Daniela Javier v. City of Milwaukee , 670 F.3d 823 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3816
E STRELLA A DELA JAVIER and D ANIELA JAVIER,
minor children of Wilbert Javier Prado,
appearing by guardian ad litem E RNESTO R OMERO ,
and E STATE OF W ILBERT JAVIER P RADO,
by P ATRICIA D. JURSIK, special administrator,
Plaintiffs-Appellants,
v.
C ITY OF M ILWAUKEE,
a Wisconsin Municipal Corporation,
Defendant-Appellee,
and
E STATE OF A LFONZO C. G LOVER,
Defendant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-C-0204—William E. Callahan, Jr., Magistrate Judge.
A RGUED M AY 4, 2011—D ECIDED M ARCH 2, 2012
2 No. 10-3816
Before E ASTERBROOK, Chief Judge, and F LAUM and SYKES,
Circuit Judges.
S YKES, Circuit Judge. Alfonzo Glover, an off-duty Mil-
waukee police officer, fired nineteen shots at Wilbert
Javier Prado in a late-night encounter that began when
Prado tailgated Glover as he was driving home after his
4 p.m.-to-midnight shift. Eight of the shots hit Prado;
he died at the scene. Glover was placed on desk duty.
At an inquest hearing, Glover testified that Prado tailed
him, tried to run him over, and brandished a gun, so he
pursued Prado and fired the shots in accordance with
a Milwaukee Police Department rule that requires
officers to take action against lawbreakers even when
off duty. Other evidence contradicted Glover’s account—
most notably, investigators did not find a gun or other
weapon on or near Prado’s body. The inquest jury
found that Glover’s actions were justified, but a year
later the Milwaukee County District Attorney charged
him with homicide and perjury. Glover was suspended
from the police force. On the day of his arraignment,
Glover committed suicide.
Prado’s minor children and his estate (collectively, “the
Javiers”) sued Glover’s estate alleging excessive-force
and loss-of-life claims under 42 U.S.C. § 1983. They also
named the City of Milwaukee as a defendant under a
Wisconsin statute that requires the City to pay judg-
ments assessed against its employees for acts com-
mitted within the scope of their employment. See W IS.
S TAT. § 895.46. In other words, if Glover was acting as
a cop—rather than for his own purposes—when the
No. 10-3816 3
shooting took place, the Javiers could recover from the
City rather than solely from Glover’s modest estate.
At trial the Javiers asked the court to instruct the
jury that a police officer who misuses or exceeds his
authority may be found to have acted within the scope
of his employment. They also requested an instruction
on ratification, advancing a theory that the City tacitly
adopted Glover’s actions after the fact by not immedi-
ately suspending him. The district court denied both
requests, concluding that the modified scope-of-employ-
ment instruction was unnecessary and the ratification
doctrine was inapplicable. The jury found that Glover
used unreasonable force under color of law and awarded
substantial damages, but also found that he had not
acted within the scope of his employment, so the City
was not liable for the judgment. The Javiers appealed.
We reverse the judgment in favor of the City and
remand for a new trial on the scope-of-employment
issue. This is an excessive-force claim against a police
officer; in this context, the scope-of-employment inquiry
carried a significant risk that jurors would mistakenly
intuit that if the officer used excessive force, he must
also have acted outside the scope of his employment.
As we will explain, the risk of juror confusion was mag-
nified by the admission of the homicide and perjury
charges without an appropriate limiting instruction and
by improper argument by the City. Under these circum-
stances, the district court’s refusal to give the modified
scope-of-employment instruction was prejudicial error.
We reject the Javiers’ argument on the ratification
4 No. 10-3816
issue, however; under Wisconsin law an employer who
retains an employee after he commits a tort does not
ratify his conduct.
I. Background
By departmental rule, Milwaukee police officers are
required “at all times within the boundaries of the City,
[to] preserve the public peace, prevent crime, detect and
arrest violators of the law, and protect life and property.”
M ILWAUKEE, W IS. P OLICE D EP’T R ULE 2/015.00 (2005).
