                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2007-CA-00227-SCT

F. CHARLES PHILLIPS

v.

MISSISSIPPI DEPARTMENT OF PUBLIC
SAFETY, MISSISSIPPI HIGHWAY SAFETY
PATROL, JOSEPH W. SEALS AND THOMAS E.
LITTLE


DATE OF JUDGMENT:                         12/27/2006
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   SCOTT PHILLIPS
ATTORNEYS FOR APPELLEES:                  WILLIAM E. WHITFIELD, III
                                          KAARA L. LIND
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 04/03/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE WALLER, P.J., CARLSON AND LAMAR, JJ.

      LAMAR, JUSTICE, FOR THE COURT:

¶1.   Plaintiff F. Charles Phillips seeks to recover damages for injuries sustained when law

enforcement officers used physical force during the course of an investigatory stop after

mistaking him for a suspect. The Circuit Court of Forrest County granted summary judgment

for the individual defendants, Mississippi Highway Patrol Officers Joseph W. Seals and

Thomas E. Little, and after a bench trial found in favor of the remaining defendants, the

Mississippi Department of Public Safety and the Mississippi Highway Patrol. Phillips
appeals, claiming that the trial court erred in its application of Mississippi Code Annotated

§ 11-46-9(1)(c) under the Mississippi Tort Claims Act.

                                          FACTS

¶2.    On October 15, 2003, around 6:45 p.m., a female made a 911 call to the Hattiesburg

Police Department, which was recorded on the Hattiesburg Police Department (HPD) radio

transmission. She claimed her boyfriend (Jackson) took both sets of keys to her 1992 White

Ford Explorer and left in the vehicle. She informed the operator that she “just filed domestic

assault charges on him with Covington County.” The Covington County Sheriff’s Office

initiated pursuit of Jackson, and HPD took over the pursuit, traveling south on Highway 49,

after the suspect reached the city limits of Hattiesburg. The Covington County Sheriff’s

Office informed HPD that the pursuit had reached speeds of more than 100 miles per hour.

¶3.    Plaintiff F. Charles Phillips, a reserve Forrest County Deputy Sheriff, was driving

from a meeting in Laurel, Mississippi, to his home in Hattiesburg, Mississippi, when he

heard of the pursuit on a police radio and decided to help. Phillips was driving a white Ford

Escape. He informed Jeffrey Byrd, the Forrest County Sheriff’s Office dispatcher, that he

was going to be traveling southbound assisting in the pursuit.

¶4.    Mississippi Highway Patrol (MHP) Troopers Donnie Rayborn, Joseph Seals, and

Thomas Little were also engaged in pursuit of the suspect and communicated through the

MHP radio.1 Dispatch informed them that the fleeing suspect had been reported as the


       1
      Nothing in the record indicates that the MHP, including Troopers Seals, Little, and
Rayborn, knew or had access to information that Phillips was involved in the pursuit.

                                              2
perpetrator of a domestic crime earlier that day. Rayborn, ahead of the other troopers and

with the suspect in sight, periodically reported his location on the radio. Seals requested the

suspect’s vehicle description, and dispatch described the vehicle as a white, 1992 Ford

Explorer and informed him that the full registration information was unknown.

Communicating over the radio, Rayborn recited the tag number, and the dispatcher repeated

the number. Seals testified that he never heard the tag number.

¶5.     The suspect, with Rayborn following, passed Phillips on the highway. The events

that occurred for the next six minutes are disputed.

¶6.    According to Seals’s testimony, as Seals approached Rayborn from the rear, both

traveling in the left lane of traffic, Seals saw Phillips’s white Ford Escape with its hazard

lights flashing, traveling south on Highway 49 in the right lane in close proximity to

Rayborn. Seals testified that he advised Rayborn to conduct a “rolling roadblock” in order

to stop the suspect’s vehicle. Seals believed Rayborn was complying when he continued

ahead of Phillips’s vehicle and moved into the right lane. However, Rayborn, was, in fact,

continuing after the suspect. Believing Phillips to be the suspect, Seals came alongside

Phillips’s car and motioned to and/or spoke to Phillips. After numerous attempts to block

Phillips’s vehicle, Seals successfully stopped Phillips on the right shoulder.

