Robinett v. City of Indianapolis

• Decision Date: 09 July 2018
• Docket Number: No. 17-2609,17-2609
• Citation: 894 F.3d 876
• Parties: Scott ROBINETT, Defendant-Appellant, v. CITY OF INDIANAPOLIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

894 F.3d 876

Scott ROBINETT, Defendant-Appellant,

v.CITY OF INDIANAPOLIS, Defendant-Appellee.

No. 17-2609

United States Court of Appeals, Seventh Circuit.

Argued February 7, 2018

Decided July 9, 2018

Stephen Gerald Gray, Attorney, Indianapolis, IN, for Defendant-Appellant.

Donald Eugene Morgan, Andrew Upchurch, Attorneys, OFFICE OF THE CORPORATION COUNSEL, Indianapolis, IN, for Defendant-Appellee.

Before Bauer, Rovner, and Sykes, Circuit Judges.

Sykes, Circuit Judge.

Scott Robinett and the City of Indianapolis were codefendants in a civil-rights action. Robinett, a police officer, was accused of failing to intervene in an escalating domestic dispute between two fellow police officers. The dispute ended violently in a tragic murder-suicide, and the murder victim’s estate asserted claims against Robinett and the City under 42 U.S.C. § 1983 and Indiana law. They won the case; the district judge rejected the estate’s claims and entered summary judgment for the defendants. Robinett then asked the judge to order the City to pay his attorney’s fees and costs under Indiana Code § 34-13-4-1, a public-employee indemnification statute. The judge denied the motion and Robinett appeals.

We affirm. The indemnification statute requires a public employer to pay defense costs in a civil-rights action against an employee only if the employee was acting within the scope of his employment when he committed the act or omission in question. A mere allegation to that effect does not trigger the indemnification obligation. The judge held that Robinett acted outside the scope of his employment during the events at issue here; that is, he acted as a private person, not a police officer. Robinett does not challenge that factual determination, so his claim for costs and fees fails.

I. Background

Ryan Anders and Kimberlee Carmack were Indianapolis police officers. They married in October 2010 and divorced three years later. Anders soon launched an alarming campaign of harassment and intimidation, stalking Carmack while she was on police runs and calling her incessantly throughout the day. He once pursued Carmack in his police car and cornered her in a parking lot. Changing tactics, he threatened to publish naked pictures of Carmack and publicly disclose her use of anxiety medication if she did not continue to have sex with him. Carmack gave in to this demand and others, fearing that if she refused, Anders would kill her.

The police department eventually got wind of these events and opened a criminal investigation against Anders for stalking, rape, battery, and residential entry. The department placed a GPS tracking device on his car with a warning mechanism to alert Carmack if he passed nearby. The department also obtained search warrants for Anders’s home, person, and effects. Carmack began spending nights away from home so Anders could not track her whereabouts. At the department’s suggestion, she also secured a protective order against Anders.

These efforts were insufficient to protect her from her ex-husband. Anders eventually discovered the GPS device and called Robinett—his friend and fellow police officer—and asked to meet in a nearby church parking lot. Robinett arrived at that location and found Anders kneeling behind the trunk of his car. Anders pointed to an object on the bumper and asked if it was a tracking device. Robinett confirmed that it was and Anders then drove away. Robinett did not tell investigators that Anders had discovered the GPS device. Ten days later Anders drove to Carmack’s house and killed her and himself. She was not alerted to his approach because he drove his grandmother’s car.

Carmack’s estate sued the City, Robinett, and other officials alleging that they violated her rights under the Fourteenth Amendment and Indiana law. The claims against Robinett were premised on a theory of wrongful failure to intervene to protect Carmack. The judge rejected the estate’s claims and entered summary judgment in favor of the defendants. As relevant to this appeal, the judge held that Robinett was not liable for a constitutional violation under § 1983 because he did not act under color of state law during the events in question. The judge also held that the City was not vicariously liable on the state tort claims because Robinett acted outside the scope of his employment at all relevant times.

