IN THE MISSISSIPPI COURT OF APPEALSNO. 2015-CA-00578

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES & PARKS APPELLANT

v.

CANDACE WEBB, THOMAS HARPERAND KATHLEEN D. WEBB APPELLEES

APPELLANT’S REPLY BRIEF

ORAL ARGUMENT REQUESTED

On appeal from the Harrison County Circuit Court

consolidated cases No. A2402-2010-00097No. A2402-2010-00105No. A2402-2010-00147

STEPHEN G. PERESICHJOHANNA M. MCMULLAN

PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.

759 Vieux Marche Mall Post Office Drawer 289

Biloxi, Mississippi 39533Telephone: (228) 374-2100Facsimile: (228) 432-5539

stephen.peresich@pmp.org

E-Filed Document Jul 22 2016 17:24:07 2015-CA-00578-COA Pages: 24

TABLE OF CONTENTSPage

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement for Oral Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. MDWFP’s SOP guidelines and the Boating Safety Act do not prohibit an officer from securing a safe location before conducting a “stop.”.. . . . . . . . . . . . 2

B. The Mississippi Department of Wildlife and Fisheries presented substantial evidence that Bend 2 was a hazardous area and location for a “stop.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. The “reckless disregard” standard was not met. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

III. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

i

TABLE OF AUTHORITIES

CASES: Page(s)

Aguilar v. State, 2012 Tex. App. LEXIS 1677, 2012 WL 677505 (Tex. App. 2012). . . . . . . . . . . . . 6

City of Laurel v. Williams, 21 So. 3d 1170 (Miss. 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rolland v. State, 742 S.E.2d 482, 661 (Ga. Ct. App. 2013) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. McGaughran, 601 P.2d 207 (Cal. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Phillips v. Miss. Dep't of Pub. Safety, 978 So. 2d 656 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Spickard v. City of Lynchburg, 6 S.E.2d 610, 611(1940). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17

United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L. Ed. 2d 740 (2002) . . . . . . . . . . . . . . . . . . 5

United States v. Pack, 612 F.3d 341 (5th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATUTES:

Mississippi Code Ann. § 11-46-9(1)(c) (Rev. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Chapter 474, § 6, General Laws of Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITY:

Ashton, Richardson, “Four Considerations for Making Safe, Effective, and Legal TrafficStops”, Police Chief Magazine, http://www.policechiefmagazine.org/magazine/index.cfm?

fuseaction=print_display&article_id= 005&issue_id=82013 : . . . . . . . . . . . . . . . . . . . . . . . . 6

Hoscher, Jakcson , www. policeone.com/patrol-issues/articles/7336680-5-basic-principles- for-conducting-a-safe-traffic-stop/ : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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ORAL ARGUMENT

Oral argument will benefit the Court as it addresses whether Mississippi law enforcement

officers have authority to decide the location to conduct a “stop” before investigating a driver’s violation

of Mississippi law. The Court’s ruling will be significant because it will impact not only Mississippi

Department of Wildlife and Fisheries (“MDWFP”) officers, but will potentially set a precedent for all

Mississippi law enforcement officers1 whose job it is to stop drivers operating their vessel or vehicle

recklessly. Oral argument would assist the Court in deciding these serious policy questions.

I. INTRODUCTION

Plaintiffs Candace Webb and Thomas Harper and the trial court misconstrue MDWFP’s

guidelines regarding the measures MDWFP’s law enforcement officers should take in conducting

boating under the influence (“BUI”) investigations and issuing citations in the field. The evidence

demonstrated that at least six vessels were traveling through Bend 2 of the Tchoutacabouffa River near

the time of the tragic boating accident which is the subject of this appeal. Despite this evidence, the trial

court and Plaintiffs claim that the MDWFP’s SOP guidelines required the MDWFP Officers Barry

Delcambre and Michael Thrash to conduct their “traffic stop” of reckless boat operator Donald C.

Bernius in a bend of the Touchatabouffa River (identified at trial as “Bend 2”) which the officers

considered a hazardous area. The Plaintiffs and the trial court contend that once the officers stopped

1The following agencies have employees which meet the definition of “Law Enforcement Officer”asdefined by Chapter 474, § 6, General Laws of Mississippi: municipal police departments, county sheriff’sdepartments, public school districts (school resource officers), community college campus law enforcement(including extensions), narcotic task force officers, university campus law enforcement officers (includingextensions), department of mental health officers, officers with the attorney general’s office, officers with theinternational and regional airport authorities, railroad police officers, officers with the state tax commission,board of supervisors’ road patrol officers, officers with the department of correction, bureau of capitol policeofficers, bureau of narcotic officers, officers with the department of agriculture and commerce, officers with theMississippi Department of Transportation, gaming commission officers, Gulfport municipal court officers,highway safety patrol officers, officers with the institutions of higher learning, marine resources officers, officerswith the pharmacy board, officers with the public service commission, Reservoir patrol officers, State FireMarshal's Office officers, Yazoo - Mississippi Delta Levee District Police.

