George C. Hibma v. Richard T. Odegaard, James Nikodem, and Michael Paul Szula, and Sawyer County, Wisconsin, Intervening

COFFEY, Before CUDAHY and Circuit GRANT, Judges, Senior District Judge.*

GRANT, Judge. Senior District Hibma, Plaintiff-Appellant, appeals the granting trial intervening court’s De- fendant-Appellee’s, Sawyer County’s, mo- judgment notwithstanding tion for the ver- dict, the trial court’s denial of Hibma’s jury’s motions to increase the award of or, alternatively, for a trial new damages, on the issue of and the trial attorney’s court’s award of fees under 42 U.S.C. 1988. For the reasons stated be- low, this Court reverses the trial court’s granting judgment notwithstanding order the verdict and affirms the trial court’s respects. decision in all other

Facts During action, the time relevant to this Sawyer County employed Defendants-Ap- Nikodem, pellees, Odegaard. Szula and Odegaard Deputy served as full-time Chief County, Sawyer Sheriff of and the other * Grant, ting by designation. Honorable Robert A. Senior District Indiana, Judge for the Northern District of sit- hours, two served as full-time sheriffs. Over the next several deputies having burgla- After committed a series of repeatedly interrogated Hibma as Hibma’s Sawyer County, deputies ries in the three drug violently him withdrawal made ill. plotted to frame Hibma for their crimes. finally consented a search of his They prior chose Hibma because had residence. burglary conviction and also because he Upon searching home, Hibma’s the Saw- carpenter worked as a son yer County Department Sheriff’s claimed Lien, County, Sheriff of Sheriff to find property Odegaard, stolen Niko- deputies hoped

whom the to discredit. The dem and planted Szula which the three had deputies pre- disliked Lien and had Sheriff deputies Hibma’s house earlier. The viously attempted poison lyser- him with confronted Hibma with the stolen property (LSD) gic diethylamide acid and to murder tried coerce him into confessing him redirecting system exhaust burglaries. They again ignored his squad his car into heater. plea for help medical and him in left deputies The help solicited the of one holding cell when he refused to confess. Proffitt, Sawyer County Jail inmate serv- Hibma, in order to to draw attention his ing time under a work release for sentence condition, medical broke his eyeglasses and forgery. They promised Proffitt that he superficially cut his jailor wrist. The sum- favorable, receive would treatment moned a doctor who obtained a court order he sentence if could talk Hibma into steal- to hospital transfer Hibma to a for drug gun a hand sup- which Proffitt would dependency Sawyer treatment. County posedly fence. Jail transferred Hibma sixteen hours after did Proffitt contact Hibma several times his arrest. Deputy Odegaard Chief Sheriff couple the next over and even- weeks transported ordered that he in full re- tually convinced him to particular steal a trip and straints be prolonged. gun from one of Hibma’s construction day On the that Hibma was moved gun sites. stole the Hibma and delivered it hospital, investigative Nikodem filed to Proffitt who it depu- transferred to the reports administrative which concluded ties. When Hibma met with Proffitt perpetrated many Hibma had of the proceeds sale, deputies divide the of the Sawyer burglaries. unsolved Szula him, gun point, arrested at for suspicion of complaint swore out a criminal accusing burglary They Hibma, and theft. searched burglaries. Hibma handcuffed him and took him to the Saw- yer County drug Jail. After a in a pro- month treatment gram, Hibma returned was to the deputies placed The Dep- Hibma Chief 29, County Jail. 1977, pled On June he uty Odegaard’s questioned him office guilty handgun to the pursuant theft handgun about the theft as as well un- agreement to a plea under which the bur- Sawyer County solved burglaries, including glary charges Odegaard were dismissed. they those that themselves had committed. against plea testified Hibma hearing. theft, handgun Hibma admitted the but two-year Hibma received a sentence in a any denied burglaries. involvement in the security prison maximum Bay, Green deputies ignored request Hibma’s Wisconsin. sexually After two inmates as- attorney entreaty and refused his Bay, saulted Hibma in Green he was trans- Hibma, medical narcoleptic, treatment. ferred to prison. another actually He physically dependent was legal on various year day served a and a of his sentence. illegal drugs. stimulant He needed begin- 1980, medical attention because was In years two after Hibma’s release ning go through stimulant prison, withdrawal. the Federal Bureau of Investi- Hibma, The deputies strip gation instigated booked probe searched into certain activi- him, gave him jail a cold Sawyer County. investiga- shower and a ties in The FBI uniform, and holding locked him in a eventually cell. tion led to the convictions of (l)(a) If the any on various defendant in action and Szula or Odegaard, Nikodem conspir- charges special proceeding as well public is a officer federal criminal or crimes. for their ing to frame Hibma employe proceeded against and is in an capacity proceeded against official isor present filed the then as an individual because of acts commit- August under U.S.C. action carrying ted while out duties as an offi- stipulated and Szula Nikodem employe jury and the or the cer and that he would they entrapped Hibma entrap- finds that the defendant was with- gone prison but for the not have Sawyer County employment, judg- intervened because ment. liable, by way of indemni- potentially damages ment as to and costs entered fication, deputies for the acts employe the officer or in excess employ- were done within applicable insurance to the officer (West Supp. 895.46 ment. Wis.Stat.Ann. § employe paid by shall be the state or trial, 1983). day After a three and one-half political subdivision which the defend- $166,500.00 for awarded Hibma employe. ant is an officer or suffered the actions color of deputies which did under law, $86,500 attributed of that

state per- On and after March all performed sum to acts sheriffs, employed sons as de- January deputies’ employment. On 40.02(48)(b)3, fined in s. are covered court, F.Supp. the district this subsection. judgment notwithstanding the ver- granted (West Supp.1983). 895.46 Wis.Stat.Ann. § finding all Sawyer County to that acts dict incorrectly The Dissent assumes scope outside deputies were ap that the 1977 version of section 895.46 employment under Wisconsin law. also denied Hibma’s mo- The district court plies the instant case because the unlaw attorney’s county, fees from the tion deputies place ful actions of the took granted attorney’s the indi- fees from but doing, ignores In so the Dissent deputies. vidual plain language of section 895.46 which political state or

Issues makes defendant’s sub after, financially among division liable presents appeal: three issues on Hibma things, jury other “the or the court finds acting that the defendant was within Odegaard, I. Nikodem and Whether scope employment,____” In the instant scope acted of their Szula within case, employment they Sawyer County only potential had when violated Hib- rights; ma’s constitutional liability September until 1983 when deputies acting found that the were deny- the trial court erred in II. Whether scope employment. within the of their post-trial motions to in- Hibma’s Nothing in the statute indicates that alternatively crease or for a legislature that Wisconsin intended section damages; issue of new trial on the apply only to officials’ unlawful acts 895.46 and, occurring 1983. On the after March III. Whether U.S.C. 1988 entitles § language of the statute contrary, the clear to an award of all his attor- Hibma legislature intended that indicates that the ney’s fees and costs? an official’s actions apply the statute once Odegaard, Issue I. Nikodem Whether scope of em- to within were found be scope of their and Szula acted within jury or a court. Because ployment by a employment they violated Hibma’s when acting found to be within deputies were rights? constitutional employment Septem- scope of their 1983, the 1983version of section 895.46 provides pertinent Wis.Stat. 895.46 ber applies to the instant case. part: jury in it, While the the instant case found reasonably incidental to they may deputies had acted regarded methods, though even scope employment of their when de- quite ones, improper of carrying out the prived rights, his constitutional objectives the employment.” Prosser, granted Sawyer County’s the district court (4th Torts, ed.) 460-61, pp. Law sec. 70 notwithstanding judgment motion for (hornbook series). deputies verdict it found because ... Conduct within the of em- were not ployment is limited to those acts which employment required by section 895.46. by law are attributable to the master or The district reasoned that employer. an employee’s tortious is not within act City Milwaukee, Cameron v. 102 Wis.2d of his or her un- 307 N.W.2d 168-69 less two criteria are satisfied: the act While the part predecessor or reasonably must have been of section 895.46 provided 'to the or public incidental duties he she indemnification if em- hired, directed, expected perform ployee good faith, acted see Wis.Stat. and it must have 270.58, been intended to bene- legislature amended the stat- employer. fit the ute in present 1973 and substituted the scope of employment requirement for the Odegaard, F.Supp. Hibma v. good requirement. faith (W.D.Wis.1984). See Wis. The district court Laws 173p. ch. 333 In certain circum- deputies concluded that acted at all stances, and, require the courts still purposes employ- times for their own there- fore, ee good could not have exercise faith in carrying intended benefit out his their employer. duties in protection order receive the the indemnification good statute. Absent Supreme Wisconsin Court has de- faith, employee’s actions in these in- “scope employment” fined in the follow- objectives stances would further the ing manner: “ ‘ See, the employment. Schroeder, e.g., every agent “Not act which an Gedlen, Schoessow, Riester & Moerke v. may do place servant while he is in the 49, (the 108 (1982) Wis.2d 321 N.W.2d 131 appointed service, during or exercise legislative of discretion must be time in which engaged he is good done in faith fall the scope within performance, can be deemed to be of an employment). alderman’s In other employment, course of the circumstances, however, recog- the courts the scope of authority. nize that scope employment includes that; The lies deeper test than it in- “those acts are closely ‘so connected heres in the relation which the act done with do, what the servant employed is the employment. bears to The act can- fairly and so reasonably and incidental to not be deemed to be within the course it, they may regarded methods, unless, upon look- ones, even though quite improper it, carry- ing fairly at can be said to be a ” objectives out the natural, employment.’ not disconnected and not ex- Cameron, traordinary, part 307 N.W.2d at (quoting or incident of 168-69 the ser- ’ ” Prosser, Torts, contemplated.” (4th vice Law Id. 70 at 460-61 v. [Scott 1980)). Min-Aqua Club, employee’s Bats ed. Water The Ski 79 actions these Wis.2d 255 objectives N.W.2d 538 instances further the of the em- (1977)] quoting Knop, Seidl ployment v. 174 good even absent faith an in- Wis. 182 980 N.W. tention to the employer. benefit Id. Cf Samore, scope of employment Ibrahim v. has also Wis.2d been (1984)(section defined to include those N.W.2d 554 acts which makes no are 895.46 closely “so judgments connected with what the distinction as to serv- based inten- ant employed do, fairly conduct). so negligent and and tional or

