                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2008-CA-01137-SCT

CITY OF LAUREL, MISSISSIPPI

v.

CLYDE WILLIAMS, AS PERSONAL/LEGAL
GUARDIAN AND NEXT FRIEND OF MICHAEL
DEANTHONY WILLIAMS, INDIVIDUALLY AND
CLYDE WILLIAMS AS PERSONAL/LEGAL
GUARDIAN AND NEXT FRIEND OF MINOR
CHILD, MICHAEL DEANTHONY WILLIAMS
AND THE MINOR CHILD, DORRIEN
ALEXANDER WILLIAMS, BEING THE
WRONGFUL DEATH HEIRS OF LISA
WILLIAMS, DECEASED


DATE OF JUDGMENT:                        06/23/2008
TRIAL JUDGE:                             HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:               CIRCUIT COURT OF THE SECOND
                                         JUDICIAL DISTRICT OF JONES COUNTY
ATTORNEYS FOR APPELLANT:                 L. CLARK HICKS, JR.
                                         L. GRANT BENNETT
ATTORNEY FOR APPELLEES:                  MARK KEVIN HORAN
NATURE OF THE CASE:                      CIVIL - WRONGFUL DEATH
DISPOSITION:                             REVERSED AND RENDERED - 11/19/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE WALLER, C.J., DICKINSON AND KITCHENS, JJ.

      KITCHENS, JUSTICE, FOR THE COURT:

¶1.   Kenneth Wilson was convicted of the murder of his girlfriend, Lisa Williams. Prior

to Williams’s murder, officers of the City of Laurel Police Department were dispatched to

two separate disturbances involving Wilson, but no arrest was made. Williams’s wrongful-
death beneficiaries brought suit against the City of Laurel, alleging that the City was liable

for failing to arrest Wilson. Following a bench trial, the circuit judge found for the plaintiffs

and awarded damages of $75,000. The City of Laurel now appeals.

                                            FACTS

¶2.    At approximately 8:30 p.m. on July 2, 2003, Officers Styron Keller and Shane

Valentine of the Laurel Police Department were dispatched to an alleged domestic dispute

at Lisa Williams’s residence. Neither Officer Keller nor Officer Valentine noticed anything

unusual about the appearance of Williams or Kenneth Wilson, and there was no indication

that either of them had been “struck, hit or harmed in any way . . . .” After making these

initial observations, the officers separated Williams and Wilson. Officer Keller interviewed

Wilson, while Officer Valentine interviewed Williams.

¶3.    Officer Keller testified that Wilson was calm and cooperative throughout the

interview. During this interview, Officer Keller noticed a nick on one of Wilson’s right

fingers. When asked about the abrasion, Wilson explained that he did not know he had been

cut, and that he likely had received it at work. However, Wilson admitted that he and

Williams had gotten into a “tussle,” and that Williams had hit him in the head.

¶4.    Rika Carmichael, Williams’s niece and roommate, testified that she had been in

another room when Wilson and Williams began fighting. Carmichael “heard a lot of

bumping” from the room, so she opened the door and found Wilson on top of Williams on

the bed. Carmichael added that there were no signs of injury to Williams, other than “her

hair [being] messed up.” Carmichael then directed Williams’s fourteen-year-old son to call

the police, and within approximately ten minutes, the officers arrived at the scene.


                                               2
¶5.    After the field interviews had been performed, Officer Keller told Wilson and

Williams that he had probable cause to arrest both of them. Officer Keller asked Williams

and Wilson whether they wished to press charges against each other, and both indicated that

they did not wish to do so. Both Williams and Carmichael indicated that they simply wanted

Wilson to leave the residence.

¶6.    Wilson informed Officer Keller that he intended to go to the home of Williams’s

mother, Annie Walker, where he occasionally went when he and Williams got into a fight.

Officers Keller and Valentine watched Wilson pack a bag, with Williams’s assistance, and

the officers stayed at the scene until Wilson had left the residence on foot.

¶7.    Carmichael testified that after the officers had left the scene, Wilson returned to the

house and asked for a ride. Carmichael then drove Wilson to Walker’s house. Carmichael

said that she was in no fear of Wilson.

¶8.    Later that night, at approximately 10:00 p.m., Officers Valentine and Keller and

Sergeant Jackson responded to a second incident, this one at Annie Walker’s residence.

Upon arrival, the officers found Wilson sitting on the sidewalk steps leading to the house.

Officer Keller testified that Wilson was “calm, cool [and] cooperative.”

¶9.    Walker and her husband informed Officer Valentine that they simply wanted Wilson

to leave. Walker testified that Wilson was very intoxicated and angry, but Walker did not

suggest that she feared Wilson. Furthermore, Walker suggested at trial that she had wanted

Wilson arrested, but she indicated that she had wanted him arrested only for trespassing.

¶10.   Officer Keller informed Wilson that he could choose between his mother’s picking

him up or going to jail. Ultimately, Officer Keller called Wilson’s mother, who agreed to


                                              3
pick up Wilson at the police department. It is disputed whether Wilson was under arrest at

that time. Although Wilson was placed in handcuffs before being placed in the car, the

officers testified that it is common practice to place any person riding in the back of a patrol

car in handcuffs. In addition, Officer Keller gave the dispatcher the code “10-12,” which

indicates a passenger or visitor is in the car, rather than the code “10-15,” which indicates

that a prisoner is in the car and the car is en route to the jail.

