(dissenting, with whom O’Connor, J., joins). In the circumstances of this case, it is clear that Monk acted maliciously and, hence, that the exception in the indemnification statute for “wilful, wanton, or malicious” acts applies. The Federal § 1983 action contained two counts against Monk. Count I of the complaint alleged that Monk “illegally and maliciously instituted a criminal process against the plaintiff in order to punish the plaintiff.” Count II, which was for malicious prosecution, contained the same allegation and added that “[t]he prosecution commenced by . . . Monk was instituted . . . without basis and maliciously and with intent to harm the plaintiff.” The jury’s verdict was for the plaintiff. Therefore, whether under Count I or Count II, the jury must have based its verdict on conduct of Monk that was malicious in the sense that it was not only intentional, but was solely intended to harm and punish the plaintiff. It cannot be that the Legislature intended that police officers be indemnified for harm caused by *702their intentional acts done for the exclusive purpose of causing harm to and punishing another. See Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).
Furthermore, the judge’s conclusion that Monk did not act within the scope of his employment because he initiated a “private counter-attack or personal vendetta” against the plaintiff was correct. The plaintiff alleged in the Federal action that Monk’s allegations against him were not only false but known by Monk to be false. In the context of this case that conclusion was not a question of fact to be determined by the jury in the State action because it had already been decided by the Federal jury on the basis of the plaintiff’s own allegations. Pinshaw’s State claim is based upon, and is wholly dependent on, the Federal action. He is, therefore, precluded from asserting facts that are contrary to those upon which the Federal judgment was based. Massachusetts Property Ins. Underwriting Ass’n v. Norrington, 395 Mass. 751, 753 (1985). Fidler v. E.M. Parker Co., 394 Mass. 534, 539 (1985).
I accept for the purposes of argument the court’s view that § 9A excludes from indemnification only egregious conduct, conduct “shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others,” ante at 697, quoting Smith v. Wade, 461 U.S. 30, 39 n.8, 56 (1983), because the bringing of a criminal charge known to be false for the sole purpose of harming and punishing the plaintiff fits within even that restrictive definition of malicious conduct. In effect, the judge was ruling on the summary judgment motion on the basis of a jury finding that the criminal action had been brought for a malicious purpose.
I, therefore, respectfully, dissent.