                               In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 17-2609
SCOTT ROBINETT,
                                               Defendant-Appellant,
                                 v.

CITY OF INDIANAPOLIS,
                                                Defendant-Appellee.
                    ____________________

          Appeal 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.
                    ____________________

     ARGUED FEBRUARY 7, 2018 — DECIDED JULY 9, 2018
                ____________________

   Before BAUER, ROVNER, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Scott Robinett and the City of
Indianapolis were codefendants in a civil-rights action.
Robinett, 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 Robinett and the City under 42 U.S.C. § 1983 and
Indiana law. They won the case; the district judge rejected
2                                                 No. 17-2609

the estate’s claims and entered summary judgment for the
defendants. Robinett then asked the judge to order the City
to pay his attorney’s fees and costs under Indiana Code
§ 34-13-4-1, a public-employee indemniﬁcation statute. The
judge denied the motion and Robinett appeals.
    We 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 committed the act or
omission in question. A mere allegation to that eﬀect does
not trigger the indemniﬁcation obligation. The judge held
that Robinett 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. Robinett does not challenge that
factual determination, so his claim for costs and fees fails.
                       I. Background
   Ryan Anders and Kimberlee Carmack were Indianapolis
police oﬃcers. They married in October 2010 and divorced
three years later. Anders soon launched an alarming cam-
paign 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 public-
ly 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.
   The police department eventually got wind of these
events and opened a criminal investigation against Anders
No. 17-2609                                                3

for stalking, rape, battery, and residential entry. The de-
partment 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 wherea-
bouts. At the department’s suggestion, she also secured a
protective order against Anders.
    These eﬀorts were insuﬃcient to protect her from her ex-
husband. Anders eventually discovered the GPS device and
called Robinett—his friend and fellow police oﬃcer—and
asked to meet in a nearby church parking lot. Robinett
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. Robinett
conﬁrmed that it was and Anders then drove away. Robinett
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 ap-
proach because he drove his grandmother’s car.
    Carmack’s estate sued the City, Robinett, and other oﬃ-
cials alleging that they violated her rights under the Four-
teenth Amendment and Indiana law. The claims against
Robinett 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
Robinett 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
4                                                    No. 17-2609

Robinett acted outside the scope of his employment at all
relevant times.
   Several months later Robinett asked the court to order the
City to pay his attorney’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 committed the acts or
omissions in question. Because the claims against Robinett
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.
                         II. Discussion
    Robinett does not challenge the judge’s ruling that the
estate’s claims rested entirely on acts or omissions he com-
mitted outside the scope of his employment. He contests
only the judge’s interpretation of the public-employee
indemniﬁcation statute. We review this legal question de
novo. United States v. Crisp, 820 F.3d 910, 913 (7th Cir. 2016).
    The statute provides:
       If a present or former public employee … is or
       could be subject to personal civil liability for a
       loss occurring because of a noncriminal act or omis-
       sion within the scope of the public employee’s em-
       ployment which violates the civil rights laws of
       the United States, … [the public employer]
       shall … pay:
          (1) any judgment (other than for punitive
          damages) of the claim or suit … .
No. 17-2609                                                 5

IND. CODE § 34-13-4-1 (emphasis added). The use of the word
“shall” signiﬁes that indemniﬁcation is mandatory for a
compensatory-damages judgment, assuming all other
requirements are satisﬁed. The statute goes on to give public
employers the option to indemnify their employees for “any
judgment for punitive damages, compromise, or settlement”
if the payment “is in the best interest of the governmental
entity.” Id. That is, paying a settlement or a punitive-
damages judgment from the public ﬁsc is discretionary, again
assuming the other statutory requirements are met.
    Whether mandatory or discretionary, indemniﬁcation is
allowed only when “the governmental entity defends or has
the opportunity to defend the public employee.” Id. Finally,
the statute provides that the public employer “shall also pay
all costs and fees incurred by or on behalf of a public em-
ployee in defense of the claim or suit.” Id.
    As Robinett reads this statutory language, indemniﬁca-
tion of defense costs is required whenever a public employee
is alleged to have been acting within the scope of his em-
ployment, whether or not that turns out to be true. On this
interpretation, indemniﬁcation does not depend on a deter-
mination that the public employee was, in fact, acting within
the scope of his employment at the time of the events in
question in the underlying suit. Rather, a public employer
might be on the hook for defense costs even when the em-
ployee was not acting within the scope of his employment. In
other words, the actual facts do not matter; a “scope of
employment” allegation is suﬃcient to trigger indemniﬁca-
tion of defense costs even where (as here) the court ﬁnds that
the employee was acting outside the scope of his employment
at the time in question.
6                                                  No. 17-2609

