February 7, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
1:14-cv-01885-RLY-DML - Richard L. Young, Judge.
Bauer, Rovner, and Sykes, Circuit Judges.
Robinet and the City of Indianapolis were codefendants in a
civil-rights action. Robinet, a police officer, was accused
of failing to intervene in an escalating domestic dispute
between two fellow police officers. The dispute ended
violently in a tragic murder-suicide, and the murder
victim's estate asserted claims against Robinet and the
City under 42 U.S.C. § 1983 and Indiana law. They won
the case; the district judge rejected the estate's claims
and entered summary judgment for the defendants. Robinet then
asked the judge to order the City to pay his atorney's
fees and costs under Indiana Code § 34-13-4-1, a
public-employee indemnification statute. The judge denied the
motion and Robinet appeals.
affirm. The indemnification statute requires a public
employer to pay defense costs in a civil-rights action
against an employee only if the employee was acting within
the scope of his employment when he commited the act or
omission in question. A mere allegation to that effect does
not trigger the indemnification obligation. The judge held
that Robinet acted outside the scope of his employment during
the events at issue here; that is, he acted as a private
person, not a police officer. Robinet does not challenge that
factual determination, so his claim for costs and fees fails.
Anders and Kimberlee Carmack were Indianapolis police
officers. They married in October 2010 and divorced three
years later. Anders soon launched an alarming campaign of
harassment and intimidation, stalking Carmack while she was
on police runs and calling her incessantly throughout the
day. He once pursued Carmack in his police car and cornered
her in a parking lot. Changing tactics, he threatened to
publish naked pictures of Carmack and publicly disclose her
use of anxiety medication if she did not continue to have sex
with him. Carmack gave in to this demand and others, fearing
that if she refused, Anders would kill her.
police department eventually got wind of these events and
opened a criminal investigation against Anders for stalking,
rape, batery, and residential entry. The department placed a
GPS tracking device on his car with a warning mechanism to
alert Carmack if he passed nearby. The department also
obtained search warrants for Anders's home, person, and
effects. Carmack began spending nights away from home so
Anders could not track her whereabouts. At the
department's suggestion, she also secured a protective
order against Anders.
efforts were insufficient to protect her from her ex-husband.
Anders eventually discovered the GPS device and called
Robinet-his friend and fellow police officer-and asked to
meet in a nearby church parking lot. Robinet arrived at that
location and found Anders kneeling behind the trunk of his
car. Anders pointed to an object on the bumper and asked if
it was a tracking device. Robinet confirmed that it was and
Anders then drove away. Robinet did not tell investigators
that Anders had discovered the GPS device. Ten days later
Anders drove to Carmack's house and killed her and
himself. She was not alerted to his approach because he drove
his grandmother's car.
estate sued the City, Robinet, and other officials alleging
that they violated her rights under the Fourteenth Amendment
and Indiana law. The claims against Robinet were premised on
a theory of wrongful failure to intervene to protect Carmack.
The judge rejected the estate's claims and entered
summary judgment in favor of the defendants. As relevant to
this appeal, the judge held that Robinet was not liable for a
constitutional violation under § 1983 because he did not
act under color of state law during the events in question.
The judge also held that the City was not vicariously liable
on the state tort claims because Robinet acted outside the
scope of his employment at all relevant times.
months later Robinet asked the court to order the City to pay
his atorney's fees and costs under § 34-13-4-1, an
Indiana public-employee indemnification statute. The judge
denied the motion, ruling that the statute obligates public
employers to reimburse an employee's defense costs in
civil-rights litigation only when the employee acted within
the scope of his employment when he commited the acts or
omissions in question. Because the claims against Robinet
arose out of his acts or omissions as a private person, not a
police officer, the judge held that he was not entitled to a
publicly funded defense.
does not challenge the judge's ruling that the
estate's claims rested entirely on acts or omissions he
com-mited outside the scope of his employment. He contests
only the judge's interpretation of the public-employee
indemnification statute. We r e view this legal ...