Police

California Lawmakers Pass Bill Limiting Police Use of Deadly Force

Officers will now have to argue that killing was necessary and not just say they had a fear they were in danger.

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A bill requiring police to be more careful when applying deadly force against citizens has passed the California legislature and is now heading to the governor's desk.

AB 392, first introduced by California Assemblymember Shirley Weber (D–San Diego), changes how police across the state are expected to evaluate conditions and dangers before resorting to deadly force. Currently, the state requires that police have a "reasonable fear" that they were in danger. Thus, police can argue that the use of deadly force is justified based on what they think might happen, even if it turns out that they were mistaken and there was no actual threat.

Under AB 392, these rules will change. In the text of the bill, a killing by a police officer will be considered justified when:

"the officer reasonably believes, based on the totality of the circumstances, that deadly 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 a 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 the person is immediately apprehended."

In other words, the police officer has to be able to argue that there is an actual imminent threat in order to justify using deadly force.

The bill was originally introduced in the wake of Stephon Clark's killing by Sacramento Police in March 2018. Police, responding to 911 calls about vehicle break-ins, identified Clark as a suspect, and chased him into a backyard. There, two officers apparently mistook Clark's cellphone for a gun and opened fire on Clark, shooting him eight times and killing him.

The incident was captured on officers' body cameras, but the Sacramento District Attorney's office ultimately decided not to charge the officers, taking the position that the two officers genuinely feared that Clark actually had a gun, and therefore the shooting was justified and the officers "acted lawfully."

Clark's death prompted outrage and calls for reform in the state's rules on police deadly force. AB 392 passed the state's Assembly in May and finally passed the state Senate on Monday by a vote of 34-3.

The bill has been watered down significantly in order to overcome resistance by law enforcement groups. The bill once had an objective definition of what it meant when it called deadly force "necessary" (that a reasonable police officer in the same situation would objectively conclude there was no alternative) that has been removed, leaving it for prosecutors and juries to determine. The bill has been amended to make it clear that officers do not have a duty to retreat when faced with a confrontation, nor do they lose the right to claim self-defense when using reasonable force to arrest somebody or to prevent them from escaping. It does, however, explain that retreating does not mean "tactical repositioning or other de-escalation tactics." In the Clark case, the officers were in a position where they could have safely backed away from him and would have likely realized quickly he did not have a gun.

The bill now heads to the desk of Gov. Gavin Newsom, a Democrat. He praised the bill in May and is expected to sign it into law.

Use of force incidents by police in California is on the decline across the state, and perhaps AB 392 will help. A new report released last week shows a 20 percent drop in instances of use for force from 2016, declining from 782 incidents in a year to 628. In one-third of the 2018 cases, civilians were shot, and 146 were killed.

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  1. I learned in college American cops are a bunch of racists who regularly put bullets in black bodies for no reason at all. Hopefully this bill can help solve that problem.

    #BlackLivesMatter
    #HandsUpDontShoot

    1. If what you learned in college is correct this bill will not help. So maybe what is needed is all offers on the street should be disarmed and if an officer happens into a condition that an weapon is needed the officer would stand down and call for an armed officer who would specially trained. Now to dissuade the law breaker from killing or injuring the unarmed officer a killing would be a automatic death penalty or life without parole and injury would have 50% time added to the sentence.
      As long as the officers are armed there will be a possibility of misuse by the officer.

      1. Welcome to Hit & Run, don’t feed the trolls.

        1. Your advice seems warranted, Paul.

          1. Haven’t seen you in a while.

    2. #shootmeI’mstupid!
      #shootmeIbelieveinopenborders!
      #shootmeIlovesocialism!

    3. A great law. About time to neuter the ‘fraidy cats. Let them find meaningful work elsewhere. They do not belong out in public with a shoot first attitude.

    4. Not to mention the other half of the duality: the police are the only ones among us who possess the advanced training and temperament to wield firearms, at least in a civilized/advanced nation

      #Gunsense

    5. Yeah that’s not reactionary and outright idiotic. % of police shootings, https://cdn-images-1.medium.com/max/2400/1*qgiP5ss698hXMKE6a2It7g.png
      White people is the highest %, spread out all over the country, AA deaths are more urban based. The only real issue is the militarization of law enforcement under reagan-cancer that persists today. Stop the swat mentality and get the vast majority of guns off the street, we will all be warm and fuzzy. But many more will be alive.