H53 inferences, Milwaukee, F.Supp. its considered as a whole and City v. Bell light (E.D.Wis.1982), policemen viewed most favorable to the involved two evidence, reports nonmoving party, support only filed false can one planted who testimony to conceal gave moving fabricated reasonable conclusion—that the and shooting. The judgment of a fatal party true nature is entitled to notwith- to indemni- responsibility its city standing contested the adverse verdict. Neither officers, Grady, police be- fy one of the the district court nor this court is free to “knowingly police lied to officials cause he weigh the evidence or reach a result that shooting during investigation of the long it finds more reasonable as as the during inquest, perjured himself jury’s supported by verdict is substantial ____” city argued that at 477. The Id. evidence. outside the Grady’s actions were Inc., Airweld, Airco, Inc. v. 742 F.2d employment under section 895.46 because (9th Cir.1984) (citations omitted); see behalf, Grady “was on his own Gibb, (7th also 741 F.2d Selle employer.” of his Id. on behalf Cir.1984). The evidence here before us re- contentions, considering city’s Odegaard, veals that Nikodem and Szula court stated: investigations, participated reported to by Grady during the

The actions taken gave superiors, testimony hearings at shooting of Daniel Bell and chase regarding and in court Hibma. While the subsequent investigation, had during the deputies’ unquestionably actions were de- faith, un- good done in would been signed objectives to further their own among the duties of a questionably be escaping punishment wrong- for their own police officer and thus within doing, they designed also were to further police The duties of a employment. objectives Sawyer County. They prevention are not limited to the officer performing were their duties as apprehension of crime and of criminals. using quite improper sheriffs but methods Rather, they participation include in in- carrying out those duties. The vestigations, reporting superiors, deputies found that the undertook some of giving testimony hearings and in their actions while court. $86,500 employment and attributed $166,500 Grady’s The court found that actions award to those actions. Id. employ- objectives carried out the of his granted The district court Coun- Grady’s ment under ac- Cameron: “[w]hile notwithstanding ty’s judgment motion for unquestionably designed to fur- tions were the verdict because it determined that sec- objective escaping punish- ther his own requires deputies tion 895.46 that the act wrongdoing, they for his also were ment Sawyer County. with the intent to benefit designed objectives to further the of his However, recognize Cameron and Bell employment. performing He may require that section 895.46 indemnifi- police quite duties as a officer but used cation for actions which are not intended to improper carrying methods of out those employer the those actions benefit when required duties.” Id. at 478. The court objectives employment. the further of the City indemnify Grady. squarely Because the instant case falls reviewing propriety holding of Bell because granting judgment notwithstanding jury’s supported by verdict was substantial verdict, evidence, finds that the district this Court if, granted Sawyer affirm Coun- we must the district court with- court erred when notwithstanding accounting credibility judgment ty’s out for the motion witnesses, find that the evidence and the verdict.1 we employment” jury “scope element of section 895.- have 1. The Dissent asserts we and true, jury commingled would have If this were confused and the “under color of $166,500.00 to Hibma rather the full state law” element of section 1983 with the awarded 1154 “a

Issue II. the trial court erred motion for a new is Whether trial addressed to denying post-trial judge,” sound discretion of the motions trial Hibma’s damages alternatively Surety Corp., v. Durant Homes 582 for a increase 1081, (7th Cir.1978), F.2d 1088 the stan- damages? new trial on the issue dard of is review abuse that discre- The trial court denied Hibma’s motions question tion. “The before us is damages or for on increase a new trial whether the district court abused its dis- damages issue because it found that concluding cretion in jury did damages “the total amount of awarded not abuse its discretion.” Galard v. the jury clearly was neither excessive nor Johnson, (7th 504 F.2d 1198 at 1202 Cir. deficient; clearly trial therefore [the court] Ind.1974). pointed As our court out in damages declines to order a trial on new Lines, Wagner- Continental Air Inc. v. Hibma, add total award.” 576 Morehouse, Inc., (7th 401 F.2d 23 Cir. F.Supp. at 1555. 1968): “If record, the evidence in the viewed damages. A. Motion to increase standpoint from the successful Because on Hibma based his claims party, support is jury sufficient to law, federal federal substantive law with verdict, a trial not new warranted respect to applies additur to his case. See merely jury because the could have Tompkins, Erie Co. v. 304 Railroad U.S. reached a [Citing different result. 64, 817, 82 58 S.Ct. L.Ed. 1188 Un Neither trial court nor this eases.] law, generally der federal may may Court judgment substitute its jury’s increase determination of jury disputed that of the on issues of Therefore, additur. the trial court did fact.” in denying not err Hibma’s motion to in (quoting Id. 30 Gebhardt v. Wilson Schiedt, damages. crease See Dimick v. Freight Forwarding Co., 129, 348 F.2d 474, 486-87, 293 U.S. 79 55 S.Ct. (3rd Cir.1965)). 133 (1935); L.Ed. 603 see also v. United States Lescrenier, Robison v. 721 F.2d Land, Less, 93.970 Acres More or Situ (7th Cir.1983). Having reviewed the record County, Illinois, ated in Cook 258 F.2d case, instant Court finds that the (7th Cir.1958), 30-31 on rev’d other support jury’s evidence is sufficient to grounds, 360 U.S. S.Ct. $166,500 verdict and damages. award of (1959); L.Ed.2d 1275 Brewer Uniroyal, jury Because the could have awarded more Inc., (6th Cir.1974); 498 F.2d see (or less) require does not that a new trial Miller, generally Wright & A. C. Feder granted. (1973); al Practice and Procedure Hibma also seeks a trial new based on Moore, Jr., 6A Grotheer, J. J. Lucas & G. exclusion evidence the sexual ¶ (2d Moore’s Federal Practice ed. 59.08[8] Bay Reformatory assault at the Green 1984). special questions based verdict sub- jury. mitted to the B. Motion for new trial on the issue damages. 1. Exclusion of evidence. considering whether trial After had determined that the denying court erred in Hibma a new trial deputies had violated Hibma’s constitution- damages, on the rights issue of Court notes al while the employment, phase damage and before the $80,000.00 by trial, than paperwork, testifying reduce that amount to ac- at etc. furthered the count for acts done objectives outside the of the Sawyer County. Because those deputies’ employment. By focusing on the verdict, most support jury’s activities the the district egregious deputies, acts of the the Dissent fails ought granted judgment not to have a deputies’ participation notice that the in in- notwithstanding that verdict. vestigations, reporting superiors, filing and

1155 Greer, Sawyer 101, trial, granted tort.” Johnson v. 477 F.2d 105 the trial court (5th Cir.1973). deputies’ entrapment evi- If the limine and excluded County’s motion upon by resulting imprisonment arrest and Hibma and a sexual assault dence of Bay Reformatory. naturally proximately or his the Green caused prisoners at Bay Reformatory, the rape the evidence be- Green excluded The trial court legal rape a the be irrelevant actions formed cause of found the evidence cause it excluding it did and the trial court erred in the prejudicial and because unduly and it. opened regarding had evidence not believe subject. questioning the the door assessing propriety the exclusion, “a willful general principles tort liabili this Court notes that (sic) liability imposed 42 intentional feasor does not govern the under or be ty tort 1983, Rowlen, safety the Joseph 425 F.2d come an insurer of those v. U.S.C. § (7th Cir.1970); wronged.” v. at 106. Carey see whom has Id. While 1013 also 247, 257-58, tort-feasor must exercise ut 435 U.S. S.Ct. the intentional Piphus, (1978), they pro prevent most caution to his victim from L.Ed.2d 252 harm, sustaining instant further “even he remains guidance vide the case. by injuries wholly insulated from caused necessary a ele- constitutes Causation occurring unforeseen accidents without his To tort ment in all tort cases. establish way, another agency.” Id. at Stated the victim must show liability, person who commits a tort [a] tort-feasor caused wrongful act of the purpose causing another for Sys- injury. v. Four-Phase Schlanger See particular harm to other is liable for (S.D.N.Y. Inc., F.Supp. tems results, such harm if it or whether not 1982); (Second) of Torts Restatement § except expectable, is where the harm re (1965). legal cause harm to To be from an outside sults force risk another, con- a tort-feasor’s conduct must by is increased which not defendant’s bringing factor a substantial stitute act. (Second) of harm. Restatement about the (Second) Torts 435A Torts 431. “The word ‘substantial’ Restatement that the defendant’s where the harm would not used to denote fact “[E]ven act, producing tortious such an effect have occurred but conduct has if, regard liability although is no harm to lead reasonable men to there result- as cause, popu- general harm of the same nature using it as a that word intended, sense, always lar in which there lurks the as that the defendant’s act did ____” through risk of responsibility, idea Id. comment not increase the harm means which it occurred.” Id. comment a. Though this section of the Restatement a. recovery damages actions for “The (Second) relationship considers casual recovery for imprisonment false includes inju- intentional torts and intended between physical injury, and mental ... as well ries, principle logically applies an where jail____ long physical discomfort in So from an inten- injury unintended results injury as a finds that was the tort, Johnson, (quot- ill F.2d at 107 tional imprison- consequence of the false natural ing Restatement of Torts com- proximately ment and related to it ...” g). ment legal tort-feasor’s conduct constitutes a or may The intentional torts criminal injury cause of the victim Kern, person may constitute a 407 F.2d 797 acts of third recover. Whirl (citations omitted). may (5th Cir.1969) superseding of harm and relieve cause “[T]he (sic) liability for harm imprisonment tort in a false a tort-feasor from feasor or person’s are third torts acts. may action be liable for caused foreseen, original applies principle This when anticipated, apprehended an negligence opportu creates probable tort-feasor’s long so are natural person to commit nity for the third consequences of intentional direct act, may give guidance listed factors to courts tort or criminal Gillot v. intentional contemplating liability the of Washington Metropolitan Area Transit intentional (D.D.C. Authority, F.Supp. tort-feasors. 1981), original the well as when tort-fea- court has the exclusive func opportu- the sor’s intentional action creates tion or to declare the existence non-exist Keeton, nity, see W. Prosser and Keeton rules, pertaining of such as ence those to 1984); Torts, (5th 44 at 317-18 ed. see § causes, superseding which the restrict re (Second) Restatement of Torts

generally sponsibility of of tort-feasor short mak (1965). 448 and comment a § ing him for of liable harm which his actions

