                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-CA-01063-SCT

CITY OF JACKSON, MISSISSIPPI

v.

ROBERT SANDIFER, JR. AND MILDRED
SANDIFER, INDIVIDUALLY AND ON BEHALF
OF THE WRONGFUL DEATH BENEFICIARIES
OF TAWANDA SANDIFER


DATE OF JUDGMENT:                         05/12/2011
TRIAL JUDGE:                              HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  KIMBERLY BANKS
                                          PIETER TEEUWISSEN
ATTORNEYS FOR APPELLEES:                  PRECIOUS MARTIN, SR.
                                          SUZANNE KEYS
                                          BENNIE L. RICHARD
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
DISPOSITION:                              REVERSED AND RENDERED - 02/21/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    In this Mississippi Tort Claims Act (MTCA) case, we must determine whether the

Circuit Court of Hinds County, Mississippi, erred in finding the City of Jackson (the City)

liable for the death of Tawanda Sandifer. Finding error, we reverse the judgment of the

circuit court and render judgment in favor of the City.
                         FACTS AND PROCEDURAL HISTORY

¶2.    Tawanda Sandifer was a chronic runaway. Tawanda’s mother, Mildred Sandifer,

testified at trial that Tawanda had excelled in elementary school; however, she began having

trouble and behavioral problems by the time she began seventh grade. In 2003, when

Tawanda was thirteen years old, she began running away from home for extended periods

of time. Tawanda ran away approximately seventeen times before she ran away for the last

time in April 2005.

¶3.    Mildred testified that Tawanda’s relationship with her father, Robert Sandifer, was

strained to the point that they could not even be in the same room with each other and refused

to say each other’s names. Mildred testified that part of the reason Tawanda ran away was

because of her father’s discipline, and that one of Tawanda’s sisters 1 also had run away to

avoid getting in trouble with their father.

¶4.    Mildred testified that she had filed a runaway petition for Tawanda every time she had

run away, and that Jackson Police Department (JPD) had taken Tawanda into custody on a

few occasions.2 While several runaway petitions were introduced at trial, the Sandifers did

not present a runaway petition signed after April 2005. Additionally, JPD Officer Joe Wade,

the City’s representative, testified that he was not able to locate a runaway petition signed

after April 2005.


       1
           Tawanda was the middle child of three girls.
       2
         After a minor runs away, family members must file a runaway petition with the youth
court if they want the police department to detain the minor if she is found. Police officers
have no authority to take a runaway into custody unless such a petition is filed. Furthermore,
a detention center will not accept a minor unless there is a runaway petition, signed by the
family, on file.

                                               2
¶5.    Tawanda often returned home approximately two weeks after she ran away. Mildred

testified that, if Tawanda came home after the family had filed a runaway petition, the

Sandifers were required to call the police to come and pick up Tawanda and take her to the

detention center, where she would stay approximately twenty-four hours before there would

be some court proceedings and a judge would “just send her home.” However, Tawanda

never remained at home long after she returned. On at least one occasion after she had

returned home, Tawanda told the police who came to transport her to the detention center

that she could not stay at her parents’ home anymore. Mildred also testified that she asked

the court to send Tawanda to “training school,” but she was told they couldn’t do that

because Tawanda had not broken any laws or committed a crime.

¶6.    In September 2004, Tawanda ran away and eventually was taken into custody by the

JPD. During her detention, Tawanda, who was fourteen years old at the time, gave a written

statement to JPD Detective Wanda Camel listing several men she had engaged in sexual

activity with, including JPD Officer Maurice Clark. Tawanda told Detective Camel that she

had met Clark at his apartment.3 Tawanda further reported that she did not know everyone

she had slept with because she had gotten so “drugged, drunk, and or high” that she didn’t

remember all the faces or names. Mildred testified that she and Tawanda went to meet with

Detective Camel to discuss the allegations against Clark in December 2004, but that she was

never contacted by the JPD regarding the allegations after that meeting. However, there is

evidence that Detective Camel put together a nonsuggestive photo lineup for Tawanda to


       3
       Clark’s roommate told JPD after Tawanda’s death that he and Clark had met
Tawanda when she was hanging around an apartment building while they were moving in,
and she asked to stay at their place.

