[60] CUDAHY, Circuit Judge, concurring in part and dissenting in part.

I agree with the cogent analysis of the majority in holding that the actions of the deputy sheriffs were within the scope of their employment and concur in Section I of the panel opinion. I see no way to distinguish the acts of the deputy sheriffs here from those of the police officers involved in Bell v. City of Milwaukee, 536 F. Supp. 462 (E.D.Wis. 1982), aff'd in part, rev'd in part, 746 F.2d 1205 (7th Cir. 1984), and Cameron v. City of Milwaukee, 102 Wis.2d 448, 307 N.W.2d 164 (1981). In those cases, as here, the officers were acting for their own purposes but were doing, albeit very improperly, the type of thing which law enforcement personnel do. In Bell this court held that the city was required under section 895.46 to indemnify the officer for damages arising from the shooting and cover-up. 746 F.2d at 1271-72. In Cameron the Wisconsin Supreme Court held that the city was not entitled to summary judgment on the question whether the actions of the policemen were outside the scope of their employment because a finder of fact could reasonably conclude that the officers were acting within the scope of their employment. 102 Wis.2d at 459-60, 307 N.W.2d 164. It is also important to note that the Supreme Court of Wisconsin has recently affirmed a jury verdict that certain acts of an employee were within the scope of his employment where the acts were similar to those for which he had been hired and were made possible only by virtue of his role as employee, even though there was evidence the acts were done solely for the private purpose of the employee. State v. Beaudry, 123 Wis.2d 40, 365 N.W.2d 593 (1985). In addition, I do not believe it makes any difference whether the 1977 or 1983 version of the indemnity statute applies. The scope of employment language is the same in each, and the County is too deeply involved in the defense of this case to try at this point to wash its hands of the deputies' actions that are within the scope of employment.

However, I must dissent from parts of Sections II and III. I believe that the evidence of the sexual assault on Hibma while he was imprisoned in the Green Bay Reformatory should have been admitted. It was a matter for a properly instructed jury whether the defendant's acts in "framing" Hibma were the proximate cause of the prison rapes. Presumably, the factors noted in Comment f of Section 452 of the Restatement (quoted by the majority ante at 1156) would form the basis of such an instruction.

I do not disagree with the majority that Hibma's custody was transferred from the deputies to the Wisconsin prison system, which then had the primary responsibility for Hibma's protection, and that the sexual assault in question was an intentional act. But it does not follow from these facts that sexual assault is a consequence of false imprisonment which can be kept from the jury on a superseding cause theory. The majority reasons that because an intentional act against which a third party has a duty to protect the original tort-feasor's victim might be a superseding cause, the one before us is a superseding cause, and is such as a matter of law. This reasoning is quite fallacious. Indeed, on the majority's theory, a policeman who beat an individual could never be liable for any injuries resulting from the malpractice of the physician to whom the victim had resorted for treatment of the injuries sustained in the beating. Of course, the duty to protect would have shifted from the policeman to the physician. Yet under both general tort concepts and § 1983 such a policeman could be liable for the injuries.

"Violence is unfortunately endemic to American prisons." Murphy v. United States, 653 F.2d 637, 642 (D.C. Cir. 1981); see also Martin v. White, 742 F.2d 469, 472-73 (8th Cir. 1984). Gang rapes and homosexual assaults are commonplace and frequent. As Justice Blackmun has written,

[a] youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of the stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.

Even more appalling is the fact that guards frequently participate in the brutalization of inmates. The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions.

United States v. Bailey, 444 U.S. 394, 421-22, 100 S.Ct. 624, 640, 62 L.Ed.2d 575 (1980) (Blackmun, J., dissenting) (footnotes omitted). Further, the number of § 1983 actions filed by prisoners alleging the failure of prison authorities to protect them from rape and assault is legion.

I believe, therefore, that it is a jury question whether homosexual rape is not such a routine and foreseeable part of this, and indeed of any, kind of prison experience — regardless of the vigilance of the prison guards — that the chain of causation was broken by a superseding cause. The authorities cited by the majority show, I believe, that it is a question of fact for the jury whether the deputies' actions in this case were the proximate cause of the injuries suffered in prison by the plaintiff.

In § 1983 actions based on false imprisonment, the injury must be proximately related to the wrong. Johnson v. Greer, 477 F.2d 101, 105 (5th Cir. 1973); Whirl v. Kern, 407 F.2d 781, 797 (5th Cir. 1968), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969). The statute does not add a qualification that only a defendant who is the immediate, direct and precipitating cause of the plaintiff's injuries is liable to him. Redmond v. Baxley, 475 F. Supp. 1111, 1116 (E.D.Mich. 1979). In defining proximate cause, the reasoning of the Fifth Circuit in Johnson v. Greer, on which the majority relies, is instructive.

Neither of these [prior] cases, however, focused on the proper rule to be applied in determining whether the jury was proximately related to the wrong or a foreseeable consequence thereof. Thus, we look for guidance to "the prevailing view [of tort law] in this country" in determining the proper federal rule to apply to this case.

. . . .

We focus our opinion not on the metaphysical "but for" sequence of events preceding Johnson's injury but rather on the question of whether the principles of logic, fairness, and justice dictate the defendant should be held liable in a given situation. The cases are in accord that even a willful or intentional tort feasor does not become an insurer of the safety of those whom he has wronged. For example, if the [prison] had been destroyed by an earthquake, no one could rationally contend Greer should be liable for injuries befalling Johnson. On the other hand, the courts have generally held that where the acts of a defendant constitute an intentional tort or reckless misconduct, as distinguished from mere negligence, the aggravated nature of his action is a matter which should be taken into account in determining whether there is a sufficient relationship between the wrong and plaintiff's harm to render the actor liable. Specifically, the factors to be taken into account are the tort feasor's intention to commit a wrongful act, the degree of his moral wrong in so acting, and the seriousness of the harm intended. The touchstone for deciding the scope of the defendant's liability in a false imprisonment action properly brought under a federal statute is the intent and object of the officer in detaining the plaintiff. While, as we have iterated, mere good intentions do not in themselves create a defense to the action, justice, fairness, and sound policy coalesce to indicate that an officer acting under color of law without malice or bad intent should be liable only for those injuries which an ordinarily prudent man would reasonably foresee would result from his actions. On the other hand, officers acting with malice or bad intent ought additionally to be held responsible for those injuries which have a more attenuated causal relationship to their willful misconduct. Thus, in a false imprisonment action brought under Section 1983, the tort feasor acting under color of law with malice or bad intent must be held responsible for all injuries which could have been prevented by the exercise of the utmost caution characteristic of very careful men, though even he remains insulated from injuries caused by wholly unforeseen accidents occurring without his agency. Nor is he responsible for injuries against which no human care or foresight could guard and which are not caused in any degree by his gross neglect or intentional conduct.

