California Legislature Sets New Limits for Use of Deadly Force by Law Enforcement
Earlier this year, the California legislature passed Assembly Bill 392, regarding police use of force. The bill passed 68 to 0 in the Assembly and 34 to 3 in the Senate, and Governor Newsom signed it into law on August 18th. The new law sets new standards for when the use of deadly force is allowed and redefines when a homicide by police will be considered justifiable.
AB 392, also known as the California Act to Save Lives, was introduced by Representatives Weber of San Diego and McCarty of Sacramento. Law enforcement groups initially opposed the bill, but they withdrew their opposition after amendments were made to address their concerns. The removal of law enforcement opposition, combined with the support of the Governor, Senate Pro Tem, and Assembly Speaker, cleared the way for a successful vote on the Assembly Floor and the bill's eventual passage into law. With the passage of AB 392, California moves from being one of the most permissive states in the country regarding the use of force to a state with one of the strongest use-of-force laws nationwide.
Limits on force before AB 392
Under existing law, police officers are empowered to use reasonable force to effect an arrest, prevent escape, or overcome resistance. Officers are not obligated to retreat or desist in the face of actual or threatened resistance. Moreover, a homicide is justified during the arrest of a fleeing or resisting felon; however, a homicide is a seizure under the 4th