                                            3
identify Clark. While it appears that an investigation into Tawanda’s 2004 allegations began,

the outcome of the 2004 investigation is not clear.4

¶7.        In September 2004, Tawanda was evaluated by Dr. Nanolla Yazandi, a youth-court

psychologist. Dr. Yazandi described Tawanda as depressed, and recommended Tawanda

begin long-term psychiatric treatment.           In October 2004, Tawanda was admitted to

Behavioral Healthcare of Mississippi (Brentwood) for treatment. Tawanda’s medical records

indicate that Tawanda had anger and impulse-control issues and that she drank heavily, used

drugs, and sold drugs. Tawanda reported to her medical providers that her relationship with

her father was a big stressor in her life and that she ran away because she did not get along

with him. Tawanda also stated that she wanted to live with her grandmother. At one point,

Tawanda told her medical providers that she did not want to change and that therapy was not

going to help her.

¶8.        Tawanda was discharged from Brentwood in November 2004. Mildred testified that

Tawanda had been prescribed medication for depression, which seemed to help. However,

Tawanda soon slipped back into her old routine, running away for longer periods of time and

calling home so drunk and high that she couldn’t even identify who she was. As a result,

Tawanda was admitted to Brentwood for a second time on March 15, 2005. Although

Tawanda’s psychiatrist, Dr. Douglas Byrd, found on March 17, 2005, that Tawanda would

benefit from long-term residential treatment due to the chronic nature of her behavioral and

emotional problems, Tawanda was discharged from Brentwood on March 22, 2005. At the



           4
               Detective Camel was on medical disability leave at the time of trial and did not
testify.

                                                  4
time she was discharged, Tawanda was described as “completely oriented and happy.”

Unfortunately, less than a month later, Tawanda ran away for the last time.

¶9.    On January 9, 2006, approximately nine months after running away, Tawanda died

as a result of blunt-force trauma after being beaten by her boyfriend, Toice Wilson. Tawanda

was fifteen years old when she died.5 Tawanda and Wilson had been involved since

Tawanda was in seventh or eighth grade, beginning when Wilson had stopped Tawanda on

the street to inquire as to whether he could pay her for sexual activities. Wilson testified at

trial that Tawanda had told him her name was Tawanda McKenzie, that she was eighteen

years old, and that she was from Houston, Texas. Wilson also knew Tawanda as Pumpkin,

Kera, Kim, and Daja. Wilson testified that he began to see Tawanda every few days after

their initial meeting. However, Wilson was married the entire time he and Tawanda were

involved, and Tawanda eventually became jealous.

¶10.   Wilson testified that his relationship with Tawanda began to change around

Thanksgiving 2005, when she became angry that Wilson was not spending enough time with

her, and she encouraged him to leave his marriage. In November 2005, Tawanda began

coming to Wilson’s house, where he lived with his wife, and leaving notes for him on his car.

In early January 2006, Tawanda came to Wilson’s house on two occasions, once breaking

his car’s windows, and once slashing his car’s seats and breaking CDs in the car. After the

seat-slashing incident, Wilson attempted to break off contact with Tawanda; however, a few

days later, Wilson found Tawanda pouring gas around his house, trying to set it on fire.



       5
     The circuit court found that Tawanda was sixteen years old at the time of her death.
However, Tawanda was born in April 1990 and died in January 2006.

                                              5
Wilson and Tawanda had a physical altercation, then drove in Wilson’s car to Presidential

Hills Park in Northwest Jackson. Wilson then beat Tawanda and left her in the park, where

she ultimately died as a result of blunt-force trauma. Wilson, who has no connection to the

City of Jackson or JPD, pleaded guilty to murder and is serving a life sentence in the custody

of the Mississippi Department of Corrections.

