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] [employment/authorization] when [name of plaintiff] was harmed.

The conduct of a peace officer is within the scope of [his/her] 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] authority as a peace officer; and

(c) The conduct results from the use of [his/her] 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].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 128, 135

1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][f][ii] (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 3:8

(New September 2003)