A new law signed by Governor Newsom last Monday strengthens the standard by which police can use deadly force in California. The new guidelines are among the toughest, if not the toughest, in the country. Governor Newsom and advocates believe this law may become a model for police deadly force standards nationwide.
The law significantly changes how police shootings are reviewed and analyzed once they happen, and provides additional definition around the standards for lawful use of deadly force.
Simply stated, under the new law, AB 392, a police officer can lawfully use deadly force only “when necessary.” Under previous law police officers were allowed to use deadly force under the standard of “reasonable belief” of imminent danger.
While the differentiation between “when necessary” and “reasonable belief” continues to leave room for a lot of interpretation around a lawful police shooting, this new law aims to explicitly limit the instances when a police officer can use deadly force.
Advocates believe the standard in the new law of “when necessary” is highly significant because it reduces the vagueness around the previous standard in the law. But most importantly the law requires judges, juries, prosecutors, and police reviewers to consider the “totality of circumstances” of a shooting – i.e., actions of the police officer and the victim leading up to the shooting. Previously the interactions of police with victims prior to the use of deadly force was generally not considered in interpreting the law under the “reasonable” standard.
A few additional elements in AB 392 include:
- Officers use other available resources or techniques if safe and feasible.
- Officers may use objectively reasonable force to make an arrest, prevent escape or overcome resistance.
- Deadly force may be justified when used to defend against imminent threat of death or serious bodily injury to the officer or another person.
- An officer may not use deadly force against a fleeing person unless the officer reasonably believes the person will cause death or serious injury to another if not immediately apprehended.
- An officer must make reasonable attempts to identify themselves as a peace officer and to warn the person of the use of deadly force.
- An officer does not lose the right to self-defense, and need not retreat when meeting resistance to an arrest, but the law explicitly states that “retreat” does not mean employing de-escalation tactics or tactical repositioning.
Several high-profile shootings in California spurred Democratic Assemblywoman Shirley Weber of San Diego to introduce the law. This new deadly force law, which will take effect in January, is the result of compromises among police unions, advocacy groups, and lawmakers.
The issues surrounding the law are extraordinarily complex. The safety of the officers; the risks they take; the rights of the citizen, victims and suspects, and the families of victims; and the immediacy of decision-making under dangerous and unfolding circumstances. All are hefty factors to be weighed in constructing a standard for when it is lawful to kill another person. The nuances to consider in crafting such regulations are hard to over state.
In fact, the debate and negotiations around this law spawned a podcast called Force of Law that explores California’s attempt to curb police shootings and how politicians go about considering a standard for justifying deadly force. There are currently seven episodes exploring different perspectives. The podcast is a deep dive into the history, the stories, and the debates that brought this law onto the Governor’s desk. You can find the podcast by CalMatters here.
Police officers have been requesting more training and the Legislature and Governor have stepped up on that front. The state budget Governor Newsom signed earlier in the summer adds $35 million to fund law enforcement training, dedicating $20 million to training officers in de-escalation tactics and alternatives to firing their weapons.
A companion bill currently waiting on a final vote in the Legislature, provides additional clarity around use of force, requires all agencies to revise policies on de-escalation and proportional response, rendering medical aid, raises the standards for basic training so that it covers de-escalation techniques, cultural competency training, response to mental health crises, and bias awareness. The funding provides the Commission on Peace Officer Standards and Training up to $450,000 to develop new training guidelines.
AB 392 takes effect in January 2020. Expect it will take time for law enforcement agencies to be retrained in the new standards of the law. The Commission on Police Officer Standards and Training will first have to implement the details of training before the 80,000 California police officers can be re-trained to the new standards laid out in the law.
There will likely be years of litigation before the deadly force standard is ultimately decided, so we will watch as the implementation unfolds and as it is hashed out in court.
Jeremy N. Goldman is a defense attorney and certified specialist in criminal law by the California State Bar of Legal Specialization. He has practiced criminal law defense in Orange County for more than 22 years. Contact his office on any criminal defense matter at 949-387-6670 or by email here.