Facts
On Monday, October 24, 2016, Captain James Sears with the Jackson County Sheriff’s Department was working an interstate detail on I-10 called Operation Stonegarden, a grant program intended to curtail human traffickers, drug traffickers, and wanted persons. Sears testified that while he was stationed in east Jackson County, he received a notification that an Alabama license plate reader had identified a vehicle with a license plate registered as stolen. The vehicle was crossing into Mississippi on I-10 going west. Sears spotted a silver Ford Ranger with the matching license plate number. The license plate was registered to a white 2007 GMC (While the Ford Ranger was later discovered to be stolen, the information that Sears had at the time was only that the license plate was stolen).
The driver was later identified as Carl Young Jr. A female passenger was seated in the front seat next to Young. At approximately 7:15 p.m., Sears began following the Ford Ranger at mile marker 61 (approximately four miles east of D’Iberville, Mississippi) and called for backup. He waited to activate his blue lights and siren until he confirmed that other officers were available to assist him with a traffic stop. Jackson County Sheriff’s Deputies John Hampton and Trung Nguyen were seven miles away at mile marker 54. Sears saw them at approximately 7:20 p.m. He activated his blue lights and siren at mile marker 54 and attempted a traffic stop.
Young did not stop but increased his speed to 85 or 90 miles per hour in a 70-mile-per-hour zone. Sears determined that a pursuit was warranted because the driver was actively fleeing law enforcement. Sears and Nguyen pursued Young for the next four miles on the interstate. Hampton followed, using his vehicle as a “rolling barrier” to prevent traffic from approaching the chase. As they approached Exit 50 in Ocean Springs, Sears noted that traffic was becoming “more congested,” and Young was driving more erratically. Sears “went around the vehicle and attempted to perform a rolling block,” but Young exited the interstate at Exit 50 onto Washington Avenue in Ocean Springs. He ran the red light at the top of the exit at the intersection of Washington Avenue and Highway 609, crossed six lanes of traffic, jumped a curb, and immediately re-entered I-10 west via the entrance ramp from Washington Avenue.
Jackson County Sheriff’s Department Sergeant Michael Nutefall and Deputy Nathan Fisher were near the I-10 entrance ramp at Washington Avenue and continued the pursuit. Sears, Hampton, and Nguyen followed. Jackson County dispatch notified the D’Iberville Police Department that the pursuit was headed toward D’Iberville. The pursuit then continued westbound on the interstate for another four miles toward Exit 46 in D’Iberville, which is in Harrison County. Wanting to keep Young on the interstate, Nutefall positioned his vehicle in front of Young’s vehicle in an attempt to perform a second rolling roadblock. Young swerved into the grass and exited at mile marker 46. Young drove up the ramp and attempted to turn right onto Lamey Bridge Road going south. However, Young crashed into the guardrail and stopped.
D’Iberville Police Officer Willis Krahenbuhl was traveling north on Lamey Bridge Road when he saw Young crash into the guardrail. Krahenbuhl testified that he pulled his patrol car in front of Young’s stopped vehicle at a forty-five-degree angle to block it in, and Fisher angled his patrol car against the passenger door of the vehicle to prevent it from being opened. Nutefall pulled up behind the vehicle and got out to apprehend the driver. Fisher testified that as Nutefall approached, Young backed up and drove forward, striking Krahenbuhl’s vehicle. Nutefall then began yelling at the driver to exit the vehicle.
Nutefall testified that he feared for his life, and he drew his service weapon and fired three rounds at Young’s vehicle. Young then drove forward between Krahenbuhl’s and Fisher’s vehicles and proceeded south on Lamey Bridge Road. Fisher followed. Fisher testified that he pursued the vehicle south on Lamey Bridge Road at speeds of 40 to 50 miles per hour in a 35 mile-per-hour zone.
After Young had traveled approximately 0.6 miles on Lamey Bridge Road, he ran a red light at the intersection of Lamey Bridge Road and Popps Ferry Road. Fisher testified that at the same time, Brittany Berry was in her vehicle turning left through the intersection onto northbound Lamey Bridge Road from southbound Popps Ferry Road. Fisher testified that Berry had the green light. When Young ran the red light, his vehicle T-boned Berry’s vehicle in the center of the driver’s side. Fisher testified that during the entire pursuit on Lamey Bridge Road, he never saw the brake lights activate on Young’s vehicle. According to Fisher, Young continued to flee, and he turned west onto Bachman Road “just around the corner from where [the] impact took place.” A short distance later, Young drove the vehicle off the road, and he and the passenger exited the vehicle, ran, and jumped over a small fence into a residential yard.