Further, legal are a cause. Id. If the facts undisputed, are duty the court has the required to by who is law to take or [o]ne apply determining to them the rules voluntarily custody who takes the of an- existence or extent of the tort-feasor’s other under such as to lia circumstances However, deprive bility. if reasonable men could power the other of his normal of subject as to whether the or self-protection to him to asso- differ torts criminal him, persons likely person to harm acts a third ciation of were intentional or with duty foreseeable, is under a to exercise reasonable ap the court should leave the plication care so to control the conduct of third jury. to the rules Id. com persons prevent as to them from inten- ment b. tionally harming so the other or conduct- case, Sawyer In the instant create an unreason- themselves to custody transferred from the him, to if able risk of harm the actor deputies System. to the Wisconsin Prison (a) knows or has reason to know During Hibma’s incarceration at the Green ability he has the to control conduct Bay Reformatory, protect to duty Hib persons, third and deputies ma shifted from the to the Wis (b) knows or should neces- know the (Sec System. consin Prison Restatement sity opportunity exercising such ond) (1965). of Torts While §§ control. protection Hibma was under the (Second) (1965). Restatement of Torts Wisconsin Prison System, other inmates duty prevent When the to harm to a tort- sexually Though depu assaulted him. feasor’s victim shifts the tort-feasor ties’ actions set motion the events which a third party, party’s third failure to led to Hibma’s confinement the Green prevent may harm to the victim become a Bay Reformatory, duty protection superseding cause and relieve the tort-fea- System assumed the Wisconsin Prison liability. (Second) sor from Restatement and the criminal acts the other inmates f

Torts Comment of Section superseding prevent formed causes 452 sets forth the factors that a court must deputies’ being legal actions from determining duty consider whether the bringing cause in about the sexual assault. has shifted: Keeton, (Sec supra; See W. Restatement degree danger magnitude and the ond) 440, 441, 448, Torts 452. Be §§ harm, of the risk of the character and undisputed cause these facts were and be position person the third who cause reasonable men could not differ as to responsibility, knowledge take the of whether sexual assault was an inten danger likelihood that he will duty act tional and as to whether the care, proper or will not exercise his rela- protect Hibma had shifted to Wisconsin defendant, plaintiff tion to the System, properly Prison trial court de time, the lapse perhaps con- other termined whether the evidence of the sexu siderations. jury. al assault should be considered Though Id. comment f. Section Finally, correctly 452 dis- the trial court held duty shifting negligent cusses of a the sexual assault evidence was irrelevant tort-feasor, underlying principles purpose assessing dam- Hibma’s

1157 above, because, depu- liability portion in the the of the trial to set forth the ages legal jury evidence the were not a cause of the heard the dam- actions ties’ Therefore, age portion. the upon Hibma. trial court did assault submitting its discretion in abuse these Special questions. verdict 2. special questions. verdict Finally, ought not be Issue 42 III. Whether 1988 U.S.C. en- granted a new trial on the basis that the trial titles Hibma to an award of all his attor- special improper submitted an verdict court ney’s fees and costs? jury. Federal Under Rule form to 49(a), gives 42 U.S.C. Procedure district court 1988 courts Civil “[t]he authority to broad to discretion as the nature award reasonable attor has considerable ney’s “prevailing parties” to to scope of issues to be submitted fees federal special rights Robinson, civil actions. jury ques in the form of verdict Smith v. — Limited, -, 3457, 3466, 104 v. Bombardier U.S. S.Ct. 82 tions.” Sadowski Cir.1976) (1984); 615, (7th (citation 622 L.Ed.2d 746 Illinois 539 F.2d Welfare omitted); Miller, Rights Organization also v. A.H. Rob v. 723 see Worsham F.2d 676, (11th 564, Cir.1983). (7th F.2d 690 Cir. 1988 Company, 734 566 Section en ins 1984); Bank Fire trusts determination fee Progressive Central v. of a award to Company, Fund 658 sound discretion of the district man’s Insurance court (5th Cir.1981). 377, reviewing A superior 381 because of “the district court’s F.2d limit to inquiry understanding litigation must its whether the and the court de avoiding sirability frequent appellate trial court abused its discretion. Central re Bank, Spe F.2d at Progressive essentially 658 381. view of what are factual mat questions pose Eckerhart, “must ters.” ques Hensley 424, cial verdict v. 461 U.S. 103 76 presented accurately (1983); tion the case S.Ct. L.Ed.2d 40 in a po Congressional stated fashion that ‘avoids the In re Illinois Districts Re Cases, 380, confusing misleading apportionment F.2d tential 704 382 ” (7th Worsham, Cir.1983). However, F.2d at jury.’ (quot 734 690 the district court 523, (5th Hayes, F.2d has ing only Petes v. 664 525 a narrow discretion and should Cir.1981)); deny only see Progressive also Central fees where an award would be Bank, unjust. Argento, 874, 658 F.2d v. F.2d at 381. Lenard 699 — (7th Cir.), denied, U.S.-, 899 cert. liability portion After the (1983). A S.Ct. 78 L.Ed.2d 84 re case, court, by instant trial means of may set viewing court aside a trial court’s questions, special jury verdict asked the fee determination for an abuse dis deputies whether acted had Congressional cretion. In re Illinois Dis employment of their while Cases, Reapportionment trict 704 F.2d at depriving Hibma of constitutional 382; Franzen, 695 F.2d Freeman damage portion After rights. (7th Cir.1982), denied, cert. U.S. trial, special the trial submitted ver 103 S.Ct. 77 L.Ed.2d 1400 questions jury dict which asked to de amount of the fee awarded damages termine the amount of which the turns of each case. Hensley, on the facts deputies proximately acting caused while S.Ct. at case, proxi to determine amount of In the instant Hibma initiated Nikodem, against action mately deputies caused while this section 1983 employment. Odegaard. Sawyer Szula and inter outside po questions accurately posed it was ques These vened in October because presented by way instant indem tentially tion case and liable Hibma potential confusing avoided the or mis nification under Wis.Stat.Ann. 895.46 effect, (West leading jury. August Supp.1983). trial court Niko stipulated judgment apply asked the what had found dem and Szula be- CUDAHY, them in an Judge, concurring entered amount Circuit in by the court. In determin- in part dissenting part. be determined and ing attorney’s the of fees to amount be agree cogent I analysis with the of the Hibma, awarded the trial court reviewed to majority holding that the actions of the the time records submitted Hibma’s deputy sheriffs scope were within the of that it deter- counsel and allowed all fees employment their and concur in Section I mined to be to Hibma’s section attributable panel opinion. of the I way see no to it 1983 action and disallowed all fees that distinguish of the acts the sheriffs to to determined be attributable Hibma’s police here in- from those officers against Sawyer County action under Wis. City Milwaukee, volved Bell v. 536 of so, doing 895.46. In the trial court Stat. § (E.D.Wis.1982), F.Supp. 462 part, affd did not the it abuse discretion afforded part, (7th Cir.1984), rev’d in 746 1205 F.2d under 42 1988. U.S.C. § and City Milwaukee, Cameron v. of (1981). Wis.2d 307 N.W.2d 164 In 1988 applies Section to federal civil cases, here, those the officers act- were rights claims. See U.S.C. 1988. The purposes doing, for their own but were plaintiff fact that a makes constitutional very improperly, type thing albeit the of not claim “does render automatic an award law Smith, personnel enforcement do. In proceeding.” fees for the entire city Bell this court the regard “Due held that was re- S.Ct. at 3467. must be paid, quired the fact under plaintiff indemnify to that a section 895.46 to ‘prevailed,’ but the relationship also to be the officer for arising from the on tween claims which effort ex was shooting cover-up. 746 F.2d at 1271- pended ultimate relief obtained.” Supreme Cameron the Wisconsin 1933); (citing Hensley, Id. at 3466 103 S.Ct. city Court held that the was not entitled to Rights see also Illinois Organiza summary judgment question wheth- Welfare Miller, (7th tion v. 723 F.2d Cir. policemen er the actions were out- 1983). The ultimate relief obtained Hib scope of employment side the because ma in the instant action consisted of dam a finder of could reasonably fact conclude ages against deputies under U.S.C. the officers were within the merely provid 1983. Wis.Stat. 895.46 scope of their employment. 102 at Wis.2d ed part a means Hibma to collect 459-60, 307 N.W.2d 164. It is also impor- Sawyer County. award from The Wiscon tant to Supreme note that Court of sin statute neither enhanced nor diminished recently Wisconsin has affirmed ver- the award obtained under section 1983. dict employee that certain acts were Therefore, judge the trial properly disal of his where all lowed fees that to determined were acts similar those for which he pursuit attributable Hibma’s of indemni possible had been hired and were made fication. only by employee, of his role virtue even

