We recently ran an article that asked the question, how does California sleep at night? The question is more pointed at California state legislators, who cannot seem to get out of their own way in a scramble to see who can introduce the craziest piece of legislation.
Allow me to introduce you to California AB392. This bill was introduced to regulate police use of deadly force. The amended version is sitting on the governor’s desk awaiting a signature.
I encourage you to read the bill in full, but here are a few of the highlights.
Original text: “This bill would redefine the circumstances under which a homicide by a peace officer is deemed justifiable to include whenthe killing is in self-defense or the defense of another, consistent with the existing legal standard for self-defense, or when the killing is necessary to prevent the escape of a fleeing felon whose immediate apprehension is necessary to prevent death or serious injury. The bill would additionally bar the use of this defense if the peace officer acted in a criminally negligent manner that caused the death, including if the officer’s criminally negligent actions created the necessity for the use of deadly force.”
Amended text: “This bill would redefine the circumstances under which a homicide by a peace officer is deemed justifiable to include whenthe 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.”
Let’s pause here for a moment. They removed the concept of self-defense from the bill. While the overlying idea behind self-defense is still present, California legislators added the wording “based on the totality of the circumstances.” This is where I take issue. It is way too easy for a grand jury, a judge or a trial jury to Monday morning quarterback the situation from the safety of the courtroom. It is easy to look at the totality of circumstances after the fact. Officers have to make a split-second decision. They do not always have access to the totality. This legislation, as passed by the State Assembly and Senate, uses this vague terminology to the detriment of our police officers, their safety and their decision-making process.
The bill then goes on to strike verbiage from Section 196 of the penal code. This portion of the bill removes multiple lines of text, and with it, protections for officers. The authors reduced the provisions of this section to two.
“Homicide is justifiable when committed by peace officers and those acting by their command in their aid and assistance, undereitherof the following circumstances:
- In obedience to any judgment of a competent court.
- When the homicide results from a peace officer’s use offorcethat is in compliance withSection 835a.”
As they did in the preface of the bill, they removed a lot of language that was there for the protection for the officers. Items stricken include:
“1. When, except as otherwise provided in subdivision (c), the homicide would be justifiable pursuant to Section 197, in self-defense or the defense of another person.
- When, subject to subdivision (c), the officer reasonably believes, based on the totality of the circumstances, that the use of force resulting in a homicide is necessary to prevent the escape of a person, and all of the following are true:
- The peace officer reasonably believes that the person has committed, or has attempted to commit, a felony involving the use or threatened use of deadly force.
- The peace officer reasonably believes that the person will cause death or inflict serious bodily injury to another unless immediately apprehended.
- If feasible, the peace officer has identified themselves as a peace officer and given a warning that deadly force may be used unless the person ceases flight, unless the officer has reasonable ground to believe the person is aware of these facts.
- As used in paragraph (4) of subdivision (a), “necessary” means that, given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person. The totality of the circumstances means all facts known to the peace officer at the time and includes the tactical conduct and decisions of the officer leading up to the use of deadly force.
- Neither this section nor Section 197 provide a peace officer with a defense to manslaughter in violation of Section 192, if that person was killed due to the criminally negligent conduct of the officer, including situations in which the victim is a person other than the person that the peace officer was seeking to arrest, retain in custody, or defend against, or if the necessity for the use of deadly force was created by the peace officer’s criminal negligence.”
The final portion of the bill is amendments to Section 835a. Item 2 was added as part of the addendum. This section is lengthy, but the key portion states:
“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 in light of the particular circumstances of each case and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”
There is also an entire section that was stricken: “A peace officer who makes or attempts to make an arrest need not abandon or desist from the arrest by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. A peace officer shall, however, attempt to control an incident through sound tactics, including the use of time, distance, communications, tactical repositioning, and available resources, in an effort to reduce or avoid the need to use force whenever it is safe, feasible, and reasonable to do so. This subdivision does not conflict with the limitations on the use of deadly force set forth in this section or Section 196.”
I am not, nor have I ever been an officer, but I believe I understand what this means. By the verbiage of this new bill, which only needs to be signed by Governor Newsome, removing that last paragraph indicates that an officer must retreat or abandon and will be deemed an aggressor and can lose the right to self-defense.
Critics on social media said the law still wasn’t strict enough and that officers should “be legally bound to exhaust every alternative to lethal force before they’re allowed to kill.”
Still: it’s not as good of a law as we need (officers really should be legally bound to exhaust every alternative to lethal force before they’re allowed to kill), but it’s a wonderful step forward. California!
— Alex Birdsall (@gobslapped) July 9, 2019
While most reasonably minded people agree that officers need to do everything in their power to de-escalate situations in the least aggressive way possible, this new legislation is absolutely going to be detrimental to law enforcement officers.
Especially considering the comments made by some of the state legislators.
“It’s time to make clear that the sanctity of human life is policing’s highest priority,” said Democratic Assemblywoman Shirley Weber of San Diego, adding later that her proposal “is designed to change the culture of policing in California.” Weber acknowledges officers would have to egregiously violate a policy to face charges but expects the standard would deter shootings.
Democratic Assemblywoman Sydney Kamlager-Dove of Los Angeles tearfully recounted finding four officers in her home responding to a false burglar alarm last fall. They treated her respectfully, yet Kamlager-Dove, who is black, said she started shaking and crying. “And I realized I was crying because I was afraid. I didn’t want to make any sudden movements,” she said.
California governor expected to sign one of the tightest laws in the country regulating police use of force | https://t.co/D1afVDlLJr
— darlene hudgins (@DarleneHudgins) July 9, 2019
Democratic Sen. Steven Bradford of Compton wasn’t persuaded that the original plan or the amended version would make much difference. “We’re dealing with a racist society, and we want to hide behind all these other laws and anything else,” he said. “This is straight about race, and all the training in the world, unless you change your heart and your mind, will not have any effect on how our policing happens in this country.”
It seems that race is being forced as the primary factor, even though the evidence and statistics do not back that narrative up.
The eight-member panel’s two Republicans opposed the measure. They said the laws could make officers hesitate for a fatal second if they have to consider alternatives to lethal force. That’s what Sacramento County Deputy Sheriff Julie Robertson faced. She testified how her partner, Mark Stasyuk, died last fall during a gunfight and she hesitated as the suspect shot at her with only his back exposed.
- READ: DASHCAM VIDEO CATCHES SHOOTOUT ON CAMERA AFTER SUSPECT IS PULLED OVER FOR A SEATBELT VIOLATION
“I recall in that moment thinking that if I were to shoot him in the back, I would be the next officer in the news being scrutinized for my actions,” Robertson said. “The thought of having to second-guess my actions in that moment is frightening. This bill makes me wonder if sacrificing everything is worth it.”
Why are legislators okay with putting our officers into such a precarious situation? Why would we put these men and women in a situation that forces them to hesitate and second-guess themselves in split-second, life or death scenarios?
When you couple the ambiguity of the amended bill with the fact that there are assembly members and senators who see this as being 100% a race issue, I do not envy the position that police officers will be placed in California once Newsome signs this bill.
How do California lawmakers sleep at night, knowing that they are handcuffing the response capabilities and placing officer’s lives in danger? I would love the opportunity to ask them that very question.