     That interpretation is foreclosed by the plain statutory
text. After setting out when judgments and settlements must
or may be indemniﬁed, the statute concludes: “The govern-
mental entity shall also pay all costs and fees incurred by or
on behalf of a public employee in defense of the claim or
suit.” Id. (emphasis added). Read naturally, the word “also”
tells us that indemniﬁcation of defense costs is subject to the
same terms as indemniﬁcation of a judgment or settlement:
it is available only in a civil-rights action when the govern-
ment defends or has the opportunity to defend and the
public employee was acting within the scope of his employ-
ment at the time of the act or omission in question. The
scope-of-employment requirement extends throughout the
indemniﬁcation provision and limits when defense costs
must be paid. There is no textual justiﬁcation to wall oﬀ costs
and fees from the rest of the statute.
    Our caselaw bears out this understanding of the indem-
niﬁcation statute. In Kapitan v. City of Gary, 12 F.3d 678 (7th
Cir. 1993), we addressed an earlier version of this statute that
made indemniﬁcation of the underlying judgment discre-
tionary in all cases but nonetheless included the same
defense-cost language. We did not hold that the duty to pay
defense costs could be separated from the duty to indemni-
fy. Instead we concluded that “payment of costs and legal
fees follows from the decision to indemnify the substantive
liability; a governmental entity that decides not to indemnify
also need not pay these ancillary expenses.” Id. at 680. With
identical language here, the same tethering principle should
apply. The duty to pay defense costs is triggered by whatev-
er triggers the underlying indemniﬁcation obligation. That
the public employee acted within the scope of his employ-
ment is therefore a necessary condition for both.
No. 17-2609                                                  7

    A ﬁnal textual clue reinforces this interpretation. The in-
demniﬁcation statute requires the government to pay “all
costs and fees incurred by or on behalf of a public employee
in defense of the claim or suit.” § 34-13-4-1 (emphasis added).
The claim or suit, in turn, must refer to the only claim con-
templated by the statute: a claim of “personal civil liability
for a loss occurring because of a noncriminal act or omission
within the scope of the public employee’s employment which
violates the civil rights laws of the United States.” Id. (em-
phasis added). Footing the defense bill is therefore limited to
a narrowed universe of claims in which the public employee
actually acted within the scope of his employment. Because
Robinett does not question the judge’s ﬁnding that he acted
outside the scope of his employment when he failed to
intervene to protect Carmack, the City has no obligation to
reimburse his legal fees or costs.
    Robinett challenges this conclusion on two grounds. He
ﬁrst argues that it inappropriately ties the public employer’s
defense-cost obligation to a ﬁnal liability judgment against a
public employee. That, he says, would force a public em-
ployee to fund his own successful defense even when the act
or omission that generated the lawsuit was within the scope
of his employment.
    Not so. Indemniﬁcation of defense costs doesn’t require a
liability judgment against the public employee. If the em-
ployee was acting within the scope of his employment at the
relevant time, he has a valid claim for reimbursement of his
defense costs. The public employer’s obligations to indemni-
fy a judgment and/or pay defense costs both depend on the
same prerequisite: the employee must have been acting
within the scope of his employment when he committed the
8                                                   No. 17-2609

act or omission that forms the basis of the claim. But nothing
in the statute suggests that ultimate liability is a prerequisite
to payment of defense costs.
    In fact, the opposite is true. Indemnity is provided if a
public employee “is or could be subject to personal civil
liability.” Id. (emphasis added). This language eliminates
actual liability as a prerequisite to indemniﬁcation of defense
costs, thereby “including the innocent public employee
within the statute’s ambit.” Estate of Moreland v. Dieter,
576 F.3d 691, 699 (7th Cir. 2009). Put slightly diﬀerently,
liability need only be possible, while an act or omission
“within the scope of the public employee’s employment” is
required before a public employer may be held responsible
for paying the cost of its employee’s defense. § 34-13-4-1.
This limits a public employer’s indemniﬁcation obligation to
employees who were actually doing the public’s business
and excludes those who were out on a frolic. That makes
perfect sense.
    Robinett’s second line of argument rests on an unlikely
hypothetical. He contends that our interpretation of the
scope-of-employment requirement would incentivize a
public employee to secretly take a default judgment in a
civil-rights suit instead of notifying the governmental em-
ployer and asking it to litigate in his defense. That employee
could then wield the default judgment as an issue-preclusive
sword in a follow-on proceeding for indemniﬁcation because
the scope-of-employment element would have been conclu-
sively established. That would leave the public employer on
the hook for fees and a judgment without ever having had
the opportunity to present its case.
No. 17-2609                                                    9