¶7.    Seals exited his patrol car, went to Phillips’s car and opened the driver’s door of

Phillips’s vehicle. Phillips, who wearing a coat and slacks, did not show Seals a badge or

any identification. Seals testified that he never asked Phillips for identification, told Phillips

why he was under arrest or explained to Phillips why he was being detained. Seals also

                                                3
testified that he issued several verbal commands to Phillips, instructing him to exit the

vehicle. According to Seals, instead of exiting or placing his hands in a highly visible

location, Phillips placed his hands in his lap, which Seals interpreted as a threatening gesture.

Due to Phillips’s non-compliance, Seals forcibly removed Phillips from his vehicle and

pushed him onto the ground. Seals placed Phillips on his right shoulder and attempted to

handcuff him. When Phillips was forced to the ground, his head was on or near the gravel

surface abutting the road. Phillips initially failed to comply with Seals’s instruction to

provide his hands for handcuffing and, at some point, advised Seals he was unable to comply.

Seals and Little testified that Phillips resisted, but together they were able eventually to

handcuff Phillips.

¶8.    Seals testified that Phillips then identified himself as a reserve deputy with the Forrest

County Sheriff’s Office trying to help with the pursuit. Seals and Little testified that they

helped Phillips to his feet, removed the handcuffs and advised him to seek medical attention

for his injuries. According to Seals, Phillips’s injuries were all incurred during takedown and

handcuffing and were not caused by hitting, beating or choking Phillips. Seals testified that

he offered to get an ambulance for Phillips, but Phillips declined the offer. Then, according

to Little, Phillips informed the Forrest County dispatcher that he was “ok.” The dispatcher

confirmed that Phillips made that statement.




                                               4
¶9.    On the other hand, Phillips testified that after it was communicated to him by radio

to cease the pursuit, he pulled off onto the right side of the road and stopped his vehicle.2

Seals then pulled alongside him and motioned for him to pull forward, which he did. Seals

exited his vehicle, came over to Phillips’s door and alone forced Phillips to the ground and

handcuffed him. Phillips said further that, once Seals had him on the ground, someone

grabbed him by the back of the hair and thrust his head twice into the gravel surface on the

side of the road and choked him until he went unconscious. After that, he heard the

instruction to get up but said he was unable to do so. Phillips was assisted off the ground

while handcuffed, and then the handcuffs were taken off, though he testified that he had not

identified himself at that point. Phillips testified that he was assisted to his car but no one

offered to take him to the hospital or to call an ambulance.

¶10.   According to the records at the emergency room, Phillips’s injuries on arrival

consisted of a hemorrhage in his right eye; a gaping, two-centimeter laceration in the middle

of his right eyebrow, which had stopped bleeding; about a one-half-centimeter laceration to

the left eyelid just below the eyebrow; and a couple of scattered abrasions to the forehead.




       2
        This testimony is not only contradictory to that of Seals but also to that of the Forrest
County Sheriff’s Office dispatcher, who testified he never told Phillips to stop the pursuit.
Further, the testimony is in contradiction of defense exhibit 20, a recording from the camera
in the front of Seals’s vehicle, which clearly shows Phillips on the highway in motion
immediately prior to Seals pulling him over.

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                                 PROCEDURAL HISTORY

¶11.   Phillips filed suit, alleging negligence, against the defendants, the Mississippi

Department of Public Safety and Mississippi Highway Patrol (MHP), Seals, and Little.

