investigations, issued reports and testified, all for the
purpose of concealing their own burglaries, because they were
doing, albeit improperly and for their own purposes, the type of
thing law enforcement personnel do. In Coleman,
indemnification was granted to defendants who fired the
plaintiff and then had him arrested to squelch an investigation
into a corruption scheme in which they were deeply implicated.
Firings by the mayor and arrests by the chief of police were a
natural part of or incident to the service employment.
There is much to commend that view of scope of employment.
Here the Sheriff had clothed Givens with the power to act as a
custodian, with physical control over prisoners, and it could be
anticipated that he would speak to and touch them in the course
of his performance of his duties. If he used unwarranted force,
the Sheriff would in all probability be liable. Krieger v.
Village of Carpentersville, 8 Ill. App.3d 243, 247-48,
289 N.E.2d 481, 483 (2d Dist. 1972). Sexual molestation and a
physical beating can both be manifestations of a desire to
exercise domination and power. Restatement (Second) of Agency,
which the Illinois courts have often relied upon, recognizes in
section 231, Comment a, that minor crimes committed in the
prosecution of the business can reasonably be anticipated and in
section 245 that an unauthorized use of force can lead to the
master's liability if the act was not unexpectable in view of
the duties of the servant. It is not unexpectable that the
exercise of officially sanctioned coercive power by a male over
a female may sometimes be abused. See Mary M. v. City of Los
Angeles, 54 Cal.3d 202, 213-14, 285 Cal.Rptr. 99, 814 P.2d 1341
At the same time, we recognize that a federal court is but a
surrogate state court in these circumstances and we are enjoined
to be cautious in developing legal concepts that state appellate
courts cannot review. See Holtz v. J.J.B. Hilliard W.L. Lyons,
Inc., 185 F.3d 732, 750 (7th Cir. 1999). The Illinois courts
have repeatedly rejected sexual misconduct as being within the
ambit of scope of employment, emphasizing that such conduct is
solely for the personal benefit of the transgressor. In Deloney
v. Board of Education of Thornton Township, 281 Ill. App.3d 775,
217 Ill.Dec. 123, 128-31, 666 N.E.2d 792, 797-800 (1996), a
truant officer had sexual relations with a 16-year-old student.
The court, in rejecting any duty on the part of the school
district to defend, distinguished excessive force cases which
are capable of being characterized as an extension of the police
function. The public employment provided the opportunity for
misconduct, but that conduct could not be deemed an extension of
his responsibilities. Excessive force can have a dual purpose —
to make an arrest, to punish, to extract a confession (see
Wilson v. City of Chicago, 120 F.3d 681, 685 (7th Cir. 1997) —
but sexual misconduct is solely for personal gratification).
Deloney followed Randi F. v. High Ridge YMCA,
170 Ill. App.3d 962, 120 Ill.Dec. 784, 524 N.E.2d 966 (1988). Bates
v. Doria 150 Ill. App.3d 1025, 104 Ill.Dec. 191, 502 N.E.2d 454
(1986), and Webb by Harris v. Jewel Companies, Inc.,
137 Ill. App.3d 1004, 92 Ill.Dec. 598, 485 N.E.2d 409 (1985), all of
which held that sexual misconduct was outside the scope of
employment. Each is distinguishable to a degree: Webb and
Randi involved private actors, and in Bates the crime was
rape. In Webb, however, the court specifically noted that
sexual assault, whether rape or fondling, had no relation to the
business of the employer: Webb, 92 Ill.Dec. at 601-02, 485
N.E.2d at 412-13. Then, in Wright v. City of Danville,
174 Ill.2d 391, 221 Ill.Dec. 203, 675 N.E.2d 110 (1996), the
Illinois Supreme Court held that city commissioners who tied the
settlement of a voting rights case to their retention as city
employees were acting beyond the scope of their employment. The
court, relying upon Webb and Deloney, explained that the
misconduct was solely for the commissioners' personal benefit
and that the public employment provided the opportunity for acts
that were not an extension of their legitimate functions.
Wright, 221 Ill.Dec. at 210-212, 675 N.E.2d at 117-119.
Settlement of the voting rights case was the type of thing
commissioners do, even though done improperly. The approach by
the Illinois Supreme Court in Wright conflicts with that of
the Seventh Circuit in Coleman and Hibma, both decided about
a decade before. In light of Wright, Deloney, Randi F. and
Bates, with their emphasis on personal benefit, we do not
believe we can predict that the Illinois courts would conclude
that the sexual misconduct alleged here is within the scope of
employment, justifying indemnification. The motion for summary
judgment is granted.
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