915 F.2d 1085 (7th Cir. 1990), 89-1537, Graham v. Sauk Prairie Police Com'n

Docket Nº:89-1537, 89-1652, and 89-2385.
Citation:915 F.2d 1085
Party Name:Crystal R. GRAHAM, in her own right and on behalf of John P. Graham, Deceased, Plaintiff-Appellee, Cross-Appellant, v. SAUK PRAIRIE POLICE COMMISSION, Village of Sauk City, Wisconsin and Village of Prairie Du Sac, Wisconsin, Defendants-Appellants, Cross-Appellees, Robert Rentmeester, Defendant, Cross-Appellee.
Case Date:October 03, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1085

915 F.2d 1085 (7th Cir. 1990)

Crystal R. GRAHAM, in her own right and on behalf of John P.

Graham, Deceased, Plaintiff-Appellee, Cross-Appellant,

v.

SAUK PRAIRIE POLICE COMMISSION, Village of Sauk City,

Wisconsin and Village of Prairie Du Sac,

Wisconsin, Defendants-Appellants, Cross-Appellees,

Robert Rentmeester, Defendant, Cross-Appellee.

Nos. 89-1537, 89-1652, and 89-2385.

United States Court of Appeals, Seventh Circuit

October 3, 1990

Argued Dec. 1, 1989.

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Ronald J. Kotnik, David E. Rohrer, Lathrop & Clark, Madison, Wis., for Graham.

Carroll Metzner, Jean M. Wiencek, Bell, Metzner, Gierhart & Moore, Madison, Wis., Wayne Mueller, Prairie Du Sac, Wis., for defendants-appellants, cross-appellees.

Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The Villages of Sauk City and Prairie Du Sac, Wisconsin, and their police commission, the Sauk Prairie Police Commission, hired John Mueller as a police officer in April of 1983. On September 16, 1986, while Mueller was on patrol, he received a radio call for assistance from a Department of Natural Resource's conservation warden. The warden informed Mueller about a

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suspect in a pickup truck who was believed to be carrying controlled substances. Pursuant to the warden's directions, Mueller went to the house of John Graham. Mueller parked his squad car in Graham's driveway behind a pickup truck in which Graham was seated. Mueller repeatedly ordered Graham to get out of his truck and produce a driver's license. After Graham continuously refused, Mueller and the conservation warden removed Graham from the truck, placed him face down on the driveway and handcuffed Graham's hands behind his back. Mueller then drew his service revolver and fired two shots into Graham's head. Graham died from the gunshot wounds shortly thereafter. It is undisputed that Graham was not fleeing and posed no threat of death or serious injury to Mueller or any other person at the time of the shooting. Also undisputed is the fact that Mueller was suffering from chronic paranoid schizophrenia at the time he shot Graham.

Crystal Graham brought this suit on behalf of the deceased, John Graham, and in her individual capacity as his surviving spouse and heir. Graham sued Mueller's estate (Mueller died shortly after Graham initiated this suit) under 42 U.S.C. Sec. 1983 claiming that Mueller violated her rights under the fourteenth amendment and those of her deceased husband under the fourth and fourteenth amendments. The district court granted summary judgment in favor of Graham regarding Graham's fourth amendment excessive force claim and fourteenth amendment loss of life claim. The court also granted summary judgment in favor of Graham regarding her fourteenth amendment claim of lost society and companionship. In addition, the district court held on summary judgment that Wisconsin law required the Sauk Prairie Police Commission and the Villages of Sauk City and Prairie Du Sac to indemnify Mueller's estate for any monetary damages that might be entered against Mueller.

Crystal Graham also brought a Sec. 1983 suit directly against the two villages, the police commission and Police Chief Robert Rentmeester under a theory of supervisory liability for Mueller's unconstitutional killing of Graham. The district court granted summary judgment in favor of the villages, the police commission and Rentmeester on this claim.

In February, 1989, a jury trial was held solely to determine the amount of damages owed by Mueller's estate. The jury awarded Crystal Graham $300,000 for lost society and companionship and $130,200 in compensatory damages. The jury also awarded the estate of John Graham $550,000 for loss of life. The jury did not award any damages for pain and suffering.

The villages and the police commission appeal the district court's order that they indemnify Mueller's estate; in addition, they appeal the district court's award of attorney fees and loss of life damages in favor of Graham. Crystal Graham cross-appeals the district court's grant of summary judgment in favor of the villages, the police commission, and Rentmeester on her municipal liability claim. For the reasons discussed below, we affirm the district court on all issues.