¶11.   Some time later, Wilson’s mother and father picked up Wilson at the police station,

but no evidence was presented at trial as to where Wilson’s parents took him.

¶12.   At approximately 11:15 p.m., the officers were called back to Carmichael’s and

Williams’s house. At the scene, the officers found Wilson with a knife in his hand, standing

over Williams, who was still alive but covered in blood. The officers arrested Wilson, and

Williams died of stab wounds at the hospital.

¶13.   On June 23, 2008, following a bench trial, the Circuit Court of the Second Judicial

District of Jones County entered its final judgment, finding the City of Laurel liable for the

death of Lisa Williams.

                                             ISSUE

¶14.   The only issue on appeal is whether the City of Laurel is immune from liability under

the facts of this case.

                                 STANDARD OF REVIEW

¶15.   Immunity is a question of law. Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990,

994 (Miss. 2003) (citing Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (Miss. 2003)).

“This Court reviews errors of law de novo, including the proper application of the

                                                 4
Mississippi Tort Claims Act.” Phillips v. Miss. Dep’t of Pub. Safety, 978 So. 2d 656, 660

(Miss. 2008). Notwithstanding, “[t]he findings of fact by a circuit court judge, sitting

without a jury, will not be reversed on appeal where they are supported by substantial,

credible, and reasonable evidence.” Id. (citing City of Greenville v. Jones, 925 So. 2d 106,

109 (Miss. 2006); City of Jackson v. Perry, 764 So. 2d 373, 376 (Miss. 2000)).

                                        DISCUSSION

¶16.   Through the Mississippi Tort Claims Act (MTCA), the Legislature has provided that,

as a matter of public policy, the state and its political subdivisions are immune from tortious

acts or omissions by its employees while they are acting within the course and scope of their

employment. Miss. Code Ann. § 11-46-7(1) (Rev. 2002); Phillips, 978 So. 2d at 660.

However, the Legislature saw fit to carve out certain exceptions to the general rule of

sovereign immunity. The applicable exception in this case provides that when a police

officer acts within the scope of his or her employment, the city will not be held civilly liable

unless the officer acted with reckless disregard of the safety and well-being of a person not

engaged in criminal conduct. Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2002).1


       1
           Specifically, Mississippi Code Section 11-46-9(1)(c) states:

       (1) A governmental entity and its employees acting within the course and
       scope of their employment or duties shall not be liable for any claim:
       ...

       (c) 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 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.


                                                5
¶17.   To recover damages in such a matter, a plaintiff must “prove by a preponderance of

evidence that the defendants acted in reckless disregard of his [or her] safety and that [the

plaintiff] was not engaged in criminal activity at the time of injury.” Phillips, 978 So. 2d at

661 (citing Simpson v. City of Pickens, 761 So. 2d 855, 859 (Miss. 2000)). “Reckless

disregard has been defined by this Court as a higher standard than gross negligence, and it

embraces willful or wanton conduct which requires knowingly and intentionally doing a

thing or wrongful act.” Phillips, 978 So. 2d at 661.         “Reckless disregard usually is

accompanied by a conscious indifference to consequences, amounting almost to a willingness

that harm should follow.” Durn, 861 So. 2d at 995 (quoting Maye v. Pearl River County,

758 So. 2d 391, 394 (Miss. 1999)). 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. Id. (quoting Maldonado v.

Kelly, 768 So. 2d 906, 910-11 (Miss. 2000)). In addition, “the nature of the officers’ actions

is judged on an objective standard with all the factors that they were confronted with.”

Phillips, 978 So. 2d at 661 (citing City of Jackson v. Powell, 917 So. 2d 59, 71 (Miss.

2005)).

¶18.   The trial judge held that “the officers did act in reckless disregard for the safety and

well-being of Lisa Williams when they failed to arrest Kenneth Wilson either at the home

of Rika Carmichael or later at the home of Annie Walker.” The judge went on to hold that

“[b]y refusing to place Kenneth Wilson under arrest on either of these two occasions, the

officers . . . displayed a conscious indifference to the consequences of their failure to make

the arrest.”

                                              6
¶19.   In a similar case, Collins v. Tallahatchie County, 876 So. 2d 284 (Miss. 2004), the

failure to arrest a person suspected of domestic violence was not found to rise to the level of

reckless disregard. In Collins, the plaintiff’s estranged husband telephoned the plaintiff and

threatened to kill her. Id. at 286. The plaintiff reported the threatening calls to the

Tallahatchie County Sheriff’s Department and sought her estranged husband’s arrest. Id.

The following day, at the suggestion of the sheriff’s department, the plaintiff signed a

criminal affidavit to effectuate an arrest warrant on her estranged husband for domestic

violence. Id. The arrest warrant was signed by the judge but was never delivered to the

sheriff’s department. Id. Four days later, the plaintiff’s estranged husband broke into the

plaintiff’s home and shot her twice before taking his own life. Id.

¶20.   The plaintiff survived and sought damages from Tallahatchie County for the sheriff’s

department’s failure to make a warrantless arrest under Mississippi Code Section 99-3-7(3)

when there was probable cause to do so.2 Id. at 287. This Court affirmed the trial judge’s

decision to extend immunity under Section 11-46-9(1)(c), noting that “reckless disregard is

a higher standard than gross negligence and ‘embraces willful or wanton conduct which

requires knowingly and intentionally doing a thing or wrongful act.’” Id. at 287 (citing

Turner v. City of Ruleville, 735 So. 2d 226, 230 (Miss. 1999)). The Court recognized that,

although there was ample probable cause to make a warrantless arrest under Section 99-3-




       2
         “Any law enforcement officer shall arrest a person with or without a warrant when
he has probable cause to believe that the person has, within twenty-four (24) hours of such
arrest, knowingly committed a misdemeanor which is an act of domestic violence . . . .”
Miss. Code Ann. § 99-3-7(3) (Rev. 2007).