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Bernius near the apex of Bend 2, MDWFP SOP guidelines afforded the officers no discretion in

conducting the “traffic stop” in another location. They contend that the MDWFP SOP guidelines did

not permit the officers to direct Bernius to move his vessel to another location prior to investigating the

traffic violation.

The MDWFP’s SOP guidelines are not intended to cover every situation law enforcement

officers find in the field, and they do not cover the question presented here, i.e., whether law

enforcement officers are authorized to direct an operator to “pull over” to a safer location before

assessing the reasons for a boating violation. “Yes they are” is the only rational answer to this question.

The trial court’s ruling should be reversed.

II. ARGUMENT

A. MDWFP’s SOP guidelines and the Boating Safety Act d o n o t prohibit an officerfrom securing a safe location before conducting a “stop.”

Plaintiffs and the trial court propose that the officers’ attempt to investigate the cause for

Bernius’ reckless operation and issue a citation in the nearby straightway is a violation of MDWFP’s

SOP guidelines which state that officers should issue citations “at the scene.”2 Echoing the trial court’s

opinion, Plaintiffs assert that Delcambre and Thrash had no authority to direct Bernius to move his

vessel at all, much less into the nearby straightaway. The trial court and the Plaintiffs’ interpretation and

application of the MDWFP’s guidelines are, however, nonsensical and have the potential of creating

absurd results.

MDWFP’s SOP 4.01(II)(A)(2) guideline provides:

2. For violations of laws enforced primarily by MDWFP other than those namedabove, a citation should be issued at th e s c e n e and the defendant should not bedetained further except in extraordinary circumstances. . .

2Appellees’ Brief at 21.

2

R.E. 165 (emphasis added).

The trial court and Plaintiffs argue that the “at the scene” language forbids the MDWFP officers

from directing an offending operator to continue to operate his vessel prior to issuing a citation. The

trial court specifically ruled that the provision “does not provide for directing an operator to move his

vessel to another location.”3 This guideline, however, does not speak to the issue of directing an

operator to continue to operate or move his vessel at all. The “at the scene” language is more

reasonably interpreted as “in the field.” Indeed, SOP 04.01 is the MDWFP’s “Guidelines for Making

Arrests.”4 The purpose of SOP 04.01 is to provide the guidelines for law enforcement officers “when it

becomes necessary to arrest a violator.”5 Section II(A) of SOP 04.01 is directed toward “Custodial

Arrests.” The language in subsection II(A)(2) simply means that the officers should issue a violator a

citation “in the field” as opposed to issuing the citation at the local law enforcement office. The trial

court and Plaintiffs’ reliance on guideline SOP 04.01(II)(A)(2) to support their view that the officers

were not allowed to move to a safer location in the river is a distortion of SOP 04.01(II)(A)(2)’s

language.

The trial court also determined that “[m]ovement of the boat is permitted only on a custodial

arrest and then that movement is not made by the offending operator.”6 But, at the time of the initial

stop, they were not making a “custodial arrest.” Although the officers have the authority to stop vessels

on Mississippi water ways for the purpose of making safety checks, on this day, they witnessed Bernius

operating his boat recklessly and intended to stop and cite him for that violation. Thrash testified at

3R.E. 049; R. 1100.

4R.E. 165.

5Id.

6R.E. 49.

3

length that from his observations of following Bernius and in their brief encounter, nothing raised the

suspicion in his mind that Bernius was intoxicated. Consequently, at the time of the initial stop, they

did not have reasonable suspicion that Bernius was impaired. Thus, the officers were not making a

“custodial arrest” to invoke the provisions for movement of a boat under SOP 04.01. Therefore, the

Court’s use and reliance of SOP 04.01(II)(E) is manifest error because SOP 04.01 is inapplicable to the

facts as the officers had not reached the point of making a “custodial arrest.”

When making a BUI-arrest, SOP 04.01(II)(E) directs MDWFP law enforcement officers to find,

if possible, another person to take possession of the operator’s vessel. SOP 04.01(II)(E) provides:

E. Boats- in cases where a custodial arrest is made of the operator of a boat on a chargeof B.U.I. the Officer should determine if there is a person who is approved by theowner of the boat who is readily available to take possession of the boat who, himself,is not under the influence of alcohol or drugs. Should the arrest be for criminal chargesinvolving all persons aboard the boat, the Officer should make every effort to securethe boat and protect all valuables or cargo aboard.

If the owner of the boat cannot be determined, or cannot be located, the boat shouldbe towed to a dock, pier, or landing where the boat can be secured properly unless it isnecessary to retain the boat for evidence in a ·criminal case. If the boat is towed by acommercial towing facility and not impounded or seized as evidence in a criminal case,the boat should be released to the owner upon payment of the towing and storagecharges.

