CHICAGO (CN) – The city of Milwaukee may not be blameless for an off-duty officer’s shooting of the driver who was tailgating him, the 7th Circuit ruled, tossing a jury verdict.
As Milwaukee police officer Alfonzo Glover drove home from his 4-p.m.-to-midnight shift in March 2005, a van allegedly began tailing him and flashing its high-beam lights. Glover said he pulled over several times to let the vehicle pass, but the van instead stopped behind him each time.
After Glover eventually pulled over in an intersection and stepped out of his car, the van allegedly accelerated toward him suddenly. Glover said he rolled across the van’s hood to avoid being hit and drew his police-issue semiautomatic Glock while repeatedly identifying himself as a cop.
At that point, the van’s driver, Wilbert Javier Prado, stepped out of the car and extended his arm “with what appeared to look like a gun in his right hand,” according to Glover’s testimony. As Prado allegedly tried to flee, the officer fired 19 shots. Prado died at the scene with eight bullet wounds, seven of which hit him from behind.
The autopsy found that Prado had a blood-alcohol content of 0.22 percent.
Investigators did not recover anything resembling a weapon at the scene, but an inquest jury found that the officer’s actions were justified.
The district attorney charged Glover nevertheless 14 months later with homicide and perjury. Glover was suspended and committed suicide on the day of his arraignment.
Prado’s two minor children, Estrella Adela Javier and Daniela Javier, and his estate filed suit, alleging violations of the Fourth and 14th Amendments by Milwaukee.
Under Wisconsin law, municipalities may be liable for any judgment imposed against its employees if “the jury or the court finds [the employee] was acting within the scope of employment.”
At trial, the city argued that the shooting stemmed from road rage or a personal dispute, making it unrelated to Glover’s official duties. But the Javiers pointed to inquest jury testimony that Glover “pursued and shot Prado pursuant to his off-duty responsibilities under the [police department’s] ‘always on duty rule because Prado had tried to run him over and appeared to point a gun at him.”
The Milwaukee Police Department requires officers, “at all times within the boundaries of the city, to preserve the public peace, prevent crime, detect and arrest violators of the law, and protect life and property.” This applies even to off-duty employees.
U.S. District Judge William E. Callahan Jr. declined the estate’s pressure to instruct the jury about how an officer would act with the scope of employment.
Though the jury ultimately awarded the Javiers $1.85 million in damages against Glover, it did not find the city liable.
The 7th Circuit ordered a new trial last week, finding that the “materially incomplete” jury instruction may have affected determination of the city’s liability.
“The concept is not intuitive, and we have noted that scope-of-employment issues can be especially challenging in cases alleging police misconduct,” Judge Diane Sykes wrote for a three-judge panel.
“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,” she added.
At the retrial, the Javiers cannot instruct the jury about a ratification theory, which could show that Glover’s continued employment with the police department amounted to a tacit approval of his actions.
Wisconsin law “holds that an employer’s retention of an employee after his wrongful act does not constitute ratification,” the court found.
This ruling will likely preclude the Javiers from introducing Glover’s criminal indictment.
“Given the powerful effect of this evidence on the mind of the average juror, any remaining relevance (and we can’t think of what that might be) seems substantially outweighed by the risk of unfair prejudice and the potential to mislead the jury,” Sykes wrote.