                                              7
7(3), failure to arrest in such a situation does not inherently establish reckless disregard. Id.

at 288.

¶21.      Here, much like the plaintiff in Collins, the plaintiffs assert that the officers acted with

reckless disregard of the safety and well-being of Lisa Williams when they failed to arrest

Wilson prior to her murder. However, they have failed to meet the burden placed upon them

by Section 11-46-9(1)(c). Nothing in the record establishes that the officers’ actions

amounted to willful or wanton conduct. There is no evidence that the officers intended for

harm to follow their decision not to arrest, nor is there evidence establishing a conscious

indifference to the consequences of their actions.

¶22.      The officers went to Williams’s house following the 911 call and interviewed all of

the parties present. Nothing in the record indicates that, during the interviews, either Wilson

or Williams expressed a desire to press charges against the other, or that Williams was in fear

of Wilson. Furthermore, although the trial judge found adequate probable cause, failure to

arrest where probable cause is present does not inherently support a finding of reckless

disregard. See, e.g., Collins, 876 So. 2d at 287-88. The decision not to arrest despite

probable cause must “embrace willful or wanton conduct.” Phillips, 978 So. 2d at 661. The

officers adequately investigated both incidents, weighed the evidence before them, and made

informed decisions regarding the appropriate measures to take. To hold that the officers

understood Wilson to constitute an “unreasonable risk” to Williams, and that they

“deliberately disregarded that risk and the high probability of harm involved” would be

inconsistent with our established precedent. Durn, 861 So. 2d at 995.




                                                   8
¶23.   Because the officers did not act with reckless disregard for the safety and well-being

of Lisa Williams, other avenues of immunity asserted by the defendant need not be

addressed.3   Additionally, the argument as to whether the officers’ actions were the

proximate cause of the death of Williams need not be discussed.

                                      CONCLUSION

¶24.   The officers of the City of Laurel did not act with reckless disregard for the safety and

well-being of Lisa Williams; thus immunity under Mississippi Code Section 11-46-9(1)(c)

is proper. The decision of the Circuit Court of the Second Judicial District of Jones County

is reversed and rendered.

¶25.   REVERSED AND RENDERED.

     WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND
PIERCE, JJ., CONCUR.    WALLER, C.J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J., RANDOLPH,
LAMAR AND PIERCE, JJ. GRAVES, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY CHANDLER, J.

       WALLER, CHIEF JUSTICE, SPECIALLY CONCURRING:

¶26.   I concur in the majority decision in full. However, I write separately to discuss further

the standards of review and standards of conduct discussed by the majority and dissenting

opinions and to explain the bearing those standards have on our ultimate decision to reverse

the trial court’s conclusion.




       3
        The City asserts that, aside from the immunity granted under Section 11-46-9(1)(c),
immunity is proper under Section 99-3-7(7) which states in full: “A law enforcement officer
shall not be held liable in any civil action for an arrest based on probable cause and in good
faith pursuant to subsection (3) of this section, or failure, in good faith, to make an arrest
pursuant to subsection (3) of this section.” Miss. Code Ann. § 99-3-7(7) (Rev. 2007).

                                               9
¶27.   The majority opinion correctly states that the application of the Mississippi Tort

Claims Act (“MTCA”) and the immunity it confers upon political subdivisions of this state

is a question of law subject to de novo review by this Court. See Maj. Op. at ¶15. However,

in this case, no dispute exists as to the applicability of the MTCA. The City of Laurel is a

political subdivision of the State, the officers are employees thereof, and their challenged

actions were performed in the course of their employment. Thus, the question before us is

not whether the MTCA applies to immunize the City of Laurel from liability for the officers’

actions, but whether the “reckless disregard” exception to that immunity can be invoked

based on the officers’ actions.

¶28.   Concurrently, our review of the circuit court judge’s findings regarding the application

of the “reckless disregard” exception is limited. The findings of a circuit court judge, sitting

without a jury, “are safe on appeal where they are supported by substantial, credible, and

reasonable evidence[,]” and “[t]his Court will not disturb those findings unless they are

manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” City of

Jackson v. Perry, 764 So. 2d 373, 376 (Miss. 2000) (citing Bell v. City of Bay St. Louis, 467

So. 2d 657, 661 (Miss. 1985)).

¶29.   Here, the City of Laurel is immune from suit for the officers’ failure to arrest Wilson

and/or Williams unless the plaintiffs can prove that the officers acted in “reckless disregard”

of Williams’s safety and well-being. The question of whether Officers Keller and Valentine

acted in “reckless disregard” for Williams’s safety and well-being can be characterized as

a question regarding the application of the law to the facts. In other words, the trial judge




                                              10
was required to apply the law (i.e., our definition of “reckless disregard”) to his findings of

fact to determine if Officer Keller’s and Officer Valentine’s actions rose to that level.

¶30.   The circuit court judge made several findings of fact. First, the judge found that the

officers had probable cause to arrest Wilson and/or Williams at the time of the first incident

and to arrest Wilson at the time of the second incident. These findings clearly are supported

by substantial and credible evidence which is contained in the record on appeal before us.

