MOTION FOR REHEARING

Transcription

1 E-Filed Document Aug :18: CA COA Pages: 25 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA KHAVARIS HILL APPELLANT-PLAINTIFF VS. HINDS COUNTY, MISSISSIPPI, SHERIFF TYRONE LEWIS, in his official capacity, DEPUTY BRACEY COLEMAN, in his official and individual capacities, and OTHER UNKNOWN JOHN AND JANE DOES 1-10, also in their official and individual capacities APPELLEES-DEFENDANTS ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT NO. 25CI-1:15cv151-JAW MOTION FOR REHEARING STEVEN J. GRIFFIN - BAR # sgriffin@danielcoker.com DANIEL COKER HORTON & BELL, P.A. POST OFFICE BOX 1084 JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) JASON E. DARE - BAR # jdare@pbhfirm.com PETTIS, BARFIELD & HESTER, P.A. POST OFFICE BOX JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) Attorneys for Appellees {D }

2 CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Khavaris Hill Appellant/Plaintiff. 2. Chuck R. McRae and Jhasmine Andrews of McRae Law Firm, PLLC Attorneys for Appellant/Plaintiff. 3. Hinds County, Mississippi Appellee/Defendant. 4. Bracey Coleman Appellee/Defendant. 5. Sheriff Tyrone Lewis Appellee/Defendant. 6. Roy A. Smith, Jr., and Steven J. Griffin, Esq., of Daniel, Coker, Horton & Bell, P.A., and Jason E. Dare of Pettis, Barfield & Hester, P.A. Attorneys for Appellees/Defendants. 7. Honorable Jeff Weill, Sr. Hinds County Circuit Court Judge. Respectfully submitted, this the 22 nd day of August, /s/ Steven J. Griffin Of Counsel for Hinds County, Bracey Coleman, and Sheriff Tyrone Lewis, Appellees {D } i

3 TABLE OF CONTENTS Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii-iv Statement of the Issues... v I. Standard for Grant of Motion for Rehearing... 1 II. Argument... 1 A. Whether the Court of Appeals overlooked and should have affirmed summary judgment as to Plaintiff s claims related to his removal from the vehicle and brief search... 1 B. Whether the Court of Appeals overlooked undisputed facts and misapprehended applicable law which entitled Defendants to MTCA immunity from Hill s claims regarding the subject auto accident... 4 i. Defendants entitlement to immunity due to Plaintiff s criminal activity... 4 ii. Defendants entitlement to immunity due to the absence of reckless disregard... 8 C. Whether the Court of Appeals overlooked a prior written order of the federal court dismissing Plaintiff s state law claims against Bracey Coleman in his individual capacity with prejudice, or alternatively, whether the Court of Appeals overlooked Coleman s entitlement to MTCA immunity from the individual capacity claims against him i. Coleman s entitlement to summary judgment based on res judicata ii. Coleman s entitlement to summary judgment based on MTCA immunity IV. Conclusion Certificate of Service {D } ii

4 TABLE OF AUTHORITIES CASES Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5 th Cir. 1984)... 7 City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003)...9, 10 City of Jackson v. Calcote, 910 So. 2d 1103 (Miss. Ct. App. 2005)... 5 City of Jackson v. Gardner, 108 So. 3d 927 (Miss. 2013)...2, 9, 14 City of Jackson v. Powell, 917 So. 2d 59 (Miss. 2005)... 2 Davis v. City of Clarksdale, 18 So. 3d 246 (Miss. 2009)...2, 3 Ellisville v. Richardson, 913 So. 2d 973 (Miss. 2005) Estate of Williams v. City of Jackson, 844 So. 2d 1161 (Miss. 2003)...4, 5, 6, 7, 8 Fason v. Trussell Enterprises, Inc., 120 So. 3d 454 (Miss. App. 2013) Giles v. Brown, 962 So. 2d 612 (Miss. App. 2006)... 8 Graham v. Connor, 490 U.S. 386 (1989)... 2 Hatampa v. City of Biloxi, 2013 WL (S.D. Miss. Dec. 11, 2013)... 2 Hill v. Hinds County, 3:12-cv-880-CWR-FKB (S.D. Miss) Hinds County v. Burton, 187 So. 3d 1016 (Miss. 2016)... 2 {D } iii

