670 F.3d 823
7th Cir.2012Background
- Glover, an off-duty Milwaukee police officer, shot Prado 19 times after Prado tailgated and allegedly threatened him; Prado died; inquest found Glover’s actions justified.
- A year later, the Milwaukee County District Attorney charged Glover with homicide and perjury; Glover committed suicide on the day of arraignment.
- Prado’s estate and Prado’s children sued Glover’s estate and the City under 42 U.S.C. § 1983 and Wisconsin § 895.46, seeking indemnity for a judgment against the City if the officer acted within the scope of employment.
- The district court refused Javiers’ proposed jury instructions on scope of employment and ratification; the jury ultimately found excessive force but held Glover not acting within scope of employment, thus City not liable.
- The Seventh Circuit reversed for a new trial on the scope-of-employment issue, rejected the ratification theory, and noted prejudicial error from improper use of criminal-charge evidence and lack of a limiting instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the scope-of-employment instruction properly allowed that an officer may act within scope despite intentional or criminal conduct | Glover acted within scope due to off-duty duty rule; needed limiting instruction | Pattern Wisconsin instruction was correct and complete | Remanded for a new trial on scope-of-employment |
| Whether the use of criminal charges evidence was prejudicial and required limiting instructions | Evidence supported ratification and motive to lie | Evidence admissible to show non-ratification and motivation | Prejudicial error; remand for retrial on City’s § 895.46 liability |
| Whether ratification by retention can establish scope of employment | Non-repudiation by City could ratify conduct | Retention after wrongful conduct does not equal ratification under Wisconsin law | Ratification doctrine not applicable; rejected |
Key Cases Cited
- Graham v. Sauk Prairie Police Comm’n, 915 N.W.2d 1085 (Wis. 1990) (scope may include grossly excessive force within employment)
- Olson v. Connerly, 457 N.W.2d 479 (Wis. 1990) (defines scope of employment in Wisconsin)
- Cameron v. City of Milwaukee, 307 N.W.2d 164 (Wis. 1981) (scope of employment interpreted for public employees)
- Doe v. City of Chicago, 360 F.3d 667 (7th Cir. 2004) (difficulty of determining police scope of employment in misconduct cases)
- Huff v. Sheahan, 493 F.3d 893 (7th Cir. 2007) (instructional adequacy and jeopardy of juror confusion)
- Wilson v. City of Chicago, 120 F.3d 681 (7th Cir. 1997) (police misconduct and indemnity concerns)
- Mandel v. Byram, 211 N.W.2d 145 (Wis. 1926) (retention not ratification when misconduct occurs outside scope)