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Jackson v. Powell11/10/2005
present case, there was widely contradictory evidence presented to the trial court. Powell and six witnesses testified that Powell's injuries occurred after the officers subdued and handcuffed him. It is undisputed that Powell violated several laws, including resisting arrest, but when the officers subdued and handcuffed Powell, his criminal activity had ceased. Powell's offenses that led to his arrest and subsequent escape attempt did not cause the officers to continue to beat and kick Powell after he had been subdued and handcuffed.
. The statute granting conditional immunity to police officers is designed to protect law enforcement personnel from lawsuits arising out of the performance of their duties. Perry, 764 So.2d at 379. Physically abusing a person in custody is not one of the duties of law enforcement personnel. As the Court of Appeals has correctly held, immunity under § 11-46-9(1)(c) applies only to claims brought by individuals who are engaged in criminal activity at the time of the injury. City of Jackson v. Calcote, 910 So.2d 1103, 1111-12 (MisS.Ct. App. 2005). In that case the police arrested an individual and after subduing and handcuffing him, proceeded to beat him. Id. The Court of Appeals found that at the time of the injury the individual was not engaged in the commission of the crime but had earlier been engaged in criminal activity. Id. Therefore, it did not meet the requirements of § 11--46-9(1)(c). We agree with this analysis and apply it to the present case. The crimes for which Powell was charged and convicted ceased prior to the delivery of the offensive blows by the officers. His attempt to resist arrest ended, at the latest under the facts of this case, when he was handcuffed. The trial court did not manifestly abuse its discretion in its finding.
. If immunity is found in situations like this, there is risk that it might grant police officers carte blanche to use unnecessary force on arrested individuals, yet still seek shelter under immunity. To hold the city immune from suit for Powell's injuries would lead to the disturbing result of police having immunity for abusive actions against a person after being subdued and handcuffed. Therefore, the city is not immune from suit due to Powell's previous criminal activity and escape attempt. However, the analysis does not stop there.
Whether the Officers' Actions were done in Reckless Disregard to Powell's Safety.
. The city also argues that it is immune from liability under § 11-46-9(1)(c) because the trial judge failed to make a finding that the officers acted in "reckless disregard" of Powell's safety and well-being at the time of his injury. In order to recover under the MTCA, a plaintiff must prove that the officer "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); see City of Ellisville v. Richardson, 2005 WL 976999, 13-21 (Miss. Apr. 28, 2005). "Reckless disregard" has been described by this Court as "a higher standard than gross negligence and 'embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.'" Collins v. Tallahatchie County, 876 So. 2d 284, 287 (Miss. 2004)(quoting Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss. 1999)).
. The city's argument that it cannot be liable to Powell because the trial judge did not make a finding of "reckless disregard" is incorrect. In Richardson, the trial judge found only that the defendant officer acted in disregard for the safety and well-being of others but this Court nevertheless affirmed the trial court's judgment against the City of Ellisville. Richardson, 2
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