  2. Applied retroactively, would this have resulted any different outcomes in the various police shootings in California? My guess is that this going forward changes nothing.

    1. It should work the way any move towards accountability would- it bends the arc over time if cops see other cops getting punished for what used to be routinely accepted. Of course the caveat is that this is so watered down cops might still escape punishment.

      nor do they lose the right to claim self-defense when using reasonable force to arrest somebody or to prevent them from escaping.

      What the everliving fuck. Do words mean anything anymore? How is preventing someone escaping “self-defense”? How is arresting someone self-defense, unless they were directly threatening the officer with deadly force?

      “They were coming right at… uh, at an angle away from me!!! I had to shoot!”

      1. It should work the way any move towards accountability would- it bends the arc over time if cops see other cops getting punished for what used to be routinely accepted.

        Right, which might already be working without this bill. How many cops have we seen prosecuted over the last five years compared to the previous 20? Yes, very few convictions, but as you say, I think it bends the arc when cops keep seeing other officers getting prosecuted– even if unsuccessfully. No one wants to be standing tall before the man every time they pull the trigger, even if you’ve got union lawyers on your side.

    2. The NFL can’t tell anyone what is or isn’t a catch. Do you think they’ll reliably define imminent threat?

      1. Wait, the NFL is drafting legislation in CA now?
        Seems like it will probably be an improvement.

        1. That’s a really big probably.

        2. Or maybe California will start taking referee duties for NFL games. It’s not like they could be THAT much worse. I may not be giving Gavin his deserved credit of inefficacy, however.

    3. I agree. I doubt attorney generals are going to start charging police for anything other than a completely obvious situation, like what happened to the Australian woman in Minnesota.

    4. Mmm it changes the narrative somewhat.

      In much the way “I don’t feel safe” has been used as a catch all for SJW’s to violate rights, police have had a ready made excuse.

      This, at least, makes it clear that is no longer the case.

  3. There, two officers apparently mistook Clark’s cellphone for a gun and opened fire on Clark, shooting him eight times and killing him.

    Explain to me how the text of this bill changes anything in this account?

    The bill has been amended to make it clear that officers do not have a duty to retreat when faced with a confrontation

    I would agree with that– that’s an immoral proposition, and I’ve argued as much about laws in states where civilians are burdened with the same requirement.

    In the Clark case, the officers were in a position where they could have safely backed away from him and would have likely realized quickly he did not have a gun.

    I haven’t seen the body cam footage here, but yes, possibly, possibly not. It’s possible that backing away could have resulted in less clarity about what he had in his hand, not more.

    A new report released last week shows a 20 percent drop in instances of use for force from 2016, declining from 782 incidents in a year to 628.

    This might be a result of more aggressive prosecutions and actions against police officers under the existing rules.

    1. Not retreating is part of the problem when the often officer initiates the threat or confrontation. So I think you’re right, this changes nothing.

    2. I suspect you are right. Police will just have to subtly modify the language they use to justify a shooting. Add something about “immanent threat” and they probably have their asses covered.

      As long as you leave it up to what the officer reasonably believes, probably nothing changes.
      What is really needed is a requirement that an immanent threat actually exists in reality, or at least it is such that any reasonable person would perceive as a threat, not only as perceived by the officer.
      The police need to be held to the exact same standards for use of force as anyone else would be. More stringent if anything since they signed up for the job and their duty should be to protect the people they are supposedly there to “protect and serve” before themselves or other police.

      1. I suspect you are right. Police will just have to subtly modify the language they use to justify a shooting. Add something about “immanent threat” and they probably have their asses covered.

        I’ve personally known some public sector union people. Trust me, they’re trained from the get-go about what to say to investigators. I knew a metro bus driver who was specifically trained to never say anything like “I ran into the vehicle” or “I hit the other car”. The correct phrase was always, “The vehicles made contact”.

