Drunk Officer’s Off-Duty Shooting Not In ‘Course Of Employment’

Written on 08/07/2021
Will Aitchison

In December 2017, the Thomas Fire destroyed and damaged numerous residences and caused widespread power outages in Ventura, California. Sorin Popescu lived on a cul-de-sac in a neighborhood that lost power. As the family was trying to decide whether to evacuate, Popescu heard a noise from the house next door. He went to investigate, worried someone might be looting his neighbor’s house. On his way, Popescu encountered Trever Dalton approaching the neighbor’s door.

Dalton was employed as a California Highway Patrol (CHP) officer. He was not in uniform, driving a marked CHP car, or displaying a badge or other official identification. Popescu asked Dalton who he was, then suspected Dalton was drunk and told him to leave. Instead of leaving, Dalton started questioning Popescu about his identity and where he lived. Dalton became increasingly aggressive with Popescu. He repeatedly told Popescu that he was an officer and was carrying a gun.

Dalton was riding a bicycle. As the two men exchanged words in the street, Dalton rode the bike in circles around Popescu, eventually hitting him in the leg with the wheel. Popescu grabbed the handlebars and pushed the bicycle away. This caused the intoxicated Dalton to fall off the bike. He began yelling that Popescu had assaulted him.

After a series of increasingly threatening events, Popescu was standing inside his house, near the open front door, talking to his wife with his back to the street. Dalton walked up the driveway toward the front door. Neighbors heard Dalton say, “Put your gun down.” Popescu was not armed and had not been at any point during his confrontation with Dalton. Dalton fired two shots, one of which hit Popescu in the back.

Popescu suffered severe injuries and spent five days in the hospital. Dalton was taken into custody and charged with firearms and assault offenses. Popescu sued both Dalton and the CHP, alleging that the CHP was vicariously liable for Dalton’s misconduct because he was acting within the course and scope of his employment when he shot Popescu.

The California Court of Appeals dismissed Popescu’s claims against the CHP. The Court held that “Dalton’s violence toward Popescu had nothing to do with his employment. Dalton was not driving a CHP car, was not being paid by the CHP at the time of the shooting and was not enforcing the California Vehicle Code. He was riding his bicycle around a residential neighborhood while drunk.

“There is no allegation that Dalton claimed to be investigating a crime or performing a public safety function such as warning residents about the Thomas Fire or encouraging them to evacuate. When Popescu asked Dalton what he was doing, Dalton started to argue with him. He said he was a cop and that he had a gun, but never displayed a badge or identified his employer. He was not in uniform. There is no allegation that Dalton verbally threatened to arrest Popescu or told Popescu he was under arrest.

“There is no allegation that Dalton used a CHP-issued firearm. In other words, the complaint alleges facts that describe a personal dispute Dalton created with an innocent resident, not misconduct in the exercise of his law enforcement responsibilities or authority. The risk that an officer would get drunk, start an argument with a stranger and then shoot that person is not one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the CHP. Because Dalton’s confrontation with Popescu was not generated by, or an outgrowth of, his workplace responsibilities, Dalton’s shooting of Popescu was outside the scope of his employment.”

Popescu v. California Highway Patrol, 2021 WL 2216210 (Cal. Ct. App. 2021).

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