So We're Supposed to Believe That Amy Coney Barrett Can Deliver Justice?

For a devout catholic, Supreme Courth nominee Amy Coney Barrett can be shockingly cruel in her application of justice.  After a 19-year old pregnant prison inmate was repeatedly raped by a prison guard, Barrett ruled that the county responsible for the prison could not be held liable because the sexual assaults fell outside of the guard's official duties. Her judgment demonstrates a level of unconscionable cruelty that has no place on the high court.

The logic behind the decision undermines every Americans ability to seek compensation as a remedy for damages almost across the board.  If a boss repeatedly sexually harasses or rapes an employee the company could be held harmless because it wasn’t part of his official duties.  Is police abuse part of their official duties?  Nope, no remedy for you.  Is sexual abuse of a child by a teacher part of their official duties?  Nope, no remedy for you.

The logic could be use to eliminate any government’s, company’s or organization’s liability for the failure to protect any of us by just saying sorry you were raped, abused, beaten, harassed etc but we are not liable for any damages because your rape was not part of his official duties.  Go sue the offender.  Oh, he’s broke and going to jail so you get nothing.  Sucks for you!   Abused by a boy scout leader or clergy member, sorry it was not part of their official duties so we are not liable maybe try a go fund me campaign.

 While many observers that pointed out that this decision was proper application of the law as dictated by the Respondeat Superior  doctrine, a more enlightened and better-informed Indiana supreme court recently ruled differently in a better-informed decision. 

The case (Cox v. Evansville Police Department) involved sexual assaults and a rape by two police officers while on duty. The officers victimized citizens they were supposed to be assisting. In its decision, the Court sought to clarify the law of vicarious liability in this area, particularly with respect to the twin doctrines of Respondeat Superior and the common carrier/non-delegable duty exception.

The police officers in Cox were eventually convicted of their crimes, and the women sued, seeking to hold the departments liable for the sexual assaults. The departments moved for summary judgment, arguing that the sexual assaults were illegal and thus a matter of law outside the scope employment, which was to enforce the law, not break it. This argument was rejected.

The Court began its discussion by acknowledging prior decisions in cases such as Barnett v. Clark, where it rejected, as a general matter, the idea that illegal sexual misconduct is ever in the course and scope of most types of employment: “Beyond question, cities do not authorize their police officers to sexually assault people. Indeed, sexual assault is directly opposed to police officers’ law-enforcement and community-caretaking functions.” However, the Court went on to note that in certain circumstances “the scope of employment encompasses the activities that the employer delegates to employees or authorizes employees to do, plus employees’ acts that naturally or predictably arise from those activities.”  

Utilizing this proposition, the Court found that the scope of employment—which determines whether the employer is liable—may include acts that the employer expressly forbids; that violate the employer’s rules, orders, or instructions; that the employee commits for self-gratification or self-benefit; that breach a sacred professional duty; or that are egregious, malicious, or criminal. The scope of employment extends beyond authorized acts for two key reasons. First, it is equitable to hold people responsible for some harms arising from activities that benefit them. Second, holding employers liable for those injurious acts helps prevent recurrence.

The Court concluded: “So the scope-of-employment rule, shaped by its underlying policies, allows employer liability for an officer’s sexual assault. We stress that the unique authority that cities vest in police officers drives this conclusion. As other courts have observed, ‘[t]he danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law.’”

While on its face the Cox decision is limited to “the unique authority that cities vest in police officers,” the rationale underlying the decision could easily transfer to other areas where the government vests its employees with great authority and control. Employees such as teachers, physicians, and prosecutors come to mind.

The Cox ruling demonstrates how judges deserving of a Supreme Court position can decide cases.  Barret’s decision shows judgement unbecoming a human being, let alone a supreme court justice.