. . . .

The correct rule of law to be applied to this cause is indicated by analogy in the Restatement of Torts, Section 870.

A person who does any tortious act for the purpose of causing harm to another or to his things or to the pecuniary interest of another, is liable to the other for such harm if it results, except where the harm results from an outside force the risk of which is not increased by the defendant's act. [Emphasis added.]

Comment "g" to that section amplifies this rule.

Even where the defendant's act is in fact a cause of harm, in the sense that the harm would not otherwise have occurred, he is not liable to a person whom he intended to harm and who has been harmed, unless from the standpoint of a reasonable man, his act in some degree increased the risk of that harm.

Though this section of the Restatement deals expressly with the necessary causal relationship between an intentional wrong and a resulting intended injury, a fortiori the principle applies where, as here, an unintended injury results from an intentional tort.

Johnson v. Greer, 477 F.2d at 106-07 (first emphasis added) (citations omitted).

No one contends that the deputies intended that Hibma be raped in prison, but their actions did obviously and substantially increase the risk of that harm. Therefore, it is a question of fact for the jury whether sexual assault is not a natural and probable consequence of being sent to prison for an extended period. See Wade v. Haynes, 663 F.2d 778 (8th Cir. 1981), aff'd on other grounds. 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Johnson v. Greer, supra. It is not, in my view, a consequence which can be excluded as a matter of law on a superseding cause theory. One who wrongfully sends another to prison may justly bear damages resulting from the uglier features of prison life.

I also disagree with the majority on the award of attorney's fees. The plaintiff in a § 1983 action has a right to a jury trial. It was therefore an abuse of discretion for the district court to reduce the award because it would have taken only one day to justify an award of damages in a bench trial. Further, Sawyer County did not limit its defense to the issue of scope of employment, but contested the amount of damages for which the individual defendants would be liable whether or not the county was required to indemnify them. This defense benefited both the individual defendants and the county. For this reason, it was also an abuse of discretion to reduce the fee award on the ground that much of the plaintiff's work would have been unnecessary but for the intervention of the county. The individual defendants accepted the benefit of the county's intervention on their behalf. They should not be allowed to further profit on the theory that the plaintiff would have had an easier time if the county had not intervened. The proper issue is not who is presenting the defense, but on which claim the plaintiff is being forced to expend additional effort through action of the intervening defendant.

I therefore respectfully dissent as to the matters indicated.

[72] COFFEY, Circuit Judge, concurring in part and dissenting in part.

I concur in Section II of the opinion that the district court judge did not abuse his discretion in denying the plaintiff's motion to increase the damage award or in denying the plaintiff's motion for a new trial. I, likewise, concur in Section III of the opinion that the district court judge did not abuse his discretion in awarding the plaintiff $32,643 in attorney's fees. I dissent, however, from the majority's conclusion in Section I of the opinion that the district court judge erred in entering judgment notwithstanding the verdict in favor of the intervening defendant, Sawyer County, Wisconsin. The record clearly reveals that the defendants, Richard Odegaard, James Nikodem, and Michael Szula, were not acting within the scope of their employment, as sheriff deputies of Sawyer County, when they deprived the plaintiff of his constitutional rights. Thus, pursuant to Wis. Stat. § 895.46 (1977-78), Sawyer County is not liable for any damages assessed against the defendants.

I

The record reveals that in 1977, the defendants, Richard Odegaard, James Nikodem, and Michael Szula, were employed by Sawyer County, Wisconsin, as full-time deputy sheriffs. In early April 1977, the defendant deputy sheriffs burglarized several summer cottages in the Spider Lake area of Sawyer County, stealing, inter alia, firearms and animal skins. Soon thereafter, the defendant deputy sheriffs became concerned that the Sawyer County sheriff would discover their criminal activities and thus they devised a scheme to frame the plaintiff, George Hibma, with the burglaries that they had, in fact, committed. The defendants chose Hibma as the target of their cover-up conspiracy because he had recently been convicted of a similar burglary involving the theft of animal skins, and was still serving probation for that crime. In addition, Hibma had previously been convicted in Federal court for conspiracy to manufacture a controlled substance and was, as of April 1977, chemically dependent upon various stimulant drugs, including cocaine, Methadrine, and Ritalin, a medication prescribed for his narcolepsy.

In furtherance of the cover-up conspiracy, the defendants contacted William Proffitt, an acquaintance of Hibma's who was serving a sentence in the Sawyer County jail on a daytime work release program. The defendants initially asked Proffitt to purchase a quantity of drugs from Hibma, assuring Proffitt that if he cooperated in the scheme his sentence would be reduced. Proffitt refused to solicit the drugs but did agree to approach Hibma and ask if he would steal some firearms for later sale through a fence operation in Minnesota. On at least seven separate occasions in early April, Proffitt contacted Hibma and urged him to steal firearms. Finally, on April 19, 1977, Hibma stole a handgun and delivered it to Proffitt who turned the handgun over to the defendants. Two days later, at approximately 8:30 a.m. on the morning of April 21, 1977, Hibma met with Proffitt to receive his cash payment and at that time the defendants apprehended Hibma, placed him under arrest, read him his Miranda rights, handcuffed him, and transported him to the Sawyer County jail.

