For sexual misconduct, a higher standard for law enforcement

It is difficult to imagine a more vile form of abuse of power than a sexual assault committed by public safety officers who carry guns. The reality is that cases of sexual violence perpetrated by member of law enforcement are cropping up all across California and the United States, which underscores how government entities are turning a blind eye to this behavior.

Due to a lack of available data, researchers have to depend on arrest reports and news articles, which also excludes any unreported or unprosecuted cases. Even with this limited pool of information, sexual assault is a significant issue in police forces. In 2015, the Associated Press released the results of a year-long investigation into sexual misconduct by police officers across the country. They uncovered that about 1,000 officers were decertified for some type of sexual misconduct — consensual sex on duty, sexual assault, coercion, child molestation/pornography, and statutory rape. The AP reported that the 1,000 number is "unquestionably an undercount" of offenders because of the lack of police misconduct reporting, prosecution, and administrative disciplines.

In an effort to combat the staggering statistic of law enforcement sexual abuse, a very narrow exception has been carved that gives sex victims a path to recover the full measure of civil compensation against the law enforcement agency for a total abuse of authority by its officers. All other public agencies whose employees commit acts of sexual misconduct during the course of their work fall outside the scope of employment, and no vicarious liability attaches. Maria D. v. Westec Residential Sec., Inc., 85 Cal. App. 4th 125, 146-47 (2000).

This narrow exception was first crafted in Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 285 (1991), in which the California Supreme Court decided that vicarious liability can extend to employers of on-duty police officers who commit sexual assaults under color of authority. This narrow exception, which permits vicarious liability against the department for sexual assaults committed by its officers, helps warrant that victims of this total abuse of authority get the full measure of civil compensation without having to prove any independent tort liability against the employer.

In Mary M., on Sept. 4, 1997, at around 2:30 a.m., an on-duty uniformed police officer, Sergeant Leigh Schroyer, activated the red lights on his patrol car and stopped Mary M. for erratic driving. He asked Mary M. to perform a field sobriety test; she did not perform well and began to cry. After she pleaded with the officer not to take her to jail, the officer ordered plaintiff to get in his patrol car. The officer drove plaintiff to her home and entered her house. The officer said he expected "payment" for driving her home instead of taking her to jail. She tried to get away, but the officer grabbed her hair and threw her on the couch. When she screamed, the officer covered her mouth and threatened to take her to jail. Plaintiff stopped struggling; the officer raped her and left.

Mary M. sued both the officer and the city of Los Angeles. The ultimate issue decided by the Supreme Court was whether the city could be held vicariously liable for the officer's actions. In rendering this decision, the court stated that the "test" for determining whether an employee is acting outside the scope of employment is whether "in the context of the particular enterprise, an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business."

The court concluded that a city may be held vicariously liable for the sexual misconduct of a police officer noting that the proper inquiry was whether the risk of the employee's misconduct "was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer." The court opined that "in view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct .... Sexual assaults by police officers are fortunately uncommon; nevertheless, the risk of such tortious conduct is broadly incidental to the enterprise of law enforcement, and thus liability for such acts may appropriately be imposed on the employing public entity."

Subsequent to Mary M., the Judicial Council of California approved CACI 3271, dealing with the scope of employment issue in cases of police misconduct. In pertinent part, the instruction provides: "Plaintiff must prove that peace officer was acting within the scope of his employment when Plaintiff was harmed. The conduct of a peace officer is within the scope of his 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 authority as a peace officer; and (c) The conduct results from the use of his authority as a peace officer."

As evidenced by their role in the community and the expectation of public trust, police officers appear to be held to a higher standard of care when their actions under color of authority violated the sanctity of personal space and sexual intimacy. In approving vicarious liability against police departments for sexual assaults, without having to prove an independent tort for negligent hiring, supervision or training as seen with other public employees, the Supreme Court has given a voice to the victims and a road to restitution for the depraved indifference to human decency.