though there was evidence the acts were Conclusion solely private purpose done for the employee. Beaudry, State v. 123 Wis.2d above, For the stated reasons this Court addition, 365 N.W.2d 593 I REVERSES the order district court do not it makes believe difference granting Sawyer County’s judg- motion for whether or the 1977 1983 version of the notwithstanding verdict, ment RE- indemnity applies. statute VERSES the order of the district court each, employment language is vacating previous the same its order entering judg- against Sawyer County, deeply ment too AF- involved try point FIRMS the order of defense this case to the district court in all respects other including deputies’ district court’s wash its hands actions attorney’s determination of fees. are within the of employment. jail. way on the parts of van Weaker However, I must dissent property become the inmates III. I believe II and Sections prisoners gangs, who sell the stronger on Hibma sexual assault evidence services of the victim. Prison of- Bay sexual in the Green imprisoned while stopping are either disinterested admitted. ficials should have been Reformatory prisoners prisoners by other abuse of properly for a instructed It was matter so, given limit- incapable doing are acts “fram- the defendant’s jury whether pris- society ed allocates to the resources cause of proximate ing” Hibma were are system. on Prison officials often the Presumably, factors prison rapes. the and merely indifferent to serious health f of 452 of the in Section noted Comment prisoners as safety needs of well. majority ante (quoted the Restatement 1156) of such an is the that appalling form the basis more fact would Even guards participate in the bru- frequently instruction. of inmates. The classic exam- talization majority disagree with the that I do not ple beating punishment is the or other from the custody Hibma’s was transferred prisoner complaints retaliation system, prison the Wisconsin deputies to court actions. primary responsibility then had the which 421-22, Bailey, v. 394, United States 444 U.S. the sexual protection, and that for Hibma’s (1980) L.Ed.2d S.Ct. 62 575 act. was an intentional question assault 100 (Blackmun, J., (footnotes dissenting) omit- it follow from these facts But does not ted). Further, the ac- number 1983 of false consequence is a sexual assault by prisoners alleging failure tions filed kept from the can imprisonment be which protect prison authorities to them theory. The superseding on a cause jury rape legion. is and assault that because an intention- majority reasons party has a act which a third believe, therefore, al jury ques- I that it is a duty protect original tort-feasor’s rape is such a tion homosexual whether cause, superseding might be a this, victim part of and routine and foreseeable cause, one before us is superseding a any, prison experience— indeed of kind of such as matter law. reasoning This a is regardless vigilance prison of the Indeed, quite majori- on fallacious. guards of causation was chain —that indi- policeman who beat an ty’s theory, superseding cause. The au- by a broken any injuries show, vidual could never be liable I majority be- thorities cited malpractice resulting physi- from the lieve, question it is a of fact for the cian to the victim had resorted for whom in this jury deputies’ actions whether injuries sustained in the treatment of the inju- proximate cause of the case were the course, protect beating. duty to Of prison by plaintiff. ries suffered policeman from the would have shifted impris on false 1983 actions based general Yet tort physician. under both onment, injury proximately must be policeman concepts 1983 such a and § Greer, v. Johnson wrong. related to the injuries. could be liable for Cir.1973); v. 101, Whirl (5th 105 477 F.2d unfortunately endemic to (5th Cir.1968), “Violence is Kern, cert. 781, F.2d 797 407 Murphy v. United prisons.” American denied, 396 U.S. 90 S.Ct. States, (D.C.Cir.1981); F.2d The statute does not L.Ed.2d 177 White, also v. see Martin 742 F.2d defendant qualification add a (8th Cir.1984). Gang rapes and ho- 472-73 immediate, precipitat- direct who is the common-place are mosexual assaults plaintiff’s injuries is liable cause has frequent. As Justice Blackmun writ- Baxley, F.Supp. to him. Redmond v. ten, defining (E.D.Mich.1979). cause, reasoning of the Fifth proximate expect to youthful inmate can be sub- [a] Greer, first Circuit in Johnson which rape

jected gang homosexual relies, or, said, is instructive. majority night been even jail, has cases, however, [prior] Neither these from his hand, actions. On the other proper applied focused on the rule to acting officers with malice or bad intent in determining whether ought additionálly to responsible be held proximately wrong related injuries for those which have a more Thus, consequence foreseeable thereof. relationship attenuated causal to their guidance to “the prevailing we look for Thus, willful misconduct. ain im- false country” view tort in this [of law] prisonment action brought under Section determining proper federal rule to 1983, the tort feasor color under apply to this case. of law with malice or bad intent must be responsible held injuries all for prevented opinion not on the We focus our meta- could have been exer- by the sequence physical “but for” of events cise the utmost caution characteris- preceding injury Johnson’s but rather on men, very though tic even careful question principles of whether the remains injuries insulated from caused logic, fairness, justice dictate the by wholly unforeseen occurring accidents given defendant should be held in a liable agency. without his respon- Nor is he are situation. The cases in accord that injuries against sible for which no human even a willful intentional tort feasor foresight guard care or could and which safety does not an insurer of become the any degree by are in gross not caused his of wronged. those whom he has For neglect or intentional conduct. example, if [prison] the had been de- stroyed by an earthquake, no one could The correct rule of applied law be rationally contend Greer should be liable this cause analogy is indicated in the injuries befalling Johnson. On the Torts, Restatement of Section 870. hand, other the generally courts have person A who does tortious act for held that where the acts of a defendant the purpose causing harm to anoth- constitute an intentional tort or reckless things er toor his or to pecuniary the misconduct, as distinguished from mere another, interest of is liable to the oth- negligence, aggravated nature of his er results, except such harm if it action is a matter which should be taken where the harm results an out- from into account in determining whether side the risk which is not force there is a sufficient relationship between increased act. defendant’s wrong plaintiff’s harm to render [Emphasis added.] actor Specifically, liable. the factors “g” Comment to that amplifies section to be taken into account are the tort this rule. feasor’s wrongful intention to commit a Even where the defendant’s act is in act, degree wrong his moral in so a harm, fact cause of that sense acting, and the seriousness the harm the harm would not otherwise have intended. The touchstone for deciding occurred, person he is not liable ato liability the defendant’s in a whom he intended to harm and who imprisonment false properly action harmed, has been unless from the brought under a federal statute is the standpoint man, of a reasonable act his object intent and of the officer in detain- in degree some increased the risk While, ing plaintiff. as we have iter- that harm. ated, good mere intentions do not in Though themselves create a defense to section the Restatement the ac- tion, justice, fairness, expressly deals necessary with the policy sound caus- coalesce relationship to indicate that an al officer between an intentional under wrong color law without resulting malice bad and a injury, intended intent where, should be liable principle for those a applies fortiori injuries here, which an ordinarily prudent man injury an unintended results from reasonably would foresee would result an intentional tort.