5 McCoy v. City of Florence, 949 So. 2d 69 (Miss. App. 2006)...4, 5, 10, 11, 12 Miss. Dep t of Pub. Safety v. Durn, 861 So. 2d 990 (Miss. 2003)...4, 5, 6, 7 Ogburn v. City of Wiggins, 919 So. 2d 85 (Miss. App. 2005) Phillips v. Miss. Dep t of Pub. Safety, 978 So. 2d 656 (Miss. 2008)... 2 Topps v. City of Hollandale, 2000 WL (N.D. Miss. July 6, 2000)... 8 Tory v. City of Edwards, 829 So. 2d 1246 (Miss. App. 2002)...8, 10 Tugle v. State, 68 So. 3d 691, 698 (Miss. App. 2010)... 6 STATUTES AND RULES MISS. CODE ANN , 5, 8, 14 MISS. CODE ANN Miss. Code Ann MISS. CODE ANN , 7 MISS. CODE ANN Miss. Code Ann , 6 MISS. R. APP. P MISS. R. CIV. P {D } iv

6 STATEMENT OF THE ISSUES 1. Whether the Court of Appeals overlooked and should have affirmed summary judgment as to Plaintiff s claims related to his removal from the vehicle and brief search. 2. Whether the Court of Appeals overlooked undisputed facts and misapprehended applicable law which entitled Defendants to MTCA immunity from Hill s claims regarding the subject auto accident. 3. Whether the Court of Appeals overlooked a prior written order of the federal court dismissing Plaintiff s state law claims against Bracey Coleman in his Individual capacity with prejudice, or alternatively, whether the Court of Appeals overlooked Coleman s entitlement to MTCA immunity from the individual capacity claims against him. {D } v

7 I. STANDARD FOR GRANT OF MOTION FOR REHEARING Pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, in certain situations, a decision of the Court of Appeals is subject to rehearing. In particular, rehearing may be had when there are points of law or fact which the court has overlooked or misapprehended or when there are specific errors of law or fact which the opinion is thought to contain. MISS. R. APP. P. 40(a). The motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain. Id. The Court of Appeals overlooked or misapprehended key points of fact and law in reversing the Circuit Court s order granting summary judgment in favor of Defendants, as set forth in more detail below. II. ARGUMENT A. Whether the Court of Appeals overlooked and should have affirmed summary judgment as to Plaintiff s claims related to his removal from the vehicle and brief search. Plaintiff s Complaint included an allegation that Plaintiff was removed from his vehicle following the auto accident at issue, and that Ogden Wilburn and Bracey Coleman dragged the Plaintiff out of his damaged vehicle at gunpoint, laid him on the ground outside the car, and placed him in handcuffs. R.8-9, 13 & 24. Plaintiff further alleged in his Complaint that [w]hile the Plaintiff was on the ground and in handcuffs, one of the Deputies attempted to search the Plaintiffs pockets. Id., 14. In reversing and remanding in its entirety the decision to grant summary judgment by the Circuit Court of Hinds County, Mississippi pursuant to MISS. R. CIV. P. 56, the Court of Appeals failed to address the Circuit Court s granting of summary judgment in relation to Plaintiff s claims following the accident and related to his extraction from his vehicle. Because Wilburn and Coleman did not act with reckless disregard to the safety of Plaintiff by pulling him {D } 1

8 out of his vehicle, placing him in handcuffs, and searching his pockets for identification and/or weapons, Defendants respectfully request that this Court reconsider and affirm the Circuit Court s ruling related to this claim. Plaintiff asserted claims for negligence, gross negligence, and negligent infliction of emotional distress in relation to his removal from his vehicle following the accident at issue. However, such claims are barred by the MTCA as they do not rise to the level of reckless disregard or willful and wanton conduct. Hatampa v. City of Biloxi, 1:12cv265-HSO-RHW, 2013 WL , at *5 (S.D. Miss. Dec. 11, 2013) (citing City of Jackson v. Gardner, 108 So. 3d 927, 929 (Miss. 2013); MISS. CODE ANN (1)(c)). For this reason standing alone, the Circuit Court s decision to grant summary judgment as to Plaintiff s claims sounding in negligence, gross negligence, and/or negligent infliction of emotional distress was warranted and justified as a matter of law and the Court of Appeals improperly reversed the Circuit Court s decision relating to these claims. Moreover, [i]n analyzing whether the actions of law enforcement officers amount to reckless disregard of the safety and well-being of others, [t]his 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. Hinds County v. Burton, 187 So. 3d 1016, 1022 ( 17) (Miss. 2016) (quoting Phillips v. Miss. Dep t of Pub. Safety, 978 So. 2d 656, 661 (Miss. 2008); City of Jackson v. Powell, 917 So. 2d 59, 70 (Miss. 2005)). In regard to an alleged use of excessive force type claim, [t]he 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. Burton, 187 So. 3d at 1022 ( 17) (quoting Phillips, 978 So. 2d at 661; quoting Graham v. Connor, 490 U.S. 386, 396, (1989)). Plaintiff must {D } 2