Williams, Wilson, and other witnesses at the scene of the first incident related to officers

their accounts of the physical struggles between Williams and Wilson. Thus, the circuit court

judge’s findings that the officers had probable cause to arrest Williams, Wilson, or both of

them are not manifestly wrong or clearly erroneous.

¶31.   The circuit court judge’s final finding, however, is not supported by the evidence.

The judge found that, by failing to arrest Wilson, the officers “displayed a conscious

indifference to the consequences of their failure to make the arrest.” Hence, when the judge

applied our definition of “reckless disregard” to these facts, he arrived at a conclusion of law

that the officers had acted in reckless disregard for Williams’s safety and well-being when

they failed to arrest Wilson.

¶32.   We have held today that this conclusion was in error. As the majority correctly states,

“[n]othing in the record establishes that the officers’ actions amounted to willful or wanton

conduct [because] [t]here is no evidence that the officers intended for harm to follow their

decision not to arrest, nor is there evidence establishing a conscious indifference to the

consequences of their actions.” See Maj. Op. at ¶21. In other words, the circuit judge’s final

finding of fact – that the officers “displayed a conscious indifference to the consequences of


                                              11
their failure to make the arrest” – was manifestly wrong and/or clearly erroneous.4 As such,

the circuit court’s conclusion of law that the officers acted in reckless disregard of Williams’s

safety was also in error.

¶33.   This holding, however, should not be read as a tacit approval of Officer Keller’s and

Officer Valentine’s handling of the situation. Presiding Justice Graves’s dissent accurately

points to Mississippi Code Section 99-3-7, providing law enforcement officers with a

statutory duty to arrest a person who the officer has probable cause to believe has committed

an act of domestic violence. Miss. Code Ann. § 99-3-7(3)(a) (Rev. 2007).5 And in cases

where the officers have probable cause to believe that multiple parties have committed such

acts of violence, the officers are required to determine which party is the “principal

aggressor” and to arrest that person. Miss. Code Ann. § 99-3-7(3)(b) - (d) (Rev. 2007).

¶34.   Nonetheless, “reckless disregard” is more than negligence but less than an intentional

act. Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990 (Miss. 2003). Thus, a simple failure


       4
        The circuit court applied the correct legal standard, however, citing Durn for the
“reckless disregard” definition.
       5
          As the majority notes, however, law enforcement officers are not liable for failing
to make an arrest under Section 99-3-7(3) if the failure to do so was in “good faith.” Miss.
Code Ann. § 99-3-7(7) (Rev. 2007). Black’s Law Dictionary defines “good faith,” in
pertinent part, as “honesty in belief or purpose,” or “faithfulness to one’s duty or obligation.”
Black’s Law Dictionary 555 (abr. 7th ed. 2000). It is unlikely that Officer Keller’s and
Officer Valentine’s actions meet this standard. During the first incident, the officers
correctly informed both Wilson and Williams that they had the authority to take both of them
to jail. In other words, the officers had probable cause to believe that Williams and Wilson
both had committed domestic violence. The officers thus had a duty to arrest one or both of
them pursuant to Section 99-3-7. Accordingly, at the time of the first incident, both officers
held an “honest belief” that they could arrest Wilson, but they were not “faithful to their duty
or obligation” to do so. Thus, the officers’ failure to arrest Wilson and/or Williams at the
scene of the first incident was not a “failure, in good faith,” as Section 99-3-7(7) requires,
so the “good faith” exception would not apply to protect them individually from liability.

                                               12
to make an arrest does not necessarily constitute “reckless disregard.” We held as much in

Collins v. Tallahatchie County, 876 So. 2d 284 (Miss. 2004). In that case, we noted that

there was ample probable cause to make an arrest under Section 99-3-7(3), but we recognized

that failure to arrest when there is probable cause to do so, even if the failure is negligent,

does not inherently establish “reckless disregard.” Id. at 288; see also Phillips v. Miss. Dep’t

of Pub. Safety, 978 So. 2d 656, 661 (Miss. 2008) (holding that “reckless disregard” is a

higher standard even than gross negligence).

¶35.   Here, the officers’ actions arguably “rise to the level of negligence, but certainly

[their] actions or inactions fall . . . short of conduct which could be described as reckless

disregard.” City of Greenville v. Jones, 925 So. 2d 106, 119 (Miss. 2006). A review of the

audio/video recording of the incidents reveals that Officers Keller and Valentine were

confronted with a difficult situation. They had probable cause to believe that both Wilson

and Williams had committed acts of domestic violence. The officers thus were required to

make an arrest under Section 99-3-7(3). However, their failure to do so, even if negligent

or grossly negligent, does not in and of itself meet the “reckless disregard” standard.

¶36.   For the plaintiffs, “reckless disregard” requires a higher burden of proof. Pursuant to

Mississippi Code Section 11-46-9(1)(c) and our precedent construing the term “reckless

disregard,” the plaintiffs were required to show by a preponderance of the evidence that

Officers Keller and Valentine appreciated an unreasonable risk to Williams’s safety and an

attendant high probability of harm to her, but that, by failing to arrest Wilson, the officers

deliberately disregarded that risk in a willful and wanton manner, evincing a conscious

indifference to the consequences amounting almost to a willingness that the harm should

                                              13
follow. Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2002). Phillips, 978 So. 2d at 661; Durn,

861 So. 2d at 995.

¶37.   The plaintiffs simply have not met this burden. Therefore, the trial court’s conclusion

that the officers acted in reckless disregard for Williams’s safety and well-being was clearly

in error, and the immunity provided by the MTCA protects the City of Laurel from suit.

     CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., JOIN THIS
OPINION.

       GRAVES, PRESIDING JUSTICE, DISSENTING:

¶38.   This case involves three Emergency 911 calls for assistance over the course of little

more than two hours on the night of July 2, 2003, by the family of Lisa Williams to the

Laurel Police Department and two failures by officers of that department to follow and

enforce the applicable laws. These failures occurred after an admission by the involved

officers that there was a high probability of harm if no action was taken. These failures led

to the tragic murder of Williams in front of her two children and her niece. Based on the

record before us, I cannot agree with the majority of this Court that the officers of the City

of Laurel did not act with reckless disregard of the safety and well-being of Williams.

Because I would affirm the decision of the trial court finding the City of Laurel liable for

Williams’ death, I respectfully dissent.

¶39.   As stated by the majority, immunity is a question of law, and this Court reviews errors

of law de novo. Phillips v. Miss. Dep’t of Pub. Safety, 978 So. 2d 656, 660 (Miss. 2008).

Further, “[t]he findings of fact by a circuit court judge, sitting without a jury, will not be

reversed on appeal where they are supported by substantial, credible, and reasonable



                                             14
evidence.” Phillips v. Miss. Dep’t of Pub. Safety, 978 So. 2d 656, 660 (Miss. 2008). This

Court also has stated the well-settled standard of review of a judgment from a bench trial as

follows: “‘A circuit court judge sitting without a jury is accorded the same deference with

regard to his findings as a chancellor,’ and his findings are safe on appeal where they are

supported by substantial, credible, and reasonable evidence.’” City of Jackson v. Perry, 764

So. 2d 373, 376 (Miss. 2000).

¶40.   The applicable immunity exception under the Mississippi Tort Claims Act (MTCA)

provides that a governmental entity may be held liable where an “employee acted in reckless

disregard of the safety and well-being of any person not engaged in criminal activity at the

time of injury.” Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2002). “A review of our case law

illustrates that we find 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.’” Miss. Dep’t of Pub. Safety v. Durn, 861 So. 2d 990,

995 (Miss. 2003) (quoting Maldonado v. Kelly, 768 So. 2d 906, 910-11 (Miss. 2000)).

¶41.   Mississippi Code Section 99-3-7(3) provides that: “Any law enforcement officer shall

arrest a person with or without a warrant when he has probable cause to believe that the

person has, within twenty-four (24) hours of such arrest, knowingly committed a

misdemeanor which is an act of domestic violence . . . .” Miss. Code Ann. § 99-3-7(3)(a)

(Rev. 2007) (emphasis added). That section also says that:

              (b) If a law enforcement officer has probable cause to believe that two
       (2) or more persons committed a misdemeanor which is an act of domestic
       violence as defined herein, or if two (2) or more persons make complaints to
       the officer, the officer shall attempt to determine who was the principal
       aggressor. The term principal aggressor is defined as the most significant,

                                              15
       rather than the first, aggressor. The officer shall presume that arrest is not the
       appropriate response for the person or persons who were not the principal
       aggressor. If the officer believes that all parties are equally responsible, the
       officer shall exercise such officer’s best judgment in determining probable
       cause.
               (c) To determine who is the principal aggressor, the officer shall
       consider the following factors, although such consideration is not limited to
       these factors:
                (i) Evidence from the persons involved in the domestic abuse;
                (ii) The history of domestic abuse between the parties, the likelihood
       of future injury to each person and the intent of the law to protect victims of
       domestic violence from continuing abuse;
                (iii) Whether one (1) of the persons acted in self-defense; and
                (iv) Evidence from witnesses of the domestic violence.
               (d) A law enforcement officer shall not base the decision of whether to
       arrest on the consent or request of the victim.

Miss. Code Ann. § 99-3-7(3)(b)(c)(d) (Rev. 2007).

¶42.   The trial court found that the City of Laurel Police Department officers acted in

reckless disregard. Specifically, the trial court found:

               After hearing testimony in the case, this Court believes that Officers
       Keller and Valentine had probable cause to arrest Kenneth Wilson and/or Lisa
       Williams at the first call to Rica Carmichael’s home on July 2, 2003. Further,
       the Court finds that the officers also had probable cause to arrest Kenneth
       Wilson at the residence of Annie Walker on the same day. In fact, Ms. Walker
       testified that when the officers left her residence with Kenneth Wilson, he was
       handcuffed and in the back of the police car. Therefore, she believed he was
       under arrest. After two incidents involving the same individual had occurred
       so closely in time on the same date, the Court finds that the officers did act in
       reckless disregard for the safety and well-being of Lisa Williams when they
       failed to arrest Kenneth Wilson either at the home of Rica Carmichael or later
       at the home of Annie Walker.

Opinion and Order of the Court (June 3, 2008). The trial court further said:

              “Reckless disregard,” as defined by the Mississippi Supreme Court, is
       more than negligence but less than an intentional act; it is usually accompanied
       by a conscious indifference to consequences, amounting almost to a
       willingness that harm should follow. [Durn], 861 So. 2d 990 (Miss. 2003).
       By refusing to place Kenneth Wilson under arrest on either of these two


                                              16
       occasions, the officers, in the Court’s opinion, displayed a conscious
       indifference to the consequences of their failure to make the arrest.

