Will California Make It Harder for Police to Use Deadly Force?

Stevante Clark, left, brother of the late Stephon Clark, raises his fist in protest while standing among mock caskets, representing black people killed by California law enforcement, during a Sept. 18 demonstration in Sacramento.

Stevante Clark, left, brother of the late Stephon Clark, raises his fist in protest while standing among mock caskets, representing black people killed by California law enforcement, during a Sept. 18 demonstration in Sacramento. Rich Pedroncelli / AP Photo

 

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A change in standards could be copied by other states, but has not yet gained enough traction in the state legislature.

The gap remains wide between California advocates of changing the standard for when police officers use deadly force and law enforcement officials who say such a move would jeopardize public safety.

The legislation, prompted by the shooting of unarmed Stephon Clark by Sacramento police officers in his grandmother’s backyard, failed to gain enough support before the legislature’s final recess at the end of August. California Assemblywoman Shirley Weber, a San Diego Democrat who introduced the bill, had already dialed back the proposal, removing a provision from the legislation making it easier to prosecute police who kill civilians in the line of duty in the hopes of reaching consensus.

The revised Assembly Bill 931 would have required police departments to develop new policies changing their internal standards by requiring police to use deescalation tactics, as well as limiting when police can use lethal force to “necessary” situations when there is a threat of harm to an officer or others. With the last-minute changes, however, the standards would only apply to civil lawsuits and police discipline and not apply to prosecutors’ decisions about whether an officer should face criminal charges after using deadly force.

Police disproportionately kill people of black and Hispanic descent and at younger ages, according to a 2018 study in the Journal of Epidemiology & Community Health, and the March shooting of Clark in south Sacramento fit those statistics.

The shooting of Clark, a black man and practicing Muslim, set off days of protests in Sacramento. Police fired 20 rounds at Clark, hitting him eight times. Officers said they thought Clark was carrying a gun, which turned out to be a cellphone.

“Stephon Clark’s story was far more tragic in some ways because it happened in his own backyard,” Zahra Billoo, executive director of the Council on American-Islamic Relations, San Francisco Bay Area office, told Route Fifty. “It sent the message black men are not even safe in their own homes.”

Current California law, like the law in almost all states, finds police use of deadly force justified if the officer has “a reasonable fear of death or serious bodily harm to the officer or another.” In other words, it’s OK so long as a reasonable officer in similar circumstances would have perceived the threat and acted the same way.

AB 931 would raise the bar to only those circumstances where police have no alternatives like deescalation or nonlethal force. If a person only poses a risk to himself or herself, or is fleeing arrest without probable cause to suspect he or she has committed or will commit “a felony involving serious bodily injury or death,” the bill would require the officer to err on the side of caution.

Law enforcement organizations like the Peace Officers Research Association of California and California Police Chiefs Association oppose the proposed changes, arguing they would cause cops to second-guess themselves when faced with a potentially serious threat.

Officers must make life-or-death decisions in a split second, said Fresno Police Chief Jerry Dyer, former CPCA president, though he understood the reasoning behind AB 931.

“I think there is plenty of time and opportunity for reasonable minds to come together … without putting such an undue burden on police officers in the field and subjecting them to unnecessary risk,” Dyer said.

Billoo, however, countered that not all police shootings involve officers being forced into “split-second” decisions. Officers should be required to be extra thoughtful before they decide to pull the trigger, she said.

California’s use of force standard was established by the U.S. Supreme Court’s ruling in Graham v. Connor, which has courts look at the reasonableness of an officer’s actions given the facts and circumstances, rather than their underlying intent or motivation.

Whereas, AB 931 would judge the necessity of the shooting “in hindsight with the benefit of all the facts,” said Dyer, who prefers to leave it up to individual police departments to raise their standards.

Fresno Police Department policy requires that shootings be both “reasonable and necessary” and allows for disciplinary action up to an officer losing their job, if Dyer determines the use of deadly force was unnecessary.

Officers “losing their freedom” because of a quick decision they made in good faith will make cops less proactive in making field contacts and traffic stops if they would put them in position where they might have to use force, Dyer added.

Dyer said there is “neutral ground” in improving training standards like deescalation, which CPCA highlighted in suggestions it sent to Weber. But civil rights advocates want to see a statewide mandate.

“The Supreme Court is the baseline. What is the objection to a state standard?” Billoo asked. “Why give counties that are not making improvements the freedom to not make those changes?”

Weber and Senate President Pro Tem Toni Atkins, a San Diego Democrat, agreed to resume discussions about her bill this fall with the goal of proposing model legislation at the start of the next session in January.

Should California raise its use of force standard, it could become “contagious” across other states, said Dyer, who also serves as second vice president of the Major Cities Chiefs Association nationally.

“As California goes, so does the United States,” Dyer said.

But police unions wield significant political clout in California. PORAC, which at about 17,000 members is the largest law enforcement organization in the state, alone contributed $1.9 million to candidates between January and June, according to Cal-Access campaign finance data.

Still, proposals opposed by the police groups did make it through the recent legislative session.

On Aug, 31, the state legislature sent Senate Bill 1421—which would make public most police misconduct records detailing shootings, sex assaults and dishonesty on the job—to Gov. Jerry Brown’s desk, along with another allowing for release of body camera footage of those incidents. Brown has until Sept. 30 to sign the measures into law but hasn’t yet.

The information is critical to minimizing police misconduct and increasing trust in police departments moving forward, Billoo said, but it’s not everything. Community organizations must continue to work with residents to inform them of their rights interacting with police and monitoring and recording police activity, she added.

“We pay their salaries,” Billoo said. “The reality is they’re killing our community members.”

Dave Nyczepir is a News Editor at Government Executive’s Route Fifty and is based in Washington, D.C.

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