9 also prove that his alleged injuries were proximately caused by officers acting with a conscious indifference to consequences amounting almost to a willingness that harm should follow. Davis v. City of Clarksdale, 18 So. 3d 246, 249 ( 11) (Miss. 2009). As the officers approached Plaintiff s vehicle following the accident at issue, it is uncontested that Wilburn gave Plaintiff multiple verbal commands to exit his vehicle, but Plaintiff failed to comply. R.170, Plaintiff was observed leaning toward the center console of his vehicle and the car was either steaming or smoking. R.227. The officers found that Plaintiff was not wearing a seatbelt at the time of the accident, and accordingly, the officers did not have to remove a seat belt prior to removing Plaintiff. R.181. Plaintiff admitted that he was not able to speak at all until after the interaction with Wilburn and Colman concluded and he had been placed in the ambulance. R.181. Because Plaintiff refused to exit his vehicle following the lawful commands by officers to do so, Coleman and/or Wilburn grabbed Plaintiff s shoulders, removed him from the vehicle, and placed him face down in order to restrain him with handcuffs. R.170, 227. While Plaintiff was on his stomach, Wilburn secured Plaintiff s hands behind his back and patted him down to check for weapons and/or identification. R.170, 217 ( [W]e pat you down for our safety, first of all, because we want to make sure there are no weapons on you. We also tried to locate or tried to determine some type of identification with this individual since he would not talk to us. )). Officers were unable to determine Plaintiff s identity until after he had been apprehended. R.212. After Hill was turned over to AMR ambulance personnel, Hinds County officers had no further involvement with Plaintiff. R.170. Premised on the foregoing undisputed facts, there is no summary judgment evidence before the Court that the officers actions in relation to pulling Plaintiff out of his vehicle, securing him, {D } 3

10 and briefly searching for weapons and identification amounted to reckless disregard for the safety of Plaintiff, or that any of their actions in removing him from his vehicle and temporarily restraining him proximately resulted in an injury to the Plaintiff. Under the circumstances, it was reasonable for the officers to temporarily subdue and restrain Plaintiff to prevent him from escaping or posing a further threat to the safety of the officers or others. For these reasons, the Court of Appeals erred in reversing the Circuit Court of Hinds County s decision to grant the Defendants motion for summary judgment as to Plaintiff s claims related to events following the accident, and the Circuit Court s decision as to these claims should have been affirmed. B. Whether the Court of Appeals overlooked undisputed facts and misapprehended applicable law which entitled Defendants to MTCA immunity from Hill s claims regarding the subject auto accident There is no dispute that at all relevant times, Captain Wilburn and Deputy Coleman were engaged in activities related to police protection, as contemplated by Miss. Code Ann (1)(c). Therefore, MTCA immunity for police protection activities bars Plaintiff s claims against them if (1) Plaintiff was engaged in criminal activity at the time of his injury, or (2) Wilburn and Coleman did not act with reckless disregard of Plaintiff s safety and well-being. McCoy v. City of Florence, 949 So. 2d 69, (Miss. App. 2006), citing Estate of Williams v. City of Jackson, 844 So. 2d 1161, 1164 (Miss. 2003). The Court of Appeals overlooked undisputed facts and controlling points of law in determining that a genuine issue of material fact exists as to whether MTCA immunity applies under either prong of (1)(c). i. Defendants entitlement to immunity due to Plaintiff s criminal activity As noted by the Court of Appeals, if the injured party is engaged in an illegal activity that is a cause of the harm, the government is immune from liability. Miss. Dep t of Pub. Safety v. Durn, 861 So. 2d 990, 997 (Miss. 2003). For recovery from a government entity to be barred {D } 4

11 under (1)(c) due to the victim s criminal activity, the criminal activity has to have some causal nexus to the wrongdoing of the alleged tortfeasor. Estate of Williams, 844 So. 2d at 1165; Durn, 861 So. 2d at 997. Where an officer has probable cause to arrest and proceeds to do so, there is the requisite nexus between criminal activity and the action causing injury. Durn, 861 So. 2d at 997. The criminal activity supporting the exemption must be more than fortuitous, but it applies to misdemeanors as well as felonies. Id. Misdemeanor traffic offenses are criminal activities within the statute. Id. (emphasis added). Whether the plaintiff was ultimately charged with or convicted of a crime is irrelevant. McCoy v. City of Florence, 949 So. 2d 69, (Miss. App. 2006). The Court of Appeals also correctly noted that the moment to gauge whether the individual is engaged in criminal activity is at the time of injury. See City of Jackson v. Calcote, 910 So. 2d 1103, ( 25-26) (Miss. App. 2005). Hill admitted during his deposition that when he exited Interstate 220 and started south on Watkins Drive, he was still fleeing from the deputies pursuing him with blue lights engaged. R.180, 190 (Hill Dep., 33:10-24, 73:18-74:9). Even if it is assumed that deputies continued to pursue Hill on Watkins Drive with flashing blue lights and headlights as described by Hill, it is undisputed that Hill fleeing blue lights constituted criminal activity in violation of MISS. CODE ANN The Court of Appeals erroneously found that because Hill may have a defense to prosecution due to deputies pursuing him in an unmarked police vehicle, there is a question of fact as to whether he was engaged in criminal activity at the time of the subject accident. As mentioned supra, the MTCA does not require a finding of guilt for immunity under (1)(c) to apply. See McCoy v. City of Florence, 949 So. 2d 69, 84 (Miss. App. 2006). The fact that Hill s conduct constituted criminal activity is further supported by this Court s prior precedent affirming the criminal conviction of an individual who fled an unmarked police vehicle with flashing blue {D } 5

