Urija Elston v. County of Kane

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1746
URIJA ELSTON,
Plaintiff-Appellant,
v.
COUNTY OF KANE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cv-4979 — Sara L. Ellis, Judge.
____________________
ARGUED NOVEMBER 6, 2019 — DECIDED JANUARY 28, 2020
____________________
Before EASTERBROOK, MANION, and BARRETT, Circuit
Judges.
BARRETT, Circuit Judge. Urija Elston and his friends were
playing basketball at a park in DuPage County while Brian
Demeter, an off-duty sheriff’s deputy for neighboring Kane
County, was watching his child’s soccer game on an adjacent
field. When Elston and his friends started heckling one an-
other with salty language, Demeter confronted them and de-
manded that they stop using expletives. Flashing both his
2 No. 19-1746
badge and gun from under his plainclothes, Demeter also
warned the group to “watch who you’re messing with.” When
the boys refused to clean up their language, Demeter grabbed
Elston by the neck, threw him to the ground, and climbed on
top of him. At some point during the struggle, Demeter tried
to pull Elston’s arms behind his back, as though attempting to
arrest him. Bystanders separated Demeter and Elston, but not
before Demeter could rip Elston’s shirt in an attempt to keep
hold of him.
After the fight broke up, Demeter called 911 from his per-
sonal cell phone, identifying himself as a police officer in need
of assistance. When Elston’s father, whom Elston had called
for help, arrived at the park, Demeter explained the incident
by saying something along the lines of “I just lost it” or “I
snapped.” He then told Elston’s father that he was a police
officer attempting to take Elston into custody for disorderly
conduct and that he intended to turn Elston over to the Aurora
Police Department.
Elston was never charged with any offense, but Demeter
pleaded guilty to violating Aurora’s ordinance against bat-
tery. Elston then sued Demeter under both 42 U.S.C. § 1983
and Illinois state law, winning a default judgment and an
award of $110,000 in compensatory damages.
Elston also sued Kane County under Illinois’s Tort Im-
munity Act, which provides that “[a] local public entity is em-
powered and directed to pay any tort judgment or settlement
for compensatory damages … for which it or an employee
while acting within the scope of his employment is
No. 19-1746 3
liable … .” 745 ILCS 10/9-102.1 Elston maintained that the
County was obligated to pay the judgment that he had ob-
tained against Demeter because Demeter was acting within
the scope of his employment during the assault. The County
moved for summary judgment, the district court granted the
motion, and Elston appeals that determination. But the dis-
trict court got it right. As a matter of law, Demeter was acting
as a private citizen, not within the scope of his duties as a sher-
iff’s deputy, when he injured Elston.
Under Illinois law, there are three necessary criteria for an
employee’s action to be within the scope of his employment.
First, the relevant conduct must be of the kind that the em-
ployee was employed to perform. Second, the conduct must
have occurred substantially within the time and space limits
authorized by the employment. And third, the conduct must
have been motivated, at least in part, by a purpose to serve
the employer. See Adames v. Sheahan, 909 N.E.2d 742, 755 (Ill.
2009) (citing RESTATEMENT (SECOND) OF AGENCY § 228 (AM.
LAW INST. 1958)). Because “all three criteria … must be met,”
1 The County correctly argues that the Kane County Sheriff’s Office
was Demeter’s employer and thus the “local public entity” that Elston
needed to sue under the Act. See Carver v. Sheriff of LaSalle Cty., 787 N.E.2d
127, 138 (Ill. 2003) (holding that the Sheriff’s Office is the “local public en-
tity” under section 10/9-102). The County is also a necessary party, but that
is because it is ultimately responsible for funding any judgment entered
against the Sheriff’s Office—not because it is the “local public entity” that
employs Demeter. Carver v. Sheriff of LaSalle Cty., 324 F.3d 947, 948 (7th Cir.
2009) (“[A] county in Illinois is a necessary party in any suit seeking dam-
ages from an independently elected county officer … in an official capac-
ity.”). But because Elston cannot recover under the Act in any event, it
would be futile for him to amend his complaint to add the Sheriff’s Office
as a defendant.
4 No. 19-1746
failure to establish any one of them is sufficient to place con-
duct outside the scope of employment. Id. Thus, to survive the
County’s motion for summary judgment, Demeter must show
that a reasonable jury could find in his favor on all three cri-
teria.
The parties dispute whether Demeter’s action satisfied the
first criterion—i.e., whether the conduct was of the kind that
Demeter would perform as a sheriff’s deputy. We’re willing
to assume for the sake of argument that it was. Even so, Elston
cannot succeed because he has not met his burden on the sec-
ond and third criteria.