Another rule provides: “The fact that [officers] may be
technically ‘off duty’ shall not . . . reliev[e] them from
the responsibility of taking required police action in any
matter coming to their attention at any time.” Id. at
2/025.00. This “always on duty” requirement was central
to the Javiers’ claim that Glover was acting within
the scope of his employment when he pursued and shot
Prado.
Glover’s testimony before the inquest jury also figured
prominently in the Javiers’ claims. Glover gave the fol-
lowing account of the shooting: On March 5, 2005, he
worked his 4 p.m.-to-midnight shift and afterward
changed out of his uniform and into a plainclothes T-shirt
and jacket, though he was still wearing his dark-blue
police pants and leather police boots. He also wore a
holster with a loaded semiautomatic Glock pistol
approved for Milwaukee police officers’ off-duty use.
He began driving home; as he left the freeway and drove
onto city streets on Milwaukee’s south side, he noticed
No. 10-3816 5
a van behind him. The van followed closely for several
blocks, flashing its high-beam lights. Twice Glover pulled
over to allow the van to pass, but each time the van
stopped behind him.
Glover pulled over a third time at an intersection
near two taverns. The van again parked behind him.
When Glover stepped out of his car, the van suddenly
accelerated toward him. To avoid being hit, Glover
jumped onto the van’s hood and rolled across it. While
rolling, Glover called out that he was a cop, although
he was not sure if the driver—later identified as
Prado—heard him. Glover briefly made eye contact with
Prado and saw “this very mean, almost evil look on his
face[,] . . . as if he wanted to completely run me over.”
As Glover fell to the ground, he drew his gun. The
van crashed to a stop on the opposite side of the inter-
section. Glover got to his feet and saw Prado extend his
arm “with what appeared to look like a gun in his right
hand.” Fearing that Prado was about to shoot him,
Glover fired ten shots at Prado. Prado initially drew
back into the van, but when Glover approached, Prado
got out of the vehicle. Glover repeatedly identified him-
self as a police officer and ordered Prado to get on the
ground. Prado did not comply.
Instead, Prado took one hand out of his pocket, holding
what Glover “believed to be a dangerous weapon,” and
pointed it at Glover. Glover yelled, “drop your weapon,
Milwaukee police,” and fired again at Prado. Prado
began running toward an alley while pointing his right
arm back in Glover’s direction. Glover fired more
6 No. 10-3816
shots, and Prado fell to the ground. Glover called 911,
informing the operator that he was an off-duty police
officer involved in a shooting. Nearby residents and
tavern patrons came out onto the street in response to the
shooting; Glover told them, too, that he was an off-duty
cop.
The Police Department dispatched some 40 officers to
the scene, which it described as an “officer-involved
shooting.” The physical evidence established that
Glover fired a total of nineteen shots, eight of which hit
Prado in the chest, back, thighs, and hands. Seven of the
bullets entered Prado’s body from behind. The medical
examiner concluded that Prado died of massive
bleeding in his chest. A toxicology study established
that Prado was highly intoxicated, with a blood-alcohol
concentration of 0.22 percent. Investigators did not find
a firearm or anything resembling a weapon on or near
Prado’s body.
The inquest jury apparently accepted Glover’s descrip-
tion of the facts; it found his actions justified. The
district attorney, however, continued to investigate and
in May 2006—fourteen months after the shooting—
charged Glover with first-degree intentional homicide
and perjury. Glover had been on desk duty since the
shooting; when the district attorney issued the criminal
charges, the Police Department suspended him. Glover
committed suicide on the day of his arraignment.
Prado’s minor daughters, Estrella and Daniela Javier
(ages three and one at time of the shooting), by their
guardian ad litem and joined by the administrator of
No. 10-3816 7
Prado’s estate, filed this civil-rights suit under § 1983
against Glover’s estate and the City of Milwaukee.1 As
relevant here, the Javiers alleged that Glover used unrea-
sonable force in violation of the Fourth Amendment and
deprived Prado of his life without due process of law in
violation of the Fourteenth Amendment. 2 The Javiers
also alleged that the City was liable for any judgment
under section 895.46 of the Wisconsin Statutes, which
provides that a municipality “shall” pay any judgment
imposed against its employees if “the jury or the court
finds [the employee] was acting within the scope of
employment.”