Opinion and Order of the Court (June 3, 2008). The trial court then awarded the plaintiff

$75,000, which was the amount of damages stipulated to by the parties. The findings of the

trial court are supported by substantial, credible and reasonable evidence. Nevertheless, the

majority of this Court now departs from that standard and reverses and renders that decision.

¶43.   The majority cites Collins v. Tallahatchie County, 876 So. 2d 284 (Miss. 2004) as

support for the finding that the City of Laurel officers did not act with reckless disregard of

the safety and well-being of Lisa Williams. However, Collins offers no such support. In

Collins, this Court found ample probable cause to arrest the defendant but found that the

Tallahatchie County Sheriff’s Department (TCSD) did not act in reckless disregard because

there was no evidence that the TCSD knew that it could arrest the defendant. Specifically,

this Court said:

       Even viewing the facts in a light most favorable to Essie, she has shown no
       evidence that TCSD knew that it could and/or was required to arrest Robert.
       TCSD’s conduct, even if negligent, can not [sic] be said to have risen to the
       level of reckless disregard based upon the facts in this record. Therefore, § 11-
       46-9(c) did provide immunity based upon TCSD’s conduct, and summary
       judgment was proper as to TCSD.

Id. at 288. As discussed below, the Laurel officers clearly knew that they could and/or were

required to arrest Kenneth Wilson. Also, the acts complained of in Collins happened over

a several-day period, with the phone calls occurring on August 31, 2000, and the shooting

occurring on September 4, 2000. This further establishes that Collins is factually dissimilar

from the instant case, where the events occurred over the course of less than three hours.

Also, it was unclear whether there was ever any physical altercation in Collins before the

                                              17
shooting, a situation completely different from the situation here which involved a drunken

altercation that produced bloodshed. Additionally, in Collins, this Court was reviewing

summary judgment -- an entirely different procedural outcome than the instant case, with a

judgment after a bench trial.

¶44.   In the case at hand, the record contains a digital video disc (DVD) of the police audio

and video recordings made during the first two incidents involving Kenneth Wilson and Lisa

Williams. That DVD and other portions of the record offer evidence contradictory to

testimony offered by officers at trial and to the facts relied upon by the majority and the

specially concurring opinions. The record clearly establishes that the findings of the trial

court were supported by substantial, credible and reasonable evidence. To establish this, I

find it necessary to restate the facts contained in the record.

Incident One - 911 Call Received at 8:26 p.m.

¶45.   As stated previously, there were three separate calls to police on the night of July 2,

2003, beginning at approximately 8:30 p.m. The first of the three calls for assistance was

made by Williams’ fourteen-year-old son, Michael. The call was necessitated by a fight

between Wilson and Williams at the home of Williams’ niece, Rika Carmichael, where the

family had moved one or two days earlier. Carmichael testified that she heard bumping and

fighting noises and opened the door to see Wilson on top of Williams. Carmichael, who

testified that Williams’ hair was messed up, instructed Michael to go call the police.

¶46.   The majority refers to this first incident as an “alleged domestic dispute” and states

that officers noticed nothing unusual about the appearance of Williams or Wilson, and that

“there was no indication that either of them had been ‘struck, hit or harmed in any way . . .

                                              18
.” This characterization is incorrect and unsupported by the record. The recording of the

first incident reflects that immediately upon arrival on the scene, officers were greeted by

voices that were at times loud and agitated, were informed that the parties were intoxicated

and had been involved in an altercation, and observed that blood was visible on both parties.6

This blood was discussed numerous times throughout the record. There are differing

accounts of the blood. Officer Keller testified that he saw blood on Wilson’s arm. Later,

Keller testified as follows:

                When I observed him when I pulled them and separated them and
       brought him outside, he was there talking with me with hand gestures. And I
       looked at his right hand on his knuckle, and it looked like there was a slight
       aversion [sic] there. It didn’t look like there was a cut. It looked like, you
       know, if you bump your knuckle you skin the skin back type deal. And I
       asked him what happened to his hand. And he said he really didn’t know, he
       thought maybe he had done it at work because he had took the band-aid of
       [sic] it. I said, well, there’s a little blood right there on your arm. He said, it
       may be coming from that. He said, I didn’t even notice it. But the time I got
       there, if that would have been a fresh cut it would have been still bleeding or
       fresh blood, but the blood on his arm looked like it had been there a while. It
       was really dried to the skin.

¶47.   Wilson cannot be heard to make any statement about receiving the cut at work on the

recording. Keller testified that Wilson must have made the statement during one of the

inaudible portions of the recording of the first incident. However, this statement is not

supported by the record. On the recording, when asked about the blood on his arm, Wilson

responded, “that’s where she grabbed me. She grabbed me and hit me in the head.” Toward

the end of the call, the officer asked Wilson how bad his hand was cut and then appears to

ask Wilson whether he’s going to get it sewn up. Wilson then responded that he did not



       6
           The only mention of blood being on Williams at that time comes from the recording.

                                               19
know it was cut. When asked if it happened with the knife, Wilson responded that it might

have. The recording of the second incident further disputes Keller’s testimonial account of

the blood and will be discussed later herein.

¶48.   Officers also observed and secured a knife. Keller testified that it was only standard

procedure and that the knife was returned. During the course of this call, Michael can be

heard telling officers he saw the parties with their hands on each other but that he didn’t see

any blood. Officers separated Wilson from the group and Keller took him outside to question

him while Valentine stayed inside with Williams, Carmichael, and the children. Carmichael

testified that both she and Williams told Valentine that the parties had been fighting. The

word “tussling” was also used at one point to describe the fighting. Valentine testified that

he never interviewed any of the witnesses separately.