This section applies only after law enforcement officers have reasonable suspicion that an operator is boating

under the influence, have established probable cause for a BUI-violation, and the operator is in the course

of being arrested. Here, the officers did not have reasonable suspicion Bernius was operating his vessel

while intoxicated nor had they determined whether probable cause existed to conduct field sobriety tests

for making a custodial arrest in the field.7

7Tr. 118. Thrash testified:

Through the operation of his boat and through his demeanor, I give him acommand, he followed it. And so no, sir, I did not have any reasonablesuspicion to believe that he had been drinking.

4

Reviewing courts look at the totality of the circumstances of each case to see whether an officer

has a particularized and objective basis for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S.

266, 122 S.Ct. 744, 750, 151 L. Ed. 2d 740 (2002) (citations omitted). In evaluating whether an officer’s

suspicion is reasonable, due weight is given to the “specific reasonable inferences which he is entitled

to draw from the facts in light of his experience. United States v. Pack, 612 F.3d 341 (5th Cir.

2010)(citation omitted). Here, Bernius’ reckless operation did not give the officers a specific reasonable

inference that he was boating under the influence as they testified that reckless boat operation alone

does not give rise to reasonable suspicion that a boater is in violation of the boating under the influence

laws. Officer Delcambre testified that a person “can still operate a vessel reckless and not be impaired

by alcohol or substance.”8 This is reasonable as the court has noted that “[o]ne may be both drunk and

reckless. He may be reckless though not drunk; he may even be a total abstainer, and he may be under

the influence of intoxicants and yet drive carefully.” Spickard v. City of Lynchburg, 6 S.E.2d 610,

611(1940). The trial court’s reliance on SOP 04.01 to conclude that the officers violated MDWFP

procedures is clearly erroneous because the officers did not have reasonable suspicion that Bernius was

intoxicated and Bernius’ illegal flight prohibited them from interviewing him to acquire probable cause

such that they never reached the point of a “custodial arrest” as stated in SOP 04.01.

Plaintiffs would have this Court read into the MDWFP SOP-guidelines that regardless of where

an operator stops, MDWFP officers have no authority to order the operator to move his vessel. Yet,

a basic principle for law enforcement officers initiating “stops” is that they should select safe locations

[A]t the stop I didn’t observe any signs that would give me reason for[reasonable] suspicion. . . . I didn’t have any reasonable suspicion to believethat he had been drinking at the time.

R.E. 189; Tr. 189. Thrash testified further that officers must have reasonable suspicion that a boater is violatingthe boating under the influence laws before the MDWFP’s SOP comes into effect. Id.

8Tr. 232.

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to conduct “a stop.”9 Moreover, it is simply common-sense. Other courts have recognized a law

enforcement officer’s right to order a driver to safer location prior to investigating the traffic violation

for which the driver was being pulled over. See Aguilar v. State, 2012 Tex. App. LEXIS 1677, *3-4, 2012

WL 677505 (Tex. App. 2012)(after the driver stopped in an location the officer considered dangerous,

the officer instructed the driver to pull forward and to the right); People v. McGaughran, 601 P.2d 207

(Cal. 1979) (discussing the constitutionality of a stop held that while not specifically compelled by law,

certain other steps customarily taken as matters of good police practice are no less intimately related to

the citation process such as when the drivers of either are exposed to danger, the officer may require

the driver to proceed to a safer location before the investigation of the traffic citation continues); Rolland

v. State, 742 S.E.2d 482, 661 (Ga. Ct. App. 2013) (after driver stopped with half of his vehicle still on

9See., e.g., Ashton, Richardson, “Four Considerations for Making Safe, Effective, and Legal TrafficStops”, Police Chief Magazine,http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=print_display&article_id=005&issue_id=82013 :

While officers are not always able to select the locations at which traffic stops and otherroadside contacts occur, they nevertheless should strive, whenever possible, to make them indriveways, on off-ramps, in parking lots, in pull-offs, in rest stops or on service drives, in well-litareas, or on wide shoulders. Th e y s h o u ld av o id b lin d c u rv e s , hillcrests, and other spots wherevisibility is impaired;

. . . In the event a traffic stop or other roadside contact is made on the shoulder, o f f ic e rs s h o u lde xe rt e v e ry e f fo rt to m o v e to a s af e r lo c atio n as s o o n as re as o n ab le .

See also, www. policeone.com/patrol-issues/articles/7336680-5-basic-principles-for-conducting-a-safe-traffic-stop/ in which the author Jason Hoschouer states:

I’m continually amazed how an average citizen becomes a mouth-breathing, slack-jawed yokelas soon as the lights and siren go on. All conscious thought and common sense leaves them andthey forget the most basic of laws: move to the right and stop.

Consequently, they may just straight stop their scofflaw-mobile dead in the middle of aninterstate or intersection.

You don’t have to get out and deal with them. Ninety-nine percent of the time they can beprodded to a safer location with a simple command delivered via your vehicle’s P.A. system.

The bottom line is this: if you don’t like where they are, move them to where it’s safest for you.

