CACI 3721 Scope of Employment—Peace Officer’s Misuse of Authority

California Civil Jury Instructions CACI

3721 Scope of Employment—Peace Officer’s Misuse of Authority

[Name of plaintiff] must prove that [name of agent] was acting within the scope of [his/her/nonbinary pronoun] [employment/authorization] when [name of plaintiff] was harmed.

The conduct of a peace officer is within the scope of [his/her/nonbinary pronoun] employment as a peace officer if all of the following are true:

(a)The conduct occurs while the peace officer is on duty as a peace officer;

(b)The conduct occurs while the peace officer is exercising [his/her/nonbinary pronoun] authority as a peace officer; and

(c)The conduct results from the use of [his/her/nonbinary pronoun] authority as a peace officer.

Sources and Authority

“[W]e hold that when, as in this case, a police officer on duty misuses his official authority by raping a woman whom he has detained, the public entity that employs him can be held vicariously liable. This does not mean that, as a matter of law, the public employer is vicariously liable whenever an on-duty officer commits a sexual assault. Rather, this is a question of fact for the jury.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221 [285 Cal.Rptr. 99, 814 P.2d 1341].)

“The use of authority is incidental to the duties of a police officer. The County enjoys tremendous benefits from the public’s respect for that authority. Therefore, it must suffer the consequences when the authority is abused.” (White v. County of Orange (1985) 166 Cal.App.3d 566, 572 [212 Cal.Rptr. 493].)

“It is questionable whether the holding in Mary M. is still viable. Indeed, the Chief Justice of California has described it as an ‘aberrant holding’ that was ‘wrongly decided’ and should be ‘overrule[d].’ Nonetheless, it remains the rule of law unless a majority of the California Supreme Court decides otherwise.” (M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 124 [98 Cal.Rptr.3d 812], internal citations omitted.)

“We reject plaintiff’s effort to apply Mary M. to the facts of this case. For reasons that follow, we conclude the Mary M. holding that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty is, at best, limited to such acts by an on-duty police officer and does not extend to any other form of employment, including firefighting. Thus, as a matter of law, the alleged sexual assault by firefighters in this case was not conduct within in the scope of their employment and cannot support a finding that their employer … is vicariously liable for the harm.” (M.P., supra, 177 Cal.App.4th at p. 124; see also Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 893–902 [189 Cal.Rptr.3d 570] [Mary M. not applicable to sexual assault by social worker on foster child].)

“Appellants argue they fall within Mary M. because [employee]’s misconduct arose from the abuse of his authority as a law enforcement officer. The County counters that [employee] was a correctional officer, not a law enforcement officer. However, whether [employee] is classified as a law enforcement officer or not is immaterial. The power or privilege that [employee] abused, i.e., his access to the correctional management computer system, is totally different from the unique and formidable power and authority police officers have over members of the public or people under their control. [Employee] had no authority or control over appellants. As courts have noted, ‘ “police officers [exercise] the most awesome and dangerous power that a democratic state possesses with respect to its residents—the power to use lawful force to arrest and detain them.” ’ This is not the case with a correctional officer who processes paperwork and has access to a jail computer system. Rather in this context, the criminal conduct underlying appellants’ action, namely the illegal act of writing the letters using the information gathered from the jail computer system for totally non-work-related purposes, must be considered unusual or startling.” (Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 103–104 [155 Cal.Rptr.3d 219], internal citation omitted.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 180, 190, 191, 196, 201
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][f][ii] (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior, § 100A.26 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:8 (Thomson Reuters)