12 lights. See Tugle v. State, 68 So. 3d 691, 698 (Miss. App. 2010). The Court of Appeals overlooked and/or misapprehended this point of law. Additionally, Hill testified during his deposition that he was driving between m.p.h. on Watkins Drive when the crash occurred: Q. Approximately how fast were you going when this wreck occurred? A. Probably like 70, 76. ROA.183 (Hill Dep., 45:20-22). Hill s testimony regarding his excessive speed at the time of the subject accident corroborates the information Hill provided to the investigating officer at the scene, who documented that Hill was traveling 70 m.p.h. in a 40 m.p.h. zone at the time of the crash. ROA There is no dispute that traveling m.p.h. in a 40 m.p.h. zone constitutes criminal activity under state statutes prohibiting speeding and careless or reckless driving. See MISS. CODE ANN (speeding); (reckless driving); (careless driving). The only activity addressed by the Court of Appeals occurring at the time of the crash is Hill s attempt to elude law enforcement and whether the specific act of failing to yield to blue lights at that time constituted criminal activity under MISS. CODE ANN COA Opinion, Regardless of whether a factual dispute exists as to the criminal nature of Hill s attempt to elude law enforcement at the time of the crash, the Court of Appeals overlooked the undisputed fact that Plaintiff was traveling at nearly twice the posted speed limit when he crashed into an oncoming minivan on Watkins Drive. Hill s excessive speed clearly constitutes criminal activity that has some causal nexus to his alleged injuries. Estate of Williams, 844 So. 2d at 1165; Durn, {D } 6

13 861 So. 2d at 997. It was also Hill s careless or reckless driving that initially gave deputies reasonable suspicion to attempt to initiate a traffic stop of Hill. 1 For this reason alone, the Court of Appeals erred when it reversed the Circuit Court s order granting summary judgment based on the MTCA s police protection immunity. The Court of Appeals also overlooked the undisputed fact that Plaintiff was driving on the wrong side of the roadway at the time of the subject accident. Plaintiff admitted during his deposition that the collision happened in the oncoming lane. 2 ROA.190 (Hill Dep., 75:18-23). See also Uniform Crash Report, R.337. It is undisputed that failing to drive on the right side of the roadway is a misdemeanor traffic offense under MISS. CODE ANN and/or It is also undisputed that driving on the wrong side of the road had some causal nexus to Hill s alleged injuries. Estate of Williams, 844 So. 2d at 1165; Durn, 861 So. 2d at 997. For this additional reason, the Court of Appeals erred when it determined a factual despite exists as to 1 The U.S. District Court has previously held, in its oral and written orders, that there is no genuine issue of material fact as to whether the deputies had probable cause to initiate a traffic stop of Hill. ROA.155, 159, 165. Accordingly, all such claims against the deputies were dismissed as a matter of law. Id. Any suggestion by the Court of Appeals to the contrary is error. 2 Hill attempts to create a fact question as to what caused the crash through testimony at his August 13, 2014 deposition, where he stated that he believes the deputies hit him from behind and pushed him into the oncoming lane and into the minivan (ROA.191, 79:23-80:16); however, his testimony in that regard directly contradicts his prior sworn affidavit dated September 11, 2013, which stated that he was involved in only a two-car collision. ROA.334 (Hill Aff., Error! Main Document Only. 7). Hill s affidavit is consistent with his statement to the investigating officer that he had collided only with the minivan in the oncoming lane while fleeing from deputies. ROA.334. It is well established that the non-movant cannot defeat a motion for summary judgment by submitting testimony which directly contradicts, without explanation, his prior testimony. See Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5 th Cir. 1984). The Court of Appeals erroneously considered Hill s subsequent testimony regarding the cause of the accident. However, even if a factual dispute exists as to why Hill was driving on the wrong side of the roadway, there is no dispute that Hill was traveling at almost twice the posted speed limit at the time of the crash. {D } 7