H61 COFFEY, (first Judge, concurring in Circuit Greer, 106-07 477 F.2d at v. Johnson dissenting part. in part and omitted). added) (citations emphasis opinion II I concur in Section that deputies intend- No one contends judge court did not abuse his the district raped prison, in but be that Hibma ed denying plaintiff’s in motion discretion in- substantially obviously and actions did damage deny- award or to increase Therefore, it that harm. the risk of crease I, motion for a new trial. ing plaintiff’s jury whether fact for the question of is a likewise, opin- III of the concur Section probable a natural assault sexual judge did not district court ion prison for an being sent consequence of awarding plain- discretion in abuse Haynes, v. period. See Wade extended dissent, $32,643 attorney’s fees. I tiff Cir.1981), (8th on other F.2d 778 affd however, majority’s conclusion 30, 103 S.Ct. 461 U.S. grounds, opinion I the district Section Greer, (1983); su- Johnson L.Ed.2d entering judgment erred in not- judge view, not, consequence my pra. It is withstanding the in favor of the verdict matter of law can excluded as a defendant, intervening Sawyer County, theory. One who superseding cause clearly The record reveals that Wisconsin. prison may sends another to wrongfully defendants, Odegaard, Richard James ug- resulting from the justly bear Szula, Nikodem, and Michael were not act- prison life. lier features employment, on the majority disagree I with also deputies Sawyer County, as sheriff plaintiff attorney’s fees. award plaintiff of they deprived when his con- right to a trial. It action has a Thus, pursuant rights. stitutional to Wis. for an abuse of discretion was therefore (1977-78), Sawyer County Stat. 895.46 is to reduce the award be- the district court any damages liable for assessed day to have taken one cause it would defendants. damages in a bench justify an award of Further, Sawyer County did not limit trial. I employ- the issue of its defense to in The record reveals that the de- ment, the amount of dam- but contested fendants, Odegaard, Niko- Richard James the individual defendants ages for which Szula, dem, employed by and Michael were county liable whether or not the would be Wisconsin, County, as full-time Sawyer required indemnify them. This de- to was early April In deputy sheriffs. both the individual defend- fense benefited burglarized sev- defendant sheriffs reason, county. this and the For ants Spider in Lake cottages summer eral discretion to reduce also an abuse of was stealing, Sawyer County, inter area of ground on the that much the fee award alia, animal skins. Soon firearms and plaintiff’s work would have been unnec- thereafter, deputy sheriffs the defendant coun- essary but for the intervention Sawyer County concerned that the became ty. accepted The defendants individual sheriff discover their criminal activi- would county’s on their benefit of the intervention to they thus devised a scheme ties and They should not be allowed to behalf. Hibma, George with plaintiff, frame the profit theory plain- on the that the further had, fact, com- burglaries they if the have had an easier time tiff would chose Hibma mitted. The defendants proper county had not intervened. The cover-up conspiracy be- target defense, presenting the issue is not who is recently convicted of a had been cause he plaintiff being claim the on which but burglary involving the theft ani- similar through expend to additional effort forced skins, serving probation still mal and was intervening defendant. of the action addition, Hibma had for that crime. in Federal court previously been convicted respectfully dissent as to I therefore a controlled conspiracy to manufacture indicated. matters was, they chemi- April as of skins and firearms that had stolen in substance and cally dependent upon various stimulant Spider burglaries Lake around Hibma’s Methadrine, cocaine, drugs, including and premises. Ritalin, prescribed his nar- a medication Following signing Hibma’s of the con- colepsy. form, Hibma, sent the defendants booked conspir- of the cover-up furtherance photograph fingerprints, took his and acy, Prof- the defendants contacted William shower, placed him a cold dressed him in fitt, acquaintance was Hibma’s who uniform, jailhouse and locked him in a serving Sawyer County sentence cell. holding The then left defendants jail daytime program. on a work release jail “couple for a of hours” to search Hib- initially defendants asked Proffitt premises, ma’s at no providing time Hibma Hibma, purchase quantity drugs drug with medical treatment for with- assuring cooperated Proffitt that if he symptoms. drawal When defendants the scheme his sentence would be reduced. jail, they returned to the hauled Hibma into drugs Proffitt solicit the but did refused Odegaard’s office questioned and him con- agree approach if he Hibma and ask cerning animal and rifles skins would steal firearms sale some for later to have at claimed discovered his residence. through operation a fence in Minnesota. deny knowledge Hibma continued to separate On at least seven occasions participation Spider items or early April, contacted Proffitt Hibma burglaries. Lake sepa- On three four urged Finally, him to steal firearms. on occasions, rate the defendants informed April 1977, Hibma stole a handgun that he going charged to be delivered Proffitt it to who turned the with one count of theft and fourteen counts handgun over to the defendants. Two and, burglary guilty, if found that he later, days approximately a.m. 8:30 approximately would serve ninety-four April 21, 1977, morning Hibma met years prison. Throughout question- payment with Proffitt to receive his cash ing period, Hibma continued suffer from and at ap- time the defendants withdrawal, drug chills, experiencing vom- prehended Hibma, arrest, placed him under diarrhea, iting, during but the entire rights, read him his Miranda handcuffed period Hibma insisted that had no him, transported him to the knowledge of Spider burglaries. Lake County jail. confession, to coerce a Unable the defend- Upon jail, arrival at the Hibma informed transported ants to holding Hibma back his suffering drug defendants that he was request cell and continued to his refuse for symptoms withdrawal and needed medical medical assistance. Odegaard attention. Defendant responded, holding cell, While confined in the Hibma “Gee, bad,” persisted that is too and though felt “nothing going was to be interrogating concerning Hibma theft illness, done” for his so he decided to draw handgun of the his knowledge and of the by to his breaking attention condition his Spider burglaries Lake deputy that eyeglasses, placing superficial a cut on his had, fact, sheriffs committed. Hibma wrist, screaming and he was that commit- stealing handgun admitted to de- but ting immediately suicide. defendants knowledge of, any in, nied or participation doctor, superficial called a who treated the Spider burglaries. Lake Defendant and, realizing wrist that wound Hibma was Odegaard suggested if was Hibma drug suffering symptoms, withdrawal

truly previous burglaries, innocent of the arrangements made for Hibma to receive he sign authorizing should consent a form professional depend- care for chemical his defendants search his to house without 22, ency problem. April responded ap- a warrant. On Hibma that he “had nothing hide,” proximately morning, to and 3:00 a.m. in signed thus he some Hibma, consent eighteen form. Unknown hours after had to Hibma been ar- secretly placed defendants, defendants had the animal transport- rested he was Jury Care Center Grand violation of 18 U.S.C. to the Dunn Health ed §§ Menomonie, Wisconsin, where under- one defendant Szula with count of dependen- his for chemical went treatment making false statements to the Federal Bu- deputy day, same defendant cy. Later that Investigation reau in violation of 18 knowingly filed a false sheriff Nikodem 1001, and Odegaard U.S.C. defendant Hibma report stating that was sheriffs depriving with one count of Hibma of his Spider burglaries. Lake responsible for the rights civil in violation of 18 241. U.S.C. § Similarly, sheriff deputy defendant Szula guilty All plead three defendants to the a criminal knowingly signed false com- and, charged crimes egre- view the plaint, charging Hibma with firearm gious offenses, nature of the district burglaries. Spider Lake theft and the court judge sentenced Nikodem a three later, April days on Some five term, year to a prison year Szula four deputy Odegaard sheriffs defendant term, prison Odegaard to a year five knowingly press a false prepared Nikodem prison term. Sawyer County release for the local news- In July filed a Hibma section 1983 paper, stating that Hibma’s arrest “result- against the deputy lawsuit defendant sher- burglaries clearing ed in numerous in [sic] iffs, a his alleging violation of Fourth plagued Sawyer County has with been right to free from Amendment unrea- beginning year.” since the See Saw- searches and sonable seizures his Four- Gazette, yer County April right process teenth Amendment due 29,1977, April appeared in On Hibma sought Sawyer County law. and was Sawyer County, his Circuit Court of waived granted party leave to as a intervene de- and, hearing pursu- right preliminary to a potential liability, fendant because of its guilty plea agreement, plead ant to a to the 895.46, pay under the dam- Wis.Stat. § handgun in return for a dismissal of theft ages against Sawyer County assessed offi- charges. response burglary to a carrying cers “acts committed while out request judge circuit that the employee acting duties as an officer or ... factual State of Wisconsin introduce evi- scope of employment.” At the charge, support dence to theft defend- time of the defendants’ unlawful actions testified, Odegaard deputy ant sheriff in- 1977, deputy employed April sheriffs alia, that, informed us ter informant “[a]n basis, defendants, civil service such as the gun Mr. him Hibma wanted to sell scope of were included within the Wis.Stat. price gun for a and the was deliv- certain provided 895.46. The statute money was ered Mr. Hibma and trans- county’s payment assessed picked up ferred and Mr. Hibma was on it.” sheriff, employed “an on a The court sentenced Hibma to indeter- basis, years” carrying minate not to two civil out term exceed service who actually charge the theft served of his duties and period year “discretionary a of confinement of one and not employment, day county one state various institu- mandatory.” purpose The of the discre- tions. determination, part tionary on the pay county, as to whether or not to for the 1980, May In Bureau In- Federal against deputy sheriff damages assessed a vestigation probe commenced an unrelated basis, on a civil is to employed service Sawyer County Depart- Sheriffs VI, 4 of the Wiscon- accommodate art. sec. and, liquor alleged ment for law violations provides that “the sin Constitution which following thorough year-and-a-half inves- responsible made county shall never be tigation, the Federal officials uncovered the sheriff,” with Wis.Stat. the acts of defendants’ unlawful scheme frame Hib- 895.46, to include the is intended Spider Burglaries. ma for § Lake possi- greatest public officials 1981, number charged December the Government Bablitch v. Lincoln ble. Bablitch and defendant Nikodem two counts of See with 582-83, 574, 263 N.W.2d making 82 Wis.2d County, false declarations to Federal 1164 218, Thus, (1978). (1984). present case, under the 1977 ver- 223 Wis.Stat. 895.46, Sawyer County’s of section substantive, sion clearly 895.46 is rather § any damages against assessed

payment procedural statute, than a or remedial as it be, at deputy defendant sheriffs would provides payment for the judgments ren- best, discretionary mandatory only and not against dered officer or the State majority. as directed political Moreover, other subdivision. 1983, legislature, amending Wisconsin section legisla-

