Thread by @MaxKennerly

I was wondering if this was one of those "applying precedent leads us to this unfortunately result..." cases but, no, the reality is that Barrett plowed through state law and a jury's factual findings to cheat the plaintiff out of her fair compensation. /1

https://twitter.com/stevesilberman/status/1317499237597261825

The plaintiff's appellate brief is available here: scribd.com/document/48048…

The facts are recounted on pages 16-21 of the PDF. They're awful. The guard repeatedly raped her at the prison.

The issue was whether the county had to pay for the $6,700,000 jury verdict. /2

Consistent with Wisconsin law, the jury had already heard ample evidence about whether the rapes were within the guard's "scope of employment," and they had decided the answer was yes. Excerpts from plaintiff's brief. /3

The county's ludicrous claim (1st pic) was that the guard's actual job was "to keep inmates safe and secure," and raping inmates isn't that.

The plaintiff's response on this point (2nd pic) was quite persuasive: if that's the job, why was she shackled during childbirth?
/4

Courts in Wisconsin, including its Supreme Court, have repeatedly held that sexual assault does *not* automatically fall outside of the "scope of employment," and that the issue is left to the jury to decide based on the facts. Excerpts from plaintiff's brief. /5

And courts across the country, including the Seventh Circuit, have repeatedly recognized that sexual assault can fall within the "scope of employment" for law enforcement, given how they're armed authority figures authorized to deploy violence. /6

The jury heard ample evidence about how the rapes were squarely within the guard's employment, done at the prison and using means and methods given to him by the prison—including the use of violence, here sexual assault, to exert power and control, as was part of his job. /7

Judge Barrett, the supposed "textualist," joined in full Judge Manion's opinion that breezed right past actual Wisconsin law to instead rely on the law's supposed "intent and purpose." Then they rewrote Wisconsin law on their own terms, which enabled them to nuke the verdict. /8

So there's Barrett-style "judicial restraint" and "federalism" and "letting legislatures determine policy:" she re-wrote Wisconsin law so she could overturn a Wisconsin jury's factual determinations and compensation for a woman who was repeatedly raped in jail by a guard. /end