Javier v. City of Milwaukee

Plaintiffs were entitled to new trial in action under Wisc. statute that required defendant-City to pay any judgment obtained against defendant-police officer for acts performed within scope of officer's employment where plaintiffs were successful in section 1983 action that defendant-police officer used excessive force in fatally shooting plaintiffs' decedent during off-duty incident in which police officer asserted that plaintiffs' decedent had tailgated officer and had tried to run him over with car. While jury eventually found that officer had not acted within scope of his employment during incident, Dist. Ct. erred in failing to give instruction informing jury that police officer, who had been charged with murder of decedent, could nevertheless be found to have acted within scope of his employment where: (1) plaintiffs' proffered instruction was accurate statement of law; (2) record showed that City required its officers to take appropriate police action for incidents occurring during their off hours; and (3) Dist. Ct.'s instruction failed to inform jury that employee can misuse or exceed his authority while still acting within his employment.