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Officer’s Failure To Secure Firearm After Returning Home Made The City Liable
Marvin Cabuntala, a police officer for the City and County of San Francisco (City), attended a training session in a different county. Officer Cabuntala drove his own vehicle from his home to the training site. Firearms were not allowed at the training, however, he still brought his personal, secondary firearm with him.
When the training was over, Cabuntala drove home and arrived shortly before the end of his scheduled work hours. He did not follow his usual practice of securing his personal, secondary firearm inside his house. Instead, he left the firearm unsecured inside his vehicle.
Later that night, Cabunatala’s vehicle was broken into and his personal firearm was stolen. Cabuntala did not realize it was stolen for several days. In the interim, the firearm was used to kill Mayra Perez’s son.
The trial court granted the City’s motion for summary judgment. The trial court found that Cabuntala was not acting within the scope of his employment and that the City was not liable. Perez appealed. The California Court of Appeal reversed, reasoning that a jury could reasonably find that the officer’s actions were attributable to the City.
An employer may be liable for an employee’s conduct if the employee was acting within the scope of their employment. One test courts use to determine if an employee’s conduct is within the scope of employment is whether the conduct was: a) required or incident to the employee’s duties; or b) reasonably foreseeable to the employer. Here, the Court reviewed whether the City could reasonably foresee that an officer would leave a personal firearm unsecured in a personal vehicle.
The Court noted that the work of policing involves the use of firearms. Firearms are essential to an officer’s ability to perform job functions. Even a holstered firearm allows officers to make arrests and carry out other duties with the knowledge they can protect themselves.
The Court noted that the San Francisco Police Department allowed officers to carry approved, secondary firearms while on duty and many officers regularly did so. Further, the Department did not require officers to leave those firearms at the police station, so the Department could reasonably assume that officers would transport these firearms during their commute to and from work. The Department also allowed officers to carry handguns while off duty so long as they also carried police identification. Department specialists, like Cabuntala, could also be called to report an incident at any time and must carry a firearm to respond.
The Court concluded that under these circumstances, the Department could reasonably foresee that one of its officers would negligently fail to secure a Department-approved, secondary firearm upon returning home from work or training. The Court determined that the officer’s failure to secure the firearm was therefore within the scope of the officer’s employment, thus making the City liable for this officer’s negligence.
Perez v. City and County of San Francisco, 75 Cal.App.5th 826 (2022).
In this case, the Department’s policy allowed for secondary firearms to be carried both on and off-duty. Departments with similar policies must be sure to require officers to secure those firearms and impose appropriate punitive action for failure to do so. Training on how to secure firearms is critically important to avoid liability for negligent firearm handling.