Bench Memos

Law & the Courts

NWLC’s Absurd Attack on Judge Barrett

When a male guard at a county jail, in defiance of the county’s clear policies, repeatedly raped a female inmate, was he acting within the scope of his employment such that he is entitled under Wisconsin law to be indemnified by the county for the damages award that the inmate receives against him?

Litigation makes odd bedfellows. So it is that the National Women’s Law Center, a feminist group dedicated to “fight[ing] for gender justice,” insists that the male prison guard was acting within the scope of his employment when he raped the inmate. For that was the only way to ensure that the inmate was able to recover the $6.7 million award that she received against him. And, much more importantly, after all the other attacks on Supreme Court nominee Amy Coney Barrett have fizzled out, NWLC now desperately seizes on that claim as a way to bash her.

There are lots of good reasons why the opinion rendered more than two years ago in Martin v. Milwaukee County was never mentioned at Judge Barrett’s confirmation hearing last week and never made it onto the hit lists that Barrett’s opponents have been compiling ever since she rose to national attention during her Seventh Circuit confirmation battle three years ago.

In that case, Barrett joined a unanimous panel opinion by Judge Daniel Manion that ruled that the county was entitled to judgment as a matter of law that the guard’s rapes “were outside the scope of employment and not susceptible to statutory indemnification”—in other words, that the district court erred in allowing the jury to decide this question.

Given the misuse that NWLC and others are trying to make of this case, it’s worth noting that the third judge on the unanimous panel was liberal Clinton appointee Robert W. Gettleman.  (Gettleman, a district judge sitting on the panel by designation, has described liberal lion Abner Mikva as “a friend and inspiration to me since I first met him in the late 1960s.”) Further, when the plaintiff requested en banc review of the panel’s decision, not a single judge on the Seventh Circuit called for a vote on the request.

On the legal question in this case, which is a question of Wisconsin law, here’s an extensive excerpt from the panel ruling:

Courts have phrased the scope[-of-employment] test for § 895.46 [the indemnification statute] in slightly different but compatible ways. We distill the test to its essence. An act is not in the scope unless it is a natural, not disconnected and not extraordinary, part or incident of the services contemplated. 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. 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. We must consider the employee’s intent and purpose, in light of subjective and objective circumstances….

No reasonable jury could conclude the sexual assaults were natural, connected, ordinary parts or incidents of contemplated services; were of the same or similar kind of conduct as that Thicklen was employed to perform; or were actuated even to a slight degree by a purpose to serve County. No reasonable jury could conclude the sexual assaults were connected with the employment objectives (much less closely connected) or incidental to them in any way. No reasonable jury could regard the sexual assaults as improper methods of carrying out employment objectives. The evidence negates the verdict.

Uncontested evidence at trial demonstrated County thoroughly trained Thicklen not to have sexual contact with inmates. County expressly forbade him from having sexual contact with an inmate under any circumstances, regardless of apparent consent. County’s training warned him that such sexual contact violates state law and the Sheriff’s Office’s mission. County not only instructed him not to rape inmates; it also trained him how to avoid or reject any opportunity or invitation to engage in any sort of sexual encounter with inmates. For example, if an inmate “comes on” to him, he should tell the inmate the behavior is inappropriate, discipline the inmate, and report the incident to a supervisor. Thicklen even answered quizzes demonstrating his understanding. Martin presented no evidence at trial that this training was deficient or that Thicklen did not understand it. Martin failed to offer any evidence the sexual assaults were natural, connected, ordinary parts or incidents of the services contemplated. She presented no evidence from which a reasonable jury could conclude these sexual assaults were similar to guarding inmates. And she presented no evidence from which a reasonable jury could conclude the sexual assaults were actuated in any way by a purpose to serve County.

In short, NWLC’s charge that this opinion is evidence of Judge Barrett’s supposed “extremist beliefs” and “completely disregards the lived experiences of millions of sexual assault survivors” is baseless.


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