AB 392 was signed into law by Gov. Gavin Newsom on August 19, 2019 and is a further attempt by lawmakers, advocates, affected families, and the law enforcement community to come together as a cohesive whole to minimize the police use of deadly force. Governor Newsom, accompanied by family members characterized as those who had lost loved ones to police violence, recently said, “As California goes, so goes the rest of the United States of America. And we are doing something today that stretches the boundaries of possibility and sends a message to people all across this country — that they can do more.” Dubbed both the “California Act to Save Lives” and the “Stephon Clark’s Law,” Governor Newsom signed AB 392 with the intent to modernize California’s peace officer use of force policies.
AB 392 does not take effect until January 1, 2020. It will likely result in further and more aggressive litigation against public agencies and their employees considering the amendment to California Penal Code Section 835a (peace officer use of force) that will take place.
SB 230 also addresses peace officer use of deadly force and talks specifically about use of force policies. SB 230 begins with the following language: “The highest priority of California law enforcement is safeguarding the life, dignity, and liberty of all persons, without prejudice to anyone.” It further sets forth the definitions of “deadly force” and “feasible” while outlining, among other items, the de-escalation, proportional level of force, and deadly force guidelines that law enforcement agencies are expected to implement. SB 230 expressly states: “Each law enforcement agency shall, by no later than January 1, 2021, maintain a policy that provides a minimum standard on the use of force.” The bill goes on to outline 20 different categories that need to be addressed in an agency’s use of force policy.
In discussing “necessary” force, SB 230 comports with the Graham v. Connor objective reasonableness standard in stating: “. . . necessary, as determined by an objectively reasonable officer under the circumstances based upon the totality of information actually known to the officer.”
The California Chiefs of Police issued, in part, the following statement upon the bill’s passage:
“SB 230 provides the tools and training needed to effectively minimize the use of force and deliver better outcomes in alignment with the AB 392 standard. AB 392’s success hinges on the passage and implementation of SB 230, which remains in the Assembly Appropriations Committee before proceeding to vote on the Assembly floor.”
In other words, SB 230 (developed in part by PORAC) “provides officers with the tools and training they need, including de-escalation tactics, interacting with vulnerable populations and alternatives to use of deadly force.” It works together with AB 392 to provide further use of force clarity and risk management options for the law enforcement community.
California Penal Code Section 835a (police authority to use force) currently provides:
“Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.
“A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.”
That section will be revised to instead expressly provide:
“(a) The Legislature finds and declares all of the following:
(1) That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.
(2) As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation considering the circumstances of each case and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.
(3) That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.
(4) That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.”
The amended language also addresses those with physical, mental health, developmental, and intellectual disabilities and states that these individuals “are significantly more likely to experience greater levels of physical force during police interactions.”
The new statutory rectification is something those who have been defending police use of force cases (particularly in federal venues) have had to address for some time; namely, the 1989 Graham v. Connor and 2015 Kingsley v. Hendrickson cases and their objective reasonableness discussions. The new state statutory language, in fact, will read:
“Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.”
With the amended statute, peace officers will still be justified and should be exonerated in using deadly force when:
- The officer reasonably believes, based on the totality of the circumstances, that such force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or
- To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.
The foregoing two options should also serve as the basis for an officer’s explanation of the use of deadly force, the type of content that will need to appear in a written report, and as the foundation for further proactive use-of-force and practical skills training. It is suggested that a best practices approach to this new California stance is to provide ongoing practical skills training that includes the presentation of various use of force scenarios (including shoot-don’t shoot examples) coupled with post-scenario practice for the officer to specifically and articulately explain the type of force that was used and the reasons why they were deployed.
While AB 392 does not take effect until 2020 and SB 230 (if enacted) does not take effect until 2021, it is recommended that law enforcement agencies immediately undertake the following steps in order to reduce legal liability associated with its officers’ use of physical force:
- How the use of force is consistent with the Department’s “sanctity of every human life” position;
- How the use of force was necessary for the defense of human life;
- How the use of force reconciles with the Department’s use of force policies;
- What the involved officer knew or perceived at the time of the decision to use and actual use of force;
- How the use of force considered or dismissed physical, mental health, developmental, or intellectual disabilities of the subject;
- How the use of force is objectively reasonable;
- How the use of deadly force comports with the “reasonable belief” or “apprehend a fleeing person” provisions of the amended statute; and
- How the officer responded to the situation and the de-escalation attempts that were made.
In closing, it is likely that the language of and advocacy surrounding AB 392 will open the door for further claims and litigation arising from a police use of force situation. It is expected that the concept of “reasonableness” will be attacked, and an attempt will be made to use term “unnecessary” in its place. This expected and expanded attack on law enforcement can be easily answered by local agencies if they continue to keep their training proactive, current, and transparent as they work to ensure that involved officers know how to describe the totality of the circumstances that caused them to act when, where, and as they did.
It is expected that members that utilize the Lexipol policy manual will be provided policy-making guidance in the coming months.