Upon arrival at the jail, Hibma informed the defendants that he was suffering drug withdrawal symptoms and needed medical attention. Defendant Odegaard responded, "Gee, that is too bad," and persisted in interrogating Hibma concerning the theft of the handgun and his knowledge of the Spider Lake burglaries that the deputy sheriffs had, in fact, committed. Hibma admitted to stealing the handgun but denied any knowledge of, or participation in, the Spider Lake burglaries. Defendant Odegaard suggested that if Hibma was truly innocent of the previous burglaries, he should sign a consent form authorizing the defendants to search his house without a warrant. Hibma responded that he "had nothing to hide," and thus he signed the consent form. Unknown to Hibma, the defendants had secretly placed the animal skins and firearms that they had stolen in the Spider Lake burglaries around Hibma's premises.

Following Hibma's signing of the consent form, the defendants booked Hibma, took his photograph and fingerprints, placed him in a cold shower, dressed him in a jailhouse uniform, and locked him in a holding cell. The defendants then left the jail for a "couple of hours" to search Hibma's premises, at no time providing Hibma with medical treatment for his drug withdrawal symptoms. When the defendants returned to the jail, they hauled Hibma into Odegaard's office and questioned him concerning the animal skins and rifles they claimed to have discovered at his residence. Hibma continued to deny knowledge of the items or participation in any of the Spider Lake burglaries. On three or four separate occasions, the defendants informed Hibma that he was going to be charged with one count of theft and fourteen counts of burglary and, if found guilty, that he would serve approximately ninety-four years in prison. Throughout this questioning period, Hibma continued to suffer from drug withdrawal, experiencing chills, vomiting, and diarrhea, but during the entire period Hibma insisted that he had no knowledge of the Spider Lake burglaries. Unable to coerce a confession, the defendants transported Hibma back to his holding cell and continued to refuse his request for medical assistance.

While confined in the holding cell, Hibma felt as though "nothing was going to be done" for his illness, so he decided to draw attention to his condition by breaking his eyeglasses, placing a superficial cut on his wrist, and screaming that he was committing suicide. The defendants immediately called a doctor, who treated the superficial wrist wound and, realizing that Hibma was suffering drug withdrawal symptoms, made arrangements for Hibma to receive professional care for his chemical dependency problem. On April 22, 1977, at approximately 3:00 a.m. in the morning, some eighteen hours after Hibma had been arrested by the defendants, he was transported to the Dunn County Health Care Center in Menomonie, Wisconsin, where he underwent treatment for his chemical dependency. Later that same day, defendant deputy sheriff Nikodem knowingly filed a false sheriff's report stating that Hibma was responsible for the Spider Lake burglaries. Similarly, defendant deputy sheriff Szula knowingly signed a false criminal complaint, charging Hibma with the firearm theft and the Spider Lake burglaries. Some five days later, on April 27, 1977, defendant deputy sheriffs Odegaard and Nikodem knowingly prepared a false press release for the local Sawyer County newspaper, stating that Hibma's arrest "resulted in clearing numerous burglaries in [sic] Sawyer County has been plagued with since the beginning of the year." See Sawyer County Gazette, April 28, 1977.

On April 29, 1977, Hibma appeared in the Circuit Court of Sawyer County, waived his right to a preliminary hearing and, pursuant to a plea agreement, plead guilty to the handgun theft in return for a dismissal of the burglary charges. In response to a request of the circuit court judge that the State of Wisconsin introduce factual evidence to support the theft charge, defendant deputy sheriff Odegaard testified, inter alia, that, "[a]n informant informed us that Mr. Hibma wanted to sell a gun to him for a certain price and the gun was delivered by Mr. Hibma and money was transferred and Mr. Hibma was picked up on it." The court sentenced Hibma to "an indeterminate term not to exceed two years" for the theft charge and Hibma actually served a period of confinement of one year and one day in various county and state institutions.

In May 1980, the Federal Bureau of Investigation commenced an unrelated probe of the Sawyer County Sheriff's Department for alleged liquor law violations and, following a thorough year-and-a-half investigation, the Federal officials uncovered the defendants' unlawful scheme to frame Hibma for the Spider Lake Burglaries. In December 1981, the Government charged defendant Nikodem with two counts of making false declarations to a Federal Grand Jury in violation of 18 U.S.C. § 371, 1623, defendant Szula with one count of making false statements to the Federal Bureau of Investigation in violation of 18 U.S.C. § 1001, and defendant Odegaard with one count of depriving Hibma of his civil rights in violation of 18 U.S.C. § 241. All three defendants plead guilty to the crimes charged and, in view of the egregious nature of the offenses, the district court judge sentenced Nikodem to a three year prison term, Szula to a four year prison term, and Odegaard to a five year prison term.

In July 1982, Hibma filed a section 1983 lawsuit against the defendant deputy sheriffs, alleging a violation of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fourteenth Amendment right to due process of law. Sawyer County sought and was granted leave to intervene as a party defendant because of its potential liability, under Wis.Stat. § 895.46, to pay the damages assessed against Sawyer County officers for "acts committed while carrying out duties as an officer or employee . . . acting within the scope of employment." At the time of the defendants' unlawful actions in April 1977, deputy sheriffs employed on a civil service basis, such as the defendants, were included within the scope of Wis.Stat. § 895.46. The statute provided that the county's payment of any damages assessed against a deputy sheriff, employed on a civil service basis, who was carrying out his duties and acting within the scope of his employment, was "discretionary and not mandatory." The purpose of the discretionary determination, on the part of the county, as to whether or not to pay for the damages assessed against a deputy sheriff employed on a civil service basis, is to accommodate art. VI, sec. 4 of the Wisconsin Constitution which provides that "the county shall never be made responsible for the acts of the sheriff," with Wis.Stat. § 895.46, which is intended to include the greatest number of public officials possible. See Bablitch and Bablitch v. Lincoln County, 82 Wis.2d 574, 582-83, 263 N.W.2d 218, 223 (1978). Thus, under the 1977 version of section 895.46, Sawyer County's payment of any damages assessed against the defendant deputy sheriffs would be, at best, only discretionary and not mandatory as directed by the majority.