        If people don’t think that the police union lawyers haven’t already drafted talking points to deal with this new minor change (and I believe this bill really is a minor tweak), they’re kidding themselves.

        1. Oh, I believe you. That’s why the reports always use exactly the same boilerplate language.

    3. In Clark’s case it can clearly be seen from the helicopter video that the cops continued to shot him while he was prone on the ground. You could see the bullets ricochet off the concrete, he was no longer a threat. If any private citizen were attacked by an actual gun wielder and continued to shot after the threat was over as in this case, Clark was flat on the ground, the citizen would be charged with assault. those rules need to be applied to the police as well. Clark may have died by the first bullet but maybe not and maybe he would have lived if the cops had quit shooting when he was down. but i know they are trained to empty their gun when they shoot so they did as they were taught and need to be trained to only shoot as needed.

    4. “Show me your hands! Gun! Show me your hands! Gun, gun, gun!” Helicopter footage “shows that Mr. Clark was in fact advancing on the officers,” Schubert said, without specifying how long that was before they actually opened fire.

    5. The funny thing about California? Not only is it a “Stand Your Ground” State (by Common Law court decisions, and not by legislation), it’s the only State where it’s clear you can legally pursue an attacker if it’s necessary to secure your safety, or the safety of others.

      If any citizen can do it, then surely the police could, too!

      Of course, the police have an advantage over the average citizen, in which it’s far easier for them to legally own and carry the tools they need for self defense, but that’s a different issue.

  4. the officer reasonably believes, based on the totality of the circumstances,

    Yeah that alone provides enough wiggle room to drive a police cruiser through. No matter the evidence they can always add things that weren’t seen or heard or it’s just a different interpretation of the totality.

    But it’s a step in the right direction, similar to what I heard a cop in the Netherlands say a few years ago- that they are very very reluctant to fire their weapon because it’s an automatic trip to a judge to justify it, IIRC.

    1. You’re presuming police just wanna shoot people and will find any way to get wiggle room to do it. Hardly a realistic, fair or unbiased perspective.

  5. So they just say “I believed” instead of “I feared”. This bill was watered down to nothingness. And “reasonably” in police shootings is already watered down to anyone who’s not completely immobilized being someone who creates “reasonable” fear they’re about to kill everyone.

  6. “The bill once had an objective definition of what it meant when it called deadly force “necessary” (that a reasonable police officer in the same situation would objectively conclude there was no alternative) that has been removed, leaving it for prosecutors and juries to determine.”

    So what really changes? It’s always for the prosecutors and juries to determine. It’s the prosecutors that decide whether to charge people with crimes. And they’re certainly are free to drop cases for whatever reason they want. Like Kim Foxx did with Jussie Smollett.

    This bill is virtual signaling meant to placate the anti-cop twitter mobs.

    1. This bill is virtual signaling

      I’d say it’s actual signalling.

      If it placates the twitter mobs, they are pretty dumb mobs. Which I guess is likely on Twitter.

      1. “This bill is virtual signaling”

        Oops! I meant virtue signaling.

        Unless we really are in The Matrix…

  7. Brainiac, there is no difference between this–

    Currently, the state requires that police have a “reasonable fear” that they were in danger. Thus, police can argue that the use of deadly force is justified based on what they think might happen, even if it turns out that they were mistaken and there was no actual threat.

    ….and this–

    “the officer reasonably believes, based on the totality of the circumstances, that deadly 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 a 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 the person is immediately apprehended.”

    None whatsoever.

    1. Frankly, it’s a good thing that nothing changes whatsoever. If we had changed from “perceived” to “actual” threat, then a police officer could be charged with murder for shooting a guy with an unloaded gun.

      Fun fact: an unloaded gun looks exactly like a loaded gun.

      Also, another fun fact: this is the very same standard that is used for civilians. If you pulled what looks like a gun on me, and threaten my life, then I can legally pull out my gun and shoot you, even if it turns out to be a replica, or a cell phone, or an unloaded gun.

      In the presence of a threat to our lives, the Law doesn’t expect us to be omniscient. It merely expects us to act according to the information we have about the situation at the time.