Fisher exited his patrol car and followed the suspects into the woods, where they stopped running. Young followed Fisher’s command to raise his hands, but the female passenger did not. She faced away from Fisher, and Fisher could only see her right hand. She began to turn and move her right hand. Believing she may have a weapon and that his life was in danger, Fisher fired at the female. Both suspects got on the ground. When backup officers arrived, Fisher detained both suspects without incident, and the female passenger received medical treatment.
Berry filed a complaint under the MTCA in the Harrison County Circuit Court against Jackson County and the City of D’Iberville. After discovery, Berry moved to dismiss with prejudice the City of D’Iberville as a party, and the circuit court granted the motion. The court then granted Jackson County’s motion to dismiss. MCOA affirmed.
Analysis
Under the MTCA, a governmental entity and its employees acting within the course and scope of their employment are generally immune from claims arising out of 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. Miss. Code Ann. § 11-46-9(1)(c). This exemption from liability, however, does not apply to acts or omissions performed in ‘reckless disregard’ for the safety and well-being of one not engaged in criminal acts.
To find reckless disregard, the plaintiff must prove that the governmental employee acted with a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See MCOA Durn. MSC has set out ten factors to be considered in determining whether reckless disregard occurred in the context of a police pursuit: (1) the length of the pursuit; (2) the type of neighborhood; (3) the characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) the weather conditions and visibility; (6) the seriousness of the offense for which the police are pursuing the suspect; (7) the officers’ use of sirens and blue lights; (8) available alternatives that would lead officers to the apprehension of the suspect besides pursuit; (9) the existence of a police policy that prohibits pursuit under the circumstances; and (10) the rate of speed of the officers in comparison to the posted speed limit. See MSC Richardson.
In addition to the law, Jackson County had a pursuit policy that required officers to use their best discretion and judgment when conducting emergency vehicle pursuits. Many of the policy factors overlap with the Richardson factors. Relevant to the claims Berry raised, the policy required that the officer initiating the pursuit consider the following:
The decision to initiate pursuit is based on:
a. Officer’s actual or constructive knowledge that a serious violation of the law has, or is about to occur;
b. The officer’s conclusion that the immediate danger to the public or the officer created by the pursuit, is less than the immediate or potential danger to the public should the suspect remain at large.
c. Suspect exhibits intention to avoid apprehension by refusing to stop when properly directed to do so.
We shall address each of the Richardson factors, including Jackson County’s department policy, and consider the totality of the circumstances.
A. Richardson Factors
1. Length of the Pursuit
Beginning when Captain Sears activated his blue lights, the pursuit spanned approximately 8.6 miles and lasted approximately seven minutes. The first eight miles of the pursuit occurred on the interstate, and the final 0.6 miles occurred on Lamey Bridge Road in D’Iberville.
Berry argues that Mississippi courts have found reckless disregard in pursuits that were shorter in time and distance. However, none of the cited cases hinged on the length or distance of the pursuit in finding reckless disregard.
2. Type of Neighborhood
For approximately eight miles, the pursuit occurred on the interstate. The pursuit briefly left the interstate at Exit 50 in Ocean Springs, where Young ran a red light, crossed six lanes of traffic on Washington Avenue, and immediately re-entered the interstate. For the final 0.6 miles, the pursuit took place through a mixture of commercial and residential areas on Lamey Bridge Road in D’Iberville. Officers recognized that pursuing Young off the interstate was more risky, and they made efforts to keep Young on the interstate.
The pursuit occurred on a Monday night from 7:20 to 7:27 p.m. There was no testimony that the skating rink, baseball fields, or churches were occupied at that time or that children were present, and the pursuing officers were experienced and familiar with the area. There was no testimony to show that law enforcement acted in a reckless manner or abandoned all care given the character of the neighborhood.
3. Characteristics of the Streets
Considerations under this factor include whether the streets were particularly hilly, curvy, or poorly maintained. The testimony did not reveal any issues with the condition of the interstate or Lamey Bridge Road, which is a four-lane road.