14 whether Hill was engaged in criminal activity at the time of the crash that would trigger police protection immunity under (1)(c). The Court of Appeals ruling directly contradicts controlling judicial precedent regarding the criminal activity prong of police protection immunity. See Estate of Williams, 844 So. 2d at (holding criminal activity that triggered police protection immunity was traffic offense of driving while intoxicated); Giles v. Brown, 962 So. 2d 612 (Miss. App. 2006) (holding criminal activity that triggered police protection immunity was driving ATV on state highway); Tory v. City of Edwards, 829 So. 2d 1246, (Miss. App. 2002) (holding criminal activity that triggered immunity was plaintiff s refusal to pull over, his attempts to run officers off the road, and his reckless driving); see also Topps v. City of Hollandale, 2000 WL (N.D. Miss. July 6, 2000) (summary judgment granted to officers under police protection immunity where plaintiff crashed after failing to yield to blue lights when officers attempted to stop him for speeding and reckless driving). Accordingly, the Court of Appeals erred when it reversed summary judgment based on the criminal activity prong of (1)(c), and the Circuit Court s order granting summary judgment in favor of Defendants should be affirmed. ii. Defendants entitlement to immunity due to the absence of reckless disregard Because Hill s claims against Defendants are completely barred under the criminal activity prong of (1)(c), the Court need not address the question of reckless disregard. Estate of Williams, 844 So. 2d at 1166; Tory, 829 So. 2d at However, the Court of Appeals also overlooked undisputed facts and controlling precedent that entitle Defendants to summary judgment under this separate prong of the MTCA s police protection immunity provision. {D } 8

15 To overcome Defendants entitlement to police protection immunity under the MTCA, Hill must establish that his alleged injuries were caused by Defendants acting with reckless disregard for his rights. The Mississippi Supreme Court recently defined reckless disregard as follows: Reckless disregard exceeds gross negligence and embraces willful and wanton conduct. The terms reckless, willful, and wanton refer to conduct that is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to... [these] terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. Such conduct usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. In determining whether someone's conduct constituted reckless disregard, this Court considers the totality of the circumstances. 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. City of Jackson v. Gardner, 108 So. 3d 927, 929 (Miss. 2013) (internal quotations and citations omitted). As an initial matter, the Court of Appeals appears to expand the application of the Brister factors in police pursuit cases to claims brought by the suspect being pursued. The only case on which the Court of Appeals relies in reversing summary judgment in favor of the Defendants on the issue of reckless disregard is City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003), in which a fleeing suspect collided with an innocent motorist following a chase through a heavily populated residential area during the middle of the work day. All other cases applying the Brister factors to determine whether police conduct constituted reckless disregard were also brought by innocent third parties who were injured due to the actions of the fleeing suspect. Defendants cannot find one Mississippi case in which the Brister factors have been applied to analyze reckless disregard in a claim brought by the suspect being chased. In at least one other case brought by an {D } 9

16 individual who was injured while fleeing law enforcement, the Brister factors were not used. See, e.g., Tory v. City of Edwards, 829 So. 2d 1246, (Miss. App. 2002). Even if the Brister factors are applied, the Court of Appeals either overlooked or relied upon errors of fact in finding the existence of a factual dispute on the issue of reckless disregard. Defendants will address each factor, as follows 3 : 1. Length The length of the pursuit was less than four miles and lasted about three minutes 4 R.206 (Wilburn Dep., 26:4-15). Nothing in this factor indicates reckless disregard. See McCoy v. City of Florence, 949 So. 2d 69 (Miss. Ct. App. 2006) (no reckless disregard where chase lasted a matter of minutes over a distance of five miles ). 2. Neighborhood The pursuit occurred almost exclusively on Interstate 220, a four-lane highway divided by a median. R.189 (Hill Dep. 72:5-12), R.212 (Wilburn Dep., 49:19-50:2). The deputies testified they terminated the pursuit once Hill exited onto Watkins Drive. R.212 (Wilburn Dep., 49:19-50:2). But even if the final three-fourths of a mile between Interstate 220 and the point where Hill crashed is somehow considered part of the pursuit, there are no residential areas anywhere along this portion of Watkins Drive until the point where Hill crashed in the oncoming lane. The Court of Appeals erroneously found that the pursuit occurred through residential areas. COA Opinion, 3 Following Brister, the Mississippi Supreme Court adopted a broader ten-factor test that incorporated the Brister factors. See Ellisville v. Richardson, 913 So. 2d 973 (Miss. 2005). Because the Court of Appeals only discussed the factors enumerated in Brister, it is unclear whether its decision indicates a return to the analysis used prior to Richardson. Out of an abundance of caution, Defendants will address all ten factors enumerated by Richardson. 4 The Court of Appeals indicates the pursuit lasted five minutes. COA Opinion, Error! Main Document Only. 13. The source of this information is unknown. Even if it was five minutes, it would make no difference here. {D } 10

