his for the day is martin versus milwaukee county mr jones good morning please the court of andrew jones on behalf of the defendant appellant milwaukee county wisconsin the central question in this case is whether milwaukee county is required to indemnify for corrections officers for his misconduct in having sexual intercourse with shon the martin and having her perform oral sex on him all unbeknown to milwaukee county while she was an inmate in the morkie county jail this question of the resolution of this question this is controlled entirely by wisconsin law there has been no finding of fault on the part of the walky county under whether section whether under section one thousand nine hundred three or otherwise instead claim rises under wisconsin's municipal indemnification statute section eight ninety five point four six of the constant statutes and statute was and acted to protect public officials from personal liability employment under the facts of this case specifically for two reasons the evidence was insufficient to show that either of the following two required elements were met under wisconsin law was that mr thickly was performing the kind of work that milwaukee county engaged him to perform as a corrections officer when he had sexual intercourse and oral sex with ms martin or two that he was intending somehow to benefit the what about when he is squirted her to the attorney meeting room what about when he went to the infirmary to get her the compress those things for things that were part of his job duties right so it seems like one of the difficulties in these cases is settling of his discharge of those responsibilities why is it that it's not something that occurred during the course of his scope of it within the scope of his and play because they didn't the misconduct didn't occur in the discharge of those general duties our position is that she is not suing him for something he did while he was moving her to and from the jail she is not suing him for his behavior facilitating access to medical care is suing him for sexual assault and there is a line between those general duties that he is charged with performing in the jail and the sexual misconduct here and there's also an issue of intent whereby an officer may have a particular intent in moving an inmate from point a to point b but clearly that intent will have changed and become a personal intent when he engages in the kind of sexual misconduct that mr think landed here and to address the question of whether it's in the scope or not at the level of generality that ms martin is urging so on the idea that because he had general responsibilities in the dip in the jail as an officer on duty like moving inmates like disciplining them etc that this is that mr thickens behavior was somehow within scope that essentially would undo the scope scope of employment test there literally would be nothing that mr thick wind could do while he was on duty that would be outside the scope of his employment and that be advanced health care case and the elena l n b clowder case all wisconsin court of appeals decision in block you had a situation where a therapist in gauged with a sexual relationship with his patient therapist had a responsibility his job was to engage in a very personal therapeutic relationship with his patient but he was still outside the scope of his employment as a matter of law when that shifted a sexual relationship particularly because he was interact violation of the limitations the orders the directions that his employer placed on his fulfillment of those  responsibilities the same thing was true with respect to the priest in l and b clowder and and the court that case a lab technician accessed at a health care system access patient information in then share without a business reason for doing so and then shared that information with her husband while that like lab technician as part of her duties and responsibilities  was was accessing health care records was part of her duties and responsibilities but when she access to for no business reason and in violation of her employer's directions in terms of the circumstances when she could access the help or information and then violated those directions further and sharing it with someone outside the hospital she was outside the scope of her employment as a matter of law that  the uncontested facts here wisconsin courts time and time again including the three cases i just discussed which are very comparable circumstances have concluded that scope of employment have made clear the scope of employment issues are appropriate for resolution as a matter of law and those cases all dealt with very analogous circumstances to those who had he did have a distinguish which is one of the number of cases which say that scope of the employment is a jury question even desa tell acknowledges that when the facts are not in dispute which they are not here and no competing inferences can be drawn from the facts which i don't means of control and don't well ask that question yes rather so the proposition is that mr thicke lynn was using sex as a means of authority and control first off wisconsin law makes clear that whether an employee is using his position and the authority and control that position gives him to accomplish some illegitimate purpose that that is not relevant to the scope of employment question that's a color of law analysis in the wisconsin supreme court and cameron made clear that that is a different analysis to that proposition is based on basically no evidence and in a rational factual proposition it's being urged by ms martin there is no evidence that mr fickling actually thought that's what he was doing there is no evidence that ms martin actually was engaging in any sort of misconduct or misbehavior that would have required him or anyone else to exert authority or control over him while he she specifically told  occasion i'm wearing blue and you're wearing gray or whatever that was yes and ms eans and i'm the boss here because i'm the guard and ms martin testified that what he was telling her was don't tell on me this is her testimony don't tell me because no one will believe you so his assertion of authority again that's a color of law issue which no one disputes here not the scope of employment issue and two it's not him asserting there is some reason that i have to exert authority over you or control over you or