Full opinion text
OPINION ANNOUNCING THE JUDGMENT OF THE COURT GREENBERG, Circuit Judge. These consolidated appeals have been taken from judgments and orders in three civil actions against the City of Philadelphia and certain of its former officials and employees. The plaintiffs’ claims arose out of an attempt by the Philadelphia Police Department on May 13,1985, to execute search warrants and arrest warrants at a premises in Philadelphia occupied by a group known as MOVE. After hours of gunfire and failed attempts to inject tear gas into the residence in which the MOVE members had barricaded themselves, police officers dropped an explosive device on the roof of the house. The ensuing fire killed 11 persons, including five children, in the residence and destroyed dozens of homes in the vicinity. The plaintiffs appeal from the district court’s grant of summary judgment on qualified immunity grounds in favor of certain of the defendants with respect to claims arising from the dropping of the explosive device. Philadelphia Managing Director Leo A. Brooks, Police Commissioner Gregore Sam-bor, and Fire Commissioner William C. Richmond appeal from the district court’s denial of their motions for summary judgment on qualified immunity grounds with respect to claims under 42 U.S.C. § 1983 arising from their alleged decisions to let the fire burn. They also appeal from the denial of their motions for summary judgment on state claims asserted against them. The- city itself appeals from the denial of its motion for summary judgment. The court is divided on the disposition of various issues and on certain issues there are majorities consisting of each of the three possible combination of judges. On other issues the court is unanimous. In this opinion I will set forth the ultimate conclusions reached and also will set forth the majority view on some points and my own view on other points. Judges Seirica and Lewis are filing separate opinions. As a matter of convenience I largely will deliver this opinion in the first person. Judge Seirica and I conclude that all the individual defendants are immune because their actions on May 13,1985, did not violate any clearly established constitutional rights of plaintiff Ramona Africa and decedents Frank James and Vincent Lopez Leaphart. Accordingly, we will affirm the grant of summary judgment to defendants Wilson Goode, the mayor of the city, and police officers Frank Powell and William Klein, and will reverse the denial of summary judgment on the section 1983 claims to defendants Brooks, Sambor, and Richmond. Judges Seirica and Lewis conclude that the City of Philadelphia is not entitled to summary judgment on the section 1983 claims and accordingly we will affirm the district court’s denial of summary judgment to the city on those claims. Judge Lewis and I conclude that we do not have jurisdiction over the appeals from the district court’s denial of summary judgment for Brooks, Sambor and Richmond on the state law claims based on letting the fire burn. Accordingly, we dismiss those appeals. There also is a related property claim before us filed by Louise James seeking compensation for the destruction of the MOVE house. For the reasons we discuss below we all conclude that we do not have jurisdiction over the appeal from the dismissal of that claim. Consequently, we will dismiss for lack of jurisdiction James’ appeal insofar as it relates to her property claim. I. FACTUAL BACKGROUND Because the motions for summary judgment involved the individual defendants’ claims of entitlement to qualified immunity, the district court indicated that its rulings were based on the “plaintiffs well-documented version of the facts,” as called for by Good v. Dauphin County Social Serv., 891 F.2d 1087, 1094-95 (3d Cir.1989). This court since has clarified that such a determination should be based on the undisputed facts as revealed by the record and on the plaintiffs version of the facts where there are disputes. Melo v. Hafer, 13 F.3d 736, 745 (3d Cir.1994) (“If, after the summary judgment practice prescribed by that rule, the undisputed facts of record demonstrated entitlement to immunity, the Court would ignore the bare allegations of the complaint and grant summary judgment on grounds of immunity.”); see also Brown v. Grabowski, 922 F.2d 1097, 1110-11 (3d Cir.1990), cert. denied, 501 U.S. 1218, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991). In this ease, the extensive record includes the discovery and investigative reports from a state grand jury and a special commission which studied the incident. These materials are particularly significant because Ramona Africa, the only surviving witness from inside the premises who has testified for the plaintiffs as to the events that occurred on May 13, 1985, has limited knowledge of the facts because she was in the cellar with the children for most of that day and did not hear any of the announcements made by either police officers or MOVE members. See app. at 1362-65. The material undisputed facts are as follows. In 1978, pursuant to a court order, the city attempted to evict MOVE members from a residence in Powelton Village. However, the MOVE members resisted and a gunfight broke out. As a result, one police officer was killed and several other police officers and fire fighters were wounded. Subsequently, nine MOVE members were convicted for the murder of this officer. In the early 1980’s MOVE members took up residence at 6221 Osage Avenue, Philadelphia. By any standard they were a disrupting neighborhood force. Some used loudspeakers to communicate threats and dissatisfaction to their neighbors. Furthermore, the Probable Cause Affidavit (the Affidavit) supporting the issuance of the warrants executed on May 13, 1985, states that a MOVE member had threatened Mayor Goode, calling him “a nigger motherfucker” and indicating that “we have a bullet for [Mayor Goode] ... to blow his motherfucking head off. If we have to, we will go down to City Hall and put six in his head.” App. at 2294. The Affidavit also states that the same MOVE member announced, “[w]e will kill any motherfucking cop that comes to the front, back or our goddamned roof,” and threatened two police officers that if they “come back around here again, we’ll kill you; put a bullet in your head.” Id. The Affidavit states further that several neighbors said that “they heard MOVE members say over the loudspeakers that they have wired the entire block with explosives and that if any neighborhood resident speaks with the press, or if the police take action against MOVE, MOVE -will blow up the entire block.” App. at 2295. Neighborhood residents stated that they had seen a MOVE member on the roof 'with a weapon or a gun. App. at 2296. The Affidavit also notes that one of.the MOVE members at 6221 Osage Avenue was on parole from a conviction for riot, terroristic threats, and possession of an instrument of crime. Id. The Affidavit also states that in 1984, neighbors had observed MOVE members carrying sandbags into the Osage Avenue building. App. at 2301. The windows, of the building had been blocked with wooden slats, and aerial photographs showed that a bunker had been constructed on its roof. App. at 1568, 2301. The arrest and search warrants were issued on May 11,. 