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Civil Rights — excessive force — scope of employment — jury instructions

By: WISCONSIN LAW JOURNAL STAFF//March 2, 2012//

Civil Rights — excessive force — scope of employment — jury instructions

By: WISCONSIN LAW JOURNAL STAFF//March 2, 2012//

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Rights — excessive force — scope of employment — jury instructions

In an excessive force trial, it was error not to instruct the jury that a police officer can be acting within the scope of his employment even if the officer acted intentionally or criminally, and even if the officer’s use of force was excessive or the officer misused his authority to use force.

“To be sure, the judge did tell the jury not to ‘substitute the decision of the Milwaukee County District Attorney’s Office for [its] own decision in this case.’ This instruction was too vague to be of any help in deciding the key issue in the Javiers’ statutory claim against the City. The jury needed to hear from the court that the scope-of-employment concept recognizes that an officer can exceed or abuse his authority—even intentionally or criminally—and still be acting within the scope of his employment. The judge should not have refused the Javiers’ proposed limiting instruction or their modified scope-of-employment instruction.”

Reversed and Remanded.

10-3816 Javier v. City of Milwaukee

Appeal from the United States District Court for the Eastern District of Wisconsin, Callahan, Mag. J., Sykes, J.

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