Phillips alleged that the MHP: (1) failed to have policies and procedures in effect regarding

pursuits; (2) failed to train officers adequately regarding pursuits and arrests; and (3) failed

to communicate adequately with officers. Phillips also claimed that Defendants Seals and

Little: (1) failed to follow policies and procedures in effect, if any, regarding pursuits and

arrests; (2) failed to adequately and timely communicate with the MHP troopers and with

Phillips; (3) used excessive force in subduing Phillips; and (4) failed to assist Phillips in

procuring medical treatment or calling an ambulance for him. The defendants answered, and

Seals filed a counterclaim,3 which was dismissed with prejudice by an agreed final judgment.

¶12.   Defendants filed a motion to dismiss and/or for summary judgment. The trial court

denied the motion as to the MHP, but granted the motion as to the individual defendants,

Seals and Little.4 After a bench trial, the court entered its findings of fact and conclusions



       3
           The counterclaim was for defamation.
       4
      Releasing the individual defendants was in accordance with Mississippi Code
Annotated section 11-46-7(2), which reads:

       An employee may be joined in an action against a governmental entity in a
       representative capacity if the act or omission complained of is one for which
       the governmental entity may be liable, but no employee shall be held
       personally liable for acts or omissions occurring within the course and scope
       of the employee's duties.



                                               6
of law. The court explained that Phillips failed to prove, as required under the Mississippi

Tort Claims Act (MTCA): (1) that Seals and Little were acting in reckless disregard and (2)

that Phillips was not engaged in criminal activity at the time he was injured. The court

entered its judgment in favor of the defendants and assessed the costs against Phillips.

Phillips timely appealed.

                                        DISCUSSION

       I.     Whether Troopers Seals’s and Little’s Conduct Was in Reckless
              Disregard of the Safety and Well-being of Phillips.

¶13.   This Court reviews errors of law de novo, including the proper application of the

MTCA, Mississippi Code Annotated sections 11-46-1 et seq (Rev. 2004). City of Jackson

v. Powell, 917 So. 2d 59 (Miss. 2005) (citing City of Jackson v. Brister, 838 So. 2d 274, 278

(Miss. 2003)). The 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. City of Greenville v. Jones, 925 So. 2d 106, 109 (Miss. 2006) (citing City of

Jackson v. Perry, 764 So. 2d 373, 376 (Miss. 2000)).

¶14.   Phillips’s first assertion is that the trial court’s findings of fact should be subject to a

heightened review since he alleges they are adopted verbatim, in pertinent part, from the

defendants’ trial brief. Indeed, this Court has held that heightened review was appropriate

where the trial judge adopted verbatim a party’s findings of fact and conclusions of law,

differing only in that the trial judge filled in the blanks for the percentages of fault

apportioned to the parties. Miss. Dep’t of Transp. v. Johnson, 873 So. 2d 108, 111 (Miss.


                                                7
2004). However, this case is more akin to Delta Regional Medical Center v. Venton, 964

So. 2d 500 (Miss. 2007). The Venton Court found deferential review appropriate because,

in addition to adoption of some findings from each party’s findings, the trial court included

its own findings. Id. at 503-04. The Court rejected the argument that Johnson mandated

heightened review in such circumstances. Id.

¶15.   This case is distinguishable from Johnson. After a careful comparison of the

defendant’s trial brief and the trial judge’s findings, we find that, while the trial judge

adopted some sentences, portions of sentences and phrases verbatim from the defendant’s

trial brief, the majority of the findings are the trial court’s own. Similar to Venton, in this

case, the trial judge’s findings of fact consisted mostly of his own findings. Therefore, we

find that deferential review of the court’s findings is appropriate.

¶16.   The MTCA provides the exclusive remedy for Phillips in his claims against the MHP.

Miss. Code Ann. § 11-46-7(1) (Rev. 2004). The Legislature of this state has expressly

determined that as a matter of public policy, the state and its political subdivisions are

immune from suit due to any “tortious act or omission” by any employee of the state or its

political subdivisions. However, there are exceptions. The MTCA states in pertinent part:

       (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 . . . .

