JAVIER v. CITY OF MILWAUKEE (March 2, 2012).
Off-duty police officer Alfonzo Glover and Wilbert Prado had a confrontation late one night in Milwaukee. According to Officer Glover, Prado tailgated him, tried to run him over, and pointed a gun at him. By the time the confrontation was over, Glover had fired 19 shots. Eight of them struck Prado -- seven from behind. Glover asserted that he was acting under Milwaukie's "always on duty" requirement for off-duty police officers. Although an inquest jury found Glover's actions justified, the district atorney charged him with homicide and perjury a year later. The City did not terminate his employment until he was charged. Prado's estate and minor children brought suit against Glover pursuant to § 1983 alleging unreasonable force and a due process violation. Plaintiffs also sued the City of Milwaukee under a Wisconsin statute that required the City to pay any judgment entered against its employees if the employee was acting within the scope of his employment. At trial, plaintiffs proposed instructions that would make it clear to the jury that a police officer could act within the scope of his employment even if he acted intentionally or criminally. Plaintiffs also sought an instruction on their theory that the City ratified Glover's actions by not terminating his employment immediately. Magistrate Judge Callahan (E.D. Wis.) denied plaintiffs' requests. The jury found for plaintiffs and awarded $1.85 million but also concluded that Glover did not act within the scope of his employment. The judgment was therefore collectible only against Glover's small estate. Plaintiffs appeal.
In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Flaum and Sykes reversed in part and remanded. The Court noted that, although the "scope of employment" language appears in a Wisconsin statute, the legislative history indicates that is the equivalent of the common law principle. Under that principle, plaintiffs’ proposed instructions accurately stated the law. An employee can act within the scope of his employment even if he acts criminally or intentionally. In evaluating an improper jury instruction claim, however, that is not enough. A new trial is not required unless the failure to instruct confused or misled the jury. Here, the Court concluded that it did. First, it is not intuitive that such conduct could be considered within the scope of one’s employment. Second, the City's treatment of the criminal charges was misleading. It conveyed the impression that criminal conduct could not be within one’s scope of employment. The Court agreed with the district court, however, with respect to the ratification instruction. Under Wisconsin and common law, an employer's retention of an employee after wrongful conduct does not constitute a ratification of the conduct.