I note that in the Wisconsin 895.46, did pro- expressly ture amended Wis.Stat. 895.46 to nor state much § imply vide: less that the amended statute was to apply “(d) 1, 1983, retroactively. Accordingly, On after March this all sheriffs, employed deputy compelled as persons controlling is under the 40.02(48)(b)3, in s. are defined covered apply Wisconsin state law to ver- the 1977 county this subsection. The board sion of Wis.Stat. 895.46 to the facts § adopt policies payments shall written case, April See, this which arose in under this subsection on behalf of e.g., 1549, Odegaard, F.Supp. Hibma v. 576 person, provided person other has (1984) (applying the 1977 version of satisfied the minimum standards of the ease). Wis.Stat. 895.46 to the facts in this board, law enforcement standards who Judge Cudahy asserts that no makes serves the discretion of the sheriff as difference whether the 1977 or 1983 ver- a law enforcement officer defined in s. applies sion of Wis.Stat. 895.46 in this 165.85(2)(c), county may make Sawyer County case because deeply “is too payments upon approval by the coun- involved try defense this case to ty board.” point depu- at this to wash its hands of the actions____” Judge incorrectly Grant claims “the disagree Judge ties’ I with applies 1983 version of section 895.46 to the Cudahy’s theory that because instant case.” The law in Wisconsin ex- County properly intervened action to pressly provides amendatory that “[a]n against potential liability defend pro- and to statute, acts, legislative like other takes taxpayers, tect the financial interests itsof passage, effect from its and will not precluded it is exercising now discre- be construed as applying retroactive or as in indemnifying deputy tion sheriffs for transactions, prior or to pend- facts damages. thorough analysis A ing proceedings, contrary unless a inten- Wisconsin case law reveals that the 1977 is expressly tion or necessarily stated im- version of applies Wis.Stat. 895.46 in this plied.” State, 481, Truesdale v. 60 Wis.2d Sawyer County case and allows to exercise (1973) (emphasis N.W.2d payment discretion as- added) (quoting Department Wisconsin sessed deputy sheriffs found to Dziubek, 499, 505, Revenue v. 45 Wis.2d employ- (1970)). 173 N.W.2d See also ment. Noll, Briggs State ex rel. Stratton & Prior trial on Hibma’s section 1983 650, 655, 100 Wis.2d 302 N.W.2d claim, parties agreed that the defend- (1981); Dallman, Dallman v. 159 Wis. unlawfully ants had entrapped into 149 N.W. The stealing handgun and thus Hibma was only exception to is this rule when the wrongfully pris- convicted and sentenced procedural remedial, statute “is rather parties on. stipulated that: substantive, than in which case the statute “the activities the three sheriff generally given retroactive effect.” defendants, Odegaard, T. Richard James 1, Hathaway v. Joint 116 School Dist. No. Szula, 388, Nikodem 4, 682, and Michael Paul did in- Wis.2d 400 n. 342 N.W.2d 688 (1984) (citing Seamandel, entrapment. entrap- n. 4 deed amount to An Gutter v. 1, 17, 403, 103 Wis.2d 308 ment is a defense which can N.W.2d 411 be offered (1981)). Morden, by a if Boggs See also 117 defendant and it is successful will 490, Wis.2d 345 N.W.2d 491 not allow a conviction. The Court be- arrest, planting his evidence and steal- stipulation of the upon the lieves based home, denying him ing property from his had did occur and entrapment parties during drug medical attention withdraw- brought to the attention that been al, complaint seeking the issuance County, there Sawyer authorities burglaries charging him with scores of a conviction not have been would he had not committed and they knew pleaded Mr. Hibma for which offense guilty plea and finally securing his con- on June convicted guilty and was and false testi- through coercion viction year 1979; have served he not would ex-deputies’ plot to hide their mony. The prisons.” state day in the and a they burglaries did not evolve own after they admitted further The defendants Hibma; entrapped and arrested rath- had him with the charged Hibma and arrested er, plot purpose was the cause and attempt in an burglaries Spider Lake very beginning actions from the their fact, had, in they conceal the crimes illegal conduct.” their Thus, stip- parties further committed. F.Supp. at Odegaard, 576 Hibma v. ulated that: original). Accordingly, the dis- (emphasis for such or motivations “The reasons granted County’s judge Sawyer trict court Defendants, Richard acts committed notwithstanding the judgment motion for Nikodem, Mi- Odegaard, James T. verdict, ruling that because the defendants Szula, George Hibma were chael scope of acting not within the were (a) removing them- purpose of for the deprived when Hibma of employment crimi- suspects for the possible selves rights, Sawyer County his constitutional De- burglary and theft which nal acts of 895.46, liable, under Wis.Stat. Odegaard, Ni- T. James fendants Richard damages. for of the defendants’ Szula, had them- kodem, Michael committed____” selves II trial, presented evidence upon the Based rights in a civil action under prevail To had the defendants jury found that plaintiff must estab U.S.C. § rights of his constitutional deprived Hibma acting “under defendant was lish that the of 42 U.S.C. in violation deprived color of state law” when $166,500 damages, allo- awarded rights. This plaintiff of his constitutional $86,500 by the to acts committed cating element of a color of state law” “under scope of their em- defendants within even when 1983 action is satisfied section $80,000 committed to acts ployment and power, misuses or abuses the defendant employment. scope of their outside the conferred state long power as that so judg- County filed a motion for Sawyer defendant is clothed with law and the verdict, arguing notwithstanding the ment Indeed, the law. Su authority of state acting were at no time that the defendants ruled in States v. preme Court United employment. The scope of their Classic, 313 U.S. 61 S.Ct. the relevant judge reviewed district court (1941), power, L.Ed. 1368 “[m]isuse case law and the evidence Wisconsin and made possessed by of state law virtue at trial to determine whether presented wrongdoer is possible only because fact could have not a reasonable trier of law, is authority of state with the clothed acting the defendants found that were of’ state law.” ‘under color action taken when (citing at 1043 Ex 61 S.Ct. 313 U.S. at of his constitutional they deprived Hibma Otto) 339, 346, (10 100 U.S. parte Virginia, concluded that: rights. The district court (1880)). Lugar v. also L.Ed. 676 See 922, 929, 102 Co., support- 457 U.S. no facts or inferences Edmondson Oil “there are (1982). In 2744, 2748, L.Ed.2d 482 Odegaard, finding that defendants S.Ct. all case, were at any- the defendants present were Nikodem and Szula deputy sheriffs employed as full-time purposes times than their own thing other County, with the author- Hibma, vested engineering plaintiff entrapping arrests, political ity to make lawful detain criminal subdivision which the de- , suspects Sawyer County jail, at the and file fendant is an officer or employe. that the defendants violated their oath criminal complaints. The record reveals ^[******] Deputy sheriffs completely

office and abused their authori- those counties ty, they unlawfully entrapped they as where serve not at the will of the stealing handgun, placed into him under sheriff but on civil service basis shall arrest, transported Sawyer him to the be covered subsection, except jail car, County squad in a sheriffs booked provision that the relating to payment him, cell, holding detained him in a denied judgment discretionary shall be attention, request his for medical filed a and not mandatory. In such counties complaint, signed false sheriffs a false judgment to damages as and costs report, prepared press criminal a false re- may paid by the if county approved lease, guilty plea and secured Hibma’s county board.” upon conviction based their conspiracy (Emphasis added).1 Pursuant to Wisconsin entrapment. The record further reveals law, Sawyer state County may be liable for power that the defendants’ misuse of damages any against assessed the defend- possible only because were “clothed carrying duties, ants for out as officers of authority with the of state law” deputy as Sawyer County, within the of their Thus, according sheriffs. Supreme to the employment. majority opinion sug- analysis Court’s in United States Clas- gests that once officers are found to be sic, the defendants acted “under color of acting “under color of state law” is it im- state law” they deprived when Hibma of plicitly assumed that the officers are also rights. constitutional the scope within employ- The majority commingles confuses and ment for purposes of Wis.Stat. 895.46. § this “under color of state law” element a According majority: to the section completely sep- 1983 action with the “Odegaard, Nikodem partici- and Szula arate and distinct of damage liability issue pated investigations, reported supe- under Wisconsin state law. Wis.Stat. riors, gave testimony at hearings (1977-78) provides, 895.46 pertinent and in regarding Hibma. While part, that: deputies’ unquestiona- actions were “(1) any Where the defendant action designed bly objec- further their own special or proceeding public is a officer escaping punishment tives of for their or employe proceeded against and is wrongdoing, own they also were de- capacity an official proceeded is signed objectives to further the of Saw- against as an individual because of yer County. They were performing their acts carrying committed while out deputy duties as quite sheriffs but using duties employe officer or and the improper carrying methods of out those jury or the court finds that such de- duties.” fendant was acting I judgment dissent from the majority’s as to dam- unreasoned ages and costs entered of- conclusion that the defendants’ actions ficer or employe in excess of designed objectives were to further the insure applicable anee to such Sawyer officer or em- County when the purpose sole ploye paid by shall be state unlawful conduct defendants’ was to April damages discretionary, the defendants were mandatory. those Thus, employed by Sawyer County sheriffs majority’s a civil analysis even under $86,500 service basis and thus fall within the ambit of damages, is liable for Wis.Stat. 895.46. according The 1977 version Wis.Stat. 895.46 as existed at expressly provides conduct, statute if are the time of the defendants’ unlawful sheriffs, against deputy assessed defendants, county’s payment such dam- defendants’ is, best, ages for acts committed discretionary and not man- employment, county's payment datory. See discussion in section I.

1167 scope to an inno- is lim- liability criminal transfer their of positions by their ited to those acts which law are and thus retain cent Hibma admit- employer. The defendants attributable to the master or as sheriffs. However, con- purposes actions were of sec. trial that acts ted at exclusive, out for the under color of law are not limited to ceived and carried removing themselves purpose by of conduct to the state vir- unlawful attributable Spider burglaries. suspects employer-employee in the Lake tue of the relation- Moreover, majority’s I from the ship.” dissent distinguish the “under complete refusal to 456-57, 307 at 168- 102 Wis.2d at N.W.2d of a section of state law” element color added). (emphasis 69 The Wisconsin Dis- limiting from the defined and 1983 action Racine, Court, v. trict Harris employment,” scope