I note that in 1983, the Wisconsin legislature amended Wis.Stat. § 895.46 to provide:

"(d) On and after March 1, 1983, all persons employed as deputy sheriffs, as defined in s. 40.02(48)(b) 3, are covered by this subsection. The county board shall adopt written policies for payments under this subsection on behalf of any other person, provided that person has satisfied the minimum standards of the law enforcement standards board, who serves at the discretion of the sheriff as a law enforcement officer as defined in s. 165.85(2)(c), and the county may make the payments upon approval by the county board."

Judge Grant incorrectly claims that "the 1983 version of section 895.46 applies to the instant case." The law in Wisconsin expressly provides that "[a]n amendatory statute, like other legislative acts, takes effect only from its passage, and will not be construed as retroactive or as applying to prior facts or transactions, or to pending proceedings, unless a contrary intention is expressly stated or necessarily implied." Truesdale v. State, 60 Wis.2d 481, 489, 210 N.W.2d 726, 730 (1973) (emphasis added) (quoting Wisconsin Department of Revenue v. Dziubek, 45 Wis.2d 499, 505, 173 N.W.2d 642, 645 (1970)). See also State ex rel. Briggs Stratton v. Noll, 100 Wis.2d 650, 655, 302 N.W.2d 487, 490 (1981); Dallman v. Dallman, 159 Wis. 480, 486, 149 N.W. 137, 139 (1915). The only exception to this rule is when the statute "is procedural or remedial, rather than substantive, in which case the statute is generally given retroactive effect." Hathaway v. Joint School Dist. No. 1, 116 Wis.2d 388, 400 n. 4, 342 N.W.2d 682, 688 n. 4 (1984) (citing Gutter v. Seamandel, 103 Wis.2d 1, 17, 308 N.W.2d 403, 411 (1981)). See also Boggs v. Morden, 117 Wis.2d 773, 775, 345 N.W.2d 490, 491 (1984). In the present case, Wis.Stat. § 895.46 is clearly a substantive, rather than a procedural or remedial statute, as it provides for the payment of judgments rendered against an officer of the State or other political subdivision. Moreover, the Wisconsin legislature, in amending section 895.46, did not expressly state nor much less imply that the amended statute was to apply retroactively. Accordingly, this court is compelled under the controlling Wisconsin state law to apply the 1977 version of Wis.Stat. § 895.46 to the facts in this case, which arose in April 1977. See, e.g., Hibma v. Odegaard, 576 F. Supp. 1549, 1550 (1984) (applying the 1977 version of Wis.Stat. § 895.46 to the facts in this case). Judge Cudahy asserts that it makes no difference whether the 1977 or 1983 version of Wis.Stat. § 895.46 applies in this case because Sawyer County "is too deeply involved in the defense of this case to try at this point to wash its hands of the deputies' actions. . . ." I disagree with Judge Cudahy's theory that because Sawyer County properly intervened in this action to defend against potential liability and to protect the financial interests of its taxpayers, it is now precluded from exercising discretion in indemnifying the deputy sheriffs for their damages. A thorough analysis of Wisconsin case law reveals that the 1977 version of Wis.Stat. § 895.46 applies in this case and allows Sawyer County to exercise discretion in the payment of damages assessed against deputy sheriffs found to be acting within the scope of their employment.

Prior to the trial on Hibma's section 1983 claim, the parties agreed that the defendants had unlawfully entrapped Hibma into stealing the handgun and thus Hibma was wrongfully convicted and sentenced to prison. The parties stipulated that:

"the activities of the three deputy sheriff defendants, Richard T. Odegaard, James Nikodem and Michael Paul Szula, did indeed amount to entrapment. An entrapment is a defense which can be offered by a defendant and if it is successful will not allow a conviction. The Court believes based upon the stipulation of the parties entrapment did occur and had that been brought to the attention of the authorities of Sawyer County, there would not have been a conviction of the offense for which Mr. Hibma pleaded guilty and was convicted on June 29, 1979; he would not have served a year and a day in the state prisons."

The defendants further admitted that they arrested Hibma and charged him with the Spider Lake burglaries in an attempt to conceal the crimes that they had, in fact, committed. Thus, the parties further stipulated that:

"The reasons or motivations for such acts committed by Defendants, Richard T. Odegaard, James Nikodem, and Michael Szula, against George Hibma were for the purpose of (a) removing themselves as possible suspects for the criminal acts of burglary and theft which Defendants Richard T. Odegaard, James Nikodem, and Michael Szula, had themselves committed. . . ."

Based upon the evidence presented at trial, the jury found that the defendants had deprived Hibma of his constitutional rights in violation of 42 U.S.C. § 1983. The jury awarded Hibma $166,500 in damages, allocating $86,500 to acts committed by the defendants within the scope of their employment and $80,000 to acts committed outside the scope of their employment.

Sawyer County filed a motion for judgment notwithstanding the verdict, arguing that the defendants were at no time acting within the scope of their employment. The district court judge reviewed the relevant Wisconsin case law and the evidence presented at trial to determine whether or not a reasonable trier of fact could have found that the defendants were acting within the scope of their employment when they deprived Hibma of his constitutional rights. The district court concluded that:

"there are no facts or inferences supporting a finding that defendants Odegaard, Nikodem and Szula were acting for anything other than their own purposes in entrapping plaintiff Hibma, engineering his arrest, planting evidence in and stealing property from his home, denying him medical attention during drug withdrawal, seeking the issuance of a complaint charging him with scores of burglaries they knew he had not committed and finally securing his guilty plea and conviction through coercion and false testimony. The ex-deputies' plot to hide their own burglaries did not evolve after they had entrapped and arrested Hibma; rather, the plot was the cause and purpose of their actions from the very beginning of their illegal conduct."