The parties consented to proceed before a magistrate
judge. See 28 U.S.C. § 636(c)(1). At trial the Javiers
read Glover’s inquest testimony into the record, telling
jurors that they were not hearing live testimony from
Glover because he was deceased. (The magistrate judge
barred the City from explaining that Glover committed
suicide.) The City argued that the shooting was the
result of a personal dispute, perhaps a case of road
rage, and relied on witness testimony and physical evi-
dence that contradicted the version of events Glover
gave at the inquest. For example, some witnesses testified
1
Like the district court, we have excused Glover’s estate
from participating in this case to avoid dissipating its value.
2
The complaint also included a Monell policy-or-practice
claim against the City. See Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978). The jury found for the City on this claim, and the
Javiers do not challenge this part of the verdict on appeal.
8 No. 10-3816
that they did not hear shouts of “police” or any yelling
at all before the gunshots; one witness testified that the
shots came almost immediately after the car crash. In
addition, the City presented evidence about the pattern
of bullet holes left in Prado’s van that was inconsistent
with Glover’s description of the shooting. Finally, the
City emphasized that no firearm or other weapon was
found on or near Prado’s body, casting significant doubt
on Glover’s testimony that Prado had brandished a gun.
The City also informed the jury that the district at-
torney charged Glover with homicide and perjury in
connection with Prado’s death and the inquest. The
ostensible purpose of admitting this evidence was to
show that the City suspended Glover as soon as the
charges were filed and therefore did not approve of or
adopt his actions as its own. The City also argued that
the criminal charges were relevant to Glover’s motiva-
tion to lie during his inquest testimony. The Javiers did
not object to the admission of this evidence. To the con-
trary, they thought the evidence surrounding the filing
of criminal charges bolstered their ratification theory.
They wanted to argue that the City failed to repudi-
ate—and therefore ratified—Glover’s conduct by keeping
him on the payroll until criminal charges were filed
fourteen months after the shooting.
Although the Javiers agreed to the admission of the
criminal charges, they proposed a limiting instruction
and a modified scope-of-employment instruction ex-
plaining that an officer’s intentional—even criminal—use
of excessive force under color of law could still be con-
No. 10-3816 9
sidered conduct within the officer’s scope of employment.
More specifically, as a limiting instruction regarding
the jury’s use of the evidence of the criminal charges, the
Javiers asked the judge to instruct jurors that “[a] police
officer can be acting under the color of law and within
the scope of employment even if the officer acts inten-
tionally or criminally.” They also proposed a modified
scope-of-employment instruction that captured the same
concept, adapting the Wisconsin pattern instruction by
adding the following language: “A police officer can be
acting within the scope of his employment even if
the officer acted intentionally or criminally, and even if
the officer’s use of force was excessive or the officer
misused his authority to use force.” Finally, the Javiers
asked the judge to give the following instruction on
their ratification theory: “[I]f a municipality ratifies the
act of an employee[] by failing to repudiate the em-
ployee’s actions or by approving, adopting or accepting
the employee’s decision and the basis for it, . . . the em-
ployee is considered to have been acting within the
scope of his employment . . . .”
The judge rejected the Javiers’ proposed limiting in-
struction and instead gave the jury the following generic
reminder:
[Y]ou have heard evidence that Alfonzo Glover was
criminally charged with homicide and perjury by the
Milwaukee County District Attorney’s Office in
May 2006 in connection with the death of Mr. Prado.
Alfonzo Glover was never tried on those charges
because he died before the case was concluded. You
10 No. 10-3816
may not in any way substitute the decision of the
Milwaukee County District Attorney’s Office for
your own decision in this case.
The judge also rejected the Javiers’ modified scope-of-
employment instruction, opting instead to use the Wis-
consin pattern instruction, which does not explain the
legal distinction between the concepts of an officer’s use
of excessive force and his scope of employment. Finally,
the judge refused to instruct the jury on ratification,
holding that the doctrine of ratification did not apply to
the facts of this case.
