was not acting within the scope of his employment during this incident next the court erred in granting summary judgment to appeal he came county on the basis that point it did not name the king county sheriff's office as a defendant and rd the court years you have been on notice that this one paragraph that should have been named well it was two years since they we had initially filed our complete and that the case that appellee relies on which is was not decided until october of two thousand and seventeen which was over a year after we filed our complaint and actually after we filed our st amended complaint and it was just a few short months after that that  sought leave to amend the completely so that you your point was not from the time that the law was clear and in fact there were district court cases prior to clear that said that the sheriff's office was not a necessary addressing the issue of scope of employment the court review summary judgment decisions and here the district court improperly based its ruling on its own interpretations and inferences based on the facts and based on the facts of this case a reasonable jury could find the plaintiffs in summary judgment should have been denied the court looks to state law when assessing scope of employment claims and the illinois supreme court has clearly held that it's generally inappropriate to grant summary judgment and scope of employment is that issue question whether summary judgment is appropriate as a matter for seat is determined by formal not by state substantive doctrines are determined by state law procedures are determined by formal if the state of illinois abolished summary judgment to morrow morning and said that every case goes to a jury that would not require a federal very well established understood judge as to the issue of scope of employment and the state law interpretations of scope of employment this court has also looked at that as a very intensive analysis and this court has held that it's a particularly challenging fact in tech intensive analysis when the defendant is a law enforcement officer but we have never had that as an appropriate for  detained plaintiff in order to have more arrested for allegedly violating the law he displayed his badge he displayed his gun he called nine hundred and eleven for assistance and in calling on one when he identified himself as a police officer and further he testified that throughout taking these actions he understood himself to be acting within his rights as a police officer and meanwhile plaintiff knew that defendant was a police officer understood him to be acting as one during this encounter and even stated i can't do anything your a cop based on those facts a reasonable jury could find that defendant them it was in fact quote acting as a cop and in looking at state law as to that precise definition of scope of employment the case law does not give an exact definition but looks to three general general criteria st look whether the criteria are met as to the st element using force to detain a suspect is precisely the type of conduct that a law enforcement officer is employed to perform and nd what did you do you have been there did some other things illinois a criminal law that permitted the use of offense some language or profanity when he testified that he was intending to take them into custody for disorderly conduct which would be a breach of the peace and so therefore he was enforcing the prima laws of the state of illinois which is to serve the interest of the cane county sheriff's office and to the nd element the fact that he was technically outside the boundaries of kane county the law the question of the law is whether it's in that general area and whether or not it is so far beyond the authorized limits to take it beyond the scope of employment and here the facts show that it was not it was actually quite close to king county is in the neighboring county and it was in the city of the world which has overlapping jurisdiction with king county why was he where he was police officer why was he the he was playing basketball close by and he is he and his friends were bantering towards one another and using profanity on occasion when there's two teenagers and he's not and based on these facts a reasonable jury could determine that these criteria are met and therefore this case should not have been decided summary judgment and should have gone to a jury counsel can i ask you a question about what provision of illinois law is applicable here it seems like the district court assumed that it was nine dash one or two in the tort immunity act i'm i'm wondering whether if at all  briefs on appeal the district court our understanding was that it was under nine thousand one hundred and two yes and that we were operating under that that statute that's the statute that we were pursuing indemnification and does applicable did you have a choice of which to pursue or did did you choose the right one did you choose the wrong one our position is that we chose the proper one and there there are other issues with ten o two that the  regarding willful misconduct right however we we would argue that willful misconduct in the way that we pled the complaint in terms of using the terms willfully and maliciously these are terms of art that are not necessarily campaign county was named because as judge referenced earlier it is the entity that would be ultimately responsible and case law has held that therefore in their required part of pain county argues that that's only for relying on ten stroke nine thousand one hundred and two which talks about paying toward judgments for which it or an employee is liable right the deputy sheriff was not an employee sheriff's office is a proper party and well there we have it with the principle undercover still applies here that king county no carver holds for the sheriff's office is a proper party and often a necessary party that's why the name of the case is carver against sheriff understand illinois the county provides the budget for the sheriff's office and it has a legal duty to provide the budget the sheriff's office pays the judgment of any employee acting within his official capacity if the county failed to provide the sheriff's office with the money needed to pay a judgment that is failed to appropriate the money that to which the sheriff's department is in title there might need to be supplementary procedures but that's not an indemnity right the problem as your beret as noticed is that you're using an indemnity statute in a case dealing with state budgetary considerations it's as if you were run down on the street by a postal service officer and you filed a lawsuit against the congress of the united states because congress appropriates the money to pay for such judgments but you don't sue the congress you sue the postal service here you don't suit county you sure the sheriff's office understood and that the county would ultimately be the entity providing the finances likewise harness appropriates the money to pay judgments against the united states but is not itself a proper party however even if that ruling by the district court was correct summary judgment to appeal he came county