1985, upon a judicial finding of probable cause. App. at 2291. After District Attorney Edward Rendell informed Mayor Goode that there was probable cause, the Mayor instructed Police Commissioner Sambor to develop a plan to execute the warrants. Goode testified that earlier that week, he attempted to negotiate with certain MOVE members but they rebuffed him with a message, “Now we are ready. Tell them to come on.” App. at 897-901. A few days prior to the confrontation, the Civil Affairs Unit of the Police Department received a hand-written letter signed with Ramona Africa’s name. App. at 1739-53. The letter warned that any police raids on MOVE would fail, and threatened that “if [police officers] succeed in coining thru the walls they are going to find smoke, gas, fire, and bullets. Before we let you mutha fuekas make an example of us we will burn this mutha fuckin house down and burn you up with us.” App. at 1234, 1751. Police Commissioner Sambor developed the initial plan to execute the warrants, which was to evacuate the neighborhood, request a peaceful surrender, and, if necessary, use tear gas to force the MOVE members from the house. App. at 1985-86. Because of the bunker on the roof, it was decided that the police would make holes in the sides of the house and insert tear gas through them rather than through the roof. App. at 1575-76,1985. To provide cover for the “insertion teams,” i.e., the officers who were to enter the adjoining houses and create the holes, the plan provided for the fire department to aim water hoses at the bunker while the police fired smoke canisters around the house. App. at 1456-58, 1771, 1986. Rather than having the officers drill holes into the walls of the house, thereby exposing them to assault while they were drilling, the plan-called for “shape charges,” or small explosives, to be used to create the holes. App. at 1416, 1570, 1986-87. Once they created the holes, it was expected that they would inject tear gas into the MOVE house and force out the occupants. App. at 1419, 1570, 1987. On May 12, 1985, the city evacuated the neighborhood residents. App. at 2229. Beginning at approximately 3:00 a.m. the next morning, police officers and fire fighters took up their places around 6221 Osage Avenue. App. at 2230. At around 5:30 a.m., Police Commissioner Sambor announced over a bullhorn that the police had arrest warrants for four persons in the house and that they had 15 minutes to surrender. App. at 1609, 1764-69, 1856, 2036, 2230. MOVE members responded over the loudspeaker that they would not surrender, and one yelled: You’re going to be laying in the street, bleeding in the street. Come on in and get us. We’re going to kill you where you stay, where you lay. We see you on the roof. We know you’re in those houses. App. at 1093, 1777, 1791-92, 2037, 2230. After the 15 minutes lapsed, the police began to fire tear gas and smoke projectiles at the house while the fire department began to squirt water onto the roof of the house to provide cover for the insertion teams. App. at 1043-44, 1778-79, 2230, 2037-38. A few minutes later, someone in the MOVE house fired shots at the police. App. at 2038, 2230. Muzzle flashes were seen from the bunker atop the roof. App. at 1780-85, 1791, 1797-98, 1826-29, 2038. A massive gun battle followed for at least an hour and a half. App. at 2041, 2230. Meanwhile, the insertion teams had set off several explosions on both sides of the house. App. at 2043-45, 2048-49, 2230. By mid-morning, the fronts of the MOVE house and adjoining houses were damaged heavily. App. at 1616-17, 2230-31. Yet, because they were under heavy gunfire and because the walls of the MOVE house were fortified, the teams could not create usable pathways through which tear gas could be introduced successfully. App. at 959-61, 1878-91, 2043-50, 2230-31. Consequently, the original plan was abandoned and the officers on the insertion teams retreated. As they did so they heard children’s voices coming from the basement of the MOVE house. App. at 2051. Still, MOVE members had not given any indication that they would surrender. App. at 2231. Around 4:00 p.m. that afternoon, Sambor, Brooks, Richmond, and other city officials and police officers, discussed alternative ways to remove the bunker and to proceed against the MOVE members. App. at 971-75, 2060-61, 2231. They also discussed whether to let the situation stand overnight and continue their efforts to execute the warrants the next morning. App. at 977-80, 998, 1004-05. But they determined that they could not wait until morning because it would be too difficult to keep the neighborhood secure through the night due, among other factors, to the darkness and the exhaustion which likely would set in on the officers who had been on duty since the night before. Id. They also believed that MOVE members might escape through tunnels rumored to have been dug under the neighborhood. Id.; app. at 1410-11, 1504, 1666-67. Accordingly, the officials considered other means' to execute the warrants but they rejected all as too dangerous. These included plans to use a crane to remove the bunker, to attack from above the roof, to attack from the front or the back of the house, and to place an explosive in the bunker. App. at 968, 2060-61. The officials then focused on a plan to drop a “satchel charge” onto the bunker from a helicopter to destroy or dislodge the bunker and create a hole in the roof. App. at 1131, 2061-62. The officials discussed the possibility that the explosive, could start a fire but they were satisfied that the risk would be negligible. App. at 981, 1011, 1149, 1191, 2061-62. Managing Director Brooks then informed Mayor Goode of the plan to use the explosive, and Mayor Goode approved it. App. at 983-84, 1070, 2064-65, 2231. At about the same time, a group of neighbors used a bullhorn to plead with the MOVE members to surrender but received no response. App. at 966-68,1852-54, 2231. The plan to use the explosive went forward. App. at 2231. Klein constructed the device and Powell dropped it on the roof of the MOVE house from a helicopter operated by state troopers Richard Reed and Morris Demsko. App. at 2068, 2231. Rather than destroying the bunker, however, the satchel seems to have missed it entirely. App. at 1622-23, 2058. Goode watched the explosion on television in his City Hall office, Brooks and Sambor observed it from the balcony of a nearby building, and Richmond saw it from Osage Avenue. Id. at 1156, 2097. Brooks, described his observations as follows: I observed an explosion that was from our [vantage point,] a dust ball, in other words a smoke ball.... It blew wood in all directions. Then it was very — then the smoke rose. It was a very light gray smoke, as the smoke rose away from it, the. helicopter was flying above it, and we , could see nothing there but a hole in the roof. App. at 987. Shortly after the explosion', observers saw a fire on the roof. App. at 988. There is evidence that a detonation caused the fire by igniting combustible liquid vapor. App. at 2058, 2311. Commissioner Sambor, who now was on Osage Avenue with Commissioner Richmond, then