Hibma v. Odegaard, 576 F. Supp. at 1554 (emphasis original). Accordingly, the district court judge granted Sawyer County's motion for judgment notwithstanding the verdict, ruling that because the defendants were not acting within the scope of their employment when they deprived Hibma of his constitutional rights, Sawyer County was not liable, under Wis.Stat. § 895.46, for any of the defendants' damages.

II

To prevail in a civil rights action under 42 U.S.C. § 1983, the plaintiff must establish that the defendant was acting "under color of state law" when he deprived the plaintiff of his constitutional rights. This "under color of state law" element of a section 1983 action is satisfied even when the defendant misuses or abuses his power, so long as that power is conferred by state law and the defendant is clothed with the authority of state law. Indeed, the Supreme Court ruled in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law." 313 U.S. at 326, 61 S.Ct. at 1043 (citing Ex parte Virginia, 100 U.S. (10 Otto) 339, 346, 25 L.Ed. 676 (1880)). See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2748, 73 L.Ed.2d 482 (1982). In the present case, the defendants were at all times employed as full-time deputy sheriffs for Sawyer County, vested with the authority to make lawful arrests, detain criminal suspects at the Sawyer County jail, and file criminal complaints. The record reveals that the defendants violated their oath of office and completely abused their authority, as they unlawfully entrapped Hibma into stealing a handgun, placed him under arrest, transported him to the Sawyer County jail in a sheriff's squad car, booked him, detained him in a holding cell, denied his request for medical attention, filed a false sheriff's complaint, signed a false criminal report, prepared a false press release, and secured Hibma's guilty plea and conviction based upon their conspiracy of entrapment. The record further reveals that the defendants' misuse of power was possible only because they were "clothed with the authority of state law" as deputy sheriffs. Thus, according to the Supreme Court's analysis in United States v. Classic, the defendants acted "under color of state law" when they deprived Hibma of his constitutional rights.

The majority confuses and commingles this "under color of state law" element of a section 1983 action with the completely separate and distinct issue of damage liability under Wisconsin state law. Wis.Stat. § 895.46 (1977-78) provides, in pertinent part, that:

"(1) Where the defendant in any action or special proceeding is a public officer or employe and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employe and the jury or the court finds that such defendant was acting within the scope of employment the judgment as to damages and costs entered against the officer or employe in excess of any insurance applicable to such officer or employe shall be paid by the state or political subdivision of which the defendant is an officer or employe.

* * * * * *

Deputy sheriffs in those counties where they serve not at the will of the sheriff but on civil service basis shall be covered by this subsection, except that the provision relating to payment of the judgment shall be discretionary and not mandatory. In such counties the judgment as to damages and costs may be paid by the county if approved by the county board."

(Emphasis added). Pursuant to Wisconsin state law, Sawyer County may be liable for any damages assessed against the defendants for carrying out duties, as officers of Sawyer County, within the scope of their employment. The majority opinion suggests that once the officers are found to be acting "under color of state law" it is implicitly assumed that the officers are also acting within the scope of their employment for purpose of Wis.Stat. § 895.46. According to the majority:

"Odegaard, Nikodem and Szula participated in investigations, reported to superiors, and gave testimony at hearings and in court regarding Hibma. While the deputies' actions were unquestionably designed to further their own objectives of escaping punishment for their own wrongdoing, they also were designed to further the objectives of Sawyer County. They were performing their duties as deputy sheriffs but using quite improper methods of carrying out those duties."

I dissent from the majority's unreasoned conclusion that the defendants' actions were designed to further the objectives of Sawyer County when the sole purpose of the defendants' unlawful conduct was to transfer their criminal liability to an innocent Hibma and thus retain their positions as deputy sheriffs. The defendants admitted at trial that their actions were conceived and carried out for the exclusive, unlawful purpose of removing themselves as suspects in the Spider Lake burglaries. Moreover, I dissent from the majority's complete refusal to distinguish the "under color of state law" element of a section 1983 action from the defined and limiting phrase, "within the scope of employment," as used in Wis.Stat. § 895.46.

Sawyer County's potential damage liability arises solely under Wisconsin state law, not under Federal law, and thus I turn to Wisconsin case law in order to properly interpret the phrase "within the scope of employment," as used in Wis.Stat. § 895.46. In Cameron v. City of Milwaukee, 102 Wis.2d 448, 307 N.W.2d 164 (1981) (" Cameron"), the Wisconsin Supreme Court analyzed the "scope of employment" requirement of section 895.46 and ruled that:

"a finding with regard to action under 'color of law' is not identical to a finding that specific acts are done 'within the scope of employment' of a public official or employee.

* * * * * *

We do not perceive a substantial equation between conduct which is within the scope of a municipal or state employee's employment and conduct which may be termed 'under color of law.' Conduct within the scope of employment is limited to those acts which by law are attributable to the master or employer. However, for purposes of sec. 1983, acts under color of law are not limited to conduct attributable to the state by virtue of the employer-employee relationship."

102 Wis.2d at 456-57, 307 N.W.2d at 168-69 (emphasis added). The Wisconsin District Court, in Harris v. County of Racine, 512 F. Supp. 1273 (E.D.Wis. 1981), likewise, concluded that:

"[i]n interpreting the phrase 'acting within the scope of employment' as used in § 895.46(1), the relevant case law does suggest that the phrase is equivalent to acting 'while carrying out duties as an officer or employe' and does not encompass all actions taken by an employee while acting 'under color of state law.'"

