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Attempting to stop vehicle based on previous encounters was reckless disregard in this case

Facts

On June 11, 2006, Jackson Police Officer Adrian May spotted Carol Dearman driving a Jeep near the corner of Terry Road and Evergreen Avenue. Dearman was not driving recklessly. But, based on previous encounters with Dearman, May knew Dearman to be a drug-user and a prostitute. May also knew Dearman did not have a driver’s license, nor did she maintain a permanent residence. On the other hand, May did not consider Dearman to be a physical danger to the public.

May began to follow Dearman in his patrol car down Evergreen Avenue, and May activated his blue lights when he came to the intersection of Walnut Street and Winter Street. Also, May “chirped” his siren in an effort to stop Dearman, but she did not stop. May continued to follow Dearman east down Winter Street. He radioed dispatch that he was following a driver who would not stop. He informed dispatch of the Jeep’s tag number and of the fact that a passenger was in the Jeep. He followed Dearman as she turned off Winter Street and proceeded south on Gallatin Street. As May continued his pursuit of Dearman, Dearman passed through several intersections controlled by traffic lights. She continued to ignore May’s sirens and blue lights. May could not recall the color of these traffic lights, but he said he slowed down and checked for oncoming traffic as he proceeded through the intersections.

The pursuit continued south on Gallatin Street until Dearman headed west on McDowell Road. At this point, May learned by radio that Dearman was driving a stolen Jeep. A slower-moving eighteen-wheeler traveling on McDowell Road ahead of Dearman forced her to decrease her speed, thus permitting May to catch up to her. May’s supervisor informed May through radio communications that he should let Dearman go if she was “blowing traffic lights.” Although May testified on direct examination that he had not witnessed Dearman running red lights before his supervisor’s order, on cross-examination, May answered affirmatively when asked whether Dearman already had run red lights by this point in the pursuit.

Dearman turned from McDowell Road onto I-55 South, where Dearman recklessly switched lanes but had no close encounters with other vehicles. Shortly after entering I-55, Dearman exited on Daniel Lake Boulevard. According to May’s testimony, Dearman was traveling forty-five-to-fifty miles per hour on Daniel Lake Boulevard, which had a posted speed limit of thirty-five miles per hour. May also exited I-55 and followed Dearman west on Daniel Lake Boulevard, south on Terry Road, and west on Dona Avenue.

May was not familiar with this area around Terry Road and Daniel Lake Boulevard, as he had crossed into another precinct. On Dona Avenue, May recognized that the area was residential and that people would have been present. At this point, he began to appreciate the dangerousness of the situation as Dearman sped through the residential area. Accordingly, May decreased his speed, allowed Dearman to gain a few car lengths on him, but still attempted to keep sight of Dearman. He followed Dearman off Dona Avenue and north on Meadow Lane. May ran a red light on the corner of Cooper Road and Meadow Lane to keep sight of Dearman.

May continued to follow Dearman down Meadow Lane, which dead-ends into Woody Drive. As May turned west on Woody Drive, he lost sight of Dearman, but a pedestrian pointed him in the direction of Monticello Drive. May’s testimony at trial and the audiotape transcript reveal that, either adjacent to or on Monticello Drive, May substantially decreased his speed and cut off his siren and lights. The audiotape transcript reveals that thirty seconds after May cut off his siren, May radioed for an AMR J-17 because Dearman had crashed into Eric Law and Kristina Law‘s vehicle at the intersection of McFadden and McDowell Roads. Testimony at trial established that May eventually reached the accident site around four to five minutes after the accident.

May first encountered Dearman at the intersection of Terry Road and Evergreen Avenue, near Peabody Street. After this encounter, Dearman traveled seven miles before crashing at the corner of McFadden and McDowell Roads. May estimated that the pursuit lasted between five and six minutes. The audiotape of the pursuit reflects that five minutes and thirty-three seconds elapsed between the time May noticed Dearman driving the Jeep until May advised “Send AMR J-1.”

Throughout the pursuit, May never considered his knowledge of Dearman’s characteristics or his knowledge of the places she frequented in determining whether to end the pursuit. May did not report to his supervisor his knowledge that Dearman was the driver. At trial, he admitted that the Jackson Police Department’s pursuit policy was “boggy” to him. The Jackson Police Department has a written pursuit policy embodied in its General Order 600-20 to its officers which requires a police officer to perform a balancing test, weighing the immediate danger to the public and the officer by continuing the pursuit as opposed to terminating the pursuit and allowing a potentially dangerous suspect to remain at large.

The procedure for terminating a pursuit includes the complete withdrawal from and suspension of all following, tracking and attempts to apprehend. The officers will either come to a complete stop in a safe location and await further instructions from the supervisor or travel in the opposite direction of travel from the pursuit.

Furthermore, a pursuit may be terminated if the suspect’s identity has been determined, immediate apprehension is not necessary to protect the public or officers, and apprehension at a later time is feasible.

The trial court found the officer to be in reckless disregard. MCOA affirms.

Analysis

Under the MTCA, a governmental entity may be held liable where the officer acts in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.

Reckless disregard is more than mere negligence, but less than an intentional act. Reckless disregard occurs when the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.

In Richardson, an officer spotted a man with outstanding warrants traveling in the opposite direction. The officer made a u-turn, activated his blue lights and siren, and began chasing the suspect. The chase lasted for nine-tenths of a mile and occurred at night in a residential area on a hilly, curvy, two-lane road with medium traffic. The officer was well-acquainted with the area and continued to pursue the suspect, although the suspect had run oncoming traffic off the road. The suspect traveled at excessive rates of speed, and the officer had chased the suspect to the point of impact. Ultimately, this Court held that the officer had acted in reckless disregard for the public’s safety.