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the road and half on the shoulder, the officer first requested that he move his vehicle to a safer

location).

The trial court and the Plaintiff’s reading and use of MDWFP’s SOP guidelines are unreasonable

and unrealistic. Limiting a law enforcement’s officer’s ability and authority to direct an operator to

move a vessel improperly hamstrings the officer’s ability to do his job. Such an view fails to promote

boating safety for those operating on the state’s waterways and violates the mission of the MDWFP to

“protect all persons from injury and/or loss of life . . . ”10

The trial court clearly erred in its interpretation and application of these guidelines to the facts

here. Bernius’ illegal flight prevented the officers from enforcing the SOP guidelines. Based on the

facts, the officers did not have reasonable suspicion of Bernius’ intoxication. They were precluded from

interviewing Bernius and ascertaining reasonable suspicion of Bernius’ insobriety to pursue to establish

probable cause under the SOP guidelines. While the SOP guidelines govern when boat can be moved

during a custodial arrest, the SOP guidelines are silent as to movement of vessels when MDWFP find

themselves in a hazardous and risky area for conducting a stop. The trial court committed reversible

error in the application of these SOP guidelines here, and this Court should reverse the trial court’s

rulings and judgment.

B. The Mississippi Department of Wildlife, Fisheries and Parks presentedsubstantial evidence that Bend 2 was a hazardous location for a “stop.”

Delcambre and Thrash have consistently explained that their actions were based on their

opinion, belief and understanding that Bend 2 was a hazardous area for them to conduct “a stop.”

Plaintiffs, like the trial court, claim that Delcambre and Thrash’s opinions about the dangerous nature

of Bend 2 were “bald assertions” because the MDWFP failed to provide definitive measurements or

10R.E. 167; Trial Exhibit P-1 at 139.

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photographs of what approaching vessels might have seen.11 On this, they are wrong.

There is no debate that the officers b e lie v e d that when the stop occurred they were in a

hazardous location. The officers stated that this was the reason for their actions (1) in their written

statements each office wrote only two days after the accident,(2) in their deposition testimony, (3) in

their affidavit testimony supporting MDWFP’s motions in the trial court, (4) in their trial testimony and

in (5) the Report to the District Attorney. The officers’ statements and testimony on this was

consistent as the following excerpts from the trial court record demonstrates:

1. The Report to the D.A. prepared by Officer Keith Bond states: MSgt.Delcambre advised Pvt. Thrash and instructed Bernius that they would continuedownstream out of the blind curve and into the safer straight position of theriver.

R.E. 77; P-1 (MDWFP 00016)

2. On August 24, 2009, Thrash’s report and narrative of the incident was written two days

after the accident. He wrote:

Officer Delcambre on the port side of Officer Thrash’s boat said, “weneed to get them out of the curve,” Officer Thrash then stated to Mr.Bernius “follows us to the strait away [sic] out of this curve, Mr Berniussaid “okay.”

R.E. 81; P-1 at MDWFP 00020.

3. Delcambre’s report written two days after the accident explains:

Officer Delcambre told Officer Thrash to have the operator make thebend of the river and to pull up in the straight-away.

R.E. 80; P-1 at MDWFP 00019.

4. On March 11, 2011, more than nineteen months after the accident, Delcambre and

11R.E. 050.

8

Thrash were deposed by Plaintiffs’ counsel. Delcambre’s testimony about their action was the same:

3. I came from the stern side up behind4 Officer Thrash’s, and then I -- as I was pulling5. to the port side, I told Officer Thrash to get the6. boats out of the middle of the river. It was a7. dangerous part of the river. I told him to get8. the boats out of the river, that I was going9. around the bend to stop traffic, and get him in a10. straightaway.

R. 901. Trash testified similarly:

22. A. We were trying to get to a safe part of23. the river to ensure our safety and his safety.

R. 879. In Delcambre’s October 24, 2011-affidavit, he testified,

I approached Officer Thrash and Bernius, I determined that they were in a dangerousarea in the river bend which created a hazard for us and other boaters. I have patrolledthis area of the river for many years and knew this area of the river bend to bedangerous. In particular, this river bend created a dangerous blind spot for boatersnavigating the bend from each direction. Based on my experience and judgment, Iinstructed Officer Thrash to have Bernius move down the river and out of the riverbend to the straightaway while I proceeded ahead of them to stop traffic.

R. 886. Thrash testified by affidavit on October 11, 2016:

At almost the same time, Msgt. Delcambre arrived, approaching us in his boat, andstated that we were in a dangerous bend in the river and that we needed to get out ofthe curve and travel around the river bend into the straightaway. The area in which wewere idling was the same river bend where, a year earlier, MSgt. Delcambre and I hadnearly collided with a jet-skier who had come out of the bend in the river ahead of us.From my experience in this area of the river, I knew the area was a dangerous place tobe stopped and that we needed to move into the straightaway to secure the safety of allboaters on the river.