¶11.   After Tawanda’s body was found, the investigation into her death revealed the name

“K.T.” in her cell phone. When the investigating officers called the number, JPD officer

Kenneth Talton answered the phone. Talton stated to the JPD officers that he had met

Tawanda in December 2005, when he saw her crying on the street. Talton stated that

Tawanda told him her name was “Kaylee,” that she was eighteen years old, that she was from

Houston, Texas, and that she was fighting with her boyfriend. Talton claimed he thought

Tawanda was “Kaylee” until he was told otherwise after her death.

¶12.   Ricky Robinson, who conducted the JPD internal affairs investigation into the

allegations against Clark and Talton, testified that Talton had stated that Tawanda was crying

when he first met her, and Talton had thought she was possibly on medication. After running

a warrant check on “Kaylee,” Talton dropped Tawanda off at her aunt’s house. Although a

JPD general order states that an officer should notify dispatch when transporting a civilian,

Talton did not do so when he gave Tawanda a ride. Additionally, Talton admitted he gave

his phone number to Tawanda and that he had oral sex with Tawanda at his nephew’s house.

¶13.   Tawanda’s parents, on behalf of her wrongful-death beneficiaries, filed suit against

the City of Jackson, Talton, and Clark, in their official and individual capacities, for, among

other claims, the wrongful death of Tawanda. The Sandifers allege that the City caused or


                                              6
contributed to Tawanda’s death by ignoring its own policies with regard to runaways; by

failing to investigate Tawanda’s claims in 2004 that she was having sex with a JPD officer;

by negligently failing to train, hire, supervise, instruct, monitor or control its employees; by

failing to maintain an adequate system to hire, train, supervise, instruct, monitor, and/or

control its employees; by allowing Tawanda to be subjected to assault, battery, physical,

mental, and sexual abuse; and by failing to timely apprehend Tawanda and deliver her to her

parents and other appropriate agencies despite knowledge of her status as a runaway.

¶14.   After a bench trial, the circuit court found the City liable for Tawanda’s death.

Specifically, the circuit court found that Talton and Clark had been acting within the course

and scope of their employment during their encounters with Tawanda, and that the City’s

failure to investigate the 2004 allegations, coupled with the repeated sexual encounters,

constituted reckless disregard for Tawanda’s status as a runaway. The circuit court further

found that, although Tawanda’s “physical death was caused by the blows from Toice

Wilson,” JPD employees put her “in a place of danger,” which contributed to her death.

¶15.   The circuit court ultimately concluded that the City’s failure to fully investigate

Tawanda’s case “caused [Tawanda] to succumb to the brutal and fatal actions of Toice

Wilson” and that Wilson and the City were jointly responsible for Tawanda’s death. The

circuit court assessed damages in the amount of $1 million for Tawanda’s death, and further

found that the City and Wilson were each fifty percent at fault. Therefore, the circuit court

entered judgment against the City in the amount of $500,000, the maximum amount allowed

under the MTCA. The City filed this appeal.




                                               7
                                            DISCUSSION

I.        Standard of Review

¶16.      A circuit court judge sitting without a jury is afforded the same deference as a

chancellor.6 We will not disturb a circuit court’s findings after a bench trial unless “they are

manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” 7 The

proper application of the MTCA is a question of law, which we review de novo.8

II.       Governmental Liability Under the MTCA

¶17.      “A state may not be sued except by its consent.” 9 However, Mississippi has waived

immunity under certain circumstances.10 These circumstances are addressed in the MTCA,

which provides the exclusive civil cause of action against a governmental entity, such as the

City.11

¶18.      Importantly, governmental immunity is waived for employee misconduct only if an

employee is acting within the course and scope of his employment.12 The MTCA specifically

provides that “an employee shall not be considered as acting within the course and scope of

his employment and a governmental entity shall not be liable or be considered to have


          6
              City of Jackson v. Powell, 917 So. 2d 59, 68 (Miss. 2005) (citation omitted).
          7
              Id. (citation omitted).
          8
              Id. (citation omitted).
          9
              Powell, 917 So. 2d at 73 (citing Hall v. State, 79 Miss. 38, 29 So. 994 (1901)).
          10
               Powell, 917 So. 2d at 73.
          11
               Miss. Code Ann. §§ 11-46-1 to 11-46-23 (Rev. 2012). See also Powell, 917 So. 2d
at 69.
          12
               Powell, 917 So. 2d at 73.