was not the appropriate remedy if the sheriff's office was the necessary party the district court could have ordered them to be added as a party at any point in the lawsuit or they didn't ask to be a party the county said they had to be and you didn't have them when you could that's back to the initial question why do you wait two years to add the county sorry to add the sheriff's office long after the county has said the sheriff's office needs to be a party long after discovery is closed because the law was not clear on that point at that time out my sense is you pays your money and you take your choice if you're willing to gamble on the law you can do that but you can't gamble on the law lose and then say let's go back and start from scratch most lawyers want to set things up so that a gamble on the law is not necessary but if you do it like to gamble on the law it was you didn't have to pay even a higher fee to name the sheriff's office as a defen if you do it like to gamble on the law and you lose then you lose it's just the way litigation are understood and i see amount of time thank you mr thompson thank you good morning and may it please the court i'm assistant state's attorney here in brady and i represent the apple even county of your honors before i begin in earnest i want to add to the conversation that was just had about the naming of the king county sheriff's office as well as the county in government entity may be liable for official capacity claims that's not what's been alleged by the appellant here your honour's i'd like to begin by stating that what this case is a case about a man who in his own words just lost it that man just also happens to be a cane county sheriff's deputy bryan democrat was on his own time on a purely family matter and to page county to children soccer game when he got to the altar cation with the appellant he grabbed the opponent by the neck after opponent refused to stop using foul language while play facts and they're not what matters to the oh no did you know let's just address the question of whether you try to been the sheriff's office really rather than king county who was the official defend so the district court determined the summary judgment was appropriate on that basis because the sheriff's office hadn't been named as a defendant there is no response yet light superior liability for one thousand nine hundred and three comes against a government entity you would have to have right party to pay a given judge yes judge so but in that case i would i would direct the court's attention back to carver vs lasalle where this court spoke directly to the illinois supreme court on that issue  create even though nine hundred and eighty three dollars does not affect the latest twenty minute act does create some respond out superior liability according to which the sheriff's office would pay a judgment entered against an individual am i misunderstanding  were to sue the sheriff's office in the us they have a budget it's appropriated probably somewhere else and even they may have something in the budget cases like this i don't know what they do with it things like that can happen so they may even have part of their budget where they say well we have to have that part of the budget and maybe the money was there maybe not well and so the county has and general capacity claim against a county employee who is the employee of an independently elected official you've got a name both the elected official and the county itself the county in that case is just a nominal party and you know the sheriff's office in any official are you speaking of the sheriff's office account you're representing i'm asking about the sheriff's office is there a judgment front to take care of judgments against the sheriff's office and its employees not to my knowledge i would like to touch briefly on the scope of employment alice's just to hit the most important points that the district court noted you know all three factors of the restatement have to be met in order for an to be determined to be acting under the scope of an employment the scope of employment here the district court found that factors two dollars and three dollars were not met specifically that the employee was acting outside of the time space limitations of his job and because the conduct was not of the kind that was done to serve the master appellant does not dispute the fact that the case law suggests that it has to be the actual employer whose conduct is being for whose interest is being served and not some other entity with a related law enforcement purpose not have an interest in forcing laws outside of its own boundaries in its own jurisdictions especially by its off duty and the final issue that i'd like to address is the district court's denial of the parent's motion for leave to amend there's a high standard for discretion and deference given to the district court and the district court here held that the appellant delayed and they the two men would allow undue prejudice toward the king county sheriff's office i've spoken a little bit on what type of prejudice that would be it would be that would produce liability for kaine county what we're talking about there judge is that there would still have to be a respond yet superior your claim alleged against the sheriff's office and we don't have that here you know i agree that  you know where no reasonable jury could so determine that's that's how it's going to go and it's been held that way in a number of cases cited by both parties in both states and so again when the president says i mean i agree that the plaintiffs delayed and amending the complain it's just hard for me to see what the president was and permitting the amendment you know there are different types of defenses that would would or series of relief that could be alleged i would argue that the was just a question if you're relying on the court immunity act just making sure the right party was there for purposes of payment responsibility sure judge and i don't i don't mean to quarrel with your honor at all but i do believe that there would be additional discovery and delayed in an onion manner and failing to ask for leave to amend when they had been on notice of the pleading issues for nearly two years at that point and that that explanation you know that that clinger wasn't decided until two thousand and seventeen well car versus will style goes back to believe two thousand and three and we disagree that there was any question that an official capacity or an individual the claim would require naming both the sheriff's office and the county under which the  we are not a trier of fact the judge will decide stand up and repeat their factual assertions but they don't get resolved here well then and i'll wrap up my respectfully requesting that this court uphold the district court's grant of summary give you thirty seconds thank you to clarify plaintiff was not seeking to file a motion out claim and so that argument that that's obvious would you be willing to agree that you could take no further discovery municipalities and wilson versus city of chicago is one of those that seven circuit held them thank you ok thank you very much case taken