                          IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2003-CA-01377-SCT

ESSIE COLLINS

v.

TALLAHATCHIE COUNTY, A POLITICAL
SUBDIVISION OF THE STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                6/5/2003
TRIAL JUDGE:                                     HON. ANDREW C. BAKER
COURT FROM WHICH APPEALED:                       TALLAHATCHIE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          W. ELLIS PITTMAN
ATTORNEY FOR APPELLEE:                           WILLIAM O. LUCKETT, JR.
NATURE OF THE CASE:                              CIVIL - TORTS-OTHER THAN PERSONAL INJURY
                                                 & PROPERTY DAMAGE
DISPOSITION:                                     AFFIRMED - 07/01/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


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

        DICKINSON, JUSTICE, FOR THE COURT:

¶1.     Essie Collins appeals an order granting summary judgment entered by the Circuit Court of

Tallahatchie County in June of 2003. Essie, who had been shot and wounded by her husband, sued

Tallahatchie County in tort for failing to arrest her husband prior to the incident. The circuit court found that

the County was entitled to sovereign immunity based upon the nature of the actions or failures of which

Essie complains. We affirm.

                              FACTS AND PROCEEDINGS BELOW1



        1
         Though the trial court made no separate statement of facts, the order did state upon which
facts summary judgment was based. The facts will be stated in the light most favorable to Essie.
¶2.     On or about August 31, 2000, Essie received threatening phone calls from her estranged husband,

Robert, who threatened "to kill, maim and otherwise cause grievous bodily injury" to her. She reported

the incident to the Tallahatchie County Sheriff's Department ("TCSD"), and asked that Robert be arrested.

TCSD instructed Essie to swear out an affidavit at the justice clerk's office so that an arrest warrant could

be issued.

¶3.     The next day, Essie went to the justice court and signed a criminal affidavit against Robert for

domestic violence.2 Shortly thereafter, the judge signed the warrant,3 but never delivered it to TCSD.

Essie testified that the judge called her on Saturday, September 2, but she failed to recall much about the

conversation. The judge claims that he had a phone conversation with Essie and that she told him that she

didn't want to see Robert in jail, but wanted to get him into court where the judge could tell him to stop

threatening her. In any case, it is undisputed that Robert was never arrested.4

¶4.     On Monday, September 4, 2000, Robert forced his way into Essie's home and shot her twice

before turning the gun on himself and taking his own life. Thereafter, Essie filed suit against Tallahatchie

County, alleging that the County was liable for negligence based upon the various actions and inactions of

TCSD, the justice clerk, and the justice court judge, for their failure to effectuate Robert's arrest. The trial




        2
         Essie testified in her deposition that, knowing that the judge was not at the office, she actually
went directly from TCSD to his home. She then stated that the judge's wife informed her that he was
asleep and that she needed to go to his office, which Essie subsequently did.
        3
         The warrant, which calls for an arrest based on domestic violence pursuant to Miss. Code
Ann. § 97-3-7(3), claims nothing other than telephone threats Robert made to Essie. However, a
complaint filed in February of 2000 complains of similar conduct from Robert's family members and
appears to indicate that some sort of physical confrontation took place between the two.
        4
          Deputy Sheriff Jimmie Gibbs did testify that he tried to contact Robert during the weekend to
investigate the matter.

                                                       2
court granted summary judgment to Tallahatchie County on the basis of sovereign immunity.5 From that

judgment, Essie appeals to this Court.

                                              DISCUSSION

¶5.     This Court reviews summary judgments de novo. Grange Mut. Cas. Co. v. United States

Fidelity & Guar. Co., 853 So.2d 1187, 1190 (Miss. 2003). We view the facts in the light most

favorable to the nonmovant. Id. If there exists a genuine issue of material fact, summary judgment is

inappropriate. Id. The nonmovant must show by specific facts that there exists a genuine issue of material

fact; that is, the nonmoving party may not rest on allegations or denials in the pleadings to withstand the

motion. Id.

        I. Whether Tallahatchie County may be held liable for the Tallahatchie
           County Sheriff's Departments failure to arrest Robert Collins.