                                                   8
waived immunity for any conduct of its employees if the employee’s conduct constituted .

. . any criminal offense.” 13

¶19.   The MTCA further limits governmental liability in pertinent part as follows:

       (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 . . . 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 . . . .14

“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.’” 15 Additionally, reckless disregard is generally “accompanied by a conscious

indifference to consequences, amounting almost to a willingness that harm should follow.” 16

¶20.   Governmental entities also are immune from liability for any claim “based upon the

exercise or performance or the failure to exercise or perform a discretionary function or duty

on the part of a governmental entity or employee thereof, whether or not the discretion be

abused.” 17 “A two-part ‘public policy function’ test is applied to determine whether conduct


       13
            Miss. Code Ann. § 11-46-7(2).
       14
            Miss. Code Ann. § 11-46-9 (emphasis added).
       15
        City of Jackson v. Presley, 40 So. 3d 520, 523 (Miss. 2010) (quoting Collins v.
Tallahatchie County, 876 So. 2d 284, 287 (Miss. 2004)).
       16
            Presley, 40 So. 3d at 523 (citing Maldonado v. Kelly, 768 So. 2d 906, 910 (Miss.
2000)).
       17
            Miss. Code Ann. § 11-46-9(1)(d) (emphasis added).

                                               9
is considered a discretionary function subject to immunity.” 18 First, we must determine

whether the conduct involved an element of choice; if so, we must then “determine whether

that choice or judgment involved social, economic, or political-policy considerations.” 19

Each of these exceptions must be considered here and, to recover on their claims against the

City, the Sandifers must prove that the officers’ alleged misconduct was within the course

and scope of their employment, was not criminal, was in reckless disregard of Tawanda’s

safety, and was not discretionary.

III.   The City is immune from liability for the alleged employee misconduct.

¶21.   The circuit court based its finding that the City was liable for Tawanda’s death on

several alleged instances of JPD employee misconduct, specifically Clark’s sexual contact

with Tawanda; Talton’s sexual contact with Tawanda; the JPD’s failure to fully investigate

Tawanda’s allegations regarding Clark in 2004; and Talton’s and Clark’s failure to take

Tawanda into custody after she last ran away in April 2005. We address the City’s liability

for Clark’s and Talton’s alleged sexual misconduct together, and for the remaining alleged

misconduct individually.

       Clark and Talton’s Sexual Contact with Tawanda

¶22.   The circuit court found that both Clark and Talton had sex with Tawanda while they

were employed by JPD, and that JPD had evidence in 2004 that one of its officers was

engaging in criminal activity. The circuit court further found that both Clark and Talton were




       18
        Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So. 3d 68, 72 (Miss. 2012) (citing
Miss. Transp. Comm’n v. Montgomery, 80 So. 3d 789, 795 (Miss. 2012).
       19
            Pratt, 97 So. 3d at 72 (citing Montgomery, 80 So. 3d at 795).

                                              10
acting within the course and scope of their employment “so long as they were on the job.”

The circuit court then concluded that JPD’s knowledge of the criminal activity was “enough

to overcome the presumption that state entities are not liable for the criminal actions of

employees.”

¶23.   We find that the circuit court erred in finding the City is liable for Clark’s and

Talton’s sexual contact with Tawanda. The language of the MTCA clearly provides that an

“employee shall not be considered as acting within the course and scope of his employment

and a governmental entity shall not be liable” for the conduct of its employees if such

conduct constitutes “any criminal offense.” 20 In this case, the Sandifers allege that Clark and

Talton engaged in sexual acts with Tawanda which constitute criminal offenses,21 and the

City does not dispute that the sexual acts, if they occurred, constitute criminal conduct.