The jury found that Glover used unreasonable force
under color of law and awarded $1.85 million in dam-
ages.3 The jury also found, however, that Glover was
not acting within the scope of employment when he
shot Prado, leaving the Javiers to collect their judgment
from Glover’s small estate rather than from the City.
The Javiers moved for a new trial on the City’s liability
under section 894.46, reasserting their arguments about
the jury instructions. The judge denied the motion, and
the Javiers appealed.
II. Discussion
The Javiers challenge the magistrate judge’s refusal to
give their proposed jury instructions regarding the scope-
3
This sum consisted of $250,000 to Daniela and Estrella
Javier and $600,000 to Prado’s estate in compensatory
damages, and an additional $1,000,000 to Prado’s estate in
punitive damages.
No. 10-3816 11
of-employment issue and the jury’s use of the evidence
of the criminal charges filed against Glover. “We review
jury instructions de novo to determine whether, taken as
a whole, they correctly and completely informed the
jury of the applicable law.” Huff v. Sheahan, 493 F.3d 893,
899 (7th Cir. 2007). “We defer to the district court’s
choice of language in the instructions so long as the law
is completely and accurately conveyed.” Schmitz v. Cana-
dian Pac. Ry. Co., 454 F.3d 678, 682 (7th Cir. 2006). If the
instructions were erroneous or incomplete, we move to
the question of prejudice: Did the legal shortcoming
in the instructions likely confuse or mislead the jury
and prejudice the objecting litigant? Id. If so, a new trial
is in order. Id. at 686.
The claims of instructional error in this case all relate
in one way or another to the scope-of-employment issue,
which arises here outside its traditional common-
law context. So we begin with some background. At
common-law, the familiar doctrine of respondeat
superior imposes vicarious liability on employers for
the torts of their employees acting within the scope of
their employment. See Kerl v. Dennis Rasmussen, Inc., 682
N.W.2d 328, 333-37 (Wis. 2004); R ESTATEMENT (T HIRD ) OF
A GENCY § 7.07 (2006). At issue here, however, is a claim
under a Wisconsin statute that requires the State and
local units of government to pay judgments imposed
against their employees for acts committed within
the scope of their employment:
If the defendant in any action or special proceeding
is a public officer or employee and is proceeded
12 No. 10-3816
against in an official capacity or is proceeded against
as an individual because of acts committed while
carrying out duties as an officer or employee and the
jury or the court finds that the defendant was acting
within the scope of employment, the judgment as to dam-
ages and costs entered against the officer or em-
ployee . . . shall be paid by the state or political subdivision
of which the defendant is an officer or employee.
W IS. S TAT. § 895.46(1)(a) (2011) (emphasis added). Though
often referred to as an indemnity statute, by its terms
section 895.46 requires the State or local government to
directly satisfy a judgment against its employee if the
“scope of employment” condition is met.
The predecessor statute to section 895.46 was enacted
in 1943 at a time when Wisconsin municipalities were
protected by governmental immunity; thus, “respondeat
superior ha[d] no application.”4 Holytz v. City of Milwaukee,
4
The Wisconsin Supreme Court partially abrogated common-
law governmental immunity in 1962, see Holytz v. City of
Milwaukee, 115 N.W.2d 618, 625 (Wis. 1962), and the legis-
lature promptly codified the immunity in response to
that court decision, see W IS . S TAT . § 893.80; Lodl v. Progressive
N. Ins. Co., 646 N.W.2d 314, 320 (Wis. 2002). The scope and
proper application of governmental immunity continues to
vex Wisconsin courts to this day. See Milwaukee Metro. Sewerage
Dist. v. City of Milwaukee, 691 N.W.2d 658, 678-80 (Wis. 2005)
(tracing some of the confusion); id. at 688-89 (Prosser, J., con-
curring) (restating a long-standing objection to the expansion
and misapplication of the doctrine); see also Willow Creek
(continued...)
No. 10-3816 13
115 N.W.2d 618, 621 (Wis. 1962); see also Graham v. Sauk
Prairie Police Comm’n, 915 F.2d 1085, 1091 (7th Cir. 1990).