  8. I wait with interest to see if this change in legal verbiage will have any impact.

    It seems to me that prosecutions of police aren’t always in the worst cases of abuse, but rather when an ambitious prosecutor plus angry activists seek out a scapegoat.

    If you’re charged with a crime, or if the cops reasonably conclude you’ve done a crime in their presence, then as a general rule the thing to do is go downtown with Officer Friendly and see if the whole thing can be sorted out (without talking to cops of course). This isn’t to say that anything short of such cooperation justifies Officer Friendly in killing you, just that as a matter of self-preservation it increases your chances of survival.

  9. This won’t change anything. If the cops reasonably believed that the cell phone was a gun, then they also reasonably believed they were in imminent danger of serious harm.

    1. It would be better if there was something specific stating that seeing someone with a gun is not sufficient evidence of a deadly threat. They should need some further reason to believe that the gun wielding person is about to use the gun against some innocent person or the police.
      Even if the guy with the cellphone really was holding a gun, that’s not good reason to believe he was an immediate threat.

      1. good point Zeb
        just having, holding, a gun is not a crime, brandishing a gun in a threatening matter is a different story. several people have been shot by police just for having a gun and sometimes even after dropping the gun and ducking like that guy did with the toy gun in the store

        1. “Even if the guy with the cellphone really was holding a gun, that’s not good reason to believe he was an immediate threat.”

          If someone is holding a gun in the presence of police who are clearly police and they don’t drop it, they are an imminent threat particularly when the person was being pursued. He’s just holding a gun for show and tell! Come on.

      2. What police academy did you attend and why did they not teach you Tennessee v. Garner? The three prong test is ability, opportunity and jeopardy. A person holding a gun is not a specific threat, until they raise it. At that point it is unreasonable to wait to see if they will shoot you. That applies to anyone, no matter where you work. The proposed law would require shooting someone to be necessary, and necessity requires an act; I had to shoot him because he shot me or shot at me. This aspect, making an assessment based on unknowable facts, was a major problem. Given only two options, going to jail or being killed if wrong, police officers would create a third option. The 3rd option broke the system by creating come back cops. As in “Call us if he comes back”. I’m retired now, but if this had passed in its original state while I was still working you would only see me when I left the station going to a call or returning to the station from a call. You would have non-invocation of the criminal justice system. Look up Warren v. District of Columbia while you’re at it.

  10. Cops would have to justify their actions in a fatal shooting? You mean like a common person?

    Proof that there’s a war on cops.

  11. I don’t know the specific California law of self-defense, but the proposed language seems to mirror some of the traditional law of self-defense in states I am familiar with. In other words, the standard for police self-defense killings are now the same standard for regular ordinary civilian self-defense killings. I’m not sure what impact this will have on prosecutions for police related killings because prosecutors (who work hand in hand with police) still have the sole discretion to charge and prosecute police killings. If nothing else, I hope it causes police to think twice before shooting unarmed people.

  12. As a Reason libertarian, I don’t think we get enough articles about local policing. The minutiae of isolated police procedures, actions, and thought is of utmost importance – and we shouldn’t get distracted by things like FBI political persecution. The local police horse isn’t dead yet, damn it!
    Except in South Bend. Nothing to see there. Hey, remember when that one cop said mean things on the internet?

  13. I think this is a bad solution to the problem. Which isn’t, at its core, that cops are shooting people too easily. Its that the justice system gives them a pass.

    But cops are civilians. All the same laws and expectation should attach to them as it does to the rest of us. So, how long before CA decides that this should be the standard for everyone?

    And does anyone think this will fix the issue of prosecutors using their ‘discretion’ to choose to not prosecute or overcharge? Of juries being intimidated by other officers to acquit?

    The problem is a criminal justice system that gives cops a pass. The solution is to fix that.