Furthermore, the circuit court expressly found that Clark and Talton had committed criminal

offenses by engaging in sexual acts with Tawanda, including statutory rape.

¶24.   The circuit court cited no authority for its determination that the MTCA provides a

rebuttable “presumption” that governmental entities are not liable for the criminal acts of

their employees, and we are not aware of any support for this proposition. We conclude that


       20
         Miss. Code Ann. § 11-46-7(2) (Rev. 2012). See also L. T. ex rel Hollins v. City of
Jackson, 145 F. Supp. 2d 750, 757 (S.D. Miss. 2000) (finding that plaintiff’s claims against
the City of Jackson, alleging sexual assault by a JPD officer, would be precluded under the
MTCA to the extent the alleged conduct was criminal).
       21
         Mississippi Code Section 97-3-95(1)(c) provides that “a person is guilty of sexual
battery if he or she engages in sexual penetration with . . . a child at least fourteen (14) but
under sixteen (16) if the person is thirty-six (36) or more months older than the child . . . .”
Miss. Code Ann. § 97-3-95(1)(c) (Rev. 2006). Tawanda was over fourteen and under
sixteen at the time she allegedly had sexual contact with Clark and Talton, who both were
more than thirty-six months older than she was.

                                              11
the circuit court erred in finding the City was liable for the alleged criminal sexual conduct

of Clark and Talton.

¶25.   Additionally, the City is not liable for Talton’s and Clark’s sexual contact with

Tawanda because there is no evidence that Talton and Clark were acting within the course

and scope of their employment when the alleged misconduct occurred. There is no evidence

in the record of when and where the alleged sexual activities occurred and there is no

evidence that either Talton or Clark was on duty when he engaged in sexual activities with

Tawanda.22 But even if Talton and Clark were on duty when the alleged conduct occurred,

Mississippi law is clear that an employee must be acting in furtherance of his employer’s

business to be considered to be in the course and scope of employment.23 This Court has

stated that, “if an employee steps outside his employer’s business for some reason which is

not related to his employment, the relationship between the employee and the employer ‘is

temporarily suspended and this is so “no matter how short the time and the [employer] is not

liable for [the employee’s] acts during such time.”’” 24 Furthermore, “an employee’s personal

unsanctioned recreational endeavors are beyond the course and scope of employment.” 25




       22
        Clark met Tawanda when he was moving into an apartment and she was hanging
around the apartment building. There is no evidence regarding when he had sexual contact
with Tawanda, other than that it occurred sometime before October 2004. Talton first met
Tawanda while he was on duty, and he gave her his cell-phone number. There is no
evidence that Talton was on duty when he had oral sex with Tawanda at his nephew’s house.
       23
        Cockrell v. Pearl River Valley Water Supply Dist., 865 So. 2d 357, 361-62 (Miss.
2004) (citations omitted).
       24
            Id. (quoting Estate of Brown, 627 So. 2d at 311).
       25
            Cockrell, 865 So. 2d at 362.

                                               12
¶26.   As the circuit court found, the purpose of JPD is to protect and serve the citizens of

the City of Jackson. There is no question that both Clark and Talton “stepped outside [their]

employer’s business” for “personal unsanctioned recreational endeavors” at the time they

allegedly engaged in illegal sexual contact with Tawanda.26 Therefore, we find that the

circuit court erred in finding Clark and Talton were acting within the course and scope of

their employment at the time they engaged in the alleged sexual misconduct.

       The Investigation Concerning the 2004 Allegations

¶27.   The circuit court noted that the results of the City’s 2004 investigation were unknown,

but ultimately found that JPD had failed to fully investigate Tawanda’s allegations.

