incident more than four or five times. He recalls several situations where he was present at the scene, but was there only to assist in his capacity as a police officer, not to negotiate.
The Court finds that even giving his testimony full credence Katsaris has, at best, very limited experience in handling hostage situations.
The focus then shifts to Katsaris' training and education. Katsaris admits that he has never taken any course or training in the handling of hostage situations. He professes to have trained himself by reading and reviewing materials prepared by Frank Bowles and other unnamed experts. Katsaris' failure to take any courses or training in hostage negotiations over his extensive career as a police officer, and instructor, is inexplicable considering he professes deep professional interest in the field. Self-study and reading may form a sufficient basis for developing an expertise in some subjects, but this Court possesses considerable latitude to determine what constitutes a sufficient basis for expertise in this field. United States v. An Article of Drug, 661 F.2d 742 (9th Cir. 1981). A course of self-study is not adequate, in the opinion of this Court, to create an expert. Absent other indications of expertise, the Court has no way to determine the extent or depth of the proposed expert's self-study. Therefore, this Court holds that in the absence of other indicia of expertise, self-study is insufficient to establish Katsaris as an expert.
Having found Katsaris not qualified by education alone, the Court then asks whether his self-study program combined with his practical experience is sufficient. This Court does not find Mr. Katsaris' experience to be broad enough to compensate for the deficiencies observed in his education. Katsaris is held not to be an expert witness as a matter of law.
The Court further finds that assuming Katsaris is qualified as an expert in hostage situations, the only portion of his testimony relevant to this motion would be his opinion that these acts were committed with a reckless disregard for the life of Taylor such that it shocks the conscience of the Court. Katsaris reaches this conclusion upon facts which do not otherwise support this conclusion, and constitute a conclusion of law, not of fact. The Court finds that this conclusion would not be helpful to the finder of fact and that the conclusory opinion is not admissible.
The standard of whether an expert's testimony will be permitted is whether the testimony is "likely to assist the trier of fact in arriving at the truth". United States v. Barker, 553 F.2d 1013 (6th Cir. 1977). In this case, Katsaris' testimony is being offered not to assist in reaching conclusions of fact but rather of law. While experts may testify to conclusions of law, Katsaris' only assistance to the trier of fact is to make a suggestion as to the outcome of the ultimate issue. The Court finds this to be more akin to advocacy than testimony. The proper place for plaintiffs to make suggestions on the ultimate issue is in the statements and arguments of their attorney. Katsaris, who is paid by the plaintiff and presumably has an interest in the success of this litigation, acts as an additional advocate in this case because his testimony will not assist the finders of fact in determining the facts.
The Court further finds that, even if Katsaris's testimony is admitted, the defendants have failed to present a genuine issue of material fact. The facts upon which Katsaris based his opinion are the same set of facts presented to this Court. The Court is amply able to reach its own inferences from the uncontested facts. The Court finds no genuine issues of fact in this case but is not surprised that plaintiffs were able to hire an expert who could reach conclusions that would support their lawsuit. Katsaris's conclusions are not supported by the facts presented in this matter and his opinions and theories are not sufficient, absent other evidence, to create an issue of fact.
Plaintiffs indicate that they may create an issue of fact if they contest whether the bullet which struck Taylor in the head was fired by Freeman or by a member of the Ferndale Police Department. The Court finds that the mere suggestion that plaintiffs might present evidence in opposition to the defendants' evidence that Freeman's gun fired the shot is not sufficient to create a factual issue. Plaintiff must offer the evidence through an affidavit or deposition. Mere suggestion of a possible issue does not create a genuine issue of fact. Celotex Corp. v. Catrett, slip op. #85-198 (June 25, 1986) 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265, 54 LW 4775.
Having found no genuine issues of material fact, the Court finds that plaintiffs fail to state a claim upon which relief may be granted. This matter presents a novel question in the history of constitutional torts. No other hostage situations have resulted in 42 U.S.C. § 1983 actions which have been reported. The Court is troubled by the suggestion that the police may be liable in tort every time they are unable to rescue a person from a dangerous situation. It is in the nature of police work that the pressure becomes intense and decisions must be made quickly. Decisions of policemen on the scene may be questioned and pondered after the fact, but the decisions made on the spot do not permit such reflection. Inevitably, policemen make mistakes. Such mistakes made in the best judgment of the trained police officer should not be the province of constitutional tort suits.