¶49.   Upon getting Wilson outside, Keller recognized and remembered Wilson from a prior

domestic call involving the same parties when they had lived at a different location. Wilson

admitted the incident and said it had occurred on 8th Avenue and that Williams had called

the police to have Wilson removed from the home. Keller could then be heard telling Wilson

the following: “Well, I’m gonna tell you like this, right now I got enough to take you both

to jail for domestic violence because you’re bleeding . . . .” Keller then proceeded to point

out that both parties had been drinking and could not drive, but that Wilson needed to find

some place to go. Keller also told Williams that he had enough to put them both in jail for

domestic assault, but was giving them a break unless police were called back out there that

night, in which case they were both going to jail. Keller also could be heard telling Williams

that he had told Wilson he needed to leave and that she had put him out before when she had


                                                20
lived on 8th Avenue -- that he had come over there on this before. Keller then told Williams

that the parties needed to separate because somebody was going to end up “getting hurt.”

Keller verified this statement again during his testimony at trial. On the recording, Keller

also told Williams that he had enough probable cause to arrest both parties, but that he was

going to let it slide this time. Keller also said, “[t]he first one’s on me and the next one’s

gonna be on you.”

¶50.   While officers were waiting for Wilson to leave, Wilson apparently inquired as to

whether the officers were going to give him a ride, to which an officer responded, “we can’t

ride you” and told him it was not a taxi. An officer can also be heard saying, “Man, did we

not just sit there and tell you I’m cutting you a break right now?” Then shortly afterward,

an officer told Wilson to do himself a favor, get his stuff and take advantage of their

generosity. After gathering his belongings, Wilson then apparently walked off down the

street and the officers left.

Incident Two - 911 Call Received at 10 p.m.

¶51.   Carmichael testified that, minutes after the officers left her house, Wilson walked back

up, knocked on the door and asked Carmichael to drive him to the home of Williams’ mother,

Annie Walker. Carmichael drove Wilson to Walker’s house and dropped him off. Shortly

thereafter, Walker placed a call to the Laurel Police Department for assistance. Walker

testified that Wilson was very intoxicated and angry. Walker testified that Wilson was

“talking dirty and cussing” and refused to leave her porch, but then moved to the yard after

she went next door to call the police. Wilson was on the sidewalk in front of Walker’s home

when Valentine and Keller (and at least one other officer) arrived separately on the scene.


                                             21
Walker testified that officers spoke to Wilson, placed him in handcuffs and put him in the

back of the patrol car. She testified that Valentine told her Wilson was going to jail and that

they would not have to worry about him any more that night. Walker and Carmichael both

testified that Walker then went to Carmichael’s house to tell Williams that Wilson had been

taken to jail and that she didn’t have to worry any more that night.

¶52.   The testimony of the officers differs from Walker’s account. Keller testified that

Wilson was “calm, cool, cooperative. He did not make any threatening gestures or say he

was going to do anything to anybody. I mean, he was just as calm as he could be. It was yes,

sir, no, sir.” Both officers testified that Wilson was never under arrest and that they were

merely giving him a ride, despite the fact that one of them told him during the first incident,

“we can’t ride you” and that they weren’t a taxi. Keller testified that he called in to the

station to let them know that he had a visitor on board and that he drove Wilson to the station

so he could wait for his mother to pick him up. Valentine testified that he would say Wilson

was not intoxicated.

¶53.   The recording of the second incident reflects that Wilson was agitated because he did

not have a place to stay. Wilson made a statement indicating that either he and Williams

could both go to jail or he and Williams could both go to Carmichael’s. Wilson said he went

to Walker’s because it was not right that he did not have a place to stay because Williams

had cut him with a knife and he got “put out.” Keller then responded that Williams did not

cut Wilson with the knife and that Wilson said she did not cut him. Keller said he did not

think Williams cut Wilson, but that her fingernail got him. This disputes Keller’s testimony

discussed previously pursuant to the first incident, where Wilson said he had received the cut


                                              22
at work. Wilson said he did not know whether Williams had cut him or her fingernail had

gotten him because he was drunk. Keller asked Wilson if he wanted to go to jail, to which

Wilson replied he did not but that he did not have anywhere else to go. The officers

repeatedly told Wilson that the Salvation Army was not going to take him because he was

drunk. Wilson repeatedly admitted that he was drunk. One officer remarked that he’d never

seen anybody who would rather go to jail. Wilson was placed in handcuffs, and one officer

said he had to do what he had to do because Wilson could not stay on the street drunk. Then

it was decided that Keller would call Wilson’s mother to see if she would get him rather than

him going to jail. Keller told Wilson’s mother that Wilson would be put in jail if she did not

come get him and she agreed to pick him up at the station. Keller took Wilson to the station

and left him in the lobby to wait for his mother, who apparently picked him up a short while

later and dropped him off at or near Carmichael’s house.

Incident Three - 911 Call Received at 11:10 p.m.

¶54.   Carmichael’s statement to police indicates that Wilson returned to the house and

knocked on Williams’ bedroom window. Williams and Carmichael ignored Wilson’s

knocking, and he then went to a side door, broke the glass and broke into the house. Wilson

attacked Williams, punching her in the face and punching the children and Carmichael as

they attempted to intervene. Wilson then grabbed a large knife and began stabbing Williams.