R. 887. By the time the trial court denied summary judgment to MDWFP, it was well aware of the

officers’ version of the facts and opinions of Bend 2, making the trial court’s comment about a “well

rehearsed mantra” in its judgment on liability particularly unfitting.

MDWFP did produce photographs depicting how the river looked o n th e d ay o f th e ac c id e n t,

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as opposed to those the trial court allowed the Plaintiffs to use at trial which were taken o n ly tw o d ay s

b e fo re trial.12 Suffice it to say that in the four and a half years between the Webb boating accident

(August 22, 2009) and the date of trial (February 22, 2014), the banks of the river changed to such a

degree that Officer Thrash did not recognize portions of the river on which he had traveled and worked

between 2007 and 2009.13 The photographs and aerial views also offered by MDWFP in support of its

defense (Trial Exhibits P-1 at 132, 187, 253, 254, 255) were all taken either o n th e d ay o f th e ac c id e n t

o r in c o n n e c tio n w ith th e in v e s tig atio n o f th e ac c id e n t s h o rtly th e re af te r and undeniably depict

and evidence the sharp river bend.14 The ariel photographs show the snake-like river with sharp curves

and river bends.15 Despite the fact that these photographs wholly substantiate and support Delcambre

and Thrash’s opinions that Bend 2 presented a risky area to boaters, the trial court simply disregarded

12At trial, Plaintiff’s counsel explained to the Court:

MR. OWEN: . . . These are photographs that we took, I say we, Mr. Myerstook Sunday.. . .THE COURT: Sunday, like two days ago?

Tr. 128.

13Officer Thrash testified he worked the Tchoubuffa River from 2007 to 2009. Tr. at 200. Trial beganon February 22, 2014, four years and six months after the August 22, 2009 accident. Ultimately, the trial courtallowed Plaintiffs’ counsel to use the pictures taken only tw o d ay s b e fo re trial in questioning Thrash:

19. Q. Can you identify this photograph, officer20. Thrash?21. A. coming out of bend three into bend two.22. Q. can you identify the photograph?23. A. No, sir. . . . 26. Q. What bend is this?27. A. From that photograph I can’t tell.

Tr. 199.

14R.E. 151, 152, 153, 154, and 155; Trial Exhibit P-1 at 132, 187, 253, 254 and 255; Trial Exhibit P-4.

15R.E. 151, 153, and 154; Trial Exhibit P-1 at 132, 153, and 254.

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this evidence.

The officers’ testimony about their prior experiences in this area of the river was also summarily

dismissed by the trial court. The officers testified about a near collision with a jet-skier in Bend 2. In

discussing this incident, the trial court stressed that the officers had “alm o s t been hit by a jet ski coming

around Bend 2 . . . ”16 (emphasis in original), suggesting had there been an actual collision, the trial court

would have considered such as evidence supporting the officers’ opinions of that area of the river.

The incontrovertible evidence was that there were multiple boaters traveling through Bend 2

near the same time. Bernius, Thrash and Delcambre were moving through the bend. In addition, the

Joachims were traveling down river through Bend 2,17 as was Christopher Webb and minutes later

Joshua Lord18 was moving upriver through Bend 2. All of this, i.e., the stop in Bend 2, the movement

of Delcambre to the straightaway, Thrash and Bernius’ movement toward the straightway, Bernius’

flight, his near-miss with the Joachim vessel, the collision with the Webb boat, the officers reaching the

collision site and Joshua Lord arriving at the accident, all occurred within minutes of each other.

Plaintiffs’ hypothetical where the officers should have idled their vessels to investigate Bernius in Bend

2, clearly would have created a risky environment and obstacles for the Joachims, Joshua Lord and Chris

Webb who were, as the record demonstrated were traveling through the same area around the same

time. The Plaintiffs’ hypothetical and trial court’s suggestion that the officers should have stayed put to

assess Bernius offers a dangerous alternative that would have put more persons at risk to injury and/or

loss of life. It is the duty of the officers of the MDWFP to “protect all persons from injury and/or loss

16R.E. 050 (Trial court opinion)(emphasis in original).

17Tr. 179.

18Tr. 370-71.

11

of life and to safeguard property”19 and the suggestion that it would have been prudent for the officers

to remain in Bend 2 would have put more lives at risk.

Trial Exhibits P-1 at 132, 187, 253, 254, 255 clearly depict the sharp curve in the river.20 These

pictures and aerial views, taken either on the day of the accident or shortly thereafter in connect in the

investigation, more accurately reflect the river at the time of the accident than those offered by the

Plaintiffs which were taken only two days before trial and approximately four and a half years after the

accident.

Depending on where vessels are located on either side of the bend, it is obvious that a blind spot

exists to vessels navigating Bend 2. There was no testimony or evidence presented that Bend 2 did not

have blind spots. There was no evidence or testimony that the officers did not have a prior incident

with a jet skier in the area of Bend 2.21 Thrash testified and it was undisputed that the apex of the bend

is built up and boaters cannot see over the land oncoming vessels that are approaching.22 The evidence

and testimony evinced the fact that there was a sufficient basis for the officers to believe Bend 2 offered

a hazardous condition and remaining in the location for the stop and investigation was unsafe.