asked Richmond, “if we let the roof burn to get the bunker could we then subsequent to that control the fire?” App. at 1072-73. Sambor testified: I wanted to get the bunker. I wanted to be able to somehow have tactical superiority without sacrificing any lives if it were at all possible. And in that vein I asked him — I’m a police officer. I am not a fire fighter. I asked him for his concurrence, that if we let the roof burn to get the bunker, could we then control the fire. And whatever the response was, it was in the affirmative. App. at 1073. Richmond’s testimony corroborates this: I told him essentially that, that I thought we could contain the spread at that point. He said, ‘Let’s let the bunker burn to eliminate that high ground advantage and the tactical advantage of the bunker,’ and I said, ‘Okay’- He made the recommendation, .:. and I concurred. App. at 1163. Richmond also testified that he had prepared the fire fighters as soon as he knew of the fire. App. at 1157. But because he did not know the'positions of the police officers, if any, around the area of the' roof he first told an aide, “[g]ét a hold of the police and see what they want to do about this fire on the roof.” Id. Thus, the fire was allowed to burn until Goode and Brooks or.dered that it be extinguished. The fire fighters, however, encountered many problems. For example, there was a live electrical wire in the vicinity, the water itself caused visibility problems, and the water caused the fire to “bank,” or invert, downward into the house. Id. at 1158-59, 2117-20. The fire then went out of control killing 11 people and destroying 61 houses. Ramona Africa and a young boy were the only survivors from the house. II. PROCEDURAL HISTORY A. The Claims Numerous suits were filed, by property owners from the neighborhood and on behalf of the occupants of 6221 Osage Avenue. The court consolidated these cases for discovery under number 85-2745, to be managed by a magistrate judge. The defendants’ answers raised affirmative defenses, including immunity from liability. The individual defendants, sued also in their official capacity as officers or employees of the city (collectively, the city defendants), joined Ramona Africa as an additional defendant. Africa then moved to dismiss this third-party complaint but the. court denied her motion. She then joined in this action against the city defendants and the City of Philadelphia, and her ease was added to number 85-2745. During the ensuing four and a half years most of the claims were resolved. The remaining claims are Ramona Africa v. The City of Philadelphia, et al., number 87-2678, Alfonso Leaphart v. The City of Philadelphia, et al., number 87-2756, and Louise James v. The City of Philadelphia, et al., number 85-3528. Ramona Africa sued the City of Philadelphia and Mayor Wilson Goode, Managing Director Leo Brooks, Police Commissioner Gregore Sambor, Fire Commissioner William Richmond, District Attorney Edward Ren-dell, City Police Lieutenant Frank Powell, City Police Officers William Klein and Michael Tursi, City Police Sergeants Albert Revel and Edward Connor, State Police Corporal Morris Demsko, and State Trooper' Richard Reed, in their official capacities and individually. Africa claimed that: (1) the defendants, in violation of 42 U.S.C. § 1983, deprived her of her constitutional rights of freedom.of religion, expression, and association, of due process, of equal treatment under the law, and of “freedom from excessive force, assault and bodily injury,” app. at 102; (2) the defendants, in violation of 42 U.S.C. § 1985(3), conspired to deprive her of these constitutional rights; and (3) the defendants violated state law in using unreasonable force in the arrest in violation of section 1983. Africa seeks compensatory and punitive damages. Her action against Rendell was, however, dismissed on qualified immunity grounds and she does not appeal from that dismissal. Alfonso Leaphart sued on behalf of John Africa a/k/a Vincent Lopez Leaphart, who perished in the fire. Leaphart initially sued the same defendants as Ramona Africa as well as certain others, but his suit was dismissed as to some of the defendants prior to entry of the orders now-on appeal. Currently, the defendants in his case are the City of Philadelphia, Mayor Goode, Commissioner Richmond, Lieutenant Powell, and Officers Klein, Tursi, and Revel. Leaphart alleges that they violated his decedent’s rights under the First, Fourth, and Fourteenth Amendments, in violation of 42 U.S.C. §§ 1983 and 1985(3). He seeks compensatory and punitive damages as well as declaratory relief. Louise James sued on behalf of her son Frank Africa a/k/a Frank James, who perished in the fire, and on her own behalf as owner of 6221 Osage Avenue. James currently sues the City of Philadelphia, Mayor Goode, Commissioners Sambor and Richmond, Managing Director Brooks, and Lieutenant Powell, for compensatory and punitive damages. In her personal capacity, she asserts a claim under the Fifth Amendment for the uncompensated destruction of her property. On behalf of her son, she asserts a section 1983 claim and a section 1985(3) claim based on the alleged deprivation of her son’s constitutional rights and state law claims. As is evident, some of the claims asserted by all three plaintiffs against certain defendants are identical. Accordingly, I will treat such similar claims together. B. The District Court Rulings In a March 26,1992 report and recommendation, the magistrate judge recommended that the court deny the motions for summary judgment sought on qualified immunity grounds by Mayor Goode, Managing Director Brooks, Commissioner Sambor, Commissioner Richmond, Lieutenant Powell, Officer Klein, and State Police Officers Demsko and Reed. See Africa v. City of Philadelphia, 809 F.Supp. 375, 376-77 (E.D.Pa.1992) (hereinafter Africa I). He also recommended that the court grant summary judgment in all three eases on qualified immunity grounds to Officers Tursi, Revel, and Connor because they “Were involved only with the attempted penetration of the sides of the house. Id. at 377 n. 5. The district court approved and adopted the latter recommendations, and these orders have not been appealed. Id. But the district court remanded the remaining matters to the magistrate judge for consideration under the guidelines the Supreme Court set forth in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), stating as follows: [T]he court must determine, on plaintiff’s well-documented version of the facts, whether a reasonable officer in each defendant’s position, to the extent that this defendant could be found to have some responsibility for the use of force in question, could have believed that the force employed was necessary to protect the safety of himself or others. Africa I, 809 F.Supp. at 382 (citation omitted); In re City of Philadelphia Litig., 849 F.Supp. 331, 337 (E.D.Pa.1994) (hereinafter Africa II). On October 6, 1993, the magistrate judge issued another report and recommendation. He analyzed the defendants’ actions as involving two separate decisions the plan to drop the explosive device onto -the bunker and the decision to let the fire bum. He concluded as follows: [A] reasonable