Wilson also cut Michael when he tried to help his mother. Carmichael then ran to a

neighbor’s house to call the police.

¶55.   Just after 11 p.m., officers responded to the third and final call to Carmichael’s house.

Police reports indicate that officers arrived to find Wilson covered in blood, holding a knife


                                              23
and standing over Williams, who had been stabbed repeatedly, but was still alive. According

to the police report, Williams’ children were crying and yelling, with one of them screaming,

“Shoot him. Shoot him. He done killed my Mama.” The other child was pleading, “don’t

let my momma die, don’t let my momma die.” Wilson held the knife to his own throat as

officers attempted to negotiate with him to drop the knife. During this time, Williams

somehow rolled down the stairs. Wilson apparently began pretending to stab himself in the

neck, and officers subdued him and took him into custody. Carmichael and the children were

taken to the police station to give statements. Williams was taken away by ambulance and

died from her injuries.

Summary and Conclusion

¶56.   Both Keller and Valentine testified at trial that they had no probable cause to arrest

Wilson. Keller testified that he had been merely bluffing Wilson with threats of arrest.

However, these statements are not supported by other substantial evidence contained in the

record. Officers repeatedly told both Wilson and Williams that they had probable cause to

make an arrest and specifically set out what established the probable cause. Officers

repeatedly indicated that they were choosing not to make an arrest because they were giving

Wilson a break.

¶57.   The testimony of both officers demonstrated that they clearly knew and understood

the applicable domestic violence laws and the police department policy which mandated an

arrest. Officers had a duty to make an arrest. There is an argument that because officers

were presented with conflicting evidence, they first had a duty to determine who was the

principal aggressor. To determine the principal aggressor, as set out previously herein,


                                             24
officers must consider evidence from the persons involved, the history of abuse between the

parties, the likelihood of future injury, the intent of the law to protect victims, whether one

person acted in self-defense, and evidence from witnesses. Evidence from the persons

involved is only one of the factors that “shall” be considered in determining the principal

aggressor. Miss. Code Ann. § 99-3-7(c) (Rev. 2007). All of the factors must be considered.

Officers clearly failed to do that. Wilson said Williams hit him in the head, then later said

that she cut him, but ultimately admitted there was a tussle and that he was too drunk to know

how he got cut. Keller acknowledged that he didn’t believe Wilson’s later claim that

Williams cut him and said her fingernail got him. Michael said he saw them touch each

other. Carmichael heard fighting and saw Wilson on top of Williams. Carmichael also heard

Williams telling Wilson to get off of her. Based on this evidence, any possible injury to

Wilson likely occurred while Wilson was assaulting Williams or in Williams defense of

herself. There is evidence that Wilson made a threat about both parties just going to jail if

they both did not get to stay at Carmichael’s house and that he was upset about getting “put

out.” He proceeded immediately to violate police orders by going to cause a related domestic

disturbance across town at Walker’s house. There is also evidence of a prior incident

involving these same parties, when Williams called the police for assistance with a domestic

dispute with Wilson. Keller recognized Wilson from the prior incident and even remembered

Wilson’s tattoo. Based on all of the applicable factors, one reasonably could conclude that

Wilson was the principal aggressor. Further, the record indicates that officers likely had

already made this determination, as they repeatedly had told Wilson they were giving him

a break, they quickly disputed his later version of her cutting him, and they initiated the


                                              25
process of arresting him during the second call. There is absolutely nothing on the DVD to

indicate that Williams was ever aggressive or antagonistic toward the police or Wilson. The

only recordings of Williams on the DVD are for brief moments during the group discussions

in the first call. Officers never even interviewed her separately, and both Valentine and

Carmichael testified to that fact. Williams answered every question asked by the officers on

the recording and was completely cooperative, going so far as to get a bag for Wilson to

carry his belongings. Moreover, Keller testified that Williams was calm and cooperative.

¶58.   The majority notes that nothing in the record indicates that either Wilson or Williams

expressed a desire to press charges. That is irrelevant. The law is designed to protect

victims, and the decision to arrest “shall not” be based on the consent or request of the

victim. Miss. Code Ann. § 99-3-7(d) (Rev. 2007). The record in this matter contains

substantial evidence to determine that Wilson was the principal aggressor and to establish

probable cause for arrest. Notwithstanding evidence that Wilson was the principal aggressor,

the appropriate resolution in a situation where officers are unable to determine the principal

aggressor is to arrest both parties, not to ignore probable cause and arrest neither party. Miss.

Code Ann. § 99-3-7(b) (Rev. 2007).

¶59.   The specially concurring opinion seemingly attempts to bolster the majority’s finding

that the failure of the officers to make an arrest does not constitute reckless disregard, based

upon the unsupported finding that there was no appreciation of risk or harm. Such a finding

is contradictory to the record in this matter. During the first incident, the officers told the

parties that they needed to separate because somebody was going to end up “getting hurt.”

Clearly the officers appreciated the unreasonable risk and high probability of harm involved.


                                               26
Yet the officers then deliberately failed to arrest Wilson not once, but twice. And the officers

were completely correct; someone did end up “getting hurt.” Lisa Williams was murdered.

As stated previously, “we find 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.’” Durn, 861 So. 2d at 995. That standard

has been more than met here.

¶60.   The findings of the trial court are supported by substantial, credible, and reasonable

evidence. Therefore, I would affirm the decision of the trial court finding the City of Laurel

liable for Williams’ death, and I respectfully dissent.

       CHANDLER, J., JOINS THIS OPINION.




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