17 13. The source of the Court of Appeals erroneous information is unknown. Nothing in this factor indicates reckless disregard. See McCoy, 949 So. 2d at Characteristics of the Streets The pursuit occurred almost exclusively on a four-lane, divided highway. The short stretch of Watkins Drive before the point where Hill crashed is a straight, paved, and marked two-lane road featuring several businesses and undeveloped land. It is undisputed that the roads were dry and clear at the time. R.189 (Hill Dep., 70:17-22). There is no evidence regarding the characteristics of the streets that would indicate reckless disregard. 4. Traffic According to all parties involved, traffic was light at the time of the pursuit. R.189 (Hill Dep. 71:13-17 Q. And what was the traffic like on I-220 that night? A. Slow. Q. You mean there wasn t much traffic? A. No, sir.), R.212 (Wilburn Dep., 51:12-15 describing only a few cars on the interstate). This was likely due to the fact that the incident occurred at 7 p.m. on a Sunday night on a federal holiday. R.336. The Court of Appeals erroneously states the pursuit took place through highly congested traffic according to the deputies. COA Opinion, 13. The source of this erroneous information is unknown. Again, there is no genuine issue of material fact pertaining to this factor indicative of reckless disregard. See McCoy, 949 So. 2d at Weather and Visibility According to all parties involved, the weather was clear and all roads were dry and clear. R.189 (Hill Dep., 70:17-22), 212 (Wilburn Dep., 51:17-20), R.336 (Uniform Crash Report). Other than it being after dark, there is no evidence of any diminished visibility or dangerous road conditions. There is nothing indicative of reckless disregard pertaining to this factor. See Ogburn v. City of Wiggins, 919 So. 2d 85, 90 (Miss. App. 2005). {D } 11

18 6. Seriousness of Hill s Offense Deputies first noticed Hill because of his excessive speed and reckless behavior while driving on Medgar Evers Boulevard near its intersection with Interstate 220. When they attempted to initiate a traffic stop, Hill testified that he sped up and reached speeds of up to 80 miles per hour in an attempt to flee. R.179 (Hill Dep., 31:3-5). Wilburn estimates that while he generally pursued Hill at speeds of 70 to 80 m.p.h., he at one point reached 100 m.p.h. on Interstate 220 in his effort to keep up with Hill. R.206, 216 (Wilburn Dep., 25:12-26:3, 67:12-68:1). Hill s erratic behavior presented a serious life-threatening risk to himself and all other motorists. There is nothing pertaining to this factor indicative of reckless disregard. See McCoy, 949 So. 2d at Sirens and Blue Lights The deputies unequivocally testified that they used blue lights and sirens from the time they initiated their pursuit at the intersection of Medgar Evers and Interstate 220 until they terminated their pursuit at the Watkins Drive exit. R (Wilburn Dep., 12:4-15, 13:5-11), R.223 (Coleman Dep., 14:14-15:8, 16:9-17). Plaintiff testified that before he got onto Interstate 220, he saw the deputies vehicle pursuing him with blue lights flashing in its grill and headlights flashing. R.179 (Hill Dep., 30:14-20, 73:18-74:9). Although Plaintiff did not hear a siren (R.190, 73:16-17), he admitted that once he saw the blue lights flashing behind him he sped up to get away. R.179 (Hill Dep., 30:14-24). There is no evidence pertaining to this factor that would indicate reckless disregard. The Court of Appeals did not address this factor. 8. Alternative Means of Apprehension Deputies did not know Hill s identity when they initiated the pursuit, R.223 (Wilburn Dep., 13:8-12, 28:4-15). When Wilburn notified dispatch that they had initiated pursuit, he reported that he was unable to get the tag number at that time. Id. The crash occurred approximately three {D } 12