                                              8
Miss. Code Ann. § 11-46-9(1)(c)(Rev. 2004).

¶17.   In order to recover in this case, Phillips must prove by a preponderance of evidence

that the defendants acted in reckless disregard of his safety and that he, the claimant, was not

engaged in criminal activity at the time of injury. Simpson v. City of Pickens, 761 So. 2d

855, 859 (Miss. 2000).

¶18.   It is undisputed that Seals and Little were acting within the course and scope of their

duties relating to police protection. The question is whether they acted in reckless disregard

of the safety or well-being of Phillips.

¶19.   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. City of Greenville v. Jones, 925 So. 2d 106, 110

(Miss. 2006); City of Jackson v. Powell, 917 So. 2d 59, 71 (Miss. 2005); Collins v.

Tallahatchie County, 876 So. 2d 284, 287 (Miss. 2004). This Court will look to the totality

of the circumstances when considering whether someone acted in reckless disregard. City

of Ellisville v. Richardson, 913 So. 2d 973, 978-979 (Miss. 2005); City of Jackson v.

Brister, 838 So. 2d 274, 279 (Miss. 2003) (finding that our case law requires that the circuit

judge look at the totality of the circumstances in determining whether the officers acted with

reckless disregard to public safety and that he base his findings on substantial, credible, and

reasonable evidence). This Court has held that “the nature of the officers’ actions is judged

on an objective standard with all the factors that they were confronted with, taking into

account the fact that the officers must make split-second decisions.” Powell, 917 So. 2d at

                                               9
72 (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443

(1989) (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968))). “The ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 392.

¶20.   Phillips argues that the troopers’ failure to identify his vehicle as the wrong vehicle,

failure to identify him as the wrong suspect and the actions taken against him, resulting in

injuries, constitute reckless disregard.      The MHP responds that its officers acted

appropriately under the circumstances.

¶21.   On two previous occasions this Court has considered whether police officers’

mistaken arrests of individuals rose to the level of reckless disregard. In Foster v. Noel, this

Court held that a police officer’s failure to investigate before obtaining a warrant for the

plaintiff’s arrest constituted reckless disregard. Foster v. Noel, 715 So. 2d 174, 179 (Miss.

1998). In Foster, the manager of a Jitney Jungle observed a black man who had been

shoplifting enter a car with another black man and reported to the police the perpetrator’s

gender, race, name and the tag number of the car he was driving. Foster, 715 So. 2d at 175-

76. The police officer filled out an affidavit and obtained a warrant for Jacqueline Noel, the

owner of the truck with the tag number given; however, neither her name nor her gender

matched the information provided to the officer. Id. The Court found that the officer acted

in reckless disregard for the plaintiff’s safety and well-being “by inserting [the plaintiff’s]

name in the affidavit for an arrest warrant based solely upon a car tag number although he

knew that [the manager] stated two black men stole the [merchandise].” Id. at 179. The

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Court characterized the officer’s actions as “an intentional act taken in reckless disregard of

the adverse effect upon [the plaintiff] of the wrongful arrest to follow therefrom.” Id.

¶22.   Eight years later, in City of Greenville v. Jones, this Court again considered whether

police officers acted in reckless disregard when they mistakenly identified and arrested the

plaintiff. Jones, 925 So. 2d 106. The Court held that the officer’s actions in that case were,

at most, mere negligence and did not constitute reckless disregard. Id. at 121. In Jones, in

the course of investigating a series of bomb-threat calls, the police traced the calls to a

cellular telephone service provider and requested from that provider the phone records

associated with the number from which the threats were made. Id. at 107-08.

¶23.   When the provider’s employee entered the number to obtain the records, the employee

transposed two numbers and retrieved the plaintiff’s phone records. Id. at 108. “[P]age two

of the packet revealed that Jones owned the cellular phone bearing the transposed number;

however, pages 3-6 of the packet revealed that the four bomb threat calls had been placed

from the cellular phone bearing the untransposed number.” Id. The plaintiff asserted that

a careful review by the officers of the package would have revealed the mistake. Id. at 110.