person in each of the defendant’s positions could have believed that the use of an explosive device to remove the bunker from the roof and to provide access to the interior of the housé for tear gas was necessary to ‘prevent death or serious bodily injury’ to the police officers, on the scene or other persons. In addition, based on the information available to them regarding MOVE’S threat of violence and MOVE’S use of force in resisting arrest, they could have believed that the use of the bomb would be conduct that was consistent with the principles embodied in Section 508. [of the Pennsylvania Crimes Code] and Garner. Africa II, 849 F.Supp. at 337, 357. Section 508 defines the circumstances in which a police officer may use force in making an arrest. Thus, the magistrate judge recommended that all defendants be granted summary judgment in all three cases to the extent that the plaintiffs sought to impose liability based on the dropping of the explosive device. The magistrate judge concluded, however, that under the standards of Tennessee v. Garner and section 508 of the Pennsylvania Crimes Code it was unreasonable to let the fire burn after the bunker had been neutralized. Id. at 337, 359-61. He also determined that Commissioners Sambor and Richmond made the decision to let the fire burn but that the other city defendants were not involved at- this stage. Id. at 337, 360. Therefore, he recommended that the court deny summary judgment on qualified immunity grounds for the two commissioners with respect to claims based on letting the fire burn. Id. They objected to this recommendation on. the ground that the evidence demonstrated that they had intended to let the fire consume only the bunker, which they believed to pose a lingering threat. Id. at 339. The magistrate judge further found that while the defendants may be entitled to statutory immunity from state law liability for acts performed in the scope of their duties, they would not be entitled to immunity if they engaged in “willful misconduct.” Id. at 364. Accordingly, the magistrate judge recommended that the court grant summary judgment- on immunity grounds with respect to the state claims to those individual defendants involved only in the dropping of the explosive device. Id. In these instances, the grant of summary judgment on the federal claims demonstrated that the conduct of these defendants did not, as a matter of state law, constitute “willful misconduct.” Id. Conversely, he recommended that those defendants denied summary judgment on the federal claims also should be denied summary judgment for the state claims. Id. The district court adopted the magistrate judge’s recommendation as to the claims based on the dropping of the explosive device. Id. at 338-39. In reviewing the recommendation, however, the court “focused on the decision to let the fire bum at all.” Id. The court stated: I cannot conclude that there is a demonstration which leads to the judgment as a matter of law that it was reasonable as a matter of necessity, at the point after the bomb was dropped and when a flame was first visible, for the law enforcement officials to permit flame [sic] to continue until it totally consumed what remained of a bunker.... That it might be convenient to have let the balance of the bunker be consumed by fire is perhaps a tenable view. That it was necessary, in Tennessee v. Garner terms, I can find no basis for concluding. Id. at 340. Thus, the court concurred with the magistrate judge’s view that summary judgment should be denied to Commissioners Sambor and Richmond with respect to claims based on letting the fire burn. Id. at 342, 347. During oral argument the district court raised the question of “whether there was not some basis in the record for concluding that conceivably Managing Director Brooks concurred for a time in the decision to let the fire burn.” Id. at 342. Although Africa had not objected earlier to the magistrate judge’s finding that he had not concurred in that decision, she decided to do so then. Id. In a further interview, Commissioner Sambor indicated that when he explained to Brooks that they were letting the fire burn the bunker, Brooks said, “only the bunker.” Id. at 343. Sambor said further that Brooks subsequently told him to put the fire out. Attorneys for the city and for Brooks argued that the plaintiffs waived this issue and that no other evidence supports the allegation that Brooks was involved in the decision to let the fire burn. The district court rejected these arguments and denied the summary judgment which Brooks sought on qualified immunity grounds with respect to claims based on the decision to let the fire bum. Id. at 345, 347. With regard to claims against the City of Philadelphia, the city first argued that only Mayor Goode and Managing Director Brooks had final decision-making authority and that it should not be held responsible for their subordinates’ unapproved decisions. However, upon finding that Brooks could be denied qualified immunity, the city changed its position and argued that only Mayor Goode had final decision-making authority. Id. at 345. The court reviewed the city’s charter and concluded that the suability of either Managing Director Brooks or the two commissioners would be sufficient to hold the city suable on the federal claim. Id. at 345-47. The court also held, in accord with the magistrate judge’s recommendation, that all defendants were entitled to summary judgment based on lack of evidence with respect to the plaintiffs’ claims under the First and Fourteenth Amendments and under section 1985(3). In addition,' the court held that the city was entitled to summary judgment on the state law claims because a recent Pennsylvania Supreme Court opinion established that the city council did not have the authority to expand the scope of the Pennsylvania Political Subdivision Tort Claims Act. This Supreme Court ruling was critical as the viability of the plaintiffs’ state law claims depended on this expansion. Finally, the court dismissed James’ Fifth Amendment claim because she-did not allege that she had pursued relief unsuccessfully under state law procedures such as those set forth by the Pennsylvania eminent domain code. In re City of Philadelphia (James v. City of Philadelphia), No. 85-3528, slip op. at 11-13, 1994 WL 46654 (E.D.Pa. Feb. 1, 1994). James pointed out that she had brought a federal suit, number 88-3881, for recovery of her property losses under federal and state law. In that action she alleged that she was the only person whose property had been destroyed by the fire whom thé city did not compensate and she asserted that such treatment was discriminatory. Id. In December 1988, the court dismissed number 88-3881 with prejudice as to the federal claims on the grounds that they were barred by the statute of limitations and it dismissed the state law claims without prejudice. Id. James did not appeal from that ruling. On January 3, 1994, one day before the district court rendered its bench opinion in the case currently before us, James filed a Motion for Reconsideration. Nunc Pro Tunc of the 88-3881 decision under both docket numbers, 88-3881 and 85-3528. The district court denied