¶6.     Although Essie concedes that no arrest warrant was issued, she claims that probable cause existed

for a warrantless arrest and/or, in the alternative, that a warrantless arrest was specifically authorized by

Miss. Code Ann. § 99-3-7(3). The County rebuts this assertion by arguing that TCSD is immune from

liability for its failure to arrest based on Miss. Code Ann. § 99-3-7(7)6 and, in the alternative, that § 99-3-

7(3) did not authorize a warrantless arrest. The County also asserts that immunity extends to the actions



        5
        Essie also tried to assert a state law due process claim based upon Miss. Const. Art. 3,
§ 14. This claim was not specifically addressed in the summary judgment order. However, Essie has
apparently waived any possible error as to such since she does not raise it on appeal.
        6
          The trial court found that TCSD was provided immunity through Miss. Code Ann. § 97-3-
7(7), which provides immunity for the arrest and/or failure to arrest a suspect pursuant to § 97-3-7(3)
(which will be covered very shortly). Seemingly fortunate for Essie, however, is the fact that § 97-3-
7(7) was not enacted until a year after her complaint was filed, making it inapplicable to the case sub
judice. See Miss. Code Ann. § 97-3-7.

                                                      3
of TCSD based upon Miss. Code Ann. § 11-46-9(1)(c), which provides immunity for actions or failures

regarding police protection:

        (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.

Miss. Code Ann. § 11-46-9(1)(c) (emphasis added).

¶7.     Essie does not argue that Miss. Code Ann. §11-46-9(1)(c) is in applicable to the conduct

complained of as to this issue, but she does argue the County is not entitled to immunity under the section

because "there was more than sufficient probable cause" to merit his arrest despite the absence of a

warrant. Apparently, Essie’s argument is that, because there was probable cause, TCSD is not entitled

to immunity because it acted in reckless disregard for her safety and well-being.7

¶8.     Essie cites no authority for the proposition that the failure to arrest despite the presence of probable

cause automatically rises to a level of reckless disregard. As Tallahatchie County points out, 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." Turner v. City of Ruleville, 735

So.2d 226, 230 (Miss. 1999).

¶9.     In her rebuttal brief, however, Essie directs the Court's attention to Miss. Code Ann. 99-3-7(3),

which states: "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

        7
          Actually, under this section of her argument, Essie makes no reference to a code section, but
only generally cites the Mississippi Tort Claims Act. However, Essie does allege that the defendants
acted in reckless disregard for her safety and well being in her complaint.

                                                      4
committed a misdemeanor which is an act of domestic violence." (emphasis added). Subsection (5)

provides a list of crimes which constitute a "misdemeanor which is an act of domestic violence" when

committed among family members. Among the list is Miss. Code Ann. § 97-35-15.

¶10.    Though not cited by any of the parties, Miss. Code Ann. § 97-35-15 states.

        (1) Any person who disturbs the public peace, or the peace of others, by violent, or loud,
        or insulting, or profane, or indecent, or offensive, or boisterous conduct or language, or by
        intimidation, or seeking to intimidate any other person or persons, or by conduct either
        calculated to provoke a breach of the peace, or by conduct which may lead to a breach
        of the peace, or by any other act, shall be guilty of a misdemeanor, and upon conviction
        thereof, shall be punished by a fine of not more than five hundred dollars ($500.00), or by
        imprisonment in the county jail not more than six (6) months, or both.

¶11.    Through Essie's previous filing with TCSD and her latest complaint, there was ample probable

cause to arrest through § 99-3-7(3) based upon § 97-35-15. However, as stated above, reckless

disregard requires that the person knowingly or intentionally commit a wrongful act. 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 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.

        II.     Whether Tallahatchie County may be held liable for the failure of
                the Justice Court Clerk or Justice Court Judge to transmit the
                signed warrant to the Tallahatchie County Sheriff's Department.

¶12.    Citing Miss. Code Ann. §11-46-9(1)(d), the trial court noted that governmental entities are not

liable for claims arising out of an employee's exercise or failure to exercise a discretionary duty. The trial

court, citing Miss. Code Ann. §11-46-9(1)(a),8 also noted that immunity is to be granted for claims arising



        8
         Though this portion of the statute was cited, the trial court's finding of immunity only rested on
subsection (d) because the acts were discretionary.

                                                      5
out of judicial actions and inactions as well as administrative actions or inactions which are of a judicial

nature.

¶13.      It should first be noted that Essie makes no mention of this last cited portion of the Tort Claims Act.