    The concern is overblown; the indemniﬁcation statute
already protects against this hypothetical. The duty to
indemnify arises only when the public employer “defends or
has the opportunity to defend” the public employee. Id.
Moreover, Robinett’s argument misrepresents how issue
preclusion would work in this type of case. While a default
judgment is given full issue-preclusive eﬀect, see Eichenberger
v. Eichenberger, 743 N.E.2d 370, 374 (Ind. Ct. App. 2001), it
disposes only of those issues “necessarily adjudicated in a
former lawsuit,” Nat'l Wine & Spirits, Inc. v. Ernst & Young,
LLP, 976 N.E.2d 699, 704 (Ind. 2012). Scope of employment
would never be “necessarily” adjudicated in the hypothet-
ical strategic default Robinett envisions. The scheme is
premised on concealing the civil-rights action from the
governmental employer and then bamboozling it later. But
the only way scope of employment would come up is if the
plaintiﬀ sought to make the governmental entity vicariously
liable in tort, like the estate did here on the state-law claims.
That necessarily requires the plaintiﬀ to join the governmen-
tal unit as a defendant. Strategic default is thus incapable of
rendering a ﬁnal and binding judgment on a scope-of-
employment issue.
    What a strategic default could resolve is whether a civil-
rights defendant acted under color of state law for purposes
of § 1983. Robinett argues that there is no eﬀective diﬀerence
between this requirement and scope of employment. That’s
incorrect. While the two concepts are “closely related,” they
are “not identical.” Wilson v. City of Chicago, 120 F.3d 681, 684
(7th Cir. 1997); see also Coleman v. Smith, 814 F.2d 1142, 1149
(7th Cir. 1987) (“We do not confuse the ‘under color of state
law’ element of section 1983 with the ‘scope of employment’
requirement of the indemniﬁcation statute.”). An employee
10                                                  No. 17-2609

acts within the scope of his employment when his conduct is
“of the same general nature as that authorized by the public
employer” or “incidental to the conduct authorized by the
employer.” Katz-Crank v. Haskett, 843 F.3d 641, 651 (7th Cir.
2016) (internal quotation marks omitted). An employee can
act under color of state law, meanwhile, even when he
“misuse[s]” state power. Honaker v. Smith, 256 F.3d 477, 484
(7th Cir. 2001). That is to say, he can be held liable for con-
duct beyond what “the State in fact authorized.” Screws v.
United States, 325 U.S. 91, 111 (1945).
     Our cases underscore the diﬀerence between “scope of
employment” and “under color of state law.” In Lopez v.
Vanderwater, 620 F.2d 1229 (7th Cir. 1980), for example, a
state-court judge undertook to singlehandedly prosecute a
criminal case. That was obviously well outside his oﬃcial job
duties, but we found nonetheless that he acted under color
of state law. We reasoned that “[a]ction taken by a state
oﬃcial who is cloaked with oﬃcial power and who purports
to be acting under color of oﬃcial right … is taken under
color of state law whether or not the action is in fact in
excess of the authority actually delegated to the oﬃcial.” Id.
at 1236; see also Wilson v. Price, 624 F.3d 389, 394 (7th Cir.
2010) (reaﬃrming this principle). “Under color of state law”
thus extended to conduct far beyond the scope of the judge’s
employment. No doubt there are some cases in which the
two standards will align, but for issue-preclusion purposes,
it is enough to note that one does not inexorably lead to the
other.
   In short, the statute protects public employees who act
within the scope of their employment from having to foot
the bill for defense costs in a civil-rights action regardless of
No. 17-2609                                              11

the outcome. Win or lose, however, the employee must have
been acting within the scope of his employment; a mere
allegation to that eﬀect is not enough to put the public
employer on the hook for the cost of the defense. Both the
statutory text and precedent make this clear.
   The judge found that Robinett acted as a private person,
not a police oﬃcer, when he failed to come to Carmack’s aid.
Robinett doesn’t contest that determination. Because he was
not acting within the scope of his public employment, the
City need not shoulder the ﬁnancial burden of his defense.
                                                 AFFIRMED.
12                                                  No. 17-2609