In Durn, the officer made a u-turn and began his pursuit of a speeding vehicle. Eventually, the officer approached the plaintiff. The officer attempted to pass the plaintiff, but the plaintiff turned left across the northbound lane to enter the lot leading to the bus garage. The plaintiff recalled that he had activated his turn signal, and the plaintiff’s expert testified that the officer had been traveling eighty-one miles per hour. The officer recalled at trial that he had not exceeded fifty-five miles per hour and had already overtaken the northbound lane in an attempt to pass the plaintiff when the plaintiff crossed over into the northbound lane and caused the accident. This Court canvassed relevant opinions, reviewing factual scenarios of officers recklessly disregarding the public’s safety. See City of Jackson v. Lipsey, 834 So. 2d 687 (Miss. 2003) (affirming a finding of reckless disregard when an officer suddenly turned his vehicle in front of oncoming traffic without having his headlights on or using his blue lights or siren); Perry (finding reckless disregard when an officer drove twenty-seven miles per hour over the posted speed limit without using his siren or blue lights while on his way to dinner before colliding with a vehicle exiting a parking lot); Maye (finding reckless disregard when an officer backed up an incline entrance to a parking lot, not knowing whether the area was clear). After reviewing this precedent, the Court in Durn reasoned that the trial court had found that several Brister factors (See City of Jackson v Brister, 838 So. 2d 274 (2003)) had been satisfied and that the record supported a finding that the officer had acted in deliberate disregard of a known risk by attempting to overtake a vehicle that indicated it was turning.

In this case, the trial judge considered several factors previously addressed by this Court (the Brister factors): (1) the length of the chase; (2) the characteristics of the streets; (3) the type of neighborhood; (4) the seriousness of the suspect’s offense; (5) the experience and training of the officer; (6) whether the officer had available alternatives which would lead to the apprehension of the suspect besides the pursuit; and (7) the existence of police policy which prohibits pursuit under the circumstances.

1. Experience and Training of the Officer

While not a rookie, May was not familiar with the police department’s pursuit policy. He admitted the policy was “boggy” to him. He never had considered whether knowing the suspect was an important factor in deciding whether to terminate a pursuit. He had not been trained in stopping a vehicle, and his only hope was that Dearman would stop voluntarily.

2. Length of the Chase

Dearman fled for seven miles from the time May first spotted her until the accident occurred. The pursuit lasted five minutes and thirty-three seconds. The length of the chase supports the trial judge’s view that May most likely knew for a large portion of the chase that Dearman was not going to stop voluntarily, increasing the risk of harm to the public.

3. Types of Neighborhoods

Portions of this pursuit spanned sparsely populated industrial areas. The pursuit began on the corners of Walnut and Winter Streets and continued into industrial areas on Gallatin Street and McDowell Road. After exiting from I-55 South and approaching the sixth mile of the pursuit, Dearman exited on Daniel Lake Boulevard and headed toward a residential area. May followed Dearman into this residential area, about which he admittedly knew little. This neighborhood contained a park, and May testified that he anticipated people’s presence on a Sunday afternoon. Throughout the entire pursuit, Dearman crossed six traffic-controlled intersections before the wreck occurred.

4. Street Characteristics

The weather was sunny and the streets were dry. The area around Gallatin Street was not heavily populated. Plaintiffs’ expert, Steven Ashley, testified that portions of McDowell Road were “hilly, bouncy, very rough.” Gallatin Street was in disrepair, with large potholes. But no other testimony at trial revealed that the street conditions in the more populated areas of the pursuit were in great disrepair.

5. Possible Alternate Means of Apprehension

May testified that he knew Dearman was driving the vehicle and knew the areas which Dearman frequented within his precinct. He also testified at trial that he had everything to charge Dearman with every crime for which she ultimately was charged prior to her entry on I-55 South. This evidence supports a finding that the Jackson Police Department feasibly could have apprehended and charged Dearman at a later time.

6. The Seriousness of the Suspect’s Offense

May discovered that Dearman was driving a stolen vehicle midway through the pursuit. This crime is a felony, but not one of violence. This Court has addressed this factor in conjunction with applicable pursuit policies. See Durn. We agree with this approach, because the seriousness of the suspect’s offense is an integral consideration in determining whether May acted in accordance with the Jackson Police Department’s pursuit policy found in General Order 600-20.

7. Jackson Police Department’s Pursuit Policy – Balancing Test

This Court finds that May did not correctly weigh the dangers of Dearman remaining at large against the risk of harm to the public caused by the pursuit. Though Dearman was committing a felony, May testified that, based on his experiences with Dearman, he believed that she was not a danger to society. The record is also clear that May was not familiar with the Jackson Police Department’s pursuit policy and continued to pursue a known suspect into a residential area – despite the fact that Dearman had driven recklessly on the highway, was becoming increasingly reckless, and the circumstances indicated that she obviously was not going to yield to Officer May.

Moreover, May’s supervisor told him to stop the pursuit if Dearman started running red lights. And according to May’s testimony, Dearman already had run red lights. Nonetheless, May continued to pursue Dearman, because she was driving a stolen vehicle, knowing he had no way to make her stop. May even subsequently ran a red light to keep Dearman in sight. When May did realize that the pursuit was becoming dangerous, he did not follow protocol for terminating the pursuit. Though he did not chase Dearman to the point of impact as in Richardson, the record reveals that only thirty seconds after he cut off his siren, the accident occurred.

Although May eventually lost sight of Dearman, eventually realized the dangerousness of the situation, decreased his speed, and did not pursue Dearman directly to the crash site, this Court finds that substantial evidence exists to show that May acted in reckless disregard for the public’s safety in light of the relevant circumstances.

 

https://courts.ms.gov/images/Opinions/CO69292.pdf