Notwithstanding, Rule 3.03 of the Mississippi Uniform Justice Court Rules, notes that "arrest warrants or

search warrants shall be issued only by the judge after a judicial determination that probable cause exists

based upon the affidavit or other evidence before the court." Therefore, the issuance of warrants is a

judicial act. Furthermore, even if one were to argue that there is a difference between the issuance of a

warrant and the delivery of a warrant to a police or sheriff's department, the type of conduct complained

of would be an administrative act of a judicial nature, at the very least. Thus, the alleged conduct of both

the justice court clerk and judge falls squarely within § 11-46-9(1)(a). Therefore, the trial court properly

found that sovereign immunity prevented prosecution of Essie’s claims.

¶14.      The parties also briefed the issue of whether Miss. Code Ann. §11-46-9(1)(d) is applicable. In

doing so, our attention was drawn to an apparent misunderstanding in our case law. Essie claims that the

trial court erred in granting summary judgment because the County employees could not have been said

to have used "ordinary care" even if the acts were discretionary.9 Tallahatchie County also believes that

this standard is applicable, though it argues the standard has been met.

          9
          Essie also asserted that the acts were ministerial and not discretionary. In describing a
ministerial function, this Court has stated:
        [t]he most important criterion, is that [if] the duty is one which has been positively imposed
        by law and its performance required at a time and in a manner or upon conditions which
        are specifically designated, the duty to perform under the conditions specified not being
        dependent upon the officer's judgment or discretion, the act and discharge thereof is
        ministerial.
Mississippi Dept. of Transp. v. Cargile, 847 So.2d 258, 267-68 (Miss. 2003)(quoting Poyner v.
Gilmore, 171 Miss. 859, 158 So. 922 (1935)). Essie fails to direct this Court's attention to any statute
which imposes a duty on the clerk or judge to deliver a warrant to TCSD. Therefore, her argument is
without merit.

                                                        6
¶15.    In Harris v. McCray, 867 So. 2d 188 (Miss. 2003), this Court held:

        A governmental entity and its employee enjoy immunity if there is exercise of ordinary care
        in the performance of a duty under a statute, ordinance or regulation. Miss. Code Ann.
        § 11-46-9(1)(b) (Rev. 2002). On the other hand, a governmental entity and its employee
        enjoy immunity under Miss. Code Ann. § 11-46-9(1)(d) ‘[b]ased upon the exercise or
        performance or the failure to exercise or perform a discretionary function or duty . . .
        whether or not the discretion be abused.’

Id. at 189.

¶16.    Here, both parties cite (directly or parenthetically) Brewer v. Burdette, 768 So.2d 920, 923

(Miss. 2000), for the erroneous proposition that one must use ordinary care in performing a discretionary

function to retain immunity. Unfortunately, Brewer cited L.W. v. McComb Separate School District,

754 So.2d 1136 (Miss. 1999), for the proposition that an ordinary care standard applies to discretionary

function immunity. This Court recognized in L.W. that the school’s conduct was of a discretionary nature.

L.W., 754 So.2d at 1139- 43 (emphasis added). However, this Court never found that the school officials

were performing a discretionary function. Id. (emphasis added). Indeed, this Court actually found

that the school officials in L.W. were performing a function required by statute and, therefore, properly

analyzed the school's actions under subsection (b) (which addresses acts or omissions while performing

statutory duties), rather than subsection (d) (which addresses discretionary duties). Id. Subsection (b)

clearly carries an ordinary care standard; subsection (d) does not. See id.

¶17.    In Brewer, this Court misapplied the wording in L.W..by incorrectly applying the ordinary care

standard to discretionary duties.10 In Harris, this Court held: “When an official is required to use his own

judgment or discretion in performing a duty, that duty is discretionary.” Harris, 867 So. 2d at 191. Miss.


        10

                Compare Brewer, 768 So.2d at 922, with L.W., 754 So. 2d at 1139-43.

                                                     7
Code Ann. § 11-46-9(1)(d) exempts governmental entities from liability of a discretionary function or duty

“whether or not the discretion be abused”. Therefore, ordinary care standard is not applicable to Miss.

Code Ann. § 11-46-9(1)(d). Thus, the conduct in the case sub judice is immune under Miss. Code Ann.

§11-46-9(1)(a), and Miss. Code Ann. § 11-46-9(1)(d) does not apply.

                                           CONCLUSION

¶18.    For the foregoing reasons, we affirm the judgment of the trial court.

¶19.    AFFIRMED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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