In its original form, the statute required the State and
subordinate local governments to pay judgments
assessed against their employees if the employee was
sued for acts in his official capacity and was found to
have acted in good faith. Graham, 915 F.2d at 1091. The
“good faith” and “official capacity” requirements were
later seen as providing too little protection for public
employees. Id.So in order to more broadly shield public employees
from monetary loss when sued because of their employ-
ment, Wisconsin amended the statute in 1973, borrowing
the scope-of-employment concept from the common
law for purposes of determining the liability of the
State and local governments for judgments imposed
against their employees. Id. The “good faith” requirement
was deleted, individual-capacity suits were added, and
the statutory language was expanded to provide that the
State and its municipalities “shall” pay a judgment im-
posed against its employee if “the jury or the court
finds that the [public employee] was acting within
the scope of employment.” W IS. S TAT. § 895.46(1)(a).
The Wisconsin Supreme Court generally looks to the
common-law agency understanding of “scope of employ-
ment” to interpret the same phrase in section 895.46. See,
4
(...continued)
Ranch, L.L.C. v. Town of Shelby, 611 N.W.2d 693, 702-04
(Wis. 2000); id. at 706-15 (Prosser, J., dissenting).
14 No. 10-3816
e.g., Olson v. Connerly, 457 N.W.2d 479, 482 (Wis. 1990);
Cameron v. City of Milwaukee, 307 N.W.2d 164, 168-69
(Wis. 1981).
With this background in place, we return to the claims
of instructional error. Recall that the Javiers asked the
judge to instruct the jury that a “police officer can be
acting within the scope of his employment even if the
officer acted intentionally or criminally, and even if
the officer’s use of force was excessive or the officer
misused his authority to use force.” They asked the
judge to repeat this point in a limiting instruction re-
garding the jury’s use of the evidence of the criminal
charges filed against Glover: “A police officer can be
acting under the color of law and within the scope
of employment even if the officer acts intentionally or
criminally.”
These instructions are fully accurate statements of the
law—in Wisconsin and elsewhere. See, e.g., Cameron, 307
N.W.2d at 168-69 (“The scope of employment has also
been defined to include those acts which are ‘so
closely connected with what the servant is employed to
do, and so fairly and reasonably incidental to it, that
they may be regarded as methods, even though quite im-
proper ones, of carrying out the objectives of the employ-
ment.’ ” (quoting W ILLIAM L. P ROSSER, H ANDBOOK ON
THE L AW OF T ORTS 460-61 (4th ed. 1971))) (emphasis
added); Johnston v. Chi., St. Paul, Minneapolis & Omaha
Ry. Co., 110 N.W. 424, 426 (Wis. 1907) (“A master is liable
for the tortious act of the servant done in the scope of
his employment, though the master did not sanction it, or
No. 10-3816 15
even though he forbade it.”); R ESTATEMENT (T HIRD ) OF
A GENCY § 7.07 cmt. c (2006) (“[C]onduct is not outside
the scope of employment merely because an employee
disregards the employer’s instructions.”); R ESTATEMENT
(SECOND) OF A GENCY § 230 (1958) (“An act, although
forbidden, or done in a forbidden manner, may be
within the scope of employment.”); R ESTATEMENT (SEC-
OND ) OF A GENCY § 231 (1958) (“An act may be within
the scope of employment although consciously criminal
or tortious.”).
The City does not argue otherwise. Instead, the City
asserts that the scope-of-employment instruction the
district court used was also legally accurate and that the
omission of the Javiers’ proposed language neither
misled nor confused the jury. The first point is correct;
the second is not. With one exception not material here,
the district court’s scope-of-employment instruction
tracked the Wisconsin pattern instruction, and in that
sense it was legally correct. 5 But it was also materially
incomplete; it did not explain the important legal
principle—critical in this case—that an employee can
misuse or exceed his authority while still acting within
the scope of his employment.
5
The district court’s full instruction on the scope-of-employ-
ment issue is included as an appendix to this opinion. With
the exception of the fourth paragraph, it duplicates the Wis-
consin pattern instruction on scope of employment. See
W IS . JI-C IVIL 4035. The fourth paragraph comes from Olson
v. Connerly, 457 N.W.2d 479, 482-83 (Wis. 1990).