this motion, reasoning that it had been five years since the 88-3881 case had been decided and James had offered no new evidence or reasons for reexamining that decision. Id. at 13. On motion by the City, the district court certified as appealable under Fed.R.Civ.P. 54(b) the dismissal of all claims against Goode, Powell, Klein, Revel, Tursi, Connor, Demsko, and Reed. App. at 682, 803. In addition, the court certified for appeal under 28 U.S.C. § 1292(b) the issue “of the suability of the City of Philadelphia, pursuant to 42 U.S.C. § 1983, on claims arising from the decision to let the ... fire burn.” Id. C. The Issues on Appeal Ramona Africa appeals from the district court’s final order granting summary judgment in favor of Mayor Goode and Officers Powell and Klein. Alfonso Leaphart appeals from the final judgment granting summary judgment in favor of Mayor Goode.' Louise James appeals from the final judgment granting summary judgment in favor of May- or Goode and Officer Powell and in favor of the City of Philadelphia with respect to the Fifth Amendment property claim. James has appealed only from orders in the 85-3528 case. The City of Philadelphia appeals from the order denying its motion for summary judgment with respect to the federal claims based on section 1983. Managing Director Brooks and Commissioners Sambor and Richmond appeal from the orders denying their motions for summary judgment on qualified immunity grounds with respect to the claims based on the decision to let the fire burn and from the orders denying them summary judgment on the state claims. We consolidated the appeals for briefing and argument. III. JURISDICTION The district court had jurisdiction over the federal civil rights claims pursuant to 28 U.S.C. § 1343 (civil rights action) and 28 U.S.C. § 1331 (federal question jurisdiction). The district court also had supplemental jurisdiction based upon 28 U.S.C. § 1367 over the related state law claims. A.Judgments Certified Under Rule 54(b) We have jurisdiction pursuant to 28 U.S.C. § 1291 over the appeals from the grants of summary judgment which the district court certified as final judgments under Rule 54(b). Gerardi v. Pelullo, 16 F.3d 1363, 1368-69 (3d Cir.1994). These final judgments include grants of summary judgment on qualified immunity grounds with respect to all claims against Goode, Powell, Klein, Tursi, Revel, Connor, Demsko, and Reed. As they are properly before us, I shall review Africa’s appeal from the summary judgments in favor of Goode, Powell, and Klein; Leáphart’s appeal from the summary judgment in favor of Goode; and James’ appeal from the summary judgment in favor of Goode and Powell. B.Denial of Summary Judgment Certified Under 28 U.S.C. § 1292(b) In orders dated January 31, 1994, and February 1, 1994, the district court stated as follows: It is DECLARED to be the opinion of this court that, within the intendment of 28 U.S.C. § 1292(b), (1) the issue, determined adversely to the City of Philadelphia ..., of the suability of the City of Philadelphia, pursuant to 42 U.S.C. § 1983, on claims arising from the decision let the [MOVE] fire burn, is one which involves a controlling question of law as to which there is substantial ground for difference of opinion, and (2) that an immediate appeal from that aspect of the ... order, taken in conjunction with anticipated appeals on related question of qualified im-miinity of certain individual defendants, may materially advance the ultimate termination of the litigation. App. at 682, 802-03. This court then granted the city leave to appeal and thus we have jurisdiction over the city’s appeal. C.Denial of Summary Judgment on Qualified Immunity Grounds with Respect to Federal Claims Generally, this court does not have jurisdiction to review the denial of summary judgment because such decisions are not final as required by 28 U.S.C. § 1291. Giuffre v. Bissell, 31 F.3d 1241, 1245 (3d Cir.1994). In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), however, the Supreme Court held that a denial of summary judgment on the ground of qualified immunity is appealable under the collateral order doctrine. “[A] decision of a district court is appealable if it falls within ‘that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’” Id. at 524-25, 105 S.Ct. at 2814 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)). The Court found that qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation” which would be “effectively lost if a case is erroneously permitted to go to trial.” Id., 472 U.S. at 526, 105 S.Ct. at 2815. Moreover, a district court’s denial of qualified immunity would be “effectively unreviewable on appeal from a final judgment.” Id. at 527, 105 S.Ct. at 2816. The Court also found that this denial “conclusively determined the disputed question” of a defendant’s right not to stand trial on the plaintiffs allegations, as required under Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). Finally, the Court determined that “a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim that his rights have been violated,” thus satisfying the requirement of being “collateral” under Cohen. Mitchell v. Forsyth, 472 U.S. at 527-28, 105 S.Ct. at 2816. Therefore, we all agree that we have jurisdiction to consider the appeals taken by Brooks, Sambor, and Richmond from the district court’s denial of summary judgment on qualified immunity grounds with respect to federal claims based on letting the fire burn. See Giuffre v. Bissell, 31 F.3d at 1245; Hynson v. City of Chester Legal Dept., 864 F.2d 1026, 1028-29 (3d Cir.1988). D. Denial of Summary Judgment on Immunity Grounds with Respect to State Law Claims I now address the question of whether we have jurisdiction over the appeals from the district court’s denial of summary judgment for Brooks, Sambor, and Richmond on the state law claims based on letting, the fire burn. I conclude that we do not have such jurisdiction and, as Judge Lewis agrees, he joins in the determination dismissing this aspect of the appeals. The district court did not certify this order under either Rule 54(b) or section 1292(b). Nor, I think, is this issue so intertwined with those raised by the appeals properly before us that we should assert pendent appellate jurisdiction over it. See National Union Fire Ins. Co. v. City Savings, F.S.B., 28 F.3d 376, 382 n. 4 (3d Cir.1994); Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir.1982). I therefore consider whether we may assert jurisdiction over these appeals under the collateral order doctrine. In this inquiry Brown v. Grabowski, 922 F.2d 1097, is instructive. In that case, the district court denied qualified immunity to the defendant police officers on plaintiffs pendent tort claims under New Jersey law. On appeal, this court noted that the determination of appellate jurisdiction over the state claims requires “(1) a predicate inquiry into whether the federal law of qualified official immunity ultimately governs appealability in this instance; and (2) a subsequent inquiry into the nature of the qualified immunity. that New Jersey law confers upon state officials.” Id. at 1106. In Brown this court concurred with the Courts of Appeals for the Fifth and Sixth