discipline you there frankly was absolutely no evidence in the record that in any of these situations there was any reason for him to be quote unquote exerting authority or control over her using force against her or disciplining her so that is a is a factual proposition that's based on a lack of evidence and speculation and it ignores all of the evidence in the record as to the actual orders and directions that the county gave mr thickly in terms of wisconsin law says this is a crime you cannot under any circumstance engage in this kind of and other laws also say that you're not supposed to beat up a prisoner or you're not supposed to shoot somebody who's running away from you and yet those cases  obviously find that these the police officers usually are acting within the scope of their authority despite the fact as the injured jury was instructed here despite the fact that what they did was wrong and there's a fundamental difference between a police officer oh or any any public employee going out and doing something that he's been specifically instructed authorized warranted to do under his job like affecting a lawful arrest affecting any arrest and using force as part of that arrest there's a fundamental difference between an employee doing something like that and going a step too far exceeding the authority he's been given in an instance like this or an employee goes off and does something that is completely different in kind in nature from what he's been instructed to do and what he's warned to do under his under the employment relationship there is a fundamental difference here so where you may have a situation as in graham where an officer used excessive force in the course of affecting the rest with the service revolver that his police department gave him to use and instructed him to use he exceeded his authority there but he was still within the skull this is fundamentally different you're basically saying that any type of sexual assault would never be within the scope of employment that's not the position i'm taking your art that's not the position the county is taking you can foresee circumstances even in a jail setting where there is some kind of sexual contact where it would be a much closer call and may in fact be an issue of fact an officer doing a pat down search touches someone in appropriately officers to strip searches in jails under certain circumstances where there's an inappropriate touching as part of that strip search that would be a different circumstance the officer is sent out to do that s i change my question to rape versus sexual assault would you agree that that's like you're saying that rape can never be within the scope of employment well rape in this instance it has nothing to do with  would ever and if we were to agree with you with there ever be a case of rape that we it allowed to be found by a jury to be within the scope of employment and it's always going to depend on the individual circumstances and if that rate somehow arises out of some employment dispute some sort of physical interaction between a garden and inmate i can't account for all of the circumstances whether that would be in or without the scope of employment but here where the officer was specifically enough structured not to do this where it had nothing to do with the normal function of his responsibilities in the jail and where there is lots of evidence that his intent was to do nothing other than in service own purposes it's impossible to find that it was within the scope of his employment  the jury was to determine whether or not this was who in the scope of the employment rate judge that miller sent the case to the jury yes yes so that the jury's there now i don't know intend see the transcript but know and so if it's rape and then it's if it's a question of for the jury then if a jury's going to say it's rape so the state's going to pay no matter what and that's what would worry me about this having a jury decide whether or not it's misquoted his employment you know i didn't really heard you arguing that but it just seems to me if you're making an argument to a jury that's a lot of money for somebody who's questionably operating within the scope of his employment while he's executed a rape and that's why i'm wondering about the question of law it seems to me that has to be a question of law if i'm looking at it from that standpoint in that i'm not sure how the judge would make that determination but it would not be on the basis of any kind of sympathy or whatever for a person's being raped it's going to be a question of whether or not reasonable jury or reasonable person really could say that that's and with your did committing a rape it is within the scope of someone's employment just because they happen to be doing it have to be during hours of employment that's about the only time it seems they could do you can even say it's within the line of his duty i think obviously there were very potentially in a very significant sympathy factor on the part of the jury for ms martin what happened with the evidence showed happened should not happen under any circumstances and on top of that this jury as as the county has argued in his brief was instructed improperly in a way that allowed the plaintiff to tell the jury that nothing having to do with the fact that this conduct was completely forgiven by law by his employer was relevant to its consideration in fact it more time than i should please the court counsel the county conflate sex with rape rape is not sex rape is violence rape is about control domination and that is what county guards in the m county jail are instructed to do with above all else is control in means to control them with discipline to control them with orders to control them with force any order within the jail to prevent he wasn't trying to maintain order this is so i have two questions about that i mean it's one thing when a current in an excessive force claim where the guard is trying to maintain order and goes to fight our that's clearly within the scope of his employment what he is doing is in an effort to serve the employer but he goes too far and he wasn't trying to maintain order with her i mean he and i agree rape is about control and power not sexual gratification but that he wasn't trying to intervene in a prison fight or restrain her and he also wasn't using a weapon of the sort and it's a different in kind