Thrash testified:

6. Q. In particular when you’re talking about it

19S.O.P. 07/03 states: “it shall be part of the mission of this Department to enforce the laws of theUnited States and the State of Mississippi on the public waters under the jurisdiction of the State of Mississippiso as to protect all persons form injury and/or loss of life and to safeguard property.”

20R.E. 151, 152, 153, 154, and 155; Trial Exhibit P-1 at 132, 187, 253, 254 and 255.

21Trash testified regarding the near collision with a jet skier as did Delcambre. See Tr. 170, 291.

22Trash testified:

19. A. There’s a blind spot. The bank is real 20. high and you can’t see any oncoming traffic and they21. can’t see you. So it’s a real blind spot.

Tr. 163.

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7. takes 20 minutes or so from the bay to get to this area8. am I correct in saying that this area of the river is9. the part of the river that has the most bends in it in10. the shortest distance?11. A. Yes, sir.12. Q. And from your experience do these bends13. create dangerous situations?14 A. Yes, sir. Yes, sir.15. Q. How so?16. A. There’s a lot of -- from the volume of17. traffic there can be a lot of wave action from the18. bulkheads and from the wakes and everything that the19. boat throws. There’s a lot of manmade bulkheads and20. rock -- I don't know if you want to call them jetties,21. but rocks. They actually don't dissipate the waves22. very well. They actually can create more wave action.

Tr. 160.

1. Q. so if you're in the blind spot of bend two2. where you had told the court y’all were when you3. initially stopped Bernius, from your general experience4. the traffic heading upstream on this long straightaway5. would be going at a relatively faster speed than the6. boats that had been going through the bends?7. A. Yes, sir.8. Q. And the boats traveling upstream that you9. said before would not be able to see the boat in this10. area?11 A. Not until they are right on top of you.12 Yes, sir.13 Q. Not until they’re right on top of you . . . ?14. Yes, sir.15. Q. What kind of condition does that create?16. A. dangerous condition

22. Q. And the boat -- whether you are in a boat23. that you have control over or whether you were a skier24. who fell off the skis and is sitting in the water in25. that bend or for whatever reason you are stopped in26. that bend in your opinion is that a safe place to be?27. A. No, sir.28. Q. And why not?29. we -- the prior year I was with officer

Tr. 162.

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1. Delcambre and we had a jet ski come around that curve2. on the wrong side of the river and just about hit us in3. Officer Delcambre's boat, and we pulled him over on the4. sandbar there to the right and issued him a citation5. for the operation of the boat. He come real close. If6. it hadn't have been a jet ski he probably would have7. hit us if it had been a regular boat. Jet skis are8 more maneuverable.

Tr. 162.

23. . . . at that particular time, in your opinion,24. would those three boats in that bend, was that a25. dangerous condition?26. A. Yes, sir.27. Q. And why?28. A. Because we had at least two-thirds of the29. river blocked and in a dangerous bend and the blind

1 spot. So if somebody had come around from that2 straightaway and around that bind right there one of3 the three boats more than likely would have been hit.

Tr. 167-68.

13. Q. And from your observations when you were14. instructed by officer Delcambre to move to a safer area15. what was your appreciation of that instruction?16. A. That I realized we were in that dangerous17. curve and from our prior experience in that dangerous18. curve and almost getting hit by the jet ski the prior19. year that we needed to get out of that curve and into20. that straightaway.21. Q. In your opinion was that a good judgment22. call?23. A. Yes, sir.

Tr. 170.

Officer Delcambre testified:

9. . . .The reason I told him to follow10. around the bend was for -- it was a blind bend and for11. the safety of the boats being there and the way that12. Bernius boat was stopped, Thrash’s boat was stopped and

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13. me coming around. We had parts of the river blocked,14. and that’s a blind bend and people coming around the15. straightaway possible of hitting us

Tr. 243.

8. . . . we was in a blind part and the9. main objective at that time was to get out of the blind10. part of the river into the straightaway so we could11. start conducting and finding out why or what the12. reckless operation.13. Q. You were going to wait until you got to the14. straightaway and then at that time you were going to15. ask him whether or not he had been drinking?16. A. I was going to ask him why or why was 17. causing him to be operating in a reckless manner.

Tr. 260.

2. . . . Actually I approached behind3. Bernius’ boat, the stern of his boat or the back of his4. boat, and slowed down and realized that we was in the5. blind dangerous bend. And for that reason the year6. prior to that in that same location I was there and a7. jet ski came around the bend, around the bend as I was8. proceeding and we just about collided. And so when I9 seen that point I backed off from the throttle, got10. officer Thrash’s attention and told him we need to get11. out of this bend, that it was dangerous. So at that12. point then I passed to the port side or the left side

Tr. 291.