Circuits that “the parties ... in a federal action such as this one involving pendent state claims, are bound by federal procedural rules governing appeals, including the collateral order doctrine.” Id. (citing Sorey v. Kellett, 849 F.2d 960, 962 (5th Cir.1988); Marrical v. Detroit News, Inc., 805 F.2d 169, 172 (6th Cir.1986)).. However, it is state law that provides the substantive doctrine of immunity. The court also concluded that “the denial of a claim of qualified immunity premised upon state law is appealable only if the state has conferred an underlying substantive immunity from suits arising from the performance of official duties.” Id. at 1106-07 (citing Marrical, 805 F.2d at 172; Sorey, 849 F.2d at 962). It is immunity from suits, rather than mere immunity from liability, that would make such an order appealable. Giuffre v. Bissell, 31 F.3d at 1248. In Brown v. Grabowski this court looked at the New Jersey Tort Claims Act, New Jersey case law on immunity, and New Jersey’s doctrinal and procedural rules concerning interlocutory appeals to. determine the scope of the state immunity. 922 F.2d at 1107. Thus, here I look to the Pennsylvania law of official immunity to ascertain whether we have jurisdiction over the three officials’ appeals from the denial of summary judgment on the state law claims arising from the decision to allow the fire to burn. In this case, the district court did not elaborate on the state law claims but seemed to adopt the magistrate judge’s approach. The magistrate judge stated that although Pennsylvania’s Political Subdivision Tort Claims Act (PSTCA) grants immunity to the city’s employees to the same extent that the city is immune, such immunity would not apply if “it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct.” Africa II, 849 F.Supp. at 364 (citing 42 Pa. Cons.Stat.Ann. §§ 8545 & 8550 (1982)). Thus, the magistrate judge recommended that those defendants who were to be granted summary judgment on claims based' on dropping the explosive device and letting the fire burn should be entitled also to assert immunity under the PSTCA because “they have demonstrated, as a matter of law, that their conduct did not constitute a crime, actual fraud, actual malice or willful misconduct.” Id. As to those defendants whose motions for summary judgment were to be denied as to claims based on letting the fire burn, however, the magistrate judge recommended that they be denied- summary judgment on the state claims as well. This is because “they cannot show as matter of law that their decision did not constitute willful misconduct.” Id. Although I do not find guidance on the point in the opinions of the Pennsylvania Supreme Court, the Commonwealth Court of Pennsylvania has ruled that an order denying a summary judgment sought on statutory immunity grounds is not appealable immediately. Bollinger v. Obrecht, 122 Pa.Cmwlth. 562, 552 A.2d 359 (1989), appeal denied, 527 Pa. 588, 589, 588 A.2d 511 (1990). This ruling strongly implies that such immunity is only from liability, despite the fact that the court went on to say it need not reach the issue of whether Pennsylvania law confers immunity from suit rather than from liability. Id. at 363 & n. 5. The Commonwealth Court noted that Vennsylvania courts have followed Cohen’s collateral order doctrine but ruled that Mitchell v. Forsyth was not controlling because it involved only federal immunity. Id., 552 A.2d at 362-63. Id. at 363 & n. 5. The court explained: In Pennsylvania, immunity is governed by statute. The merits of a plaintiff’s cause of action against government agencies and officers are likewise governed by the same statute. Thus, a trial court analyzing an immunity claim is actually deciding the same issues that will arise in the underlying action. Unlike matters of federal official immunity, the trial court’s interlocutory order denying an immunity claim under Pennsylvania law, is not separate from and collateral to the main cause of action. Id. at 363. But as Mitchell noted, when immunity from suit is involved, the opposite result should be reached. Later cases consistently have followed Bollinger v. Obrecht. See, e.g., Farber v. Pennsbury Sch. Dist., 131 Pa.Cmwlth. 642, 571 A.2d 546 (1990) (quashing appeal as interlocutory from denial of motion for summary judgment on grounds of governmental immunity); Brown v. Philadelphia, 126 Pa. Cmwlth. 549, 560 A.2d 309 (1989) (same), appeal denied, 529 Pa. 625, 600 A.2d 540 (1991); McKinney v. Philadelphia, 123 Pa. Cmwlth. 144, 552 A.2d 1169 (1989) (same), aff'd, 524 Pa. 101, 569 A.2d 351 (1990); Gwiszcz v. Philadelphia, 121 Pa.Cmwlth. 376, 550 A.2d 880 (1988) (same). Indeed, the language of the PSTCA supports the Commonwealth Court’s reasoning ’ as the act seems to be directed at liability, referring to immunity as only a defense to such liability rather than as a right to be free from suits. The fact that interlocutory orders may be appealable by permission of the appellate court, under the- Pennsylvania Rules of Appellate Procedure, is irrelevant to my inquiry. See Wareham v. Jeffes, 129 Pa.Cmwlth. 124, 564 A.2d 1314, 1318 n. 8 (1989) (noting. that denial of summary judgment on grounds of sovereign immunity would be interlocutory and unappealable except by permission). See also Lancie v. Giles, 132 Pa.Cmwlth. 255, 572 A.2d 827, 829 n. 3 (1990) (Commonwealth Court granted defendants permission to appeal from interlocutory order denying summary judgment on state statutory immunity grounds). First, whereas Pennsylvania appellate courts may grant permission to appeal from interlocutory and otherwise unap-pealable orders, absent a certification by the district court under 28 U.S.C. § 1292(b), we cannot do so. In fact, the exercise of discretion to withhold such permission effectively will negate a claim of immunity from suit. Second, as we stated in Brown v. Grabowski, federal rules govern this federal action. 922 F.2d at 1106. Therefore, Bollinger v. Obrecht is dispositive here. To recap, under Brown v. Grabowski, the right to an interlocutory appeal “can only exist where the state has extended an underlying substantive right to be free from the burdens of litigation,” 922 F.2d at 1107 (quoting Marrical, 805 F.2d at 172). Bollinger demonstrates that Pennsylvania has not done that. Thus, because immunity is not a separate or collateral issue from the underlying claim under Pennsylvania law, we have no jurisdiction over the appeals by Brooks, Sambor, and Richmond from the district court’s order denying them summary judgment on the state law claims. We therefore will dismiss their appeals from the district court’s orders denying summary judgment as to the state law claims. E. Grant of Summary Judgment with Respect to James’ Property Claims in Favor of the City James appeals from the district court’s grant of partial summary judgment in favor of the City of Philadelphia with respect to her claim based on the uncompensated destruction of property. James argues that' in refusing to compensate her on the same basis as her neighbors, the city discriminated against her and has been enriched unjustly at her expense. We all agree, however, that James has not set forth any jurisdictional basis which permits