19 minutes after the pursuit began. R.206. There is no evidence pertaining to this factor to support reckless disregard. The Court of Appeals did not address this factor. 9. Policy Hinds County policy indicated pursuits should be limited to those situations where the initiating Deputy knows or has good reason to believe that the suspect(s) in question has committed or is committing a felony, and that the immediate apprehension is necessary to protect the safety of others, or when authorized by the appropriate supervisor. R.296. Here, Hill s reckless driving and failure to yield to blue lights gave officers reason to believe he had committed a felony offense and that he posed a serious risk to the safety of other motorists. R.225. The language of the policy indicates there is some discretion involved on the part of the responding deputy. 5 The policy further states that a Deputy involved in a pursuit in an unmarked vehicle shall, at the earliest possible opportunity, turn such pursuit over to a marked law enforcement vehicle and assume a back-up role. R It is undisputed that deputies contacted dispatch as soon as they turned on their blue lights and reported their initiation of the pursuit, the type of car they were chasing, their location, their direction, and that the tag was unknown. R (Wilburn Dep., 28:4-19, 28:21-29:5), R.224 (Coleman Dep., 17:24-18:4). Wilburn testified that dispatch was aware of their status as a security detail and that a marked unit would have to be called, but there was no marked unit in the area. R (Wilburn Dep., 47:6-21, 49:6-18). The pursuit lasted only about three minutes, and there is no evidence that a marked unit had enough time to respond and assume a lead role in the pursuit. The Court of Appeals overlooked these key facts in determining whether 5 Coleman has approximately forty years of law enforcement experience, including prior service as the police chief for the City of Jackson and assistant police chief for the City of Canton. R , 231. He currently serves as the police chief for Terry, Mississippi. Wilburn had almost thirty years of prior experience in law enforcement. R.208. {D } 13

20 a fact question exists as to whether departmental policy was followed. There is nothing pertaining to this factor indicative of reckless disregard. 10. Speed Hill testified that he was traveling at speeds of around 80 m.p.h. on Interstate 220 in an attempt to elude deputies. Wilburn testified that he generally stayed between 70 and 80 m.p.h. during the pursuit, though he briefly reached 100 m.p.h. in an effort to maintain sight of Hill. The fact that Wilburn exceeded the speed limit in an effort to maintain sight of Hill, particularly on an interstate highway at a time when traffic was indisputably light, is not indicative of reckless disregard. The Court of Appeals did not address this factor. In summary, there is no admissible evidence to indicate that, under the totality of the circumstances, Wilburn or Coleman acted with a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See Gardner, 108 So. 3d at 929. Their attempt to stop Hill was a reasonable precautionary measure to protect the safety of both Hill and other motorists. Nothing in the record remotely suggests that the deputies here acted with reckless disregard for Hill s own safety and well-being. The Court of Appeals relied on errors of fact and errors of law in determining that a factual dispute exists on the issue of reckless disregard. The Circuit Court s order granting summary judgment in Defendants favor based on this prong of the MTCA s police protection immunity provision under (1)(c) should be affirmed. C. Whether the Court of Appeals overlooked a prior written order of the federal court dismissing Plaintiff s state law claims against Bracey Coleman in his individual capacity with prejudice, or alternatively, whether the Court of Appeals overlooked Coleman s entitlement to MTCA immunity from the individual capacity claims against him. i. Coleman s entitlement to summary judgment based on res judicata {D } 14

21 Plaintiff s Complaint asserts state law claims against Deputy Bracey Coleman in both his individual and official capacities. 6 R The Court of Appeals correctly recognized that Plaintiff had previously asserted the same state law claims against Coleman in a separate lawsuit brought in U.S. District Court. See Hill v. Hinds County, 3:12-cv-880-CWR-FKB (S.D. Miss.). However, the Court of Appeals erroneously determined that the federal court s dismissal of Plaintiff s state law claims against Coleman, individually, was without prejudice, and that res judicata did not bar Plaintiff from re-filing these claims against Coleman in state court. On February 26, 2014, the U.S. District Court held a hearing on the individual Defendants Motion for Summary Judgment Premised on Immunity. At the conclusion of the hearing, District Judge Carlton W. Reeves orally granted summary judgment as to all claims against the Defendants in their individual capacities, stating in part as follows: The defendant also had said that these defendants are entitled to immunity respect to their state law claims, and the court agrees that they cannot be personally liable for their state law claims any state law claims (sic), because they were acting within the course and scope of their employment, and any tort actions brought against an individual government employee cannot be maintained against an individual. It only can proceed against the governmental agency for which that individual was employed. R.156. Judge Reeves memorialized his oral ruling by issuing the following written order on the same date: TEXT-ONLY ORDER granting [30] Motion for Summary Judgment Premised on Immunity for the reasons stated on the record during today s hearing. Plaintiff s claims against Deputy Bracey Coleman, in his individual capacity, and against Deputy Ogden Wilburn, in his individual capacity, are dismissed with prejudice. Signed by District Judge Carlton W. Reeves on 02/26/2014. No further written order shall issue. 6 The style of the case contained in the opinion issued by the Court of Appeals erroneously indicates that Bracey Coleman has been sued in his official capacity only. {D } 15

