The opinion of the court was delivered by: SUHRHEINRICH
RICHARD F. SUHRHEINRICH, UNITED STATES DISTRICT JUDGE
Plaintiffs brought this action under 42 U.S.C. § 1983 to recover damages against several Ferndale police officers and the City of Ferndale for the shooting of Karen Taylor at the Rialto Restaurant on July 3, 1984. This matter is currently before the Court upon defendants' Motion to Dismiss or for Summary Judgment, part of which was decided per the Court's Memorandum Opinion of May 2, 1986 and part of which was reserved for judgment.
The Court has pieced together the following summation from the three depositions attached to defendants' motion.
At approximately 5:00 p.m. on July 3, 1984, Alvin Freeman walked into the Rialto Restaurant on Woodward Avenue in Ferndale, Michigan and sat at a table. After placing his order, Freeman walked over to Detective Dan Bolen of the Ferndale Police Department and shouted at him. Freeman drew his gun and fired at least two shots which wounded Bolen and another patron, John Bylski. Freeman then grabbed the waitress, Karen Taylor, and ordered everyone to go out of the restaurant. Bolen was helped to the building next door. Bylski, however, collapsed on the sidewalk south of the restaurant. In addition to his own gun, Freeman had taken Bolen's service revolver.
Officers David Watters and Tom Cupples were the first officers to arrive at the Rialto. They immediately rendered aid to Bylski. Bystanders informed the officers that there was a man inside the Rialto with a gun and he had taken two female hostages. It is unclear from the testimony when the police realized that Freeman only had one hostage. Watters then proceeded to the rear of the restaurant.
Captain Stanley Sullivan and Sergeant Joseph Swiercz arrived at approximately 5:06. Within minutes, they established perimeters around the Rialto to keep pedestrians and motor vehicles out of the line of fire, positioned officers directly outside the restaurant and atop nearby buildings to control Freeman's movements, and began gathering information from the patrons and employees. This included having one of the employees provide a diagram of the inside of the restaurant. The employee indicated that there was a back passageway from the kitchen to the men's restroom which could not be seen from the dining area. Sullivan also talked to Bolen who identified Freeman as the gunman. Freeman was well known to the Ferndale Police Department, in part, because he owned a nearby party store. Freeman would regularly call the police to come over to the store and stand guard while he locked up at night. It also appears that Freeman had a violent relationship with his wife which required the police to frequently intervene in their disputes. In fact, Freeman was convicted the day before this incident of an assault charge involving his wife. The officers testified, however, that Freeman never demonstrated any animosity toward them and was even cordial to them when he was arrested on the assault complaint.
Sullivan, Swiercz and Lieutenant Marshall tried to negotiate with Freeman over the phone and the bull-horn during the entire siege. All three had some training and experience as negotiators. Freeman called the police station at approximately 5:18 and 5:23 and demanded that his wife be brought to the scene. He refused, however, to stay on the line. Sullivan then ordered the desk sergeant to continually call the restaurant. Sullivan also stationed an officer at the phone in a nearby store to call on a second line in an effort to force Freeman to negotiate. Freeman refused to answer the phones and ignored the officers' attempts to establish a dialog. He refused to articulate his demands and merely shouted for the officers to come in and get him.
At approximately 5:45 and 5:49, Freeman fired several shots at the officers. The first set of shots knocked out the front glass windows. Freeman again called the station and demanded to talk to the Chief. He again refused to stay on the phone.
In the meantime, Sullivan had directed Swiercz to enter the restaurant through the back door and pinpoint the locations of Freeman and the hostage. Swiercz entered the building at approximately 6:00. He was able to position himself near the swinging doors that separate the kitchen and dining areas. Officers Watters and Cupples also positioned themselves in the kitchen. After Swiercz was able to determine the approximate location of Freeman and the hostage, he left the building. Officers Watters and Cupples remained in the kitchen and were joined by Officer Raymond. Officers Page and Denmark were able to position themselves in the men's bathroom. At 6:29, Officer Denmark reported that a shot had been fired near the bathroom and he heard the hostage scream that she had been shot in the leg. The officers testified that Freeman and the hostage were yelling and screaming a great deal.
Swiercz and Marshall led two teams into the restaurant at approximately 6:45. Officers Watters and Cupples joined Swiercz and positioned themselves in the men's bathroom at the southeast-east corner of the restaurant. Marshall and his group were stationed in the kitchen by the swinging doors near the north end of the building. The officers all testified that shortly before 7:00 they heard another shot and didn't hear anything from the hostage thereafter. According to the deposition testimony, Sullivan gave the order to fire shots above the doorway to create a diversion at 7:03:36. Within the next few seconds, Marshall threw a pot out of the kitchen to draw Freeman away from the south-end of the restaurant. Freeman turned and fired at the officers who were coming out of the kitchen. Simultaneously, Swiercz and Watters came through the hallway near the bathroom and fired at Freeman who was standing over the hostage. The order to cease fire was given at 7:03:47. Freeman was hit in the head and arm and pronounced dead at the scene. The hostage was found sitting on the floor in front of the booth facing north with bullet wounds to the head and leg.
Plaintiffs allege in their complaint that the Ferndale police officers and their superiors forced "an unnecessary and avoidable confrontation" by failing to negotiate with Freeman or summon expert assistance from a trained hostage negotiator and intentionally discharged their weapons without verifying the position of Taylor. These actions were committed with "gross and culpable recklessness and in shocking and unjustified disregard for [Taylor's] safety and constitutional rights". Plaintiffs contend that Taylor was deprived of her liberty without due process of law in violation of the Fourteenth Amendment. The City of Ferndale also deprived Taylor of her constitutional right by not providing its officers with adequate training and supervision in hostage situations.
Section 1983 of the Civil Rights Act provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory". 42 U.S.C. § 1983. The statute's primary purpose is the "preservation of human liberty and human rights . . . ." Owen v. City of Independence, 445 U.S. 622, 636, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980).
In order to recover under section 1983, plaintiffs must demonstrate that 1) some person or persons deprived Taylor of a federal right, and 2) the person or persons who deprived her of that right was acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Dunn v. State of Tennessee, 697 F.2d 121, 125 (6th Cir. 1982). There is no dispute here that the officers involved acted under color of state law. Therefore, the sole question before the court is whether Taylor was deprived of a federal right. Plaintiffs allege that Taylor was deprived of a liberty interest without due process of law when defendants entered the Rialto with the desire to execute Freeman at the expense of Taylor's life and safety. Plaintiffs advance a substantive due process claim.
In this case, plaintiffs allege that defendants acted unreasonably in violation of the United States Constitution. It does not appear, however, that plaintiffs' claim falls within the ambit of a specific constitutional guarantee other than the Fourteenth Amendment. As such, the Court must determine whether the defendants' actions "shock the conscience". Wilson v. Beebe, 770 F.2d 578, 584 (6th Cir. 1985) (citing Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 3208 n.4, 82 L. ed. 2d 393). The Sixth Circuit has described this as a "substantive due process right akin to the 'fundamental fairness' concept of procedural due process". Beebe, 770 F.2d at 584.
The "shocks the conscience" standard has its genesis in the Rochin case. There, a suspect placed some capsules containing narcotics in his mouth as he was being arrested. Police took him to the hospital where his stomach was pumped to recover the capsules as evidence. The Court found that such police conduct offended the "canons of decency and fairness which express . . . notions of justice . . . ." 342 U.S. at 169. See also Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973) (intentional assault upon prisoner with death threat).