us to consider her property arguments as there are claims remaining in the district court and thus her appeal is not from a final judgment. As I indicated above, James brought a separate federal civil rights suit, number 88-3881, seeking damages for her property, the thrust of which was that her treatment, “as allegedly the only person in the neighborhood of destroyed houses or damaged houses who was not offered to be compensated ..., was discriminatory in terms that were unconstitutional.” App. at- 815. The court dismissed these federal claims with prejudice because they were barred by the statute of limitations and it dismissed the state claims without prejudice. James did not appeal from this judgment. In the case now before us, number 85-3528, the magistrate judge recommended that the court grant partial summary judgment as to the property issue in favor of the city because the takings claim could not stand “without an appropriate allegation of unsuccessful resort to state procedures pursuant to Pennsylvania’s eminent domain code.” Id. James, however, asked the district court either to disregard the recommendation or to reopen the 1988 case, nunc pro tunc, because she believed the court had decided it erroneously. Id. The district court agreed with the magistrate judge’s recommendation and declined to reopen the 1988 case. James’ present appeal is from the decision rendered in number 85-3528 as her notice of appeal makes no méntion of number 88-3881. Consequently, she cannot contest directly the court’s refusal to reconsider the 1988 case. Nevertheless, what James argues now is strongly reminiscent of her allegations in the 1988 suit — that the denial of compensation for her property is discriminatory and violates her equal protection and First Amendment rights and that the city has been enriched unjustly. James devotes a large part of her appellate effort to the allegations that she has been denied equal protection and has been the victim of unlawful discrimination. She asserts repeatedly that she is “a member of the class of individuals, such class consisting of the victims of the Osage Avenue fire.” James Br. at 37, 38. She directs this argument to the magistrate judge’s conclusion that she neither has alleged nor shown that the city’s., action was “based on any class-based invidiously discriminatory , animus.” See app. at 792-93. However, the magistrate judge made this statement in explaining why the claims under section 1985(3) on behalf of James’ deceased son must fail. Thus, his comments were not addressed to her property claim in case 85-3528. These misdirected arguments by James support the city’s suggestion that she is attempting to incorporate the number 88-3881 case into the present one. To the extent that James is attempting now to appeal from that December 1988 dismissal, we must reject the attempt for lack of jurisdiction. See United States v. Rivera Const. Co., 863 F.2d 293, 298-99 (3d Cir.1988) (“where the order or judgment upon which the appellant seeks review is neither directly nor indirectly referred to in the notice of appeal, then the issue is not fairly raised and the Court of Appeals does not acquire'jurisdiction”). Furthermore, we see no basis to exercise jurisdiction over James’ appeal from the judgment in favor of the city in number 85-3528 on the uncompensated destruction of property claims. The collateral order doctrine has nothing to do with the claim and the district court did not enter a certification with respect to the order under either Rule 54(b) or 28 U.S.C. § 1292(b). F. Scope of Appellate Review We exercise plenary review over all appeals properly before us because they are all from grants or denials of summary judgment. See Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 554, 126 L.Ed.2d 455 (1993) (grant of summary judgment); Giuffre v. Bissell, 31 F.3d at 1251 (denial of summary judgment on qualified immunity grounds); Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir.1994) (in banc) (same). Moreover, we have plenary review over the grant or denial of qualified immunity because it is an issue of law. Giuffre v. Bissell, 31 F.3d at 1254. Thus, I will consider whether there are genuine issues as to material facts and whether the defendants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). IV. QUALIFIED IMMUNITY Courts determine whether a defendant is entitled to qualified immunity by balancing the important policy of compensad ing individuals for deprivation of their rights against “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982) (quoting Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978)). In making this balance, courts recognize that officials often must “act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication, of office.” Scheuer v. Rhodes, 416 U.S. 232, 246, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974). Thus, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), instructs that before a. court addresses a claim of qualified immunity, it first should determine whether a plaintiff has alleged “a violation of a constitutional right at all.” See Acierno v. Cloutier, 40 F.3d at 606 n. 7; D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d Cir.1992) (in banc), cert. denied, — U.S.-, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993). Deciding “this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits.” Siegert v. Gilley, 500 U.S. at 232, 111 S.Ct. at 1793. Furthermore; for there to be liability, the right alleged to have been violated “must have been ‘clearly established’ in a more particularized, and hence more relevant, sense.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). While the abstract right to be free from unreasonable seizure clearly is established, for qualified immunity purposes the right must be considered on a more specific level: “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. Consequently, I consider whether the particularized constitutional right asserted was “‘clearly established’ at the time the defendants acted.” Acierno v. Cloutier, 40 F.3d at 606 (citing Siegert v. Gilley, 500 U.S. at 232, 111 S.Ct. at 1793); Harlow v. Fitzgerald, 457 U.S. at 817-19, 102 S.Ct. at 2738. If the law is not established clearly when an official acts, he is entitled to qualified immunity because he “could not reasonably be expected, to anticipate subsequent legal developments, nor could he fairly be said to ‘know that the law forbade conduct not previously identified as unlawful.” Id. On the other hand, if the law was established clearly, the official still may obtain qualified immunity if he claims “extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard.” Id. In other words, “[defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that [the action was lawful]; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). A. Allegation of a Constitutional Violation In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), the Court held “that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigation stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Thus, the general right central to this case is the right to be free from unreasonable seizure of the person under the Fourth Amendment, in