16 No. 10-3816
The concept is not intuitive. See, e.g., Lisa M. v. Henry
Mayo Newhall Mem’l Hosp., 907 P.2d 358, 360-61 (Cal. 1995)
(“[W]ell established, if somewhat surprising on first
encounter, is the principle that an employee’s willful,
malicious and even criminal torts may fall within the
scope of his or her employment . . . even though the
employer has not authorized the employee to commit
crimes or intentional torts.”). And we have noted that
scope-of-employment issues can be especially chal-
lenging in cases alleging police misconduct. See, e.g., Doe
v. City of Chicago, 360 F.3d 667, 673 (7th Cir. 2004) (ex-
plaining the difficulty of deciding the scope of a police
officer’s employment under a similar Illinois statute in
a case alleging sexual harassment by a police officer).
Our decision in Graham exemplifies the principle that
a police officer can grossly exceed his authority to use
force and still be found to have acted within the
scope of his employment. In Graham an on-duty police
officer killed a suspected drug trafficker during an
arrest, shooting him twice in the head after he was
handcuffed and while he was lying face down on the
ground. 915 F.2d at 1088. There was no question that
the officer violated the suspect’s constitutional rights;
the municipal employer argued that it could not be
held liable for the judgment under section 895.46
because the officer exceeded his authority to use force
and therefore was not acting within the scope of employ-
ment. Id. at 1088-89. We disagreed and upheld the
district court’s conclusion as a matter of law that the
statute applied. Id. at 1095.
No. 10-3816 17
We made it clear in Graham that “[m]erely because [the
officer] misused his authority to use deadly force in
apprehending [the suspect] does not put him outside of
the scope of his employment.” Id.; see also Wilson v. City
of Chicago, 120 F.3d 681, 685 (7th Cir. 1997) (holding a
municipality liable under a similar Illinois indemnity
statute for a civil-rights judgment against its officer
for using torture to extract confession); Coleman v. Smith,
814 F.2d 1142, 1148-50 (7th Cir. 1987) (holding a munici-
pality liable under the same Illinois statute for a default
judgment against its officers who conspired to falsely
arrest a suspect); Hibma v. Odegaard, 769 F.2d 1147, 1152-
53 (7th Cir. 1985) (reinstating a jury verdict holding a
county liable under section 895.46 for a judgment against
its deputy sheriffs for planting evidence and framing a
suspect); cf. Cameron, 307 N.W.2d at 166-70 (holding
that although off-duty officers were clearly liable under
§ 1983 for provoking a fight by taunting suspects
with racial epithets, a jury question remained regarding
the scope-of-employment issue under section 895.46).
Here, too, the key question in the Javiers’ statutory
claim against the City was whether Glover was acting as
a vigilante for his own purposes or as a police officer
when he shot Prado. See Olson, 457 N.W.2d at 483 (“[A]n
employee’s conduct is not within the scope of . . . employ-
ment if it is too little actuated by a purpose to serve the
employer . . . .”).6 Glover’s inquest testimony suggested
6
Olson adopted its approach from the Restatement (Second)
of Agency § 228 (1958). The Restatement (Third) of Agency § 7.07
(continued...)
18 No. 10-3816
that he pursued and shot Prado pursuant to his off-duty
responsibilities under the “always on duty” rule because
Prado had tried to run him over and appeared to point
a gun at him. The City challenged Glover’s version of
events, noting its inconsistency with other evidence
and arguing that the shooting was part and parcel of a
purely personal dispute. But because the jury had to
decide whether Glover used excessive force under color
of law and whether his actions were within the scope of
his employment, there was a great risk that jurors
would conflate the two.