512 F. Supp. at 1279. Moreover, the express language of the statute reveals that the Wisconsin legislature purposefully chose to include the narrow, limiting phrase "within the scope of employment" rather than the broad term "under color of state law," within Wis.Stat. § 895.46. According to the Wisconsin Supreme Court, the "scope of employment" test of Wis. Stat. § 895.46 is a narrow, defined test that does not include "any act growing out of or committed in the course of the discharge of the officer's, employe's or agent's duties. . . ." Ibrahim v. Samore, 118 Wis.2d 720, 725-26, 348 N.W.2d 554, 557 (1984). It is thus apparent from Wisconsin case law that the "scope of employment" requirement of Wis.Stat. § 895.46 is a far more narrow, limited, defined concept of law than the "under color of state law" element of a section 1983 action. Contrary to the majority's analysis, upon a finding that officers are acting under color of state law for purposes of a section 1983 action, it does not necessarily follow that the officers are also acting within the scope of their employment for purposes of Wis.Stat. § 895.46. Instead, the "scope of employment" requirement of section 895.46 is a narrow, limiting concept of law rooted in the doctrine of respondeat superior and including only those acts of an employee that are legally attributable to the employer.

The legislative history of Wis.Stat. § 895.46 reveals that "it was enacted originally to protect public officers from personal responsibility for judgments arising out of their official duties." Horace Mann Ins. Co. v. Wauwatosa Bd. of Ed., 88 Wis.2d 385, 389, 276 N.W.2d 761, 764 (1979). See also Schroeder, Gedlen, Riester, etc. v. Schoessow, 108 Wis.2d 49, 68, 321 N.W.2d 131, 140 (1982). The statute, as originally enacted in 1943, "required the state or political subdivision to pay judgments as to damages and costs against public officers acting in an official capacity and in good faith." Horace Mann Ins. Co. v. Wauwatosa Bd. of Ed., 88 Wis.2d at 389, 276 N.W.2d at 764 (emphasis added). In 1973, the Wisconsin legislature amended the statute, substituting the phrase "within the scope of employment" for the phrase "in good faith." According to the Wisconsin Supreme Court, "[t]he concept of 'scope of employment' has its genesis in the doctrine of respondeat superior. The general rule is that a master is subject to liability for the torts of his servants committed while acting within the scope of their employment." Cameron, 102 Wis.2d at 456, 307 N.W.2d at 168. The Wisconsin Supreme Court explained that under the concept of "scope of employment," as used in Wis.Stat. § 895.46:

"'[n]ot every act which an agent or servant may do while he is in the place appointed for the service, or during the time in which he is engaged in the performance, can be deemed to be within the course of the employment, or within the scope of the authority. The test lies deeper than that; it inheres in the relation which the act done bears to the employment. The act cannot be deemed to be within the course of the employment unless, upon looking at it, it can fairly be said to be a natural, not disconnected and not extraordinary, part or incident of the service contemplated.'"

Id. (emphasis added) (quoting Scott v. MinAqua Bats Water Ski Club, 79 Wis.2d 316, 320, 255 N.W.2d 536, 538 (1977)). In addition, the Wisconsin Supreme Court continues to recognize that, despite substitution of the phrase "within the scope of employment" for the phrase "in good faith" in Wis.Stat. § 895.46, the good faith requirement is "implicit in the question of whether public officials acted within the scope of their employment." Schroeder, Gedlen, Riester, etc. v. Schoessow, 108 Wis.2d at 69, 321 N.W.2d at 141. Thus, Wisconsin case law reveals that the phrase "within the scope of employment," as used in Wis. Stat. § 895.46, is a narrow, limiting concept of law intended to hold employers liable only for those acts of the employee that are performed in good faith and are a natural part or incident of the service contemplated.

In the present case, it is beyond dispute that the defendants did not act in good faith when they deprived Hibma of his constitutional rights. The defendants committed a series of burglaries in the Spider Lake area and intentionally contrived a cover-up scheme to frame Hibma for the burglaries. In furtherance of this cover-up conspiracy, the defendants entrapped Hibma into stealing a handgun, wrongfully arrested Hibma, placed him in the Sawyer County jail, forced him into a cold shower that compounded the chills he was experiencing due to drug withdrawal, and refused his request for medical assistance, all in an attempt to force Hibma to admit crimes that he did not commit. Furthermore, the defendants knowingly, intentionally, and maliciously lied about Hibma's involvement in the Spider Lake burglaries as they prepared a false sheriff's report stating that Hibma committed the burglaries, signed a false criminal complaint alleging that Hibma committed the burglaries, prepared a false press release claiming that Hibma's arrest solved the recent string of burglaries in Sawyer County, and secured Hibma's guilty plea and conviction in Sawyer County Circuit Court based upon their conspiracy of entrapment. Indeed, the defendants admitted at trial that their purpose in committing these illegal acts was to "remov[e] themselves as possible suspects for the criminal acts of burglary and theft" that they had, in fact, committed.

It is further evident that not one of the defendants' actions, as recited in the scandalous record of criminal violations, is legally attributable to the employer, Sawyer County, under the doctrine of respondeat superior. In Wisconsin, an employee's act is within the scope of employment only if "it can fairly be said to be a natural, not disconnected and not extraordinary, part or incident of the service contemplated." Cameron, 102 Wis.2d at 456, 307 N.W.2d at 168. According to the Wisconsin Supreme Court:

"[t]he mere fact that the servant commits a tort during the period of his employment is not enough to put the act within the scope of his employment. The test is whether the servant has stepped aside from the business of his principal to accomplish an independent purpose of his own, or whether he was actuated by an intent to carry out his employment and to serve his master."

Linden v. City Car Co., 239 Wis. 236, 239, 300 N.W. 925, 926 (1941) (emphasis added) (citations omitted). The Wisconsin Supreme Court adds that, "'[i]f the agent or servant . . . steps outside of his employment to do some act for himself, not connected with his principal's business, the latter will not be liable for the agent's negligence while so engaged.'" Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 50, 135 N.W. 507, 510 (1912) (quoting Mechem, Agency § 737). Furthermore, in Wisconsin:

"to make the master responsible for the negligence of a servant under the doctrine of respondeat superior, it is not sufficient that the act was done during period of employment. The act must be one done in the prosecution of the principal's business, not while stepping aside therefrom to serve a personal or some other end. The element of stepping aside which is essential to break the nexus between the master and the servant may be momentary and needs only a change of mental attitude from that of serving the master to that of serving a personal or some other end."