The trial court found that the police conducted an “inadequate” and “careless” investigation.

Id. at 119. This Court reversed the trial court, finding that the trial court ruling was “not

supported by substantial, credible and reasonable evidence.” Id. The Court distinguished

Jones from Foster, and found that the most plaintiffs had proven was “that one or more of




                                              11
the [Greenville] officers were negligent, thus causing the City of Greenville to be exempt

from liability under the MTCA.” 5 Id .

¶24.   The case sub judice is easily distinguished from Foster, where the officers

intentionally disregarded information they had been given, resulting in the mistaken arrest.

Foster, 715 So. 2d 174. Unlike Foster, the evidence in this case establishes that Seals knew

only the description of the vehicle. When Seals requested a description of the vehicle, he

was informed that he was looking for a white Ford Explorer and that the registration

information was unknown. He knew only the make, model, and color of vehicle for which

he was looking. Unlike the facts presented in either Foster or Jones, the officers involved

in this case were required to make split-second decisions while involved in the high-speed

pursuit of a violent suspect.

¶25.   Presented with conflicting testimony, the trial court made findings of fact which we

consider to be supported by substantial and credible evidence. The trial court found that

Seals was engaged in a high-speed pursuit, which had at times reached more than 100 miles

per hour, attempting to subdue a fleeing perpetrator of a violent crime. Under those

circumstances, Seals requested a description of the suspect’s vehicle and looked for a vehicle

based on the information he was given. Unaware that Phillips, a reserve officer, was

attempting to participate in the pursuit in his personal vehicle (also a white SUV), Seals

pulled over a vehicle which appeared to fit the description he had been given, which was


       5
      The cell phone service provider was determined to be at fault and paid the plaintiff
damages.

                                             12
traveling very near to Rayborn at the time Seals was approaching Rayborn to assist him in

the pursuit. Seals knew that the suspect had failed to yield to Rayborn, who was attempting

to pull the suspect over. After the stop, Phillips, by his own admission, neither identified

himself nor complied with Seals’s requests during takedown and handcuffing. The trial court

concluded that Phillips was noncompliant and resisted arrest.

¶26.   Accepting the trial court’s factual findings, we review the officers’ actions “on an

objective standard with all the factors that they were confronted with,” and find that the

officers did not act in reckless disregard. Although the officer mistakenly identified Phillips

as the suspect, Phillips failed to prove that Seals and Little acted in any way other than

reasonably under the circumstances. Phillips did not meet his burden of showing by a

preponderance of the evidence that Seals intentionally disregarded information and thus,

acted in reckless disregard when he misidentified Phillips or his vehicle.6

                                       CONCLUSION

¶27.   Based on the trial court’s findings of fact, which we find to be supported by

substantial, credible, and reasonable evidence, we find that the troopers acted reasonably

under the circumstances with which they were confronted. The Court further finds they did

not act in reckless disregard of the safety and well-being of Phillips. Thus, pursuant to the


       6
        The trial court also found that Phillips was tacitly engaged in “criminal activity” (i.e.
engaging in emergency vehicular operations without the right equipment or vehicle, failure
to yield to emergency vehicles, failure to comply with an officer’s traffic orders, and refusal
to comply with an officer’s request), but since the issue of reckless disregard is dispositive,
we need not address whether Phillips was engaged in criminal activity at the time he was
injured.

                                               13
provisions of the MTCA, the Mississippi Department of Public Safety and the Mississippi

Highway Patrol are exempt from liability in this case. The judgment of the trial court is

affirmed.

¶28.   AFFIRMED.

    SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON AND
DICKINSON JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.
RANDOLPH, J., NOT PARTICIPATING.




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