Several months later Robinett asked the court to order the City to pay his attorney’s fees and costs under § 34-13-4-1, an Indiana public-employee indemnification statute. The judge denied the motion, ruling that the statute obligates public employers to reimburse an employee’s defense costs in civil-rights litigation only when the employee acted within the scope of his employment when he committed the acts or omissions in question. Because the claims against Robinett arose out of his acts or omissions as a private person, not a police officer, the judge held that he was not entitled to a publicly funded defense.

II. Discussion

Robinett does not challenge the judge’s ruling that the estate’s claims rested entirely on acts or omissions he committed outside the scope of his employment. He contests only the judge’s interpretation of the public-employee indemnification statute. We review this legal question de novo. United States v. Crisp , 820 F.3d 910, 913 (7th Cir. 2016).

The statute provides:

If a present or former public employee ... is or could be subject to personal civil liability for a loss occurring because of a noncriminal act or omission within the scope of the public employee’s employment which violates the civil rights laws of the United States, ... [the public employer] shall ... pay:

(1) any judgment (other than for punitive damages) of the claim or suit....

IND. CODE § 34-13-4-1 (emphasis added). The use of the word "shall" signifies that indemnification is mandatory for a compensatory-damages judgment, assuming all other requirements are satisfied. The statute goes on to give public employers the option to indemnify their employees for "any judgment for punitive damages, compromise, or settlement" if the payment "is in the best interest of the governmental entity." Id. That is, paying a settlement or a punitive-damages judgment from the public fisc is discretionary , again assuming the other statutory requirements are met.

Whether mandatory or discretionary, indemnification is allowed only when "the governmental entity defends or has the opportunity to defend the public employee." Id. Finally, the statute provides that the public employer "shall also pay all costs and fees incurred by or on behalf of a public employee in defense of the claim or suit." Id.

As Robinett reads this statutory language, indemnification of defense costs is required whenever a public employee is alleged to have been acting within the scope of his employment, whether or not that turns out to be true. On this interpretation, indemnification does not depend on a determination that the public employee was, in fact, acting within the scope of his employment at the time of the events in question in the underlying suit. Rather, a public employer might be on the hook for defense costs even when the employee was not acting within the scope of his employment. In other words, the actual facts do not matter; a "scope of employment" allegation is sufficient to trigger indemnification of defense costs even where (as here) the court finds that the employee was acting outside the scope of his employment at the time in question.

That interpretation is foreclosed by the plain statutory text. After setting out when judgments and settlements must or may be indemnified, the statute concludes: "The governmental entity shall also pay all costs and fees incurred by or on behalf of a public employee in defense of the claim or suit." Id. (emphasis added). Read naturally, the word "also" tells us that indemnification of defense costs is subject to the same terms as indemnification of a judgment or settlement: it is available only in a civil-rights action when the government defends or has the opportunity to defend and the public employee was acting within the scope of his employment at the time of the act or omission in question. The scope-of-employment requirement extends throughout the indemnification provision and limits when defense costs must be paid. There is no textual justification to wall off costs and fees from the rest of the statute.

Our caselaw bears out this understanding of the indemnification statute. In Kapitan v. City of Gary , 12 F.3d 678 (7th Cir. 1993), we addressed an earlier version of this statute that made indemnification of the underlying judgment discretionary in all cases but nonetheless included the same defense-cost language. We did not hold that the duty to pay defense costs could be separated from the duty to indemnify. Instead we concluded that "payment of costs and legal fees follows from the decision to indemnify the substantive liability; a governmental entity that decides not to indemnify also need not pay these ancillary expenses." Id. at 680. With identical language here, the same tethering principle should apply. The duty to pay defense costs is triggered by whatever triggers the underlying indemnification obligation. That the public employee acted within the scope of his employment is therefore a necessary condition for both.

A final textual clue reinforces this interpretation. The indemnification statute requires the government to pay "all costs and fees incurred by or on behalf of a public employee in defense of the claim or suit ." § 34-13-4-1 (emphasis added). The claim or suit, in turn, must refer to the only claim contemplated by the statute: a claim of "personal civil liability for a loss occurring because of a noncriminal act or omission within the scope of the public employee’s employment which violates the civil rights laws of the United States." Id. (emphasis added). Footing the defense bill is therefore limited to a narrowed...