to use his body in the way he was using his body as opposed to using a gun or fists or billy club so can you help me see how this is close enough in kind that it falls within those other cases so he's using his his authority to control her movement he's telling her he's giving her orders he's telling her what to do he's telling her i mean great  blue he is telling her that she has to obey and then in that sense he's controlling what she does but i hesitate to go down the road that it's ok as a matter of law to say that if the officer uses  and beats the suspect in the manner of gratuitous violence which this court in wilson said was a borderline frivolous argument to say that's not within the scope but then now i had read that's not what i was suggesting i was suggesting that coercing obedience by threatening discipline by saying i mean greater loot this wasn't an address that went bad this wasn't a prison fight where he was trying to restrain her so he wasn't it's not like those cases for that reason every single instance he was authorized and directed to control her movement he was the infirmary officer he was the floor control officer he was assigned to her in every single one of these routes to control her movement in some way  to have authority over her it wasn't like he was coming in from either off duty or first moment other branch of the jail to then interact with her and every time she was doing the kind of things that joe guards do he was transporting her he wasn't in iran mean that anything so there are some states in wisconsin is it one who say that when you have power and access you know by virtue of your job that california is one that things that happen you know that you are able to do because of the power you have or the access you have because of your job but that happens to be within the scope of employment that's not wisconsin law allows so and so i it's hard for me to say what wouldn't be within the guard scope of employment as you're describing and in our position is that any act of violence within that jail perpetrated by a guard who has authority over a particular inmate is a jury question and that's what the wisconsin supreme court has said over and over again if you look at cameron cameron his three off duty racist police officers who target three black so civilians off duty in the middle of the night a cost them beat them up and have them arrested so you think that case is rotting granted it was illinois law but the prison riot and the guard opening the door to this jail cell and turning its back and then committing the other law should be decided as a matter of law and this wisconsin sprint court in cameron remanded for a trial on that on scope of employment the same question of fact they agree but there's no question of fact and that's why we have summary judgment judgment as a matter of law there's no question in fact yes you could say that's a jury question but if you can't satisfy the standard of having enough evidence to permit a reasonable jury to conclude that it that it doesn't go to the jury so it's not it's not that it wouldn't be a jury question it would be simply that the plaintiff didn't carry the burden to get it  well part of the situation we're dealing with this that we have a wisconsin statute that is very broad from them for creation purposes it was amended to remove the the requirement of good faith it is one of the most broad statutes because it includes  inability that somebody who uses force so egregiously and so beyond the bounds of common decency that pure damages for want to bet is still something that can be within the scope of employment and if you look at this to tell case where it says this kind of question such warrants violence should go to a jury and have a jury determine that's all we're asking so you're saying you can never get that's kind of an extraordinary claim you're saying you can never get summary judgment or judgment as a matter of law on a case and valving duty within the school with where they're it's part of the person's job duties to interact with that person and if you look at the graham case i mean in graham you have a situation where it's not in the course morass but the person is arrested these down handcuffed behind their back and the police officer in a psychotic instance comes up and executes the person by shooting them in the head and this court said as a matter of law that is within the scope of employment yet because he was arresting the person so that was a case of crimes are not outside the scope of employment necessarily i'm just surprised to hear you say that you think that they are always jury always jury questions that that the statute takes away a summary judgment judgment as a matter of law without even knowing it so it's a let me put a finer point you could have situations like polk county where you have direct evidence of intent and you have in that yes no evidence countervailing at the other the plaintiff doesn't submit the evidence the other way and that is a situation where you could have summary judgment because of the facts that case but it's six circumstance like here we have no direct evidence of intent then desa tell says that's the kind of case that has to go to a jury because you're you have competing inferences and one of the inference is in the other side in this case the others the you know  he competing inferences is that we prohibit you know sexual assault this is not the kind of thing that we assign guards to do well that's true for every case where there's dispute about and timothy she where there's a tort that's occurred where somebody has been harmed is always the case that happens and in grand this court says that is not enough simply because you said you prohibit this and because it is not your objective to murder people who have been arrested rather than to bring them to court to have them face charges that is not or he's controlling he's controlling that in me he's controlling her she didn't come she didn't have an outcry and he told her i mean great you're and blue she didn't talk back to him she didn't report him until as a nineteen year old woman who's pregnant two is raped so far the her mucus plug was dislodged and she had to be hospitalized for pre term labor because of the rate that she sustaining answer when she had her case where someone uses his sexual prowess and rape someone in order to discipline them or to