phrase, “within the (E.D.Wis.1981), likewise, F.Supp. 512 1273 used in 895.46. Wis.Stat. § concluded that: damage County’s potential liabili- interpreting phrase ‘acting with- “[i]n law, under state ty solely arises Wisconsin scope employment’ as used law, and thus I turn to under Federal 895.46(1), the relevant case law does § properly in order to case law Wisconsin equivalent suggest phrase that the phrase “within the interpret acting carrying ‘while out duties as an used in Wis.Stat. 895.- employment,” as § employe’ officer or and does not encom- Milwaukee, City v. 46.2 Cameron pass employee taken an all actions ” (1981) 448, 307 N.W.2d 164 102 Wis.2d while ‘under color of state law.’ ”), Supreme the Wisconsin lf‘Cameron Moreover, F.Supp. at the ex- 1279. analyzed “scope employment” Court press language of the statute that reveals requirement of section 895.46 and ruled legislature purposefully the Wisconsin that: narrow, limiting chose to include finding regard to action under “a with employment” phrase “within the finding ‘color of is not identical law’ rather than the term “under color of broad specific acts are done ‘within law,” state 895.46. Ac- within Wis.Stat. § employment’ public of a official scope of Court, cording Supreme to the Wisconsin employee. or “scope employment” test of Wis. sjs ^ narrow, defined test that Stat. 895.46 is a growing perceive equa- “any does not include act out of or We do not substantial discharge conduct is within the committed the course tion between officer’s, agent’s municipal employee’s employe’s of a or state duties____” Samore, may Ibrahim v. employment and conduct which 720, 725-26, 348 N.W.2d termed ‘under color of law.’ Conduct Wis.2d Moreover, 690-91, Sawyer County’s liability in action arises U.S. at S.Ct. at 2036. solely recently explained under the Wisconsin state law of indem- Supreme in Okla- Court 895.46, — -, Tuttle, nification set forth Wis.Stat. City 105 S.Ct. homa U.S. rights not under the Federal civil statute of 42 (1985) (plurality opinion) 85 L.Ed.2d 791 According Supreme U.S.C. 1983. to the Court ”[p]roof single of unconstitu- of a incident City Dept, in Monell v. New York vices, Social Ser- activity impose sufficient to liabili- tional is not 436 U.S. 98 S.Ct. 56 L.Ed.2d 611 Monell, ty proof of the incident unless under (1978), governing local bodies can be sued di- existing, proof caused that it was includes rectly under section 1983 when: policy municipal policy, which unconstitutional alleged "the action that is to be unconstitu- municipal policymaker.” to a can be attributed implements policy or executes a tional ment, state- — -, 105 S.Ct. at 2436. In the U.S. ordinance, regulation, or decision offi- case, Sawyer County present maintains neither promulgated by body’s cially adopted and allowing deputy policy sher- nor a custom of depri- the ... constitutional [or] officers ... burglaries frame inno- iffs to commit and then pursuant governmental vations visited [are] responsibility public cent members of the with though ‘custom’ even such a custom has not for their crimes. through body's approval received formal decisionmaking channels.” official “ apparent every It an agent is thus Wisconsin act which ‘[n]ot may do is in “scope place servant while he employment” law that the case service, appointed during for the the requirement a far of Wis.Stat. 895.46 is § in engaged per- time which he is limited, the narrow, concept defined of more formance, can be deemed to within the of law” law than the “under color state employment, course of the or within the Contrary of 1983 element a section action. scope authority. The test lies majority’s analysis, finding upon to the a that; deeper than it inheres the rela- acting color that officers are under of state tion which the act done bears the action, purposes law of a section 1983 it for employment. The act cannot be deemed necessarily that the offi- does not follow the be within course employ- of scope of acting cers are also within unless, upon it, ment looking can purposes their of Wis.Stat. fairly natural, be said to be a not dis- Instead, “scope employ- 895.46. of § extraordinary, part connected and not requirement ment” of section 895.46 is a incident the service contem- of narrow, limiting concept of law rooted ” plated.’ respondeat superior doctrine of added) (emphasis Id. (quoting Scott v. Min- including employee those acts of Aqua Club, 316, Bats 79 Wis.2d Water Ski legally employ- that are to the attributable 320, 536, (1977)). 255 N.W.2d 538 In addi- er. tion, Supreme the Wisconsin Court contin- legislative history The of Wis.Stat. that, recognize despite ues to substitution origi- “it 895.46 reveals that was enacted § phrase scope of employ- “within the of protect nally public person- officers phrase ment” for the good “in faith” in arising responsibility judgments al out 895.46, good require- Wis.Stat. faith § of their official duties.” Horace Mann “implicit question ment is in the of whether Ed., Ins. Co. v. Bd. 88 Wauwatosa of public scope officials acted within 385, 389, 761, Wis.2d 276 764 N.W.2d employment.” Schroeder, Gedlen, their (1979). Schroeder, Gedlen, See also Ries- Riester, Schoessow, etc. v. 108 Wis.2d at ter, Schoessow, etc. v. 108 Wis.2d 69, Thus, 321 N.W.2d at 141. Wisconsin 131, statute, 321 N.W.2d The phrase case law reveals that the “within 1943, originally “required as enacted in employment,” as used in Wis. political state or to pay judg- subdivision 895.46, narrow, limiting concept Stat. is a ments as to and costs employers law intended to hold liable public acting officers in an official capacity only for those acts of the employee that are good and in Horace Mann Ins. performed good and are a natural faith faith.” Ed., part Co. v. Wauwatosa Bd. Wis.2d at or incident of the service contem- added). plated. (emphasis 276 N.W.2d at 764 legislature amended Wisconsin present case, beyond dispute it is statute, substituting phrase “within good the defendants did act employment” phrase for the they faith deprived when Hibma good “in According faith.” to Wiscon- rights. constitutional The com- defendants Court, sin Supreme concept ‘scope “[t]he burglaries a Spider mitted series of of employment’ genesis in has its the doc- Lake intentionally area and contrived cov- respondeat trine of superior. general er-up scheme to frame for the bur- subject liability rule is that a master is glaries. cover-up In furtherance of this for the torts his servants committed conspiracy, entrapped the defendants Hib- while em- stealing handgun, wrongfully ma into ployment.” Cameron, Hibma, Wis.2d at placed arrested him in the 307 N.W.2d at 168. The Su- jail, Wisconsin forced him into a cold shower preme explained Court that under con- compounded experi- the chills he was cept “scope employment,” withdrawal, in encing drug used due to and re- assistance, Wis.Stat. request 895.46: fused his for medical all ” negligence to admit so attempt engaged.’ to force Hibma while Firemen’s in an did Further- Schreiber, not commit. crimes that Fund Ins. Co. v. 150 Wis. more, knowingly, intention- 50, the defendants (1912) (quoting N.W. Me- maliciously lied about Hibma’s ally, and chero, 737). Furthermore, Agency burglaries in the Spider Lake involvement Wisconsin: prepared report false sheriff’s make the responsible “to master for the burgla- stating that Hibma committed negligence of a servant under the doc- ries, complaint signed a false criminal respondeat superior, trine of it is not burgla- alleging that Hibma committed during sufficient that the done act was ries, a release claim- prepared press false period employment. of The act must be recent ing that Hibma’s solved the arrest prosecution in princi- one done the of the burglaries County, in string Sawyer of business, pal’s stepping not while aside guilty plea Hibma’s and conviction secured therefrom to serve personal a or some upon Circuit Court based other end. The stepping element of Indeed, conspiracy entrapment. of their aside which essential to break the nex- defendants admitted at trial that the us between the master and servant illegal acts purpose committing these may momentary be and needs a possible was to themselves “remov[e] change of mental from that attitude of burglary of suspects for criminal acts serving serving the master to that of had, fact, that commit- theft” personal or some other end.” ted. Co., Lindsay-McMillan Mittleman v. one of the It is further evident that not 577, 580, Wis. N.W. actions, scan- defendants’ as recited In view clear and well-defined violations, record of criminal is le- dalous employment” “scope of doctrine Wiscon- employer, Sawyer to gally attributable sin, comprehend I Judge Cudahy’s fail to County, respondeat under the of doctrine upon Beaudry, reliance State v. 123 Wis.2d Wisconsin, employee’s act superior. an (1985) ") 365 N.W.2d 593 (“Beaudry scope employment only if is within proposition employee “acts of an natural, fairly “it can be said to be scope employment were within the of ... extraordinary, part and not disconnected the acts were to those for where similar contemplated.” incident of the service he made had been hired and were Cameron, 102 Wis.2d at 307 N.W.2d possible only by virtue of his role as em- According at 168. Su- to Wisconsin though ployee, even acts were done ... preme Court: solely private purpose for the of the em- mere fact com- the servant “[t]he manager ployee.” Beaudry, during period mits a tort of his em- Lake, Village Tavern in Green Elkart Wis- ployment enough put is not the act two remain in the consin allowed friends to scope employment. within his The liquor tavern and consume after the 1:00 stepped is whether test the servant has hour, closing a.m. violation Wis.Stat. principal aside business his 125.68(4)(c),125.11(l)(a) (1981-82). accomplish purpose The independent §§ own, Supreme his or whether he was actuated Wisconsin Janet Court held that of by an intent to carry out his Beaudry, designated the co-owner cor- his and to serve master.” porate agent tavern, for the was vicarious- manager’s ly for the liable conduct because Co., City Linden Car 239 Wis. jury “the could the tavern conclude that added) (1941) (emphasis 300 N.W. manager’s sufficiently conduct similar was omitted). (citations The Su- Wisconsin “ to the conduct authorized as to be that, agent or preme Court adds ‘[i]f 64, 365 scope employment.” Id. at steps employ- servant ... of his outside holding, In so the Wiscon- himself, N.W.2d at 604. ment to do some act for not con- business, acknowledged that the principal’s Supreme nected with his sin Court his agent’s manager’s testimony including latter not be ad- will. liable for the bar — own, he mission that was never authorized his or for some other reason or keep open purpose after hours and his tavern not related to the business his acting was employer. admission that he for his own instructions: employment” set case law. vate employment as pressly Id. Court reaffirmed that gaged ferred to the there was sufficient evidence to find that solely manager’s authority to the bar independent purpose supported Beaudry’s solved position outside his Court time and ing employer hired to is of his “ ‘A servant or agent is within was favorable to the defendant.” sel Braatz v. Continental employment was based on a statement not have ports The manager 272 Wis. testimony “[t]he forth Wisconsin Contrary actuated purpose the night # bar manager work or bar in of his concluded, stated nor the defendant’s employment that the bar manager credibility solely question in Instead, manager's testimony space perform was ^[*] believed is conduct was a matter for doctrine Wisconsin employment, before trial. The rendering Supreme for an doing jury. acting Judge limits of his delineated Wisconsin ^[*] Wisconsin because: implied however, the Wisconsin purpose gave and render within the Attorney, — 76 N.W.2d 303 when he is manager credibility under the what he is employee’s outside the Thus, Cudahy’s within the employment. act si! defendant’s coun- position Court never ex- power testimony services he was Department, that conduct en- bar Casualty the Court de- in authority pattern even serving H* outside the was which manager’s assertion, “scope jury may the jury. perform- Supreme scope own pri- ping scope did law, though doing. acting scope S$C sup- was Co., his Spider bar re- neously per, alleging that uties’ tionally, and maliciously filing false state- ments with the from the ma’s withdrawal, denying Hibma’s cal ing coerce a confession while barked out ty sheriff would discover their participation in the removing ants became fearful that the Sawyer Coun- Spider lieving independent, that the defendants Id. at deputies from their duties as Wis.J.1.—Criminal 440 In the employment.’ personal interests, or the conduct falls outside the other change of tary time and his assistance, obtaining this unlawful burglaries. Such Hibma under Hibma into premises, participation employer’s Lake 65-66, Lake themselves of criminal upon Spider asserts in footnote 1 that “the instead and acted for the residence, planting present case, and the Spider deviation or themselves authority burglaries. slight, burglaries. mental attitude in a scheme to frame Hibma for space, and Lake and then ” Sawyer County The defendants used the Hibma stealing Lake business N.W.2d at 596. cover-up scheme, Sawyer County personal purpose Sawyer County newspa- measured in terms of arrest, attempting Sawyer County of their investigations, report- but clearly stepped burglaries, employer’s, stepping as suspects (1966)). burglaries the record reveals had The majority erro- request consent to search knowingly, Once undergoing drug if it may interests handgun, plac- sole, unlawful, committed the office to the evidence liability serving be momen- aside from involves a for medi- they em- Sheriff’s (quoting then his on Hib- District defend- entrap- sheriff in the of his of re- inten- of an- carry aside dep- his agent