The Supreme Court recently supported this idea in Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). In Daniels the Supreme Court traced the history of § 1983 and concluded that the purpose of the statute was not to provide a tort remedy for every person injured by the government. The Court held that a mere lack of due care by an official could never constitute a deprivation under § 1983. It declined to indicate whether any act short of an act intended to harm could present a constitutional tort.
The Court finds the Daniels opinion provides some guidance in the instant case. This matter presents no evidence that the police acted with an intent to harm Ms. Taylor or that they acted in reckless disregard for her safety. Whether the police chose the the best or even a good course of action does not matter. Mere negligence is not sufficient to create a liability.
The Court also relies upon two lines of cases which are in some ways analogous to the instant case. The first of these are cases where public officials were sued for failing to rescue a person from danger. The second are cases where individuals allege the government is liable for the malpractice of government employed doctors. In both cases the courts have found that no deprivation without due process of law occurred.
In Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983) and Jackson v. Byrne, 738 F.2d 1443 (7th Cir. 1984), the plaintiffs allege that the constitutional rights of their deceased were violated when police or fire officials failed to save them. In Jackson v. City of Joliet a policeman negligently failed to assist two injured persons in a wrecked car. Plaintiffs alleged that the decedents could have been saved if medical assistance had been given sooner. The Court reviewed the history of § 1983 and concluded that no right to be rescued existed under the Fourteenth Amendment and that failure to rescue a person did not comprise a constitutional tort. Similarly, in Jackson v. Byrne, the Seventh Circuit found that the failure of city firefighters to rescue two children from a fire did not give rise to a successful § 1983 claim.
These cases are very similar to the instant case. Here the police acted to rescue Taylor but did not succeed. The Court finds that failure to successfully rescue an endangered person does not constitute a deprivation of a liberty interest.
A second line of analogous cases are those which consider whether a government employed physician can be held to have committed a constitutional tort by committing malpractice. In Bowers v. DeVito, 686 F.2d 616 (1982), the Seventh Circuit considered a case where a woman was murdered by a man who was released from a state mental hospital. The former patient had a history of assault and had killed a young woman with a knife in 1971. He was found not guilty by reason of insanity in the death of the young woman and was committed to the Madden Mental Health Center. He was released in 1975 and a year later he murdered Bowers with a knife. This suit was brought by her estate claiming that the defendants knew that the patient was dangerous when they released him and had acted recklessly in letting him go. The Court found that there is no constitutional right to be protected by the state against being murdered by criminals or madmen. Id. at 618. The Court further found that malpractice is not actionable under § 1983. Consequently, the dismissal of the § 1983 claim was affirmed.
Bowers is closely analogous to the instant case. Plaintiffs allege that the Ferndale Police both collectively and through the actions of individual officers failed to protect Taylor from Alvin Freeman. However, no duty to protect her from Freeman existed. In the absence of such a duty, the Court finds that this further supports the conclusion that plaintiffs have failed to state a claim under § 1983.
Finally, the Court takes into consideration the policy implications of a finding of liability in this case. The police in this instance responded to an emergency call which could have presented a tremendous variety of hazards and decisions. The police responded to the call and those persons on the scene appear, from the facts presented to the Court by both plaintiffs and defendants, to have acted in their best judgment. That the results of this situation was a tragedy does not reflect upon the good faith efforts or judgment of the officers involved. Had the officers waited longer and attempted further negotiation the result might also have been tragic.
An example of the results of waiting and negotiating is the result of the recent hostage situation on Rodeo Drive in Beverly Hills, California. There the police negotiated overnight with the barricaded hostage taker and two hostages were killed before the gunman attempted to leave the building. Los Angeles Times, June 25, 1986, Part 1, Page 1, Column 2. This situation could easily lead to a lawsuit alleging that the police erred by not storming the building early on. This type of litigation poses a no-win situation for the police and does nothing to encourage effective law enforcement or a respect for constitutional rights. Since the fundamental purpose of § 1983 is to provide a vehicle to enforce constitutional rights, no action under § 1983 ought to be recognized under these circumstances.
The Court holds that upon the facts and the related authority plaintiffs have failed to create a genuine issue of fact as to whether defendants' conduct is shocking to the conscience of the Court and summary judgment shall be granted as to her substantive due process claim.
Because plaintiffs have failed to allege a deprivation of Taylor's constitutional rights, defendants' motion for summary judgment is granted. An appropriate order will be entered.
DATED: February 23, 1987
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