6
(...continued)
cmt. b (2006) has since commented that the language used in
this section of the Second Restatement is “not entirely consis-
tent” because “an act motivated by some purpose to serve the
employer could still be ‘too little actuated’ to be within the
scope of employment.” The Third Restatement therefore uses
an alternative formulation: “An employee’s act is not within
the scope of employment when it occurs within an in-
dependent course of conduct not intended by the employee
to serve any purpose of the employer.” R ESTATEMENT (T HIRD )
OF A GENCY § 7.07(2) (2006). This revised restatement of the
law has not yet found its way into Wisconsin’s appellate
caselaw, however; the Wisconsin Supreme Court continues to
cite Olson and use the Second Restatement’s language. See,
e.g., Behrendt v. Gulf Underwriters Ins. Co., 768 N.W.2d 568, 578
(Wis. 2009) (“The question as to vicarious liability is whether
at the time of the act alleged, the employee’s conduct was
within the scope of his employment, which we have defined
as conduct that is ‘actuated, at least in part, by a purpose to
serve the employer.’ ” (quoting Olson, 457 N.W.2d at 484)).
No. 10-3816 19
This risk was exacerbated by the City’s introduction
and use of the evidence that Glover was charged with
homicide in connection with Prado’s death. At the be-
ginning of his opening statement, the Assistant City
Attorney told the jury that Glover had “maybe murdered
Wilbert Prado” and that “there is no evidence that you
will hear or see that will establish that [Glover] had any
obligation to argue with people, to fight with people
over personal matters[,] and certainly not to murder
them.” When certain high-ranking police supervisors
were on the witness stand, counsel asked whether the
Police Department’s investigators had concluded “that
they could prove that Alfonzo Glover had murdered
Wilbert Prado” and also asked what happened after the
“District Attorney’s Office issu[ed] a charge that, an
assertion that they could prove a case of murder.” In
his closing argument, counsel set up a false dichotomy
on the scope-of-employment issue, arguing: “The City of
Milwaukee[’s] interest is not served by murdering some-
one[.] [T]he City of Milwaukee’s interest is served by
enforcing a law[;] it is not served by a personal argument.”
This approach to the evidence of the criminal charges
was legally improper and highly misleading. The City
conveyed the incorrect impression that because Glover
had been criminally charged, he could not have been
acting within the scope of his employment. The two are
not mutually exclusive. Without an instruction telling
the jury that the law is precisely the opposite—that
Glover’s conduct could be criminal, excessive, and out-
side his authority and still be within the scope of his
employment—the jury was missing a critical “relevant
20 No. 10-3816
legal principle[]” and was likely “confuse[d] or mis[led].”
See Huff, 493 F.3d at 899.
To be sure, the judge did tell the jury not to “sub-
stitute the decision of the Milwaukee County District
Attorney’s Office for [its] own decision in this case.” This
instruction was too vague to be of any help in deciding
the key issue in the Javiers’ statutory claim against
the City. The jury needed to hear from the court that the
scope-of-employment concept recognizes that an officer
can exceed or abuse his authority—even intentionally or
criminally—and still be acting within the scope of his
employment. The judge should not have refused the
Javiers’ proposed limiting instruction or their modified
scope-of-employment instruction.
There is one exception, however; we agree with
the district court that the Javiers were not entitled to a
ratification instruction. The Javiers asked the judge to
instruct the jury that “if a municipality ratifies the act of
an employee, by failing to repudiate the employee’s
actions . . . , then the employee is considered to have
been acting within the scope of his employment when
the acts took place.” As we have noted, the Javiers
wanted to argue that by not firing Glover immediately
after the shooting, the City failed to repudiate—and
therefore ratified—his actions.
This theory is foreclosed by Wisconsin law, which
holds that an employer’s retention of an employee after
his wrongful conduct does not constitute ratification. See
Mandel v. Byram, 211 N.W. 145, 147 (Wis. 1926) (explaining
that if wrongful conduct occurs while a “servant was
No. 10-3816 21
acting in his own personal business, the master does
not become liable [through ratification] merely by
reason of the fact that he thereafter retains the servant
in his employ”); W IS. JI-C IVIL 4050 cmt. (“Retention of a
servant in the master’s employ after wrongful conduct
committed outside the scope of employment is not evi-
dence of ratification . . . .”).7
This is the general common-law rule. See also R ESTATE-
MENT (T HIRD ) OF A GENCY § 4.01 cmt. d (2006) (“[A] princi-
pal’s failure to terminate or reprimand an employee
by itself is not likely to ratify the employee’s unauthorized
action because the employer may have varied reasons
for failing to take action adverse to an employee.”); An-
thony W. Kraus, Ratification of Torts: An Overview and
Critique of the Traditional Doctrine and its Recent Extension
to Claims of Workplace Harassment, 32 T ORT & INS. L.J. 807,
817 (“The majority rule . . . is that retaining a tortfeasor
employee is not, in and of itself, a sufficient act of ratifica-
tion.”). The ratification doctrine has no application in
this case.8
7
To the extent that language in Robinson v. Superior Rapid-
Transit Railway Co., 68 N.W. 961, 963 (Wis. 1896), supports the
Javiers’ ratification theory, that language is no longer valid
in light of Mandel v. Byram, 211 N.W. 145 (Wis. 1926).
