In Perez v. City and County of San Francisco, published March 1, 2022, the First District Court of Appeal, Division 5 reversed summary judgment granted to the defendant city. The City's police department allowed officers to carry a secondary firearm on duty, and authorized them to carry loaded handguns when off-duty. Both department policy and state law required officers to secure handguns in unattended vehicles. The officer in this case had a personal handgun that the department had approved and qualified as a secondary firearm. He regularly carried the handgun on duty, and transported it when he commuted to and from work. He regularly carried it when off-duty. He was a department specialist who worked with a special operations group outside of patrol assignments. There was evidence specialists were on call 24/7 and were not permitted to respond to incidents without a firearm. The officer was assigned to a training session in a different county. When the officer returned home, during scheduled work hours, he left the secondary firearm unsecured inside his vehicle. That night, the vehicle was broken into, and the firearm stolen. The stolen firearm was used to kill the son of the plaintiff who brought this action. The trial court granted the city summary judgment on the ground that the undisputed facts demonstrated the officer was not acting within the scope of his employment.
The appellate court disagreed. Viewed in the context of the enterprise of policing, the centrality of firearms to that enterprise, and the underlying rationale for respondeat superior that losses fairly attributable to an enterprise--those that foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business, a jury could reasonably find a nexus between the department's policing enterprise and the risk that one of its officers would negligently fail to secure a department approved secondary firearm upon returning home from work. A jury could therefore find the officer's negligent failure to secure his approved firearm in an unattended vehicle upon returning home from a department-assigned training fell within the scope of his employment. The court disagreed with the majority opinion in Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, in which an officer's accidental discharge of his firearm while drinking was friends was found to be outside the scope of his employment. The court opined that the Henriksen majority opinion failed to rigorously apply the rules for respondeat superior liability. The court further opined that the case was distinguishable from Henriksen, in that the officer's possession of a department-approved firearm was not the sole factor linking his conduct to his employment, and in that the officer here did not consume alcohol before the tortious act.