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Stewart v. District Attorney for the Eighteenth Circuit Court District for the State of Mississippi8/23/2005
gated the matter of the mistaken identity when he was told that the birth dates did not match, Stewart would have been left without a cause of action. A reasonable period of detention is permitted by the law to allow law enforcement authorities time to establish the identity of the person arrested.
. It also seems to me that subsections (c) and (d) are inapplicable. First, the district attorney is not a policeman or fireman, and his duties do not relate to or involve police or fire protection. Clearly, subsection (c) is applicable to policemen and firemen, not to district attorneys. But even if it could be legitimately argued that an employee of the district attorney's office, in passing information to the sheriff's department regarding an indictment for the purpose of effecting the arrest of the person indicted, is engaged in the performance or execution of duties or activities relating to police or fire protection, immunity under subsection (c) is not appropriate if the employee acted in reckless disregard of Stewart's safety and well-being. In my opinion, a genuine issue of material fact exists as to how the actions of the district attorney may properly be classified.
. Subsection (d) is clearly not applicable because the act of passing on information to the sheriff's department concerning an indicted person in order to have the person arrested, is an act ministerial in nature and is not an act involving the exercise or performance of a discretionary function. While the decision to indict or not indict Stewart was the exercise of a discretionary function, once he was indicted, the actions taken to have him arrested were ministerial.
. As to subsection (f), the circuit court did not cite or identify any other law that would bar Stewart's claim. I can think of none. Therefore, I think subsection (f) is also inapplicable.
. Having eliminated all of the subsections relied upon by the circuit court except subsection (b), I turn to this subsection. It seems to me that subsection (b) is the most appropriate provision of the Mississippi Tort Claims Act which may have applicability to our facts. As previously noted, this subsection provides that a government entity and employee are not liable for any claim arising out of any act or omission of an employee of a governmental entity if the employee exercises ordinary care while relying upon, executing, or performing or failing to execute or perform, a statute, ordinance, or regulation, whether or not the statute, ordinance or regulation be valid.
. Assisting the sheriff department in effecting the arrest of indicted individuals by providing pertinent information about the indicted person is certainly, in my judgment, a part of performing the statutory duties of a district attorney. However, as the statute plainly states, immunity is available only if the employee uses ordinary care in executing the duties of the office.
. In this case, reasonable persons can differ on the question of whether the district attorney's office, considering the totality of the facts here, employed ordinary care in its actions which led to the arrest and detention of Stewart. Given the standard of review which we must employ in summary judgment cases, I believe the circuit court erred in granting summary judgment. I would reverse and remand for a trial on the merits.
BRIDGES, P.J., AND ISHEE, J., JOIN THIS SEPARATE WRITTEN OPINION.
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