WisBar News: Retrial ordered: Jury must decide if the City of Milwaukee should pay $1.85 million award:

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  • Retrial ordered: Jury must decide if the City of Milwaukee should pay $1.85 million award

    An off-duty police officer shot and killed a Milwaukee man using excessive and unreasonable force. Now, a jury must reconsider whether he was acting within the scope of his employment.

    Joe Forward

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    article title March 2, 2012 – The estate of a man killed by a former Milwaukee police officer will have another opportunity to argue that the City of Milwaukee should pay the $1.85 million awarded to the man's estate, under a recent decision by the U.S. Court of Appeals for the Seventh Circuit.

    In 2005, Milwaukee police officer Alfonso Glover ended his shift and was driving home when, apparently, a van began tailgating his car. What exactly transpired after that is unclear. But Glover shot and killed the van’s driver, Wilbert Prado, firing 19 shots and landing eight.

    After an inquest hearing to determine how Prado died, a jury believed Glover’s account of events and found that his actions were justified. Glover testified that he believed Prado was armed and his actions were necessary to protect himself and the public.

    However, a year later, the Milwaukee County District Attorney charged Glover with homicide and perjury. On his arraignment day, Glover committed suicide.

    Prado’s children and his estate filed a federal civil action against Glover’s estate, alleging Glover used excessive force causing death in violation of 42 U.S.C. section 1983. The plaintiffs also named the City of Milwaukee as a defendant under Wis. Stat. section 895.46, which requires a city to pay judgments for employee acts committed within the scope of employment.

    A federal jury awarded $1.85 million in compensatory and punitive damages to Prado’s children and his estate, concluding that Glover used excessive force under color of law.

    But the jury also ruled that Glover did not act within the scope of employment under Wis. Stat. 895.46, foreclosing the ability of the plaintiffs to collect the judgment from the City of Milwaukee. Glover’s modest estate could not cover the judgment.

    In Estate of Prado v. City of Milwaukee, No. 10-3816 (March 2, 2012), a Seventh Circuit Appeals Court panel ruled that the plaintiffs will get another trial on the scope of employment issue. The panel ruled that the district court’s instruction to the jury on that issue, while legally correct, was not clear enough. Thus, it was prejudicial error.

    “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,” wrote Judge Diane Sykes for the panel.

    The City of Milwaukee’s defense “set up a false dichotomy,” the panel explained, by conveying the “incorrect impression that because Glover had been criminally charged, he could not have been acting within the scope of employment.”

    However, the panel agreed with the district court that the City of Milwaukee did not “ratify” Glover’s conduct by failing to suspend or fire him after the incident. If conduct is ratified, the employee is considered to have acted within the scope of employment.

    Retention of an employee after wrongful conduct does not constitute ratification under Wisconsin law, the panel explained, if the employee was acting outside the scope of employment when engaging in wrongful conduct.

    By Joe Forward, Legal Writer, State Bar of Wisconsin