It was a rare site to see members of the Senate Public Safety Committee buck objections from law enforcement groups used to having their way, and by a 5-2 vote advance AB 931, which would change the very definition of permissible use of deadly force by police against suspects.
California’s current “reasonable force” standard hasn’t been updated since 1872. Assemblywoman Shirley Weber (Democrat-San Diego) said it was the oldest unchanged use-of-force law.
The proposed law would only allow police to use deadly force in situations where it was necessary to prevent imminent and serious injury or death to the officer or another person. Right now, California, like other states, uses a “reasonable fear” doctrine which allows jurors to assess whether the officers have a reason to fear for their safety. Under those conditions, police can use deadly force.
That standard makes it unusual for police to be charged and even more rare for them to be convicted for unreasonable use of deadly force.
Under AB 931, also authored by Sacramento’s Kevin McCarty, police would have to use attempts to de-escalate the situation, including the use of nonlethal tactics.
“It always blows me away when law enforcement only fear for their life only when they’re facing black and brown people,” said Democratic Sen. Steven Bradford of Gardena, an African American who serves on the committee. “We don’t have a problem with law enforcement, we’ve got a problem with racism.”
As a Bee editorial points out: “Not long ago, Assembly Bill 931 would have been dismissed before it was drafted. But 
that was before March, when two Sacramento police officers chased an unarmed black man named Stephon Clark into his grandparents’ backyard and shot him to death.”
The Bee writes: “There has been no escaping the connection between Clark and the long and growing list of Americans — disproportionately black and male — who get killed by police every year for crimes large and small, or sometimes for what turns out to be no crime at all.
“In California as elsewhere, this issue has gone unaddressed for far too long. A bold stand now for more sensible police use-of-force standards would not only save lives and improve public trust in law enforcement, but would show the public that state lawmakers can assert themselves.”
Law enforcement officials and lobbyists have pushed back, calling the change drastic.
The Bee notes that despite this, “similar policies already are being tried by law enforcement agencies across the country.”
They add, “In Seattle, the results have been positive, with fewer officers in danger and fewer civilians killed. Training is essential, of course, and AB 931 would set aside money for that.”
The Bee points out: “Officers who violate the stricter use-of-force standard could be criminally prosecuted if the law is approved — something that, under current state and federal law, rarely happens. Such prosecutions should be rare, but the tool should be available when needed.”
A follow up Bee editorial notes that, after approval, the model “is reasonable” and “taken from best practices and strategies that are succeeding in other jurisdictions.”
Alarm bells are now ringing as law enforcement groups around the state have “circled the wagons, declaring their refusal to compromise with Weber and McCarty.”
“We agree that more training can result in better outcomes,” Jonathan Feldman, a lobbyist for the California Police Chiefs Association, told the Bee. “But there is a fundamental disagreement about raising the standard above what the Supreme Court has said.”
Fresno Police Chief Jerry Dyer told TV reporters: “When officers are out there, and they’re faced with a split second decision, and they are now worried about not only losing their life but losing their freedom and going to prison, they may hesitate long enough to where their life or the life of a citizen is in danger.”
And Merced County Sheriff Vern Warnke surmised that lawmakers are “going to cause these cops to start second-guessing on what they’re going to do because they’re going to think, ‘My gosh, I will end up in jail.’ Next thing I know, I’m going to a cop’s funeral. We have people making these laws that have never been trained or put in a situation and feel compelled to make a decision. That’s not right!”
The Bee, however, admonishes them: “Everyone take a deep breath.”
They add: “While it’s true that AB 931 represents a big change for California cops, who are accustomed to following a use-of-force standard so antiquated that it predates what the federal government requires, there are good reasons to stop, think and consider this legislation. For one, the provisions in it aren’t new.”
The Bee cites Seattle as a key example, noting the result of their changes shows “the department has seen fewer officers hurt, fewer civilians killed and a general decline in crime rates.”
“This reduction in the use of force cannot be attributed to anything other than what can now be statistically shown: Officers in the field are de-escalating volatile situations with regularity and skill, putting in practice the training that has established Seattle as a national leader in policing reform,” former Seattle Police Chief Kathleen O’Toole wrote last year.
And AB 931 is largely based on the policing policies of Seattle, as well as some updates to the use-of-force standard by the Los Angeles Police Department and the more comprehensive policy that law enforcement groups are currently blocking from taking effect at the San Francisco Police Department.
We will see what happens when the bill gets to the Senate floor.
—David M. Greenwald reporting
The “reasonable fear” qualifier is a good one, provided that “reasonable” is applied. The major problem is nobody in judgement (administrative or legal) applies this standard. Instead, the officer will say he/she was in fear, and that’s good enough. No, it isn’t.
A law enforcement officer cannot simply claim that he/she feared dying and therefore exercised deadly force for self preservation. This is “naked fear,” not reasonable fear. Every work day for a street cop has instances where there is potential for serious personal risk. Those seeking a risk-free profession should become a monk rather than a law enforcement officer.
Shooting a suspect in the back while fleeing the police cannot rationally be defended as being reasonable. Ironically, the “dangerous suspect” was taking effective measures to remove himself from being an immediate hazard to the pursuing officer(s).
There are numerous other recent instances where the suspect had his hands up, was prostrate on the ground, with no tangible evidence of a weapon, and still shot to death. No measure of reasonableness exists for such instances. Yet with that said, it is correct that the history of accountability for a standard of “naked fear” is virtually non-existent.
“Fresno Police Chief Jerry Dyer told TV reporters: “When officers are out there, and they’re faced with a split second decision, and they are now worried about not only losing their life but losing their freedom and going to prison, they may hesitate long enough to where their life or the life of a citizen is in danger.”
A familiar response and one no longer plausible, if it ever was. Those TV reporters should have asked Chief Dyer the number of documented cases nationwide where the pause for assessment of personal accountability resulted in the death of the officer. He’d be struck silent because there is not such evidence of any repute.
Police officers are trained and expected to make correct split-second decisions in high-stress potential fatal circumstances, it’s part of the job. It happens tens of thousands of times daily and done correctly and properly. If the officer fears he might go to prison with gun in hand, he should probably not pull the trigger.
This comment from Steven Bradford is the essence of racist.
I see, so in your world, stating that there’s racism is the essence of racist? Got it.
In the real world it is not just racist but a lie to say that police “only” fear for their life when facing black or brown people since since year after year police shoot and kill more white people and write in the report that the shot the guy (or in rare cases gal) because they feared for their lives…