It is also significant to note that Bernius was heading downstream as was Thrash and Bernius when

they sought to stop him.23 The officers realized was that even as Bernius and Thrash idled their vessels

near Bend 2, they were still moving with the current downstream closer to the apex of Bend 2. Based

on their experience with the river and as MDWFP officers, they knew this added to the urgency of the

23Tr. 362; P-1 (MDWFP 00016).

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situation.24 What these officers realized that is that it would have been dangerous for them to attempt

to conduct an interview as they moved toward Bend 2.

This is a classic case of the trial court supplanting its view for the perception of the officers at

the time of the stop, and its opinions and rulings were clearly erroneous as evidenced by the officers’

testimony, the photographs and reports in evidence.

C. The “reckless disregard” standard of the Mississippi Torts Claim Act was notmet.

The “reckless disregard” standard under the Mississippi Torts Claim Act § 11-46-9(1)(c) is well-

established, well-known and has been thoroughly briefed in this appeal. It is a higher standard than

gross negligence and there must be wantonness conduct which is the failu re o r re fu s al to exercise any

care.25 When judging the conduct of law enforcement officers, negligence and gross negligence is not

enough. “Reckless disregard” is a higher standard.26

A fair reading of the trial court record does not demonstrate the “failure or refusal” to exercise

any care by officers Delcambre and Thrash. Indeed, the officers d id n o t ig n o re Bernius’ violation of

Mississippi law when he was witnessed recklessly operating his boat. Had the officer allowed Bernius

to continue to irresponsibly operate his boat, they would have failed or refused to exercise any care. That

is not what happened. These officers were performing their duties under Mississippi law when they

sought to conduct a boating “traffic stop” of Bernius. Indeed, Delcambre drove ahead to stop the boat

24Delcambre testified:

22. Q. But the boats never stopped, the boats kept23. moving, correct?24. A. Yes. They were at an idle speed.

Tr. 241.

25City of Laurel v. Williams, 21 So. 3d 1170, 1174 (¶ 17) (Miss. 2009).

26Id.

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traffic moving up river, evincing his efforts to advance the mission of S.O.P. guideline 07/03 “to protect

all persons form injury and/or loss of life and to safeguard property.” Believing it was safer for all of

them and others, the officers did not fail or refuse to exercise any care in instructing Bernius to move his

vessel so that the officers could conduct their boating “traffic stop.”

According to the Plaintiffs and the trial court, the MDWFP’s officers’ admissions that they are

required to adhere to the MDWFP’s SOP guidelines and when failing to do so the “reckless disregard”

standard is met. Of course the officers would testified that they are required to abide by and enforce

Mississippi laws and the MDWFP’s SOPs. Their testimony indicates they are good officers. They

understood what was required of them, and they agreed that they are to do follow the SOP guidelines

closely. Still, their statements, do not mean that extenuating circumstances do not occur and or that

they were prohibited from moving to a safe location to conduct a stop. It is safe to say that no two

“traffic stops” are the same, especially on busy rivers like the Tchoutacabouffa River.

The officers understood that when they conducted a boating “traffic stop,” one of the things

they consider is the possibility that the boater is impaired. The officers never denied their obligations

to enforce any boating regulation or MDWFP SOP. Their attempt to secure a safe location, first, was

not a blatant disregard of any MDWFP SOP guideline nor was it the willful blindness that the Plaintiffs

and the trial court would have this Court find. Delcambre and Trash testified that at the time, they did

not have reasonable suspicion that Bernius was impaired. At the initial stop, their first concern was

undeniably their safety and the safety of others. This was reasonable because they do not assume

reckless boat operators are impaired based on the fact that they often cite boaters for reckless operation

who are not intoxicated.27

27 “One may be both drunk and reckless. He may be reckless though not drunk; he may even be a totalabstainer, and he may be under the influence of intoxicants and yet drive carefully.” Spickard v. City of Lynchburg,6 S.E.2d 610, 611(1940).

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Delcambre and Thrash have been improperly persecuted for first considering the safety of

others, when, in truth, the cause of the accident was the intoxicated boat operator. Delcambre and

Thrash simply did not display wantonness necessary to meet the test for reckless disregard such that this

Court should reverse the trial court’s decisions and enter a judgment in favor of MDWFP.

III. CONCLUSION

Plaintiffs ignored MDWFP’s arguments that the location of a “stop” is of significant importance

to law enforcement officers. Current events demonstrate that law enforcement officers m u s t take

measures to protect their safety and the safety of others. This is what Delcambre and Thrash were

doing here. After seeing the reckless operator and the location of where he came to stop, the officers

f irs t c o n c e rn w as s afe ty . They did not assume, as Plaintiffs and the Court suggest, the operator was

intoxicated. As the officers testified, not all reckless-operating boaters are intoxicated. Delcambre and

Thrash’ first thoughts were: “we” have a reckless boat operator who is violating safe boating practices

and Mississippi law and “we” need to pull him over. These officers know that under the MDWFP SOP

guidelines, they must have reasonable suspicion a driver is impaired before moving forward with

gathering information and evidence to support a probable cause determination for sobriety testing.