On the second, Elston must show that there is a genuine
dispute of material fact with respect to whether Demeter’s
conduct occurred substantially within the time and space lim-
its authorized by his employment. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248–49 (1986). In general, the fact that
an employee engaged in conduct outside of work hours,
standing alone, is not dispositive. See Brown v. King, 767
N.E.2d 357, 361 (Ill. App. Ct. 2001) (“The fact that [an em-
ployee] was off duty at the time of the incident does not es-
tablish, as a matter of law, that he was acting outside the scope
of his employment.”). Nor is the mere fact that conduct oc-
curred outside of the spatial boundaries of one’s employment.
See RESTATEMENT (SECOND) OF AGENCY § 234 cmt. a (AM. LAW.
INST. 1958) (“One may be a servant, although a bad servant, in
performing his master’s business at a forbidden place if the
place is within the general territory in which the servant is
employed.”). The determination is a matter of degree: it is de-
pendent on the interaction between both time and place, in
light of all the facts. See id. § 234 cmts. b & c.
No. 19-1746 5
Here, that interaction leads to only one conclusion: that
Demeter was not acting substantially within the time and
space limits authorized by his employment. Demeter was not
on duty during his altercation with Elston; he was spending
his day off with his family, watching his child’s soccer game.
Demeter was not in uniform when he attacked Elston; he was
dressed in a t-shirt and shorts. And the assault took place in
DuPage County, while Demeter is authorized as a sheriff’s
deputy only in Kane County. Thus, Demeter was neither on
the clock nor within his jurisdiction when he attacked Elston.
That, combined with the facts that Demeter was in casual
dress and on a family outing, dictates a finding against Elston
on this element.
Likewise, no reasonable jury could find for Elston on the
third criterion—that Demeter’s conduct was caused, at least
in part, by a purpose to serve the Sheriff’s Office. See Anderson,
477 U.S. at 248–49. We’ve characterized the inquiry as whether
“the employee’s motive, or at least a motive, in committing
the tort was to serve his employer.” Doe v. City of Chicago, 360
F.3d 667, 670 (7th Cir. 2004). While a mixed motive may be
enough to create liability, an employee who acts purely in his
own personal interest cannot create liability for his employer.
See Wolf v. Liberis, 505 N.E.2d 1202, 1206 (Ill. App. Ct. 1987).
Demeter had no authority to make an arrest or take other
actions to “keep the peace” during the incident. As we’ve
noted, the Office’s policy prohibits off-duty deputies from
making arrests or performing other enforcement actions out-
side the jurisdictional limits of Kane County. It is true that an
employee’s actions do not automatically fall outside the scope
of his employment simply because they are prohibited by his
employer. See Gaffney v. City of Chicago, 706 N.E.2d 914, 923
6 No. 19-1746
(Ill. App. Ct. 1998). But a plaintiff must show that the conduct,
despite being nominally prohibited by the employer, was
nonetheless undertaken to serve the employer’s interests. For
example, in Gaffney, the court held that an off-duty officer
acted within the scope of his employment when he negli-
gently stored his unlocked firearm in an unlocked cabinet at
home. The gun was used by the officer’s son to shoot and kill
a victim. The court held that the officer served his employer’s
interest, at least in part, by storing his gun as he did because
he was a Chicago police officer and “‘on call’ 24 hours a day”
in the City of Chicago, so he “desire[d] to have the gun acces-
sible in the event of an emergency.” Id. at 922. And that was
true notwithstanding the fact that the police department’s
policy prohibited storing official sidearms in that manner. Id.
at 923.
But not every action motivated by notions of the public in-
terest will count as furthering a government employer’s pur-
pose. For example, in Copeland v. County of Macon, we held
that a correctional officer who encouraged inmates to physi-
cally assault a detainee accused of child abuse did not act in
furtherance of his county-jail employer’s purpose because the
jail had no interest in extrajudicially punishing suspected
criminals. 403 F.3d 929, 934 (7th Cir. 2005). Instead, the jail’s
only interest was in protecting the public by incarcerating and
supervising offenders, not determining punishments to im-
pose on its wards. Id.
Like the correctional official in Copeland, Demeter’s con-
duct did not advance any valid goal of his employer. The
Kane County Sheriff’s Office had no interest in “maintaining
the peace” in a neighboring county. And it’s not as though De-
meter was responding to an emergency—no one would
No. 19-1746 7
characterize the use of expletives as a crisis. No reasonable
jury could conclude that Demeter’s actions were motivated,
even in part, by an intent to serve his employer’s interests. In-
stead, on his day off with his family, Demeter acted out of
personal animus to accost, threaten, and physically assault a
teenager for using foul language within earshot of spectators
and players at his child’s soccer game. The fact that Demeter
used his badge, gun, and training in an unauthorized manner
in pursuit of that purely personal goal does not bring his con-
duct within the scope of his employment.
The district court’s entry of summary judgment in favor of
the County is AFFIRMED.