Indemnification

The villages and the police commission contend that the district court erred in requiring them to indemnify Mueller's estate. The Wisconsin statute that requires a municipality to indemnify its employees, Wis.Stat. Sec. 895.46, provides in pertinent part:

(1)(a) If the defendant in any action or special proceeding is a public officer or employe and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employe and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employe in excess of any insurance applicable to the officer or employe shall be paid by the state or political subdivision of which the defendant is an officer or employe.

The villages and the police commission advance two arguments why they are not

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required to indemnify Mueller's estate. First, they argue that the municipal tort immunity statute, Wis.Stat. Sec. 893.80(4), precludes indemnification because Mueller committed an intentional tort when he shot Graham. Alternatively, they argue that indemnification is not required under the indemnity statute because Mueller was not acting "within the scope of employment" when he shot Graham. We will address these arguments in turn.

Wisconsin's municipal tort immunity statute provides that, "[n]o suit may be brought against any ... political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees...." Wis.Stat. Sec. 893.80(4). It is undisputed that Mueller committed an intentional tort when he shot Graham. While recognizing that the Wisconsin indemnity statute contains no explicit exception for employee intentional torts, the defendants contend that a conflict exists between the indemnity statute and the intentional tort immunity statute. The defendants argue that the conflict can be avoided only if we conclude that the Wisconsin legislature intended the immunity statute to preclude indemnity in one type of action--an action based upon a municipal employee's intentional torts. The defendants contend that the Wisconsin Supreme Court's decision in Strong v. City of Milwaukee, 38 Wis.2d 564, 157 N.W.2d 619 (1968) stands for the proposition that the immunity statute precludes all suits against a municipality for the intentional torts of its employees and thus, a plaintiff cannot accomplish indirectly through the indemnity statute what the plaintiff cannot accomplish directly due to the immunity statute. 1

In light of Wisconsin Supreme Court pronouncements, decisions of this court, and the historical context in which the Wisconsin indemnity and immunity statutes were enacted, we conclude that the immunity statute does not absolve the villages and the police commission from indemnifying Mueller's estate.

The Wisconsin Supreme Court discussed the scope of the indemnity statute in Ibrahim v. Samore, 118 Wis.2d 720, 348 N.W.2d 554 (1984). In Ibrahim, the plaintiff brought a libel suit against a University of Wisconsin faculty member. The Wisconsin Supreme Court held that the trial court properly dismissed the plaintiff's libel suit because the plaintiff failed to comply with a Wisconsin statute requiring plaintiffs to notify the attorney general within 120 days of an alleged injury caused by a state employee. Id. at 728-29, 348 N.W.2d at 559. The Supreme Court's holding reversed the decision of the Wisconsin Court of Appeals. The appellate court held that the plaintiff did not have to comply with the 120 day notice requirement because the plaintiff's complaint alleged malicious, willful and intentional misconduct. The Supreme Court disagreed, concluding that the 120 day notice requirement applied to intentional torts because the purpose of the notice statute "is to permit the attorney general to investigate a claim against an employee which might result in a judgment to be paid by the state under the indemnity statute, sec. 895.46." Id. at 727, 348 N.W.2d at 558. In dictum, the Supreme Court stated that under the indemnity statute, "[u]nlike the defense of official immunity, but like notice of injury, no distinction is made as to judgments based on intentional or negligent conduct." Id. at 728, 348 N.W.2d at 559 (emphasis added).

The defendants contend that Ibrahim is inapposite because Ibrahim involved a state rather than a municipal employee. We disagree. While the holding of Ibrahim is inapposite--our case does not involve Wisconsin's 120 day notice statute--the Wisconsin Supreme Court clearly indicated in dictum that the Wisconsin indemnity statute does not distinguish between intentional and nonintentional torts in determining whether a public official or employee

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qualifies for indemnification. We see no reason why the Supreme Court's pronouncement is dependent on whether an intentional tort is committed by a state as opposed to a municipal employee. The indemnity statute treats municipal employees no differently than state employees. The statute plainly says that judgments "shall be paid by the state or political subdivision of which the defendant is an officer or employe." Wis.Stat. Sec. 895.46(1)(a) (emphasis added).

In Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984), a case closely analogous to ours, this court required a Wisconsin municipality to indemnify employees who had committed intentional torts. The plaintiff in Bell brought a civil rights action against a...

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