Mittleman v. Lindsay-McMillan Co., 202 Wis. 577, 580, 232 N.W. 527, 528 (1930).

In view of the clear and well-defined "scope of employment" doctrine in Wisconsin, I fail to comprehend Judge Cudahy's reliance upon State v. Beaudry, 123 Wis.2d 40, 365 N.W.2d 593 (1985) (" Beaudry") for the proposition that "acts of an employee were within the scope of . . . employment where the acts were similar to those for which he had been hired and were made possible only by virtue of his role as employee, even though . . . the acts were done solely for the private purpose of the employee." In Beaudry, the manager of the Village Green Tavern in Elkart Lake, Wisconsin allowed two friends to remain in the tavern and consume liquor after the 1:00 a.m. closing hour, in violation of Wis.Stat. §§ 125.68(4)(c), 125.11(1)(a) (1981-82). The Wisconsin Supreme Court held that Janet Beaudry, the co-owner and designated corporate agent for the tavern, was vicariously liable for the manager's conduct because "the jury could conclude that the tavern manager's conduct was sufficiently similar to the conduct authorized as to be within the scope of employment." Id. at 64, 365 N.W.2d at 604. In so holding, the Wisconsin Supreme Court acknowledged that the bar manager's testimony — including his admission that he was never authorized to keep the tavern open after hours and his admission that he was acting for his own independent purpose — supported Beaudry's position that the bar manager was acting outside his scope of employment. The Court concluded, however, that the bar manager's authority to act as he did was solely a question of credibility to be resolved by the jury. Thus, even though there was sufficient evidence to find that the bar manager was acting outside the scope of his employment, the Court deferred to the jury because:

"[t]he credibility of the bar manager's testimony was a matter for the jury. Braatz v. Continental Casualty Co., 272 Wis. 479, 487, 76 N.W.2d 303 (1956). The bar manager's testimony which supports the defendant's position that the manager was acting outside the scope of employment was based on a statement the bar manager gave defendant's counsel the night before trial. The jury may not have believed this testimony which was favorable to the defendant."

Id. Contrary to Judge Cudahy's assertion, the Wisconsin Supreme Court never expressly stated nor implied that conduct engaged in solely for an employee's own private purpose is conduct within the scope of employment as delineated in Wisconsin case law. Instead, the Wisconsin Supreme Court reaffirmed that under the "scope of employment" doctrine of Wisconsin law, as set forth in the Wisconsin pattern jury instructions:

"'A servant or agent is within the scope of his employment when he is performing work or rendering services he was hired to perform and render within the time and space limits of his authority and is actuated by a purpose in serving his employer in doing what he is doing.

* * * * * *

A servant or agent is outside the scope of his employment when he deviates or steps aside from the prosecution of his master's business for the purpose of doing an act or rendering a service intended to accomplish an independent purpose of his own, or for some other reason or purpose not related to the business of his employer.

Such deviation or stepping aside from his employer's business may be momentary and slight, measured in terms of time and space, but if it involves a change of mental attitude in serving his personal interests, or the interests of another instead of his employer's, then his conduct falls outside the scope of his employment.'"

Id. at 65-66, 365 N.W.2d at 596. (quoting Wis.J.I. — Criminal 440 (1966)).

In the present case, the record reveals that the defendants clearly stepped aside from their duties as Sawyer County sheriff deputies and acted for the sole, unlawful, independent, and personal purpose of relieving themselves of criminal liability and removing themselves as suspects in the Spider Lake burglaries. Once the defendants became fearful that the Sawyer County sheriff would discover their participation in the Spider Lake burglaries, they embarked upon a scheme to frame Hibma for the burglaries. The defendants used the power and authority of their office to carry out this unlawful cover-up scheme, entrapping Hibma into stealing a handgun, placing Hibma under arrest, attempting to coerce a confession while undergoing drug withdrawal, denying his request for medical assistance, obtaining consent to search Hibma's residence, planting the evidence from the Spider Lake burglaries on Hibma's premises, and then knowingly, intentionally, and maliciously filing false statements with the Sawyer County Sheriff's Department, the Sawyer County District Attorney, and the Sawyer County newspaper, alleging that Hibma had committed the Spider Lake burglaries. The majority erroneously asserts in footnote 1 that "the deputies' participation in investigations, reporting to superiors, filing and paperwork, testifying at trial, etc. furthered the objectives of Sawyer County." It is absurd to even imagine that three deputy sheriffs who burglarize homes, file false investigative reports, file a false criminal complaint, file false reports with their superiors, testify falsely in a state criminal proceeding, and frame an innocent member of the public, are furthering the objectives of Sawyer County. The majority's unexplained, conclusory statement finds no support in the record. The defendants freely admit that they acted for the sole purpose of "removing themselves as possible suspects for the criminal acts of burglary and theft." The defendants, in effect, concede that they "step[ped] aside from the prosecution of [their] master's business for the purpose of doing an act . . . intended to accomplish an independent purpose of [their] own. . . ." Id.

A thorough examination of the record reveals that each of the defendants' actions was a calculated step to protect their own interests and to prevent discovery of their participation in the Spider Lake burglaries. At no time were the defendants carrying out their duly sworn duties as sheriff deputies for Sawyer County when they violated Hibma's constitutional rights. Indeed, the Wisconsin Supreme Court has never suggested a line of reasoning that would allow a deputy sheriff who commits a house burglary for his own personal gain and then attempts to frame an innocent member of the public with the burglary, to be considered as performing acts within the scope of his employment. It is beyond dispute that a deputy sheriff who engages in such unlawful conduct is not "performing work or rendering services he was hired to perform and render within the time and space limits of his authority. . . ." Id. In sum, the defendants completely abdicated their duties and responsibilities as deputy sheriffs, engaging in illegal activity for the sole purpose of removing themselves as suspects in the Spider Lake burglaries. The defendants' actions were clearly designed to serve their own personal interests and thus, under Wisconsin law, the defendants were at no time acting within the scope of their employment.

