San Francisco May Face Liability for Officer’s Stolen Gun Used in Shooting

A police officer drives home from a police training session that does not require the use of his gun, and leaves his gun in his car. The car is broken into, the gun is stolen, and it is later used in a fatal shooting. Is the City who employed the officer liable for the victim’s death?

Possibly, says the California Court of Appeal in the recent case of Perez v. City and County of San Francisco.

Marvin Cabantula was an officer with the SFPD. He had a primary, and secondary firearm. In August 2017, he was assigned to attend a training session. He drove home after suffering from heat exhaustion. When he arrived home, he failed to secure his secondary firearm inside the house, instead leaving it inside his car. The gun was stolen and used to kill Mayra Perez’s son.

Perez sued the city and county of San Francisco, arguing that it was responsible for the negligence of Officer Cabantula when he improperly left his firearm in the car. The lower court dismissed the case, saying that the officer was not within the scope of his employment when he negligently failed to secure his weapon.

Last week, the Court of Appeal reversed this decision. The Court analyzed when and where an employee is found to be within the scope of his or her employment. The rule is the employee can render the employer liable if the employee’s activity is undertaken with permission, or when the employer is offered some benefit by the employee’s conduct.

In this case, the Court ruled that Cabantula had his firearm in the car with him in the event an emergency presented itself such that the use of his firearm would become necessary. Guns are an important part of the law enforcement mission, and an officer may be called upon to use his weapon at any time, even if he is off duty. Therefore, it could be argued that Cabantula had his weapon with him in his car for work-related purposes. For this reason, a jury could determine that Cabantula was “on duty” to the extent that liability could attach to the city and county of San Francisco. Scope of employment is a factual question, and in this case, the jury should have been allowed to decide whether Officer Cabantula was within the scope of his employment when he left his gun in his car.

Scope of employment and “respondeat superior”-the latin term for it— come up often in personal injury cases. Whether an employee is within the course and scope of his/her employment is a question that we often ask to determine who is liable for a client’s injuries.

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