A servant or ing superiors, filing paperwork, outside the tes- of his trial, when he tifying objectives deviates or etc. furthered the steps prosecution aside from the Sawyer County.” of his It is to even absurd purpose master's imagine business of do- three sheriffs who ing an or rendering burglarize homes, act a service intend- investigative file false accomplish ed to independent purpose complaint, reports, file a false criminal file superiors, testify employment,” agent reports their state false with proceeding, and may easily in a state criminal falsely violate U.S.C. 1983 outside public, member of the frame an innocent employment. of his For exam- objectives Sawyer furthering the are ple, (7th Harvey, Harris v. 605 F.2d 330 unexplained, con- County. majority’s The Cir.1979), this court held that a state court support finds no in the clusory statement judge “racially who had committed motivat- freely The defendants admit that record. plaintiff ed acts” they purpose acted for the sole of “remov- purposes under color of state law for of a suspects for the possible themselves as section 1983 action was not but entitled to burglary acts of and theft.” The criminal judicial immunity because his remarks defendants, effect, they concede part judicial were not function. 605 “step[ped] prosecution aside from the Similarly, present F.2d at 336-37. in the purpose for the master’s business [their] case, the defendants acted “under color of accomplish an doing an act ... intended to they deprived state law” when own____” independent purpose of [their] rights his constitutional at no but time Id. good were defendants’ acts in faith or a thorough A examination of the record part natural or incident of their duties as that each of the defendants’ actions reveals deputies Sawyer County. sheriff step protect was a calculated own majority claims present that the case discovery prevent and to interests squarely holding” “falls of Bell Spider burglaries. Lake participation Milwaukee, City F.Supp. carrying At no time were defendants (E.D.Wis.1982), part, rev’d in affd duly depu- as sheriff out their sworn duties (7th Cir.1984)(“Bell part, ”). 746 F.2d 1205 ties for when violated Bell, the district court that when ruled Indeed, rights. constitutional Hibma’s police Milwaukee Grady officer shot Daniel Supreme sug- Court has never Wisconsin Bell, planted a knife in Bell’s hand to make gested reasoning a line of that would allow though him, it look as Bell threatened had deputy commits sheriff who a house bur- knowingly, intentionally, and then and ma- personal gain glary for his own and then actions, liciously covered-up his unlawful attempts to frame an innocent member of acting scope he was within the of his em- burglary, public with the to be con- ployment purposes for of Wis.Stat. 895.- performing scope sidered as acts within the 46. The court concluded that: employment. beyond dispute his It is of Grady’s unques- actions were “[w]hile deputy engages sheriff in that a who such tionably designed to further his own ob- “performing unlawful conduct is not work jective escaping punishment of for his rendering per- he services was hired to wrongdoing, they designed also were space form and render within the time and objectives employment. further the of his sum, authority____” limits of his Id. performing police He was his duties as a completely defendants abdicated their quite improper officer used but methods responsibilities deputy duties and sher- carrying of out those duties.” iffs, engaging illegal activity in for the sole purpose removing of themselves sus- appeal, Id. at 478. On this court did not Spider pects burglaries. Lake The directly address the issue of whether Offi clearly designed defendants' actions were Grady acting scope cer within the personal to serve their interests and own employment purposes his for of Wis.Stat. thus, law, under Wisconsin the defendants 895.46, but the court did hold that under acting were at no time City section 895.46the of Milwaukee had to employment. indemnify Grady punitive Officer for the compensatory damages arising and out given I add that construction broad shooting cover-up conspiracy. Bell phrase “under for color state law” Milwaukee, purposes City 746 F.2d of a section 1983 action and the (7th Cir.1984). phrase initially construction of the 1271-72 I take issue narrow “within with majority’s Co., bold that assertion McMillan 202 Wis. at at N.W. present “squarely case is within the hold 528. I fail to understand how Officer Gra- Bell, Grady, ing” Bell. Officer for a dy’s good actions were faith were a period time, brief acted within the part “natural ... or incident” of his duties employment course of his as a Milwaukee police Cameron, as a Milwaukee officer. police stopped officer when Bell for he 102 Wis.2d at at I N.W.2d 168. As taillight routine automobile violation. Af interpret law, the relevant Wisconsin case Bell, Grady ter Officer and killed Gra shot Grady Officer was not dy clearly began indepen to act for his own his employment, City and thus the up as he killing dent interest followed liable, of Milwaukee should not have been planting upon person a knife Bell’s 895.46, under Wis.Stat. for covered-up then his unlawful actions. In Grady assessed Officer un- deed, Grady original Officer abandoned his planting lawful of the knife in hand Bell’s in investigating intent the defective tail subsequent and his cover-up of the unlaw- light departed purpose so far from the Indeed, ful action. Bell district of his lawful initial contact Bell with attempted compensate heirs practically vitiated effect of such punish Bell’s Grady estate and to Officer contrast, contact. In stark the record re dastardly for the wrong moral that he com- iA veals that the defendants this case had but, effect, mitted the district court Hibma; initial no lawful contact with rath wrongfully punished taxpayers er, freely admit, as the defendants the sole City of Similarly, Milwaukee. purpose of their unlawful actions con present case majority improperly pun- with tact Hibma was to their in conceal ishes taxpayers Sawyer County, Spider burglaries. volvement in the Lake holding county that the $86,500 liable very inception From of their unlawful in damages because the defendant deputy conspiracy Spider to frame with sheriffs acted within the burglaries, Lake deputy defendant framing Spi- Hibma for the “stepped sheriffs aside the business burglaries had, fact, der Lake principal accomplish an inde [their] committed. majority’s result contra- pendent purpose of own....” Lin- [their] controlling law, venes Wisconsin case Co., v. City den Car 239 Wis. at as well public policy as sound N.W. unlawfully sheriffs who act outside the majority’s In view of the exclusive re- their employment for their own upon liance legal Bell as a holding basis for personal personally interest must be held Sawyer County damages liable for as- responsible any damages assessed against deputy sessed the defendant sher- against them. iffs, I compelled am seriously question majority improperly seeks to redraft the district court’s conclusion in Bell that provide Wis.Stat. 895.46 to that a munici- Grady’s planting Officer of the knife on pality must any damages bear the cost of person subsequent Bell’s and his cover-up assessed or employees its officers unlawful action were within the who act under scope of color of state employment law. The as a Milwaukee majority’s police interpretation erroneous Grady’s officer. Officer of Wis. scandalous repugnant conduct, Stat. 895.46 unlawfully completely disregards plant- legislature’s ing the Wisconsin making knife Bell’s hand intent to limit a mu- appear though nicipality’s liability as to damages Bell was about to use incurred resistance, forceful clearly officer or employee intended to who is out carrying Grady any absolve acts wrongdoing. that are a part “natural ... or incident regard, Grady clearly Cameron, Officer contemplated.” had “a the service change of mental attitude from that of Wis.2d at N.W.2d 168. serving the serving master to that of present case the defendants’ unlawful personal end.” ... Lindsay- Mittleman v. acts were not in furtherance of their duties sheriffs; instead freely defendants admit that sole unlawful, pur- independent, personal of their acts was to relieve themselves

pose them- liability and to remove

of criminal Lake suspects Spider bur-

selves the dis- Accordingly, agree I with

glaries. that, law, as a matter

trict actions were not

defendants’ result, and, as a liable, under

Sawyer County is not Wis. 895.46, as-

Stat. against the defendants.

sessed

Johnny BASS, LEWIS, by Mary Lee Estate,

Administrator of his

Plaintiff-Appellee, WALLENSTEIN,

Arthur Assistant Ward Center, of Stateville Correctional

en Such, Adminis Medical Unit

William Center,

trator of Stateville Correctional Joliet, First National Bank Ex ecutor Estate of Dr. Charles

Hoffman,* Defendants-Appellants. 83-2392,

Nos. 83-2404. Appeals,

United States Court of

Seventh Circuit.

Argued Sept. 1984. July

Decided

Rehearing Aug. Denied * Joliet, Defendant-appellant Dr. died Charles Hoffman the First National Bank Executor Estate, appeal pending. By order dated defendant-appellant while Dr. as a Hoffman’s granted this court Dr. Hoff- October appeal. in this man’s counsel's motion for leave substitute

Case Details

Case Name: George C. Hibma v. Richard T. Odegaard, James Nikodem, and Michael Paul Szula, and Sawyer County, Wisconsin, Intervening

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 30, 1985

Citation: 769 F.2d 1147

Docket Number: 84-1137, 84-1445

Court Abbreviation: 7th Cir.