Daniela Javier v. City of Milwaukee

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