CACI No. 3721. Scope of Employment - Peace Officer’s Misuse of Authority

Judicial Council of California Civil Jury Instructions (2023 edition)

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3721.Scope of Employment - Peace Officers 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
(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.
New September 2003
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
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)

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