    ROVNER, Circuit Judge, dissenting. I agree with my col-
leagues that Robinett’s entitlement to indemnification of his
attorney’s fees depends on the plain language of the statute.
But in my view, the plain language of the statute clearly
compels the government employer to cover Robinett’s fees
in this instance. Our review of the district court’s interpreta-
tion of the Indiana statute is de novo. Estate of Moreland v. Di-
eter, 576 F.3d 691, 695 (7th Cir. 2009). “[T]he words in a stat-
ute must be given their plain and ordinary meaning unless
otherwise indicated by the statute.” Cubel v. Cubel, 876
N.E.2d 1117, 1120 (Ind. 2007). Moreover, “[t]he statute
should be examined as a whole, avoiding both excessive re-
liance on strict literal meaning and selective reading of indi-
vidual words.” Id.
    In light of that standard, it is best to begin by examining
the statutory language in full. The code provides in its en-
tirety:
       Sec. 1. If a present or former public employee,
       including a member of a board, a committee, a
       commission, an authority, or another instru-
       mentality of a governmental entity, is or could
       be subject to personal civil liability for a loss
       occurring because of a noncriminal act or
       omission within the scope of the public em-
       ployee’s employment which violates the civil
       rights laws of the United States, the govern-
       mental entity (when the governmental entity
       defends or has the opportunity to defend the
       public employee) shall, subject to IC 34-13-3-4,
       IC 34-13-3-14, IC 34-13-3-15, and IC 34-13-3-16,
       pay:
No. 17-2609                                                 13

          (1) any judgment (other than for puni-
          tive damages) of the claim or suit; or
          (2) any judgment for punitive damages,
          compromise, or settlement of the claim
          or suit if:
              (A) the governor, in the case of a
              claim or suit against a state em-
              ployee; or
              (B) the governing body of the po-
              litical subdivision, in the case of a
              claim or suit against an employee
              of a political subdivision;
       determines that paying the judgment for puni-
       tive damages, compromise, or settlement is in
       the best interest of the governmental entity.
       The governmental entity shall also pay all costs
       and fees incurred by or on behalf of a public
       employee in defense of the claim or suit.
Ind. Code 34-13-4-1. 1
    When presented as a whole, it is easy to see that the stat-
ute applies certain conditions precedent to (1) the mandate
to pay a judgment (other than punitive damages); and (2) the
optional payment of punitive damages, or compromise or
settlement of the claim or suit (hereafter “punitive damag-
es”). Before a governmental unit will pay a non-punitive
judgment or punitive damages for the act of a public em-


1IC 34-13-3-4, IC 34-13-3-14, IC 34-13-3-15, and IC 34-13-3-16
are not relevant here.
14                                                 No. 17-2609

ployee who “is or could be subject to personal civil liability,”
the loss must have occurred (1) because of a non-criminal act
or omission; (2) within the scope of the public employee’s
employment; and (3) in violation of the civil rights laws of
the United States. Once these conditions are met, indemnifi-
cation of the employee for a compensatory damages judg-
ment is mandatory, and for punitive damages is subject to
further conditions (presented in subsections (2)(A) and (B)).
    Set apart from these conditions precedent is the final ob-
ligation of the governmental entity towards its employee
who “is or could be subject to personal civil liability,” name-
ly, the duty to “also pay all costs and fees incurred by or on
behalf of a public employee in defense of the claim or suit.”
Had the legislature intended to impose the same conditions
precedent on the obligation to pay costs and fees that it did
on the duty to pay damages, it would have listed fees and
costs as subsection (3) in its enumeration of amounts to be
covered by the governmental entity. It did not. It listed the
duty separately and broadly, without similar limitations.
    The majority hangs its interpretation on the word “also,”
a rather heavy load for such an unassuming word. In this
context, where it would have been so easy to list fees and
costs under a third enumeration, making clear that the con-
ditions precedent applied to that particular obligation, I find
it too onerous a burden for the word “also” to carry. “Also”
may simply mean “in addition; too; besides; as well.” Web-
ster’s Unabridged Dictionary of the English Language, RHR
Press (2001). And in light of the structure of the statute, that
is the more natural reading. My colleagues emphasize an al-
ternate meaning of the word “also”—one connoting “and
subject to the same conditions set forth previously.” This
No. 17-2609                                                  15

