Sep. 25, 2018 – The U.S. Court of Appeals for the Seventh Circuit recently reversed a $6.7 million jury award against Milwaukee County, concluding the county is not required to pay for the actions of a jail corrections officer found to have raped a female inmate.

In 2014, the state charged Xavier Thicklen with five felony sexual assault charges. The charges were ultimately dismissed after he pled no contest to misconduct in public office.

As the criminal case was pending, Shonda Martin sued Thicklen, as well as the county for indemnification under Wis. Stat. section 895.46, which allows judgments against political subdivisions for acts by employees acting within the scope of employment.

Martin asserted civil claims under 42 U.S.C. section 1983, for due process violations related to the sexual assaults, and for shackling her during child birth. Martin claimed Thicklen raped her five times, including several times while she was pregnant.

The county moved for judgment as a matter of law, but the U.S. District Court for the Eastern District of Wisconsin allowed a jury to hear the case, despite the county’s argument that Thicklen’s sexual assaults fell outside the scope of his employment.

The jury awarded Martin $1.7 million in compensation and $5 million in punitive damages, and said the county must pay under the indemnification statute.

The county appealed, arguing it was entitled to judgment as a matter of law on the indemnification issue, or alternatively that a new trial should be granted.

The county also argued, in a post-verdict motion, that a new trial was warranted based of newly discovered evidence that Martin and the father of her child framed Thicklen. The district court denied that motion, and the county also appealed that issue.

In Martin v. Milwaukee County, Nos. 17-3216 & 18-1060 (Sep. 14, 2018), a three-judge panel for the Seventh Circuit Court of Appeals reversed the district court, concluding the district court did not conduct the correct “scope” analysis on the indemnification issue.

The panel looked to Wisconsin Supreme Court and Seventh Circuit Appeals Court precedent to determine whether Thicklen was acting within the scope of employment under section 895.46 when he sexually assaulted Martin in the jail.

“An act is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer,” wrote Judge Daniel Manion. “But an act is in the scope if it is so closely connected with the employment objectives, and so fairly and reasonably incidental to them, that it may be regarded as a method, even if improper, of carrying out the employment objectives.”

Under this test, the panel concluded that no reasonable jury could find that the sexual assaults were in the scope of employment, noting the county thoroughly trained Thicklen against sexual contact with inmates, and evidence suggested he understood.

“This case is distinguishable from cases involving excessive force by police officers. Some force, even deadly force, is sometimes permissible for police officers. But the rapes in the case were not part of a spectrum of conduct that shades into permissible zones. Inmate rape by a guard usually involves no gray areas,” Manion wrote.

The panel noted the policy behind section 895.46: to allow public employees to do their jobs without fear of paying out-of-pocket for actions within the scope of employment.

“We have sympathy for Martin, who loses perhaps her best chance to collect the judgment,” Judge Manion said. “But §895.46 does not make public employers insurers against all wrongs.”