show who's boss that's your argument that is what really and that's what the jury hears that a jury hears all about rape and how vicious it wasn't she's pregnant all that's awful so they're looking for good reason to stick it to the state so it's answer that question we did not have a runaway jury problem here this is a jury that found against miss martin on her this is a jury that carefully considered each of the elements and found that she did not see you know meet the elements that claim and found against certain words her zero for being shackled while she gave birth we asked juries all the time to decide some the most complex issues in our society when there's a gruesome horrific crime and summaries hold that you know to be held accountable we understand that the the the facts may be gruesome but we asked the jury to do their job and just wasn't  it's not the same thing the shackling thing you say you lost that one well ok but whatever a rape is so far fetched away from any kind of a discipline you say well that's what about exercising control in five different instances and varying methods of rape at least i guess she testified to each of those right yes ok say she describes all these all of them are against her will cetera all bad and that's where a jury really dislikes what happened to her and so the most convenient way to do jury but we have other obviously not you don't think it's a runaway jury but they decided whether or not it was when scope of the employment and in view of the fact that she was viciously raped which is something that wisconsin directs us to do you know to get back to judge bird's point about what california and having a force to see ability test wisconsin could have chosen objective tests they chose a subjective test that goes to the intent of the person committing the tort and when you choose and then in subjective intent test that says jury question there's a quintessential jury's questions and stevenson one of the cases cited to the court it says exactly that that this is the kind of intent question and this point is recognize that when you talk about law enforcement officers questions about scope employment become much more difficult and if the guard had used the patani and sodomized miss martin rather than his penis would that alter the court's analysis and i think that's wrong but it's not i don something that's assigned to him to use for discipline and so there are other means that they're used to not really disciplined to to say to tell of a that the record the inmates are required to obey every command that's given to them by guy he wasn't disciplining on the part of the jail i mean rape what he did was horrific and rape is about dominance and power but he wasn't exerting the dominance of power at the jail i mean he is a sick person who is exerting his own dominance of power over her for his own reasons he wasn't trying to disciplinary like i said he wasn't breaking up a fight or trying to arrest her but we have a situation where he's interacting with her he's directing her what to do he's controlling her movements he controls her meals he moving her from one part of you had an adolescent opportunity and authority that he is which is not wisconsin's law but he also he used that authority he used what the jail had trained him to do and what he had given him which is to compel compliance with this commands and with his directed by threatening discipline by threatening force you know that's exactly what he used that's what the guards use to get inmates to do anything they want in the jail because there's a lot more inmates than guards and if they didn't have those tools at their disposal then there be anarchy with the usual you mention in your brief that she was a difficult maybe that's the wrong word but you know it's a difficult in that canoe to say what that how that relates to the questions just going and so she's somebody who is disciplined unst on six different occasions she would head spoken up and she testified to the jury that she was somebody who was a vocal was a strong woman who would speak up about things that she did not like whether they be jail rules whether they be things circumstance that she didn't like it's a it's an inference that in reaction to her being a strong person who vocalized complaints  it was known that she was a strong person who would speak out and was not the subservient kind of prisoner she was somebody who is loud and just my final point is that in regard to the cases cited by counsel blocked out or in court  those are sex cases we're talking about violence in the law enforcement context and there's nothing that we can bring from the sex cases over to the what the was sentence being court and court of appeals has said applies to violence cases involving  very briefly as i know i likely see did my time before i stepped on the first time in the copeland decision the seventh circuit rejected the same kind of argument about the the idea that an officer who commits a wrong is necessarily within the scope or is even a jury question simply because he is in charge of directing and crew trolling inmates the panel in that case said that that argument was ludicrous it's too general desa tell that involved a case where the victim was arguing that as a as a matter of law the officer with that was within the scope of his employment when he sexually assaulted her so the fact that the court there said it was ok to send that question to the jury wasn't necessarily true that he was within the scope of his employment it wasn't just ok it had to go to mature i don't question the court acknowledged that scope can be decided as a matter of law and in response to the argument by the plaintive that it was necessarily outside the scope the court indicated that it was appropriate to send the question to the jury the final point i would make is there is no evidence that mr mr thickly knew anything about ms martin's prior discipline problems there is no evidence to connect anything she may have had in terms of discipline problem and his sexual assaults here and the final point i would make is there is no evidence of his intent that ms martin has offered other than the fact that he essentially was on the job and generally at work performing his general duties as a corrections officer to support the idea that he intended to benefit the county and against that there was all of the evidence of the