On August 21, 2001, at approximately 10:30 p.m., Officer Gregory Jackson was traveling east on Monument Street in Jackson, Mississippi, en route to a roadblock set up at the intersection of Monument and Palmyra Streets. Officer Jackson observed a vehicle that was traveling east on Monument turn off its lights, make a u-turn, proceed west on Monument, and ultimately turn on Capers Avenue. Unbeknownst to Officer Jackson, LaMarcus Butler, the driver, had stolen the vehicle.
When Officer Jackson observed the vehicle make a right onto Capers, he turned on his blue lights and siren and followed the vehicle down Capers. According to Officer Jackson, Butler seemed to slow down about five to ten miles per hour for a moment on Capers, as if he were going to stop. However, Butler did not stop, turning instead onto Green Avenue and then onto Capitol and Longino Streets while being followed by Officer Jackson. The two cars continued west on Longino, which becomes Maple Street after Longino’s intersection with Fortification Street.
Officer Jackson testified that while on Maple Street, between the intersections of Fortification/Longino and Maple/Martin Luther King Jr. Drive, Butler “punched it.” Officer Jackson radioed Sergeant Jonathan Crawford, his supervisor, and informed him of his whereabouts and that he was pursuing Butler for violating a traffic ordinance. At that time, Sergeant Crawford told Officer Jackson to terminate the pursuit. Officer Jackson stated that he turned off his blue lights and siren and slowed down, but continued on Maple. Officer Jackson stated that the last time he saw Butler was when Butler’s taillights passed through the Maple/Martin Luther King intersection. He further testified that as he continued on Maple, he saw smoke and debris in the air and notified dispatch that there was possibly an accident.
When Officer Jackson arrived at the intersection of Maple and Bailey Avenue, he notified dispatch that indeed an accident had occurred and that an ambulance was needed. The fleeing Butler collided with a vehicle occupied by Margaret Stephens, Lee B. Lewis, and Oda Mae Green. Stephens died as a result of the crash, and Lewis and Green suffered severe injuries.
The trial court found the officer acted in reckless disregard. MCOA reversed the trial court. MSC now reverses MCOA and finds the officer acted in reckless disregard.
The Mississippi Tort Claims Act (MTCA) shields the government from liability based on any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. See Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012).
Reckless disregard denotes more than mere negligence, but less than an intentional act. See Law. Further, this Court finds reckless disregard 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.
The following ten factors are considered in police pursuit cases: (1) length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; (6) the seriousness of the offense for which the police are pursuing the vehicle; (7) whether the officer proceeded with sirens and blue lights; (8) whether the officer had available alternatives which would have led to the apprehension of the suspect besides pursuit; (9) the existence of police policy which prohibits pursuit under the circumstances; and (10) the rate of speed of the officer in comparison to the posted speed limit.
In Richardson, this Court held that it is appropriate for trial courts to consider all ten factors, and to look to the totality of the circumstances when analyzing whether someone acted in reckless disregard.
With regard to the initiation of pursuits, JPD General Order 600-20(2)(b) required that, before initiating a pursuit the risks to society must be weighed against the benefits of apprehending the suspect. General Order 600-20(2)(d) further provided that, officers will initiate or continue a pursuit, of a law violator in a motor vehicle, only when the pursuit will be executed with caution so as not to create extreme or unreasonable danger for either the officer or the public.
General Order 600-20(5)(d)(1) provided: Pursuits may be initiated when the officer knows that a felony has been committed and the officer has probable cause to believe that the individual committed the felony and the suspect’s escape is more dangerous to the community than the risks posed by the pursuit and the suspect clearly exhibits an intent to avoid arrest by using a vehicle to flee.
General Order 600-20(5)(d)(2) provided:
The major factors for consideration of initiating a pursuit and/or the termination of a pursuit include the following:
a) safety of the public and officers,
b) seriousness of the offense/violation and the danger the suspect poses to the community if not immediately apprehended,
c) opportunity for delayed arrest of the violator,
d) traffic density and conditions,
e) weather and road conditions,
f) presence of passengers,
g) presence of pedestrians,
h) degree of control the suspect has over his vehicle,
I) speed and duration of the pursuit.
General Order 600-20(5)(d)(3) provided that, officers and supervisors must be constantly reassessing the pursuit to determine if it should be terminated.
With regard to the termination of a pursuit, JPD General Order 600-20(5)(e)(2) required termination if the identification of the offender is known and is: a) not an immediate threat, b) not a violent felony suspect, c) a juvenile and poses no threat, d) a juvenile or adult and has committed only a misdemeanor offense.
General Order 600-20(5)(e)(3) continued: A pursuit shall be terminated if the pursuit exposes the public or the officer to more danger than the violation or conditions justify.
We do not believe that Officer Jackson’s initiation of pursuit violated General Order 600-20.6 But continuing pursuit, realizing that the suspect was unlikely to stop, constituted a violation of his department’s established policy.
Here, Officer Jackson observed Butler violating a traffic ordinance, which was a misdemeanor offense, by turning off his car’s headlights and making a U-turn, ostensibly to avoid a police roadblock. With knowledge that the offending driver was traveling at night with headlights turned off, Officer Jackson pursued the vehicle for approximately 1.2 miles at a relatively moderate speed. Despite the initial speed of both vehicles, Officer Jackson testified that he ran three red traffic lights and two stop signs in pursuit of Butler’s car, knowing that the headlights on Butler’s car were not illuminated. Officer Jackson testified that, at one point, he could have availed himself of an opportunity to relay the tag number of Butler’s vehicle to dispatch, but chose not to do so.
Further, Officer Jackson violated various mandates of his department’s General Order 600-20 and failed to perform the requisite balancing of the gravity of the offenses the driver had committed versus the danger posed to the public by pursuing a fleeing vehicle. Most egregious was Officer Jackson’s wanton defiance of the order of his superior to terminate pursuit and his failure to comply with the standard articulated by this Court for communicating termination to the pursued party (the officer 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. See Law).
Butler, for at least the final six-tenths of a mile of the chase, according to Officer Jackson, “punched it,” rapidly accelerating on a city street to what appeared to Officer Jackson to be about sixty miles per hour. According to Waller, because Officer Jackson was in a position to see flying debris, he too was traveling at around sixty miles per hour and continued in pursuit of Butler at the time of the collision.
Substantial evidence adduced at trial amply supports the trial court’s finding that the City of Jackson, through Officer Jackson, acted with reckless disregard for the safety of the public on August 21, 2001, resulting in the death of Stephens and injury to Lewis and Green. Therefore, the City of Jackson may not avail itself of governmental immunity under the Mississippi Tort Claims Act. We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.