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Officer did not act in reckless disregard in police pursuit of shoplifter

Facts

In 2017, on a Sunday afternoon, John Tennesen was traveling westbound in a Nissan Titan pickup truck on Hardy Street in West Hattiesburg. John’s wife, Sandra, was in the passenger seat. John turned left on a green arrow onto Westover Drive and started to proceed through the intersection. At the same time, a van operated by James Willis was fleeing a pursuit initiated by a Hattiesburg police officer named Jacob Knight. Willis was speeding eastbound on Hardy Street, entered the intersection at Hardy Street and Westover Drive against a red traffic signal, and crashed into the Tennesen vehicle on the passenger side. John and Sandra were injured in the crash and the truck was damaged extensively.

The Tennesens sued the City for damages under the Mississippi Tort Claims Act (MTCA), alleging that Officer Knight, in the course and scope of his employment as an officer with the Hattiesburg Police Department (HPD), acted in reckless disregard of their safety and well-being, causing the collision and their injuries.

The trial court found that Officer Jacob Knight’s actions did not rise above simple negligence, that he did not act in reckless disregard of the safety and well-being of the Tennesens who were not engaged in criminal activity, and that the City is entitled to police-protection immunity. MCOA affirmed.

Analysis

The MSC has held that “‘reckless disregard’ under section 11-46-9(1)(c) embraces willful and wanton conduct which requires knowingly or intentionally doing a thing or wrongful act. While the conduct does not have to be intentional, reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.

A. Brister/Richardson Factors

The MSC has set forth ten factors for a trial court to consider when assessing “reckless disregard” in police-pursuit cases, as follows: [this is also known as the Brister/Richardson test – City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003)]

(1) length of the chase – The trial court found that the length of the pursuit was short both in time and distance (approximately 50 seconds and 1⁄2 mile);

(2) type of neighborhood – The trial court found that the character of the neighborhood was commercial and did not preclude pursuit;

(3) characteristics of the streets – The trial court found that the roadway was well paved and wide with divided lanes” and did not preclude pursuit;

(4) presence of vehicular or pedestrian traffic – The trial court found that vehicular traffic was relatively light;

(5) weather conditions and visibility – The trial court found that the weather was clear;

(6) seriousness of the offense for which the police are pursuing the suspect – The trial court found that the reported shoplifting could have been either a felony or misdemeanor. Officer Knight testified that shoplifted item was a 55-inch TV, but he did not know whether stealing it was a felony or misdemeanor. His probable cause for stopping the van was that it had a “busted windshield.”

(7) whether the officer proceeded with sirens and blue lights – The trial court found that Officer Knight was proceeding with emergency lights and sirens;

(8) whether the officer had available alternatives which would lead to the apprehension of the suspect besides pursuit – The trial court found that due to the short duration of the pursuit, neither the officer nor his supervisors had sufficient time to evaluate whether or not available alternatives would lead to the apprehension of the suspect besides pursuit;

(9) existence of a police policy which prohibits pursuit under the circumstances – Based upon the testimonies of the witnesses and the documentary evidence, including the HPD pursuit policy, the trial court found that no departmental policy precluded a pursuit under the factual circumstances; and

(10) rate of speed of the officer in comparison to the posted speed limit – The trial court found that Officer Knight’s speed was not excessive in light of the speed limit. Knight testified that the van “picked up speed” that he believed exceeded 60 mph and that he (Officer Knight) briefly reached a speed of approximately sixty miles per hour in a forty-five-miles-per-hour zone between Mayfair (when he called in the pursuit) and the scene of the collision on Westover Drive. Officer Knight also testified that although he went through red or yellow lights, he slowed and checked his surroundings at each intersection before proceeding.

B. Additional Factors in the HPD Pursuit Policy Not Specifically Covered by the Brister/Richardson Factors

Additional factors for the officer’s consideration in determining whether to initiate a pursuit under the HPD pursuit policy include the type of vehicle involved; the condition of the police car; and the officer’s knowledge of the area. The record reflects that the suspect was traveling in a van that Lt. Tapp testified would be considered a large, slow-moving vehicle, not a sports car or a vehicle of that nature that an officer would be unable to catch. Officer Knight testified that the patrol car he was driving was in good condition; Lt. Tapp and Chief Dunston agreed with this assessment. Chief Dunston also observed that Officer Knight appeared to be familiar with the vehicle. Officer Knight also testified that he was familiar with the area.

C. The Totality of the Circumstances

Upon our review of the record, we find that “substantial, credible, and reasonable evidence” supports the trial court’s findings of fact with respect to each of the Brister/Richardson factors and the trial court’s determination that, based upon the totality of the circumstances, Officer Knight did not act with reckless disregard in this case.

In particular, based upon the plain language of the HPD policy definition of “pursuit” as “an active attempt by an on-duty officer to stop a suspect who is avoiding apprehension by maintaining or increasing speed, taking evasive action, or otherwise ignoring the officer’s attempt to stop him”, the pursuit here lasted no more than fifty seconds and, according to Officer Knight’s own testimony and Chief Dunston’s expert opinion, just twenty-seven seconds, involving no more than one-half of a mile. The weather was clear and the roadway was mainly flat, wide, and in good condition.

Although the pursuit took place on Hardy Street, a main thoroughfare in Hattiesburg, on that Sunday afternoon, the traffic was relatively light, no pedestrians were present, and the pursuit took place in a commercial, not residential area, with most businesses and restaurants set back from the road. Officer Knight’s patrol car was in good working condition, and, according to Lt. Tapp, the Econoline van Officer Knight was pursuing was not the type of vehicle, such as a sports car, that would constitute a reason to refrain from or terminate pursuit.

While Officer Knight may have briefly reached a speed of approximately sixty miles per hour in a forty-five-mile-per-hour zone, his supervisor Lt. Denny, who was observing the pursuit in real-time, confirmed that Officer Knight’s actions were reasonable and proper under the circumstances and he found no basis for calling off the pursuit. Officer Knight had his siren and blue lights activated, he exercised caution in going through intersections, and, as noted in Lt. Tapp’s own internal investigation of the incident, Officer Knight did not push the suspect to drive faster or in a reckless manner at any point during the pursuit. Likewise, Chief Dunston, the City’s expert, opined that Officer Knight did an excellent job throughout the pursuit in proceeding in the safest manner possible.

We acknowledge that the offenses at issue in this case were a reported shoplifting of a television and a “busted windshield,” and Officer Knight did not know whether the shoplifting was a misdemeanor or a felony. But the HPD policy does not prohibit pursuits based upon a misdemeanor, and the circumstances in this case were such that due to the short duration of the pursuit before the collision, Officer Knight had only just begun to evaluate the factors whether to continue the pursuit at all. For the same reason, Officer Knight had little time, if any, to evaluate any alternative means to identify the suspect; and Lt. Denny did not have time to notify other officers to get prepared for any other type of alternative approach—factors Chief Dunston took into account in determining that Officer Knight acted reasonably under the circumstances.

For all these reasons, we find that Officer Knight did not act with a conscious indifference to consequences, amounting almost to a willingness that harm should follow. Accordingly, the trial court’s judgment is affirmed.

 

https://courts.ms.gov/images/Opinions/CO163656.pdf