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Co-Workers Case Analysis

Parties should not rely on this decision until the Supreme Court has the opportunity to review it, be-cause there it will almost certainly be reversed if reviewed.

This is evident from comparing the language in the Milwaukee ordinance with the language in sec. 895.46.

Section 895.46 provides that municipalities shall pay the judgments against its officers in two circumstances: (1) when the action is against an officer “in his official capacity”; and (2) when the officer is sued because of acts taken “while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment.”

However, the Milwaukee ordinance only provides that the city will pay an officer’s liabilities when the officer is sued “in his official capacity.” Noticeably absent from the ordinance is a provision for indemnification when the officer is sued in the second circumstance — merely “acting within the scope of employment.”

Sec. 895.46 nevertheless requires such indemnification, but nothing in the ordinance does, and presumably, this is deliberate on the city’s part.

It is a logical decision on the city’s part. A suit against a police officer in his official capacity is “generally … only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55 (1978).


Wisconsin Court of Appeals

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The city naturally would pass a statute requiring itself to indemnify its employees for damages it must pay when acting as the agent of the city, but not for damages an employee must pay in his individual capacity.

Furthermore, “in an official-capacity suit the entity’s ‘policy or custom’ must have played a part in the violation of federal law. Kentucky v. Graham, 473 U.S. 159, 166 (1985)(cites omitted).”

Clearly, the lawsuit here is not against the police officer in his official capacity; it is a garden variety claim of negligence resulting in an automobile accident, not a civil rights suit under federal law.

Accordingly, the only reasonable interpretation of the ordinance is that the city has chosen (as is its right) not to waive its right to assert the exclusive remedy provisions of the worker’s compensation law in suits involving co-employee negligence, except via collective bargaining agreements. It thus should be expected that this decision will be reversed if the Supreme Court grants review.

– David Ziemer

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David Ziemer can be reached by email.

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