particular seizure with unreasonable force. Siegert v. Gilley, however, demands more than conelusory allegations that defendants violated a certain constitutional right. For example, Siegert asserted that his rights under the Due' Process Clause of the Fifth Amendment were violated when Gilley maliciously made unkind comments regarding his abilities to a prospective employer. Siegert v. Gilley, 500 U.S. at 232, 111 S.Ct. at 1793. Because defamation is not a constitutional deprivation, the Supreme Court concluded that Siegert failed not only to allege a violation of a clearly established constitutional right but failed to allege a “violation of any constitutional right at all.” Id. at 233-34, 111 S.Ct. at 1794. Similarly, in D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., two public school students sued because some of their classmates allegedly molested-them. 972 F.2d at 1364. This court accepted the plaintiffs’ statement that they had a “liberty interest in their personal bodily integrity protected by the Fourteenth Amendment,” but held that the school’s alleged conduct did not amount to a constitutional violation. 972 F.2d at 1368. In essence, here the plaintiffs allege that the defendants exerted excessive force in attempting to arrest plaintiff Africa and decedents Leaphart and James, by dropping the explosive on the roof of the MOVE residence and by letting the fire burn. On the face of the complaint, I believe plaintiffs have met the threshold required by Siegert v. Gilley by alleging a constitutional violation. Judges Scirica and Lewis agree with this conclusion. B. Violation of a Constitutional Right I now consider on the undisputed facts, Melo v. Hafer, 13 F.3d at 745; Good v. Dauphin County Social Serv., 891 F.2d at 1094-95, whether the individual defendants are entitled to qualified immunity. In this section, “B. Violation of a Constitutional Right,” I write only for myself. First, I ask whether plaintiff Africa and decedents Leap-hart and James possessed a “clearly established” constitutional right to be free from the forces allegedly exerted by the individual defendants -under the circumstances that existed on May 13, 1985. As the defendants point out, they did not direct force at the person of any of the prospective arrestees. Rather, they directed the force at destruction of property so that police officers could inject tear gas into the house to effect a peaceful arrest — one in which neither police officers nor MOVE members would be injured seriously. There is no evidence on the substantially developed record that anyone intended otherwise. In fact, there is evidence indicating that the defendants were" concerned with not harming the people inside the house. The district court, however, refused to consider the officials’ argument that they intended only to destroy the bunker. See Africa II, 849 F.Supp. at 341-42. The court stated that Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, requires use.of an “objective legal reasonableness” test in á Fourth Amendment excessive force case. While this formulation is accurate, I disagree with its application by the district court. In Graham v. Connor, the plaintiff allegedly sustained physical injuries when police officers grabbed and cuffed him, threw him on his companion’s car, and threw him headfirst into the police car. Id. at 389-90, 109 S.Ct. at 1868. Thus, as is usually true in excessive force cases, the police officers’ intent to apply force to the person of Graham was clear. The Supreme Court held that the court of appeals erred when it considered whether the officers “acted in good faith or maliciously and sadistically for the very purpose of causing harm,” as the case should have been analyzed under a Fourth Amendment “objective reasonableness” standard. Id. at 395-97, 109 S.Ct. at 1871-72 (internal quotation marks omitted). Therefore, although the Supreme Court did find the “underlying intent or motivation” irrelevant, this reference was .to the officers’ motivations for carrying out the direct application of the force to the arrestee’s person. Graham v. Connor, 490 U.S. at 397, 109 S.Ct. at 1872. But here the issue before us concerns the more fundamental question of whether the officers applied force to the MOVE members at all. On this point, another Supreme Court decision, Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), is instructive. In that ease, the plaintiffs brought a section 1983 action alleging that the police effected an unreasonable seizure of the decedent by putting up a roadblock into which the decedent fatally crashed the stolen car he was driving. Id. at 594, 109 S.Ct. at 1380. The Supreme Court explained: [A] Fourth Amendment seizure does not occur whenever there is a govemmentally caused termination of an individual’s freedom of movement ..., nor even whenever there is a govemmentally caused and gov-ernmentally desired termination of an individual’s freedom of movement ..., but only when there is a governmental termination of freedom of movement through means intentionally applied. Id. at 596-97, 109 S.Ct. at 1381. In that ease, the Court held that there was a Fourth Amendment seizure because the. decedent was stopped by the blockade, “the very instrumentality set in motion or put in place in order to achieve that result.” Id. at 599, 109 S.Ct. at 1382. But this case is different, as the officials did not intend to apply any force to the persons of the MOVE members when they dropped the explosive device and allowed the fire to burn. Thus, while their subjective thoughts as,to the lawfulness of their conduct is irrelevant under Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. at 3040, what is not irrelevant is the officials’ intention only to destroy the bunker and perhaps part of the roof so that they could inject tear gas into the house. In my analysis, I ask whether it is enough for a Fourth Amendment seizure that the MOVE members were stopped by “the very instrumentality set in motion or put in place [the destruction of the bunker] in order to achieve that result.” Brower v. County of Inyo, 489 U,S. at 599, 109 S.Ct. at 1382. The Supreme Court cautioned that “[i]n determining whether the means that terminates the freedom of movement is the very means that- the government intended we cannot draw too fine a line.” Id. at 598, 109 S.Ct. at 1382. In this sense, a court must look to the officials’ intent of why they , wanted to destroy the bunker and to create a hole in the roof to see whether the destruction of the bunker was set in motion “in order to achieve” the seizure. The destruction of the bunker was obviously a part of .the officials’ day-long .effort to seize the MOVE members, but none of the officials intended it in itself to effectuate the seizure. Nor could they reasonably have intended the destruction of the bunker alone to be conclusive in any way, even though it may well have been reasonable to believe, as they- did believe, that its destruction was an important objective. Thus, this case differs from Brower because there the police set up the blockade to stop a motoring felon. Consequently, in Brower, the decedent “was meant to be stopped by the physical obstacle of the roadblock — and ... h