SAN FRANCISCO (Legal Newsline) – San Francisco could still be held liable for a murder committed with a stolen police gun.
The California First Appellate District on March 1 overruled a lower court decision that had granted summary judgment to San Francisco. The city and county must now settle or go to trial to resolve claims made by Mayra Perez.
A jury could “reasonably find” San Francisco should be held at least partly responsible for the death of Lopez’s son, the court found. The gun was stolen out of an officer’s personal car.
“We note that our reasoning does not extend beyond instances of officers’ negligent mishandling of firearms,” Justice Mark Simons wrote. “An officer who intentionally uses his authorized firearm to, for example, damage a neighbor’s person or property as part of an ongoing dispute has ‘substantially deviate[d] from the employment duties for personal purposes’ such that ‘the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.’
“A jury could reasonably conclude that Cabuntala, when he negligently failed to secure his firearm upon returning home from work, did not.”
Marvin Cabuntula, like other officers with San Francisco PD, was permitted a secondary firearm when on duty. A 2015 bulletin said officers were responsible for knowing the location of their firearms and ensuring they are secure at all times.
Cabuntula drove his personal vehicle to a training session on Aug. 11, 2017, bringing his secondary firearm. When he returned home, he failed to bring the gun inside his house.
His car was broken into that night and the gun was stolen. He did not realize it was taken for several days and found out later it had been used in a murder.
San Francisco said it couldn’t be sued because Cabuntula was not acting within the scope of his employment when he failed to secure the firearm. Though the San Francisco Superior Court agreed, the appeals court has reversed that finding.
“In any event, the three policy objectives undergirding enterprise liability support our conclusion in this case,” the court ruled. “The goal of preventing recurrence of the tortious conduct is served, because imposition of respondeat superior would likely prompt police departments to utilize more selective hiring practices, impose stricter regulations, and provide more training with respect to the handling of firearms on and off duty.
“Providing greater assurance of compensation to victims is also furthered. Finally, because the community benefits from police officers’ authorized handling of firearms, the objective of ‘ensur[ing] that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury’ is served by imposing liability on police departments when officers negligently mishandle those firearms.”