22 R.159 (emphasis added). The Defendants subsequently sought summary judgment as to Plaintiff s remaining federal and state law claims against Coleman and Wilburn, in their official capacities, and Hinds County. On March 9, 2015, the District Court granted Defendants motion and dismissed all remaining federal claims with prejudice, while dismissing all remaining state law claims without prejudice. The Court of Appeals erroneously assumed the District Court s March 9, 2015 written order which addressed only Plaintiff s official capacity claims memorialized the District Court s oral opinion during the hearing more than one year earlier, which had dismissed all claims against the Defendants in their individual capacities with prejudice and which had been memorialized by written order the same date. R.159. The March 9, 2015 District Court order referenced by the Court of Appeals had nothing whatsoever to do with Plaintiff s claims against Coleman individually, as those claims had already long been dismissed. Because all federal and state law claims against Coleman in his individual capacity were dismissed with prejudice pursuant to the Court s oral and written rulings issued on February 24, 2014, the doctrine of res judicata prohibits Plaintiff from re-litigating the same claims against Coleman in state court. See Fason v. Trussell Enterprises, Inc., 120 So. 3d 454, 459 (Miss. App. 2013). Accordingly, the Court of Appeals erred when it reversed the Circuit Court s dismissal of Plaintiff s individual claims against Coleman, and summary judgment in favor of Coleman should be affirmed. ii. Coleman s entitlement to summary judgment based on MTCA immunity The Court of Appeals correctly noted it is undisputed that Coleman was at all relevant times acting within the course and scope of his duties as a sheriff s deputy for Hinds County. COA Opinion, 9, n.4. Pursuant to MISS. CODE ANN (2),... no employee shall be held {D } 16

23 personally liable for acts or omissions occurring within the course and scope of the employee's duties. Coleman asserted his entitlement to MTCA immunity from Plaintiff s claims against him, in his individual capacity, through both his motion for summary judgment in the Circuit Court and again in the Brief of Appellees on appeal. The Court of Appeals overlooked this immunity provision when it reversed summary judgment in favor of Coleman, individually. For this reason also, the Court of Appeals erred and summary judgment in favor of Coleman in his individual capacity should be affirmed. IV. CONCLUSION Premised on the foregoing legal precedent and analysis, Defendants, Hinds County, Mississippi, Sheriff Tyrone Lewis, in his official capacity, and Deputy Bracey Coleman, in his official and individual capacities, respectfully submit that in this Court s opinion reversing in its entirety the Circuit Court of Hinds County's grant of summary judgment in favor of these Defendants, the Court of Appeals failed to consider and should have affirmed summary judgment as to certain claims alleged by Plaintiff. Moreover, the Court of Appeals overlooked undisputed facts and misapprehended applicable law with regards to the grant of summary judgment on those claims that this Court did analyze. For the reasons stated herein, Defendants respectfully request that this Court grant them a rehearing pursuant to Miss. R. App. P. 40 and correct the facts and/or law that were overlooked and/or misapprehended in the Court's earlier decision. In so doing, the Defendants also respectfully request that this Court affirm the grant of summary judgment in their favor by the Circuit Court of Hinds County, Mississippi. RESPECTFULLY SUBMITTED, this the 22 nd day of August, {D } 17

24 HINDS COUNTY, MISSISSIPPI, SHERIFF TYRONE LEWIS, IN HIS OFFICIAL CAPACITY, and DEPUTY BRACEY COLEMAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES APPELLANTS / DEFENDANTS BY: /s/ Steven J. Griffin OF COUNSEL ROY A. SMITH, JR. - BAR #7599 rsmith@danielcoker.com STEVEN J. GRIFFIN - BAR # sgriffin@danielcoker.com DANIEL COKER HORTON AND BELL, P.A OLD CANTON ROAD, SUITE 400 POST OFFICE BOX 1084 JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) J. LAWSON HESTER BAR # 2394 lhester@pbhfirm.com JASON E. DARE - BAR # jdare@pbhfirm.com PETTIS, BARFIELD & HESTER, P.A. POST OFFICE BOX JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) {D } 18

25 CERTIFICATE OF SERVICE I, STEVEN J. GRIFFIN, hereby certify that on this day, I mailed via US Mail, postage prepaid a true and correct copy of the Motion for Rehearing to the following: Hon. Jeff Weill, Sr. Hinds County Circuit Court 407 East Pascagoula Street Jackson, MS Additionally, I hereby certify that I electronically filed this pleading with the Clerk of the Court using the MEC filing system, which sent notification to the following: Charles R. McRae, Esq. chuck@mcraelaw.net THIS the 22 nd day of August, /s/ Steven J. Griffin STEVEN J. GRIFFIN {D } 19