Specifically, the circuit court found that JPD had evidence that one of its employees was

engaging in sexual contact with Tawanda and had begun an investigation into the allegations,

but it failed to complete the investigation due to the lead detective taking medical-disability

leave. The circuit court then explicitly recognized that “[t]he manner in which a municipality

conducts analysis of basic investigative decisions, including the decision of what type of

investigation to conduct, arise from the performance of discretionary functions, of which the

City of Jackson has sovereign immunity pursuant to Miss. Code Ann. § 11-46-9(1)(d).”

¶28.   The circuit court then concluded that the fact that an investigation was instituted

serves as proof that JPD knew criminal activity was being committed by one of its

employees.    The circuit court ultimately concluded that, had the investigation been



       26
        See Cockrell, 865 So. 2d at 362 (finding City was not liable for the employee’s
misconduct because JPD officer stepped outside course and scope of employment when he
attempted to kiss motorist, even though he was within course and scope of employment at
time he pulled motorist over).

                                              13
completed, “Tawanda could have received the help she so desperately needed” and that the

failure to investigate caused her “to succumb to the brutal and fatal actions of Toice Wilson.”

¶29.   As stated above, “[a] two-part ‘public policy function’ test is applied to determine

whether conduct is considered a discretionary function subject to immunity.” 27 In this case,

we are required to determine (1) whether the JPD’s decision to investigate or suspend the

investigation of Tawanda’s 2004 allegations and related failure to discipline Clark involved

an element of choice, and, if so, (2) whether the choice involved social, economic, or

political policy.

¶30.   We have recognized that a police department’s decision to investigate and/or

discipline an officer involves an element of choice.28 Neither the Sandifers nor the circuit

court points to any authority that would support a finding that the City was required to

investigate Tawanda’s claims or discipline Clark. Additionally, although Mississippi Code

Section 21-31-21 contains a series of reasons a police officer can be terminated, “the statute

requires the City of Jackson to exercise its judgment in the manner in which it chooses to

supervise its officers.” 29 We have further recognized that a police department’s disciplinary

and investigative decisions involve social and public policy, explaining that:

       there is no doubt that the choice to employ and the manner of supervision of
       police officers does affects [sic] public policy, and the make-up of the police
       force inherently affects the social policy of a city. The manner in which a
       police department supervises, disciplines and regulates its police officers is a




       27
            Pratt, 97 So. 3d at 72 (citing Montgomery, 80 So. 3d at 795).
       28
            Powell, 917 So. 2d at 74 (citation omitted).
       29
            Id.

                                                14
       discretionary function of the government and thus the city is immune to suit
       under [section] 11-46-9(1)(d).30

¶31.   Furthermore, the City is not liable for the acts of its employees related to police

protection unless the employee acted in reckless disregard of a person’s safety.31 We have

stated that “an inadequate investigation, or a failure to investigate certain acts during the

course of an investigation” is “negligence, not reckless disregard.” 32         Thus, assuming

arguendo that JPD did fail to properly investigate the 2004 allegations, such failure

constitutes negligence, for which the City is not liable.

¶32.   We find that the City is immune from liability for JPD’s investigation regarding the

2004 allegations, because the investigation was a discretionary function; i.e., the manner in

which JPD chose to investigate Tawanda’s allegations and to discipline Clark involved an

element of choice, and that choice involved social and public policy. Indeed, the circuit court

correctly recognized that the City is immune from liability for its investigative decisions

because such decisions are discretionary functions, yet the circuit court then inexplicably

found the City was liable for Tawanda’s death due to JPD’s alleged failure to properly

investigate Tawanda’s 2004 allegations. Additionally, an inadequate investigation or failure

to investigate does not rise to the level of reckless disregard; rather it constitutes negligence,

for which the City is not liable.




       30
            Id.
       31
            Miss. Code Ann. § 11-46-9 (Rev. 2012).
       32
       City of Greenville v. Jones, 925 So. 2d 106, 118 (Miss. 2006), overruled on other
grounds by Joel v. Joel, 43 So. 3d 424, 437-38 (Miss. 2010).

