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California Raises Standards for Police Using Deadly Force

By Christopher Coble, Esq. on August 21, 2019

Any time a person is hurt or killed by police, people want to know what the rules are. The more cynical among us wonder aloud whether there are any rules regarding police conduct and use of force. There are, and some of them are getting more strict.

California Governor Gavin Newsom just signed a new bill that includes more stringent guidelines about when an officer can use deadly force. But will it change how police interact with the community, especially people of color? And will more cops be prosecuted for using excessive or deadly force?

Reasonable or Necessary?

Under current law, a police officer-committed homicide is justifiable if it occurs during a felony arrest (or with probable cause for believing a felony has occurred) of if a person is fleeing or resisting such arrest. When reviewing an officer's use of force, prosecutors determine whether the force was reasonable, and may only consider the moment lethal force was used and the officer's perspective: Did the officer reasonably believe lives (their own or bystanders') were in danger?

However, under Assembly Bill 392, prosecutors will also be able to consider the actions both of officers and of the victim leading up to a deadly encounter, and make homicide only justifiable when:

[T]he 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.

Thus, prosecutors will be able to look to the actions of victims and officers, as well as department policy and training, to determine whether the homicide is "necessary," rather than "reasonable." Additionally, the new law also prohibits police from shooting at fleeing suspects who don't pose an immediate danger.

It remains to be seen whether the new law -- which goes into effect in January -- will result in more police prosecutions. While the law does allow prosecutors to consider more factors before making a charging decision (perhaps shedding more light on officer training, for instance), those decisions remain up to local district attorneys.

Prosecutors and courts will also need to figure out what "necessary" means under the statute, as it is not clearly defined. And the Supreme Court has shown great deference to officers when extending them qualified immunity following shootings.

Race and Homicide

As the Los Angeles Times points out, the new bill is being referred to as "Stephon Clark's Law" as it comes on the heels of yet another police killing of an unarmed black man. The Times also notes that, of the 628 police use-of-force instances that resulted in serious bodily injury or death in California last year, 47 percent of civilians involved were Latino and 19 percent were black, even though about 40 percent of the state's residents are Hispanic or Latino and 6.5 percent are black.

While nothing in AB 392 explicitly addresses the racial component to police killings, there is hope that another related measure, SB 230, will include implicit-bias training and an emphasis on nonlethal practices.

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