatic end to the MOVE civil trial by extending the shield of immunity from lawsuit to former city Police Commissioner Gregore J. Sambor and former city Fire Commissioner William C. Richmond.

Pollak ruled that neither man had engaged in ``willful misconduct'' during the disaster. That was the legal threshold determining whether government officials could be held personally liable for their official actions.

The judge's ruling focused attention on a long-recognized legal doctrine and touched off yet another round of controversy about the MOVE debacle.

Besides raising the issue of how egregious a public official's conduct must be to fall outside the protection of immunity, Pollak's ruling also posed this question: Given his ultimate granting of immunity, why did he allow the case to go to the jury at all?

* The centuries-old legal concept at the heart of the ruling is rooted in the notion of sovereign immunity: ``The king can do no wrong.''

Of course, public officials in the United States can do wrong and can be held personally liable for their actions.

But the courts generally have shielded them except in cases where their conduct is particularly offensive.

Why the shield?

``As the judge pointed out,'' T. Michael Mather, first deputy city solicitor, said last week, ``people have to act as public officials without constant fear that they are going to be personally liable. Remember, personal liability may mean your kids cannot go to college anymore because you don't have the money.''

Ruling on lawsuits filed after students were shot by national guardsmen at Kent State University in 1970 during an anti-Vietnam War protest, the U.S. Supreme Court said in 1974 that effective government requires legal protection for those who must make hard decisions.

``Implicit in the idea that officials have immunity . . . is a recognition that they may err,'' the court held. ``The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than [for officials] to not decide or act at all.''

In shielding Sambor and Richmond, Pollak actually applied Pennsylvania law because the case had been consolidated for trial claims under both state and federal statutes.

The jury found that the two former commissioners had harmed Ramona Africa and two slain MOVE members. Africa, the only adult MOVE member to flee the besieged and burning West Philadelphia house, was badly burned and scarred.

Pennsylvania law says government officials generally have immunity from lawsuits except in a few narrow exceptions. One exception is ``willful misconduct,'' defined by Pollak as doing something wrong knowing at the time it was wrong.

After analyzing the facts of the May 13, 1985, confrontation, the judge concluded that those seeking damages had not proved that Sambor or Richmond had known they were doing something wrong when they used fire to try to dislodge MOVE members from their Osage Avenue compound.

In his opinion and in a personal letter he sent to jurors the next day, Pollak said his judgment did not conflict with the jury's finding.

The jury, he said, had only been asked to determine if the pair had committed a ``battery'' against the MOVE members. Battery, he said, is ``intentional use of force'' against another. The jury also specifically found that the right of authorities to use force to make arrests did not excuse the harm done.

His task, said Pollak, was to determine whether Sambor or Richmond had pushed ahead with their use of force even though they knew that what they were doing was wrong. He concluded that they had not.

In a striking footnote in his opinion, Pollak noted that while the MOVE jurors had been told before deliberations that they could impose punitive damages if they determined that the officials engaged in malicious, wanton, reckless or oppressive conduct, that finding would nonetheless fall short of proving that Sambor and Richmond engaged in ``willful misconduct.''

Pollak's ruling troubled Andre L. Dennis, the former head of the city Bar Association who represented Africa during her long legal fight.

The opinion, Dennis said, ``almost makes it impossible for a plaintiff to prove a case holding a public official personally responsible. And I believe that encourages reckless actions.''

* The ruling also troubled the jurors themselves. On June 24, they had unanimously voted that Sambor and Richmond should pay nominal punitive damages and that the City of Philadelphia should pay compensatory damages of $1.5 million for violating the civil rights of Africa and two other plaintiffs. (Pollak did not overturn the finding against the city.)

The seven jurors had reached their verdict only after anguished deliberations that nearly deadlocked, and they quarreled publicly later about their decision, with two actually saying they regretted their votes and one calling Pollak to tell him so.

That split yawned again last week after Pollak's ruling.

Some jurors welcomed the ruling; they felt that peer pressure had produced a flawed verdict.

But juror Connie Irvin said, ``I'm not pleased. What was the purpose of me being there if he was going to rule?''

Pollak answered that in his opinion. He said that the facts were in dispute and that it was necessary for evidence to be presented in trial before he could determine whether there had been willful misconduct.

But why didn't he issue his immunity ruling after the evidence was in but before the jurors began deliberating?

Pollak's opinion is silent on that question, but lawyers familiar with the case said there was a logic to his actions.

Had he granted Sambor and Richmond immunity before the case went to the jury, he risked having to hold a new trial if his immunity ruling was reversed on appeal.

Now, ``if an appellate court decides Lou Pollak is wrong, it can just reinstate the verdict,'' said Steven R. Waxman, who represented former city Managing Director Leo A. Brooks in the MOVE litigation.

Those who disagree with Pollak's ruling have 30 days to file appeals. Dennis and other lawyers said they had yet to decide whether to appeal.

As a practical matter, the prospects of overturning Pollak may be poor. The Third Circuit Court of Appeals, in pretrial rulings in the case, hinted that it believed Sambor and Richmond should indeed have immunity.

* In the confrontation, 11 people died when the city dropped a bomb on the MOVE house to blow up a rooftop bunker the anarchistic group had been using as a sniper's nest.

The bomb failed to destroy the bunker, but it started a small fire on the roof. Sambor, the on-scene commander that day, then conferred with Richmond, and the pair decided to let the fire burn briefly to destroy the bunker. But the blaze spread out of control, destroying 61 houses. It was the worst residential fire in the city's history.

The decision to use fire as a tactical weapon resulted in their being brought to trial before Pollak.

Sambor and Richmond were actually the last in a long list of former city officials and police officers granted immunity for their conduct in the confrontation. Among those are former Mayor W. Wilson Goode and Brooks.

The grants of immunity to Sambor and Richmond meant that after 11 years of criminal investigations and civil lawsuits, no city official will face legal consequences for the MOVE tragedy.

At the close of his written opinion, Pollak stated that decisions by Sambor and Richmond may have been ``gravely misguided'' with ``tragic consequences,'' but they did not amount to wrongdoing so egregious as to warrant stripping them of immunity.

But, he said from the bench that the jury's verdict would warn future public officials that they would repeat the choices made in Philadelphia ``at their peril.''

And he reminded those in the courtroom that the City of Philadelphia remained liable for how the city handled MOVE.

``What happened in West Philadelphia in 1985, 11 years ago,'' Pollak said, ``transgressed the Constitution of the United States.''

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