    1. And the criminal justice system gives cops a pass based on the “reasonable cop” standard which is actually a lower standard than the “reasonable person” standard. If you have, let’s say, a medical malpractice suit, they use a “reasonable doctor” standard based on the theory that the average person doesn’t know enough about medicine to know whether or not whatever the doctor did or didn’t do was reasonable so you call in other doctors to weigh in on the question as to whether or not the doctor’s actions were reasonable. So too with other specialized occupations – the average person probably doesn’t know enough to judge whether a particular professional was acting in a reasonable manner. Cops, on the other hand, are primarily involved in situations that the average person is familiar with – somebody posing a threat to you. The argument about not being qualified to judge a cop’s actions unless you’ve worn the badge is bullshit. I see somebody snooping around outside my house so I run out and shoot him in the head only to find out he’s the FedEx guy trying to find the right address and I’m looking at a long prison stint – you simply are not allowed to shoot first and ask questions later. And yet that is exactly what cops are trained to do because officer safety is Job One. So, sure, a “reasonable cop” gets spooked at his own shadow and starts wildly blasting away, but a “reasonable person” sure as hell wouldn’t get away with that nonsense. Which actually gives cops an incentive to keep doing this stuff – if they started being careful to assess the situation first, why, people might start thinking a “reasonable cop” is one who doesn’t shoot first and ask questions later and that’s almost like holding cops responsible for their actions.

      1. Yes. It’s totally backwards. Cops are supposedly trained professionals who have chosen to take on a risky job. The standards for self-defense and use of force should be stricter than they are for everyone else, if anything.

        1. “Cops are supposedly trained professionals who have chosen to take on a risky job. The standards for self-defense and use of force should be stricter than they are for everyone else, if anything.”

          Saying a police office should have a higher burden of self defense than a normal citizens (which is available to other private citizens) strips them of their own rights as citizens. There is no legal basis for saying because someone is better trained they have a higher burden of self defense. Someone who puts themselves at risk in protecting the public is deserved at lease the same level of self defense as anyone else, “if anything.”

  14. Oh, great.
    Now cops have to explain why they put seven slugs into someone.
    Whatever happened to freedom of expression?

    1. When didn’t they have to explain it? Nice non-sequitur. Child.

  15. This will likely cause the Baltimore Effect. Cops will be unwilling to attempt capture of criminals and crime will explode. It is a wonder anyone signs up to be a cop, much less goes after an armed criminal in the dark.

  16. Get ready for nothing to change. All shootings will be deemed justified as always.

  17. Once again, laws and LEOs fail to protect. The political zombies want new laws to fix the old laws. Who will decide what “reasonable” means, i.e., who will protect us from the (not our) so-called protectors?

    The problem is the fundamentally flawed worship of violence that the political system is based on. A moral monopoly is granted to a few rulers who are thereby exempt from popular judgement like business, the private sector is. Not until that monopoly on force is revoked and the royal rulers have their special privileges revoked will society be ready to rule itself, individual by individual, as sovereign citizens, based on reason, rights, and choice.

  18. Let’s hope this leads to some positive change.

  19. So, instead of California cops saying they have a “reasonable fear” that they were in danger, they now say the officer “reasonably believes, based on the totality of the circumstances, that deadly 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 a 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 the person is immediately apprehended.”

    Not seeing much difference, except for more verbiage.

  20. Watered down to nothing. The police officer does not have to be able to argue “that there is an actual imminent threat”. He only has to argue that he reasonably believed that there was an imminent threat.

    Like Jerry B, I’m not seeing a substantive difference between this standard and the previous one.

    1. And I fail to see why that’s a bad thing.

  21. […] One good example of this is found in this news report by Reason, entitled: “California Lawmakers Pass Bill Limiting Police Use of Deadly Force” […]

  22. These things are tough… Because there’s no way to legislate things to actually change reality.

    The fact is, most cops don’t want to deal with the bullshit of shooting somebody. It’s too much paperwork, and some of them even have morals and stuff.

    If some guy things some guy is pulling a gun… The reaction any person, cop or civilian, should have been trained to have is to shoot them.

    If you’re wrong, and they don’t have a gun… Ooops! But if you’re right, and you don’t fire… You are dead.

    No law can fix this. A well trained cop can be BETTER about identifying a gun coming out of a pocket perhaps, or give an extra split second to confirm if it is a gun or not… But that’s about it.

    In other situations where people get shot for lipping off, or shot because they have a knife 50 feet away… They can certainly work on that shit. Lots of instances people should just be tased or pepper sprayed, not shot.

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