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Gale v. Thomas12/9/1999
g on or after July 1, 1988, as to the state, and on or after October 1, 1988, as to political subdivision."
. The implicit acceptance of the first sentence in § 11-46-6 cannot be logically reconciled with the holding in Presley that it should apply prospectively only. If the first sentence in § 11-46-6 is valid, then its immediate predecessor, the first sentence in Miss.Laws ch. 438 § 6 (1986), must also be valid. Miss.Laws ch. 438 § 6 (1986) begins: This Act ... shall apply only to causes of action that accrue on or after July 1, 1987, as to the state, and on or after October 1, 1987, as to political subdivisions. Gale's claim arose on April 17, 1993. Since the Court has declared void the second sentence of § 11- 46-6 (1987) which purports to shield the defendants from liability for claims arising after October 1, 1987, there is absolutely no reason why Gale should not have a viable claim. Clearly a suit can be brought. There is no statute which the plurality relies upon in this argument which has not been held to be unconstitutional. The same language used to grant immunity in Presley was used to block Gale from her day in court.
. Finally, while the plurality takes us on another trip down the all-too-familiar path of proprietary v. discretionary functions, it fails to grasp the fact that the officer committed a crime when he ran the red light. The plurality acknowledges that Officer Thomas is not immune from liability under the "enactment and reenactment" of sovereign immunity in § 11-46-3 (1) (Supp. 1998) as it only applies to state and political subdivisions. However, the statute in place at the time of this accident does allow a plaintiff to hold an governmental employee liable for any criminal offenses:
(2) 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 his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense. (emphasis added).
. This Court recently held in Floyd v. City of Crystal Springs, No. 1998-KM-01252-SCT, 1999 WL 106327, at *6 (Miss. Nov. 24, 1999), that traffic violations are criminal activity and that a car can be stopped for a criminal activity for investigation: "traffic violations are misdemeanors, and misdemeanors are, technically speaking, 'criminal activity' in that misdemeanors, like felonies, are crimes." Since Officer Thomas committed a crime when he ran a red light, he cannot escape liability under the above statute.
. Today, the plurality falls into the trap of trampling on the basic constitutional rights of Gale and the citizenry of this state. In affirming the lower court's grant of summary judgment this Court blocks Gale's course of redress for the State's wrongs against her, directly in the face of article 3, section 24 of this State's constitution. At the very least, this case should go back for trial against Officer Thomas. A decision more in line with our Constitution would allow for a full trial against both the officer and the city that employed him. Therefore, I dissent.
SULLIVAN, P.J., JOINS THIS OPINION.
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