                                               15
¶33.   We find that the circuit court erred in finding the City was liable for JPD’s alleged

failure to complete an investigation into Tawanda’s allegations in 2004 and related failure

to discipline Clark before her death.

       Clark’s and Talton’s Failure to Follow JPD Policies

¶34.   The circuit court found that, even if the City was immune from liability based upon

Clark’s and Talton’s sexual contact with Tawanda because the conduct constituted criminal

activities, the officers had a responsibility under the City’s policies to determine “whether

Tawanda was a minor and whether there was a runaway warrant for her.” The circuit court

concluded, “[i]t is clear that if Officers Clark and Talton had done what they were supposed

to do, Tawanda would not have been out on the streets, and vulnerable to the attack of Toice

Wilson;” therefore, the circuit court found that the actions of Clark and Talton contributed

to Tawanda’s death. Likewise, the Sandifers now argue on appeal that the City’s liability

does not rest on the sexual acts themselves, but rather rests “on the City’s failures to follow

its own policies with respect to runaways like Tawanda . . . .”

¶35.   The Sandifers additionally argue that JPD policy and general orders required Talton

to determine if any adult he encountered had been reported missing if the adult could be

mentally incoherent or retarded and also argue that Tawanda met this description at the time

Talton met her on the street, because she was crying and upset. However, this policy is based

upon an officer’s subjective assessment of a person’s mental state, and does not require an

officer to take every crying individual into custody.         Furthermore, the evidence is

uncontradicted that Tawanda gave Talton a fake identity, and there is no evidence that he

reasonably could have discovered she was a runaway.


                                              16
¶36.   We find no evidence that either Clark or Talton violated JPD policy or general orders

by failing to ascertain that Tawanda was a runaway minor and failing to take her into

custody. Although the circuit court found that Clark and Talton had met Tawanda during the

scope of their employment and Clark had used his position as a police officer to “give

Tawanda the confidence to engage in sexual acts with him,” there is no evidence that Clark

had any interaction with Tawanda while he was on duty or that he had any reason to suspect

she was a runaway. As to Talton, there is no evidence he knew or should have know that

Tawanda was not an eighteen-year-old from Texas named Kaylee until after her death.

¶37.   We have recognized that the Legislature “set an extremely high bar for plaintiffs

seeking to recover against a city for a police officer’s conduct while engaged in the

performance of his or her duties.” 33 The Sandifers have pointed to no authority that would

support a finding that Clark’s or Talton’s alleged violation of JPD general orders or policies

would constitute reckless disregard, and this Court has recently rejected such an argument.34

¶38.   There is simply no evidence in this case that Clark or Talton knowingly and

intentionally committed a wrongful act by failing to take Tawanda into custody or that they

exhibited a conscious indifference to consequences, amounting almost to a willingness that

harm to Tawanda should follow. Although Talton did not call into dispatch when he

transported Tawanda, there is no evidence that would support a finding that his failure




       33
            Presley, 40 So. 3d at 523.
       34
         See Presley, 40 So. 3d at 524 (finding plaintiff and court of appeals cited no
authority for the “proposition that a violation of an internal police operating procedure
constitutes reckless disregard”).

                                             17
amounts to a “willingness that harm should follow” to Tawanda or that Talton would have

done anything differently if he had called in the transport.

¶39.   We find that the City is immune from liability for the alleged failures of Talton and

Clark to follow JPD general orders or policies with respect to Tawanda. The circuit court

erred in finding the City liable for Tawanda’s death based upon this alleged misconduct.

                                        CONCLUSION

¶40.   For the foregoing reasons, we find that the City is immune from liability for the

alleged misconduct of its employees at issue in this case under the Mississippi Tort Claims

Act. Therefore, we reverse the judgment of the circuit court and render judgment in favor

of the City on the Sandifers’ claims.

¶41.   REVERSED AND RENDERED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.




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