4. Presence of Vehicular or Pedestrian Traffic
a. Interstate Pursuit
Berry presented no evidence to support a finding that the officers acted with reckless disregard to the amount of traffic on the interstate. To the contrary, the testimony showed that the officers used care on the interstate, attempting to protect nearby motorists. Jackson County Deputy Hampton testified that as soon as Sears initiated the pursuit, he (Hampton) followed behind the pursuing vehicles, using his vehicle as a “rolling barrier” to prevent traffic from approaching from behind.
b. Non-Interstate Pursuit
Although there were concerns in the area due to the presence of a ballfield, park, and church, there was no testimony that any of these venues were in use that Monday night in October at approximately 7:25 p.m. In any event, our determination is limited to whether officers demonstrated reckless disregard by acting with a conscious indifference to consequences, amounting almost to a willingness that harm should follow, and abandoning “any care” for the safety of the public. There is no factual dispute or probative evidence regarding the amount of traffic on Lamey Bridge Road that demonstrates that law enforcement abandoned all care in pursuing Young 0.6 miles down Lamey Bridge Road.
5. Weather Conditions and Visibility
The parties agree that the weather was clear and that visibility was good despite the pursuit occurring at night. There was no proof of rain or slick conditions that would be relevant to this factor.
6. Seriousness of the Offense
Captain Sears initially attempted a traffic stop for the misdemeanor offense of driving with a stolen license plate. Jackson County had no policy in place at the time of this pursuit prohibiting pursuit when the initial cause for the traffic stop was a misdemeanor. Further, while the misdemeanor was the reason for the attempted traffic stop, Captain Sears testified that he pursued Young for felony fleeing once Young began eluding him and driving recklessly.
The opinion of Berry’s expert and the opinions of the officers that the pursuit should not have occurred based on a misdemeanor is irrelevant for our analysis. The standard is whether the pursuing officers acted with reckless disregard for the safety and well-being of anyone in the path of the pursuit not involved in a criminal activity. Viewing the evidence in the light most favorable to Berry, no evidence has been presented to show there is a disputed issue of material fact regarding whether officers should have terminated the pursuit once Young fled and after Young almost struck an officer with his car and ran into another officer’s patrol vehicle.
7. Use of Sirens and Blue Lights
The parties agree that the officers used their sirens and blue lights at all times during the pursuit.
8. Available Alternatives to Pursuit
Factors that may favor termination of a pursuit include whether the suspect is known to law enforcement officers and whether the suspect can be feasibly apprehended at a later time. It is undisputed that Young’s identity was unknown and that the license plate on the vehicle was stolen and could not be used to verify Young’s identity or usual location.
9. Police Policy Prohibiting Pursuit Under the Circumstances
A. Balancing Test
Berry argues the pursuit violated Jackson County’s balancing test in its department pursuit policy, which states: “The officer’s conclusion that the immediate danger to the public or the officer created by the pursuit, is less than the immediate or potential danger to the public should the suspect remain at large.”
Officers balanced the immediate danger to the public, and specifically Young’s passenger, with the danger of the pursuit. They took steps to protect the public, such as attempting to keep Young on the interstate, attempting to block in Young’s vehicle after he crashed into the guardrail, and blocking traffic from coming toward the pursuit. They also considered that there were no other reasonable means to capture Young because his identity was unknown, and the vehicle’s tag was stolen. Because the officers considered the safety of the public and Young’s passenger and did not act with a conscious indifference to consequences, amounting almost to a willingness that harm should follow, we cannot find that a genuine issue of material fact exists as to this factor.
b. Alleged Violations of Department Policy
Berry argues that other violations of department policy occurred because (1) more than two officers pursued Young; (2) officers used rolling roadblocks; (3) deadly force was used (fired weapon at moving vehicle without authorization); and (4) proper means of communication with dispatch were not followed (dispatch did not designate a controlling officer).
While multiple vehicles were involved in the pursuit, the officers testified that two of them actively pursued Young, and the others followed.
An officer’s failure to follow official policy does not automatically constitute reckless disregard. Even assuming that officers did violate department policy, as Berry alleges, it is unclear how these policy violations would create a genuine issue of material fact or that any of the alleged policy violations proximately caused the accident and Berry’s injuries. Rather, the totality of the circumstances must be considered. Importantly, there was no policy prohibiting the pursuit, and at no point did the officers continue the pursuit without authority.
10. Rate of Speed
Young traveled at speeds of 85 to 90 miles per hour on the interstate, where the speed limit was 70 miles per hour. On Lamey Bridge Road, he traveled at 40 to 50 miles per hour for 0.6 miles, and the posted speed limit was 30 miles per hour. Nothing about continuing the pursuit at these speeds was shown to exhibit an abandonment of care.