The factual scenario and conduct here is precisely what the “reckless disregard” standard is

designed to protect. This high standard was created by the Legislature to give law enforcement officers

immunity for their good-faith decisions and to prevent second-guessing of the split-second decisions

they make on a daily basis.28

Respectfully, the trial court’s opinion reflects an unsupported bias against these officers in the

trial court’s comments that they offered a “well-rehearsed mantra” about the reason they sought to

28Phillips v. Miss. Dep’t of Pub. Safety, 978 So. 2d 656 (holding that under the Mississippi Torts Claim Act,the actions of officers are to be judged by considering the factors that they were confronted with, taking intoaccount the fact that the officers must make split-second decisions)(citations omitted).

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move into the straightaway. This alleged “mantra” w as the reason for their actions. It was documented

at the time by the officers within days of the accident demonstrating that it was not manufactured excuse

or defense of their actions for this litigation. It is the truth. Even more intemperate was trial court’s

comment that it came as “only a surprise to the officers” that Bernius would flee. This accusation is

lacks record evidence and demonstrates the trial court’s manifest error in supplanting in hindsight, its

after-the-fact judgment.

After the trial court’s ruling, it is clear these officers could have done nothing right to satisfy the

trial court. Had they stayed in Bend 2 to conduct the boating traffic stop, they risked harm to Bernius,

themselves and other boaters as we know in hindsight that the Joachims, Christopher Webb and Joshua

Lord were boating in the area at approximately the same time. And, we know now that in choosing to

move for safety reasons, in the eyes of the trial court and the Plaintiffs, that too was the wrong choice.

With all due respect to this Court and the trial court, these officers were “damned if they do, damned

if they don’t.”

“Reckless disregard” is not present when actions and decisions of law enforcement officers are

made with the specific intent to fulfill their duties to “protect all persons from injury and/or loss of

life.” Law enforcement officers are called upon to make life and death decisions on a daily basis. The

decisions here were made in good faith and based on prior experiences and professional judgment and

they should not be second-guessed and should receive the protections afforded by the Mississippi Torts

Claim Act.

August 24, 2009 was a tragic day for the Webb family. A senseless death caused by the

intentional intoxication and violations of Mississippi law by convicted felon, Donald C. Bernius.

Officers Delcambre and Thrash did not cause the accident and the MDWFP should not be liable for

the efforts of two good officers who sought to do their job in a safe manner.

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Allowing the trial court’s ruling to stand will have a rippling effect with other law enforcement

officers in Mississippi. The effect is that law enforcement officers pulling over a reckless-driving car

operator or boat operator are not permitted to instruct the driver to pull over to a safer or more well-lit

area prior to investigating the reasons for violations for which the law enforcement officer is stopping

the driver or operator. That simply cannot be the law or procedure for law enforcement officers as it

undermines their safety and the safety of others.

For these reasons and those aptly set out in the MDWFP’s Appellant’s Brief, the Court should

reverse the opinion and final judgment of the trial court.

This the 22nd day of July, 2016.

Respectfully submitted,

MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS

BY: PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.

BY: /s / Ste p h e n G. Pe re s ic h STEPHEN G. PERESICHMS Bar No. 4114

PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.759 Vieux Marche Mall Post Office Drawer 289Biloxi, Mississippi 39533Telephone: (228) 374-2100Facsimile: (228) 432-5539stephen.peresich@pmp.org

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CERTIFICATE OF SERVICE

I, STEPHEN G. PERESICH, of the law firm of Page, Mannino, Peresich & McDermott,

P.L.L.C., do hereby certify that I have this date electronically filed a true and correct copy of the above

and foregoing Ap p e llan t’s Re p ly B rie f with the Court using the MEC system which sent notification

to the following:

Counsel for Candace Webb & Thomas HarperJoe Sam Owen, EsquireOwen, Galloway & Myers, PLLCPost Office Box 420Gulfport, MS 39502jso@owen-galloway.com

Counsel for Kathleen D. Webb Thomas M. Matthews, IIIAttorney at Law125 West College AvenueWiggins, Mississippi 39577matthewsthomasmj@bellsouth.net

Further, a copy of the Ap p e llan t’s Re p ly B rie f was also served via United States Mail, postagepre-paid to:

Judge Lisa P. DodsonCircuit Court of Harrison CountyPost Office Box 1461Gulfport, MS 39502

This the 22nd day of July, 2016.

/s/ Stephen G. Peresich STEPHEN G. PERESICH

PAGE, MANNINO, PERESICH & McDERMOTT, P.L.L.C.759 Vieux Marche Mall Post Office Drawer 289Biloxi, Mississippi 39533Telephone: (228) 374-2100Facsimile: (228) 432-5539stephen.peresich@pmp.org

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