California Changes Standards for Law Enforcement’s Use of Deadly Force

By: Pedro Naveiras

A new California law is changing the standard for the use of deadly force by law enforcement officers.

Previously, the legal standard allowed officers to use deadly force when they had a reasonable belief that they or another person were in imminent danger. The new bill, AB 392, was signed into law by Governor Gavin Newsom in August 2019 and changed the existing standards to provide that deadly force may only be used when necessary.

“The bottom line is that deadly force should only be used when absolutely necessary,” said Gov. Newsom in an official statement on the day it was signed. AB 392 goes into effect on January 1, 2020.

Within Santa Clara County, the District Attorney’s Office makes the decision whether an officer will be held criminally liable after an officer-involved shooting. Also, it produces detailed public reports, available on its website, on every fatal shooting in its jurisdiction.

Among other data, these reports include a factual summary, officer and civilian statements, summaries of different video recordings and information on the forensic examinations. The Santa Clara office also includes a determination of whether the officer may be subject to criminal liability based on the available evidence.

Deadly force is justified in two circumstances. First, “to defend against an imminent threat of death or serious bodily injury to the officer or to another person.” Second, “to apprehend a fleeing person for any 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 immediately apprehended.” The bill, however, outlines that “where feasible,” the officer should make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, “unless the officer has objectively reasonable grounds to believe the person is aware of those facts.”

The bill stipulates that the decision to use force shall be “evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.”

Assistant District Attorney Brian Welch of the Santa Clara County District Attorney’s Office said the new law would not change their investigations and reports as they already included most, if not all, of the standards the new law seeks to revise. However, Welch said when they write reports from any incident going forward, they will incorporate the new language. Welch said that his approach is “to understand why didn’t the officer believe that other force options were available.”

W. David Ball, Professor of criminal law at Santa Clara University School of Law, supports the new law, saying, “public safety should include the right to feel safe when [they] call the police.”

The new law was drafted in response to the 2018 killing of Stephon Clark in Sacramento, where a young African-American man was shot seven times by police officers in his grandmother’s backyard while holding a phone.

Between 2005 and 2016, out of the nearly 1,200 police killings that occurred during an arrest, only two were deemed unjustified, according to California Department of Justice data. This year, so far, out of 709 people who have been shot and killed by police in the U.S., 100 of those deaths occurred in California and 49 involved an individual carrying a gun at the time of the shooting, according to the Washington Post’s Fatal Force tracker.

“I think that [police officers] should have to think twice before [they] kill somebody. There are too many tragedies. Policing is dangerous, but it’s not in the top 10 most dangerous jobs in the United States,” Ball said. 

SB 230, which was contingent on the passage of AB 392, will require law enforcement agencies to create “guidelines on the use of force, utilizing de-escalation techniques and other alternatives to force when feasible, specific guidelines for the application of deadly force, and factors for evaluating and reviewing all use of force incidents, among other things.”

“[They’re] well trained and have other tools at [their] disposal. There are ways of neutralizing that threat that don’t involve taking somebody's life,” Ball said. 

The American Civil Liberties Union of Northern California agrees with Ball, writing on their website, “research shows that officers at agencies with stricter use-of-force policies kill fewer people and are less likely to be killed or seriously injured themselves.”

“After Seattle implemented a new use-of-force policy that contains some of the same key elements as AB 392, a study by a federal court monitor showed that the policy significantly reduced mid-level and serious uses of force without any increase in injuries to officers or the crime rate,” wrote Lizzie Buchen, Legislative Advocate for ACLU NorCal.

Sarah Purdick, an attorney who represents law enforcement officers in civil matters, is concerned about how this new law will affect current police officers. “Officers are pre-conditioned [by] their training,” said Purdick. “[Incidents] happen in a few seconds and an officer is considering their [use of] force options in those seconds,” said Purdick. Now, there are other options the police must consider in that short span of time.

Purdick also said courts will have to decide how to interpret the word “necessary” in the coming years. “We don’t really know how that’s going to be interpreted yet,” said Purdick. “I don’t know what will come first. Will the legislature further codify it and edit or [will] case law will be generated that will interpret it?”

*The Santa Clara County Sheriff’s Office respectfully declined to be interviewed and the San Jose Police Department did not respond to our requests for comment.

(Editor's Note: This article was originally published in the October 2019 [Volume 50, Issue 1] version of The Advocate.)