I add that given the broad construction of the phrase "under color of state law" for purposes of a section 1983 action and the narrow construction of the phrase "within the scope of employment," a state agent may easily violate 42 U.S.C. § 1983 outside the scope of his employment. For example, in Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979), this court held that a state court judge who had committed "racially motivated acts" against the plaintiff was acting under color of state law for purposes of a section 1983 action but was not entitled to judicial immunity because his remarks were not part of the judicial function. 605 F.2d at 336-37. Similarly, in the present case, the defendants acted "under color of state law" when they deprived Hibma of his constitutional rights but at no time were the defendants' acts in good faith or a natural part or incident of their duties as sheriff deputies for Sawyer County.

The majority claims that the present case "falls squarely within the holding" of Bell v. City of Milwaukee, 536 F. Supp. 462 (E.D.Wis. 1982), aff'd in part, rev'd in part, 746 F.2d 1205 (7th Cir. 1984) (" Bell"). In Bell, the district court ruled that when Milwaukee police officer Grady shot Daniel Bell, planted a knife in Bell's hand to make it look as though Bell had threatened him, and then knowingly, intentionally, and maliciously covered-up his unlawful actions, he was acting within the scope of his employment for purposes of Wis.Stat. § 895.46. The court concluded that:

"[w]hile Grady's actions were unquestionably designed to further his own objective of escaping punishment for his wrongdoing, they also were designed to further the objectives of his employment. He was performing his duties as a police officer but used quite improper methods of carrying out those duties."

Id. at 478. On appeal, this court did not directly address the issue of whether Officer Grady was acting within the scope of his employment for purposes of Wis.Stat. § 895.46, but the court did hold that under section 895.46 the City of Milwaukee had to indemnify Officer Grady for the punitive and compensatory damages arising out of the shooting and cover-up conspiracy. Bell v. City of Milwaukee, 746 F.2d 1205, 1271-72 (7th Cir. 1984). I initially take issue with the majority's bold assertion that the present case is "squarely within the holding" of Bell. In Bell, Officer Grady, for a brief period of time, acted within the course of his employment as a Milwaukee police officer when he stopped Bell for a routine automobile taillight violation. After Officer Grady shot and killed Bell, Grady clearly began to act for his own independent interest as he followed up the killing by planting a knife upon Bell's person and then covered-up his unlawful actions. Indeed, Officer Grady abandoned his original intent in investigating the defective taillight and departed so far from the purpose of his initial lawful contract with Bell that he practically vitiated the effect of such contact. In stark contrast, the record reveals that the defendants in this case had no initial lawful contact with Hibma; rather, as the defendants freely admit, the sole purpose of their unlawful actions and contact with Hibma was to conceal their involvement in the Spider Lake burglaries. From the very inception of their unlawful conspiracy to frame Hibma with the Spider Lake burglaries, the defendant deputy sheriffs "stepped aside from the business of [their] principal to accomplish an independent purpose of [their] own. . . ." Linden v. City Car Co., 239 Wis. at 239, 300 N.W. at 926.

In view of the majority's exclusive reliance upon Bell as a legal basis for holding Sawyer County liable for the damages assessed against the defendant deputy sheriffs, I am compelled to seriously question the district court's conclusion in Bell that Officer Grady's planting of the knife on Bell's person and his subsequent cover-up of the unlawful action were within the scope of his employment as a Milwaukee police officer. Officer Grady's scandalous and repugnant conduct, unlawfully planting the knife in Bell's hand and making it appear as though Bell was about to use forceful resistance, was clearly intended to absolve Grady of any wrongdoing. In this regard, Officer Grady clearly had "a change of mental attitude from that of serving the master to that of serving a personal . . . end." Mittleman v. Lindsay-McMillan Co., 202 Wis. at 580, 232 N.W. at 528. I fail to understand how Officer Grady's actions were in good faith or were a "natural . . . part or incident" of his duties as a Milwaukee police officer. Cameron, 102 Wis.2d at 456, 307 N.W.2d at 168. As I interpret the relevant Wisconsin case law, Officer Grady was not acting within the scope of his employment, and thus the City of Milwaukee should not have been liable, under Wis.Stat. § 895.46, for any damages assessed against Officer Grady for his unlawful planting of the knife in Bell's hand and his subsequent cover-up of the unlawful action. Indeed, in Bell the district court attempted to compensate the heirs of Bell's estate and to punish Officer Grady for the dastardly moral wrong that he committed but, in effect, the district court wrongfully punished the taxpayers of the City of Milwaukee. Similarly, in the present case the majority improperly punishes the taxpayers of Sawyer County, holding that the county is liable for $86,500 in damages because the defendant deputy sheriffs acted within the scope of their employment in framing Hibma for the Spider Lake burglaries that they had, in fact, committed. The majority's result contravenes the controlling Wisconsin case law, as well as sound public policy that deputy sheriffs who unlawfully act outside the scope of their employment for their own personal interest must be held personally responsible for any damages assessed against them.

The majority improperly seeks to redraft Wis.Stat. § 895.46 to provide that a municipality must bear the cost of any damages assessed against its officers or employees who act under color of state law. The majority's erroneous interpretation of Wis. Stat. § 895.46 completely disregards the Wisconsin legislature's intent to limit a municipality's liability to damages incurred by an officer or employee who is carrying out acts that are a "natural . . . part or incident of the service contemplated." Cameron, 102 Wis.2d at 456, 307 N.W.2d at 168. In the present case the defendants' unlawful acts were not in furtherance of their duties as Sawyer County deputy sheriffs; instead the defendants freely admit that the sole unlawful, independent, and personal purpose of their acts was to relieve themselves of criminal liability and to remove themselves as suspects in the Spider Lake burglaries. Accordingly, I agree with the district court that, as a matter of law, the defendants' actions were not within the scope of their employment and, as a result, Sawyer County is not liable, under Wis. Stat. § 895.46, for any of the damages assessed against the defendants.