8
With the ratification theory out of the case, the rationale for
admitting the evidence of the homicide and perjury charges
largely evaporates. The City argued that the evidence of the
criminal charges was relevant to show that the City did not
expressly or impliedly adopt Glover’s actions because the
(continued...)
22 No. 10-3816
Accordingly, we R EVERSE the judgment in favor of the
City and R EMAND the case to the district court for retrial
on the section 895.46 claim.9
8
(...continued)
Police Department suspended him immediately after the
charges were filed. For their part the Javiers wanted this
evidence admitted in support of their argument that the City
ratified Glover’s conduct by failing to repudiate it during the
fourteen months after the shooting. This reasoning—on both
sides—strikes us as implausible. In any event, it no longer
applies. The City also argued that the evidence of the criminal
charges tended to show that Glover had an incentive to lie
during the inquest. This is simply illogical. The possibility
that Glover might be criminally charged in Prado’s death
existed at the time of the inquest; that was the point of the
inquest, and it’s fine for the jury to know that much. That the
district attorney in fact issued charges (albeit much later, and
against the recommendation of the inquest jury) has no
bearing on the ex ante question of Glover’s state of mind when
he testified at the inquest. Moreover, given the powerful
effect of this evidence on the mind of the average juror, any
remaining relevance (and we can’t think of what that might
be) seems substantially outweighed by the risk of unfair
prejudice and the potential to mislead the jury. See F ED . R.
E VID . 403.
9
See 7 TH C IR . R. 36; Lindquist Motors, Inc. v. Middleton Motors,
Inc., 658 F.3d 760, 766 (7th Cir. 2011).
No. 10-3816 23
Appendix—District Court’s Jury Instructions on
Scope of Employment
A[n] employee is within the scope of his employ-
ment when he is performing work or rendering ser-
vices he was engaged to perform and render within
the time and space limits of his authority and is actu-
ated by a purpose to serve his employer in doing
what he is doing. He is within the scope of his em-
ployment when he is performing work or rendering
services in obedience to the express orders or direc-
tion of his employer, or doing that which is war-
ranted within the terms of his express or implied
authority, considering the nature of the services
required, the instructions which he has received,
and the circumstances under which his or her work
is being done or the services are being rendered.
An employee is outside the scope of employment
when he deviates or steps aside from the prosecution
of his employer’s business for the purpose of doing
an act or rendering a service intended to accomplish
an independent purpose of his own, or for some
other reason or purpose, not related to the business
of the employer.
Such deviation or stepping aside must be
sufficient to amount to a departure from the em-
ployer’s services for purposes entirely personal to
him or for some other reason or purpose, not related
to the business of the employer.
An employee may be found to have acted within
the scope of his or her employment as long as the
24 No. 10-3816
employee was at least partially actuated by a purpose
to serve the employer. There is no requirement that
serving the employer must be the employee’s only
purpose or even the employee’s primary purpose.
Rather, an employee’s conduct is not within the
scope of his or her employment if it is too little actu-
ated by a purpose to serve the employer or if it is
motivated entirely by the employee’s own purposes
(that is, the employee stepped aside from the pros-
ecution of the employer’s business to accomplish
an independent purpose of his or her own).
Such deviation or stepping aside from the em-
ployer’s business may be momentary and slight,
measured in terms of space [or] time, but if it
involves a change of mental attitude or purpose in
serving his personal interests, or the interests of
another, instead of his employer’s, his conduct falls
outside the scope of his employment.
3-2-12