report from the Milwaukee-Wisconsin Journal-Sentinel:
"[A] federal judge has ruled that former police officer Joseph Schabel might not have been acting as an officer for a key moment at the scene where Frank Jude (before and after, pics) was beaten - even though Schabel was on duty, in uniform and arrived in a squad car.
U.S. District Judge Lynn Adelman wrote in an order that a jury might find Schabel was not acting 'under the scope of his employment,' but it also could find that Schabel was acting as a police officer at the time. Schabel lied for months about his actions when arresting Jude outside an off-duty police party in October 2004. He later admitted he joined in the beating with the drunken off-duty officers, 'stomping' Jude's head before arresting him. Schabel was convicted along with six other former officers in federal court.
Because there are facts in dispute, Adelman said, he must leave those issues to a jury, which may ultimately decide Jude's federal civil-rights lawsuit against the city, with millions riding on the outcome. Adelman said Wisconsin law declares that just because a police officer is working doesn't mean that everything he or she does on duty is under the 'scope of employment' and therefore requires the city to defend it.
'A reasonable jury could conclude that while Schabel generally operated within his scope of employment, he 'stepped aside' from his employer's business in favor of his own desire for vengeance when he stomped on Jude's head, and that when he realized what he had done, he went back into 'police mode,'' Adelman wrote in the June 30 decision.
Jude's attorney, Jonathan Safran, had asked Adelman to rule that Schabel was acting as a police officer the whole time that he was on the scene where Jude was beaten. A ruling in Jude's favor could have prompted a settlement, shortened a trial or possibly required the city to pay legal fees for Jude, Schabel and others, which could top $1 million. Safran said Adelman's decision means he would have to bring the issue of Schabel's role before a jury, if there is a trial.
'Those facts remain in dispute,' he said. 'It really doesn't change our case whatsoever.'
Schabel and his attorney say he was acting as an officer. But attorneys for the city argued Schabel wasn't acting as an officer because he broke the law and they don't have to defend him because he lied about what he did.
Officials from the city attorney's office declined to comment because the case is pending. The lawsuit was filed 3½ years ago. There is no trial date, and no ongoing settlement negotiations. Jude was accused of stealing a police badge at an off-duty police party in October 2004. Drunken off-duty officers beat Jude, kicked him in the head, cut off his clothes and jammed pens in his ears. No badge was found."
Any regular reader of Bad Lawyer knows why this story is of interest to the Bad Lawyer, having had my encounter with law enforcemnet gone wild.
A more interesting question is the application of the respondeat superior doctrine which holds that an employer is liable in certain circumstances for the wrongful acts of his employee. This is particularly true under common law principles when the "master" owes a duty of care towards those the "servant" injured. Recently, I re-related the story of the shoplifter who was raped by the armed security guard that my partner Nancy and I handled against the mega-supermarket chain. A sitting local judge (now a US District Court Judge, herself) held that the actions of the supermarket in putting this guy in the supermarket's security officer uniform, their act in arming him, etcetera, constituted facts sufficient to convert his intentional acts into "their acts" under respondeat superior.
Certainly Judge Adelman is in a better position to adjudicate the common law of Wisoconsin as it relates to the application of the liability of the City of Milwuakee for the actions of Joseph Schnabel, but it's difficult to understand how a "legal duty" blinkers on and off in a way that only serves to exonerate financial liability. How is the rule of law, ennobled by that sort of flash approach to rights and remedies?