Police Dept. May Be Liable for Death Related to Off-Duty Officer's Gun

A California appeals court allowed a victim's mother to sue the city of San Francisco for wrongful death when a police officer's stolen firearm was used to kill someone.

The officer left his department-approved firearm unsecured in his vehicle after returning home from a training session, and the firearm was stolen when his vehicle was burglarized.

The trial court had dismissed the lawsuit, ruling that the officer's conduct was not within the scope of his employment and so the plaintiff could not hold the department liable. The appeals court, however, said the plaintiff could bring her claim to trial because the police department could have foreseen the sequence of events that resulted in the victim's death.

The police department issued officers a primary firearm and allowed them to carry a secondary firearm on duty if that firearm had been approved by the department. The department also authorized officers to carry loaded handguns when off duty if they had their department identification with them.

A bulletin issued by the department concerning firearm security in vehicles explained that officers were responsible for knowing the location of firearms under their care and control and ensuring those firearms were secure at all times, whether the officers were on or off duty.

The bulletin set forth specific guidelines for securing firearms in an unattended vehicle and directed that, if an officer could not secure a firearm in accordance with the guidelines, the officer "shall not leave a firearm in an unattended vehicle."

The officer in this case had a primary firearm issued by the department and also owned a personal gun that the department had approved and qualified as a secondary firearm. He regularly carried this secondary firearm on duty, and also regularly transported it in his vehicle while commuting to and from work. In addition, he regularly carried this firearm when off duty, out of concern for his and his family's safety.

The city assigned the officer to a training session in a different county. He drove his personal vehicle from his home to the training site. Firearms were not allowed at the training session. However, the officer brought his personal, secondary firearm with him when he drove to the training session.

The officer drove home after the training was over. That day, he failed to follow his usual practice of securing his personal, secondary firearm inside his house. Instead, he left the firearm unsecured inside his vehicle.

That night, the officer's vehicle was broken into and his firearm was stolen. The officer did not realize the firearm was stolen until some days later. In the interim, the firearm was used to kill the plaintiff's son.

The plaintiff sued the officer and the city. The trial court dismissed the claim against the city, and the plaintiff appealed.

Employer Liability

The doctrine of respondeat superior holds an employer liable for harmful acts of its employees committed within the scope of their employment, the appellate court first explained.

California courts use two tests for scope of employment under the respondeat superior doctrine, the court continued. Under one test, the employer is liable if the activities that caused the employee to become dangerous to others were undertaken with the employer's permission and were of some benefit to the employer, or in the absence of proof of benefit, the activities constituted a customary part of the employment.

The second test, the court said, provides that an employee's conduct is within the scope of employment if the act performed was either required or incident to the employee's duties—or if the employee's misconduct could be reasonably foreseen by the employer.

The court noted that the application of these tests depends, in part, upon the underlying rationale behind respondeat superior. Respondeat superior, the court said, is based on a deliberate allocation of a risk. The losses caused by the misdeeds of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed on the enterprise itself, as a required cost of doing business.

The respondeat superior doctrine is therefore a departure from the general legal principle that liability is based on fault, the court explained.

For respondeat superior purposes, the court said, a risk arises out of the employment when in the context of the particular enterprise, an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.

Therefore, the court said, the "scope of employment" test to be used in this case focuses on whether the employee's misconduct could be reasonably foreseen by the employer.

And based on all the evidence, the court said, a jury could conclude that the department could have foreseen exactly what happened in this case.

The court therefore reversed the trial court's dismissal of the claim against the department, ruling that the plaintiff could bring it to trial.

Perez v. City and County of San Francisco, Calif. Ct. App., No. A161279 (March 1, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.