reading fails to analyze the statute as a whole and instead
employs a “selective reading of individual words,” an ap-
proach to statutory interpretation that the Indiana Supreme
Court has expressly rejected. Cubel, 876 N.E.2d at 1120. The
majority also says that “[t]here is no textual justification to
wall off costs and fees from the rest of the statute.” But there
is: the fees provision comes not as the third subsection, but
after a period, a “full stop,” as the British say.
    By setting out this obligation separately, the legislature
did a perfectly natural thing: it took up the burden of cover-
ing costs and fees for representing public employees who are
hauled into court because of their public employment, as
happened here. And fees are paid not only for the guilty
employee but also for the innocent, the person who is sued
under the civil rights laws solely because of his public em-
ployment, who “is or could be subject to personal civil liabil-
ity.” The language employed here is similar to that used in
insurance policies where the insurer’s duty to defend is
more broad than its duty to indemnify for damages. See e.g.,
Home Federal Sav. Bank v. Ticor Title Ins. Co., 695 F.3d 725,
730–31 (7th Cir. 2012) (finding a duty to defend in an insur-
ance policy that covers not only actions to enforce liens but
“attempted enforcement” of a lien as well). In such cases, the
“duty to defend depends on what the claimant alleges, not
the ultimate merit or lack of merit of the claim.” 695 F.3d at
731. That the employee here successfully defended on the
ground that he was not acting under color of state law or
within the scope of his public employment is irrelevant.
What matters is that he was sued as a public employee who
“could be” subject to liability under a statute that applies
only to public employees.
16                                                 No. 17-2609

     His defense, by the way, also benefitted his public em-
ployer, who would have been on the hook at least for any
compensatory damages and possibly for punitive damages
had the plaintiff been successful. Nothing in the statute
ranks defenses. Robinett was found not liable because he
successfully convinced a court that he was not acting under
color of state law, but he well could have been liable. The
color-of-law analysis in this case is a closer call than it ap-
pears at first glance. Anders went to Robinett not only as a
friend but as a person who could identify a police-placed
tracking device for what it was. And Robinett responded us-
ing knowledge that he likely gained as a police officer, con-
firming that the device was what Anders suspected it to be.
Robinett even directed Anders to place the device back on
his car and to leave his former wife (who had a protective
order) alone, acts a police officer might well take in the scope
of his employment and under color of state law. Granted, a
competent police officer who was fully aware of the situa-
tion would also have alerted the department that Anders
knew he was being tracked and had the ability to remove the
device or otherwise evade detection. In any case, the ques-
tions of scope of employment and color of state law required
litigation through discovery and all the way to summary
judgment in this case, subjecting Robinett to extensive attor-
ney’s fees solely because he was a public employee. This is
just the type of case the legislature likely meant to cover
with its promise of indemnification for fees for its public
employees.
   Neither Kapitan nor Estate of Moreland support the read-
ing suggested by the majority. Kapitan interpreted a prior
version of the statute that made indemnification of the
judgment entirely voluntary. Where the duty to pay the
No. 17-2609                                                   17

judgment was voluntary, we said only that, “[a]s we read
the statute, payment of costs and legal fees follows from the
decision to indemnify the substantive liability; a governmen-
tal entity that decides not to indemnify also need not pay
these ancillary expenses.” Kapitan v. City of Gary, Ind., 12 F.3d
678, 680 (7th Cir. 1993). The statute now mandates indemni-
fication of non-punitive damages. Nothing in Kapitan ad-
dressed the issue here of whether fees are covered only for
acts taken within the scope of employment and not for acts
alleged but not successfully proved to be taken within that
scope. Estate of Moreland actually supports the reading that I
suggest, finding that the “could be subject to personal civil
liability” language covers innocent employees who success-
fully defend claims. Estate of Moreland, 576 F.3d at 699.
    Robinett’s successful defense of this claim benefitted the
City of Indianapolis to Robinett’s detriment. The record re-
veals that Robinett held a second job at the local Olive Gar-
den restaurant. Whatever this suggests about the pay scale
for Indianapolis police officers, it tells us that Robinett is
probably ill-equipped to pay more than $20,000 in attorney’s
fees and costs that he incurred defending himself against the
civil rights charges leveled against him as a police officer.
The plain language of the statute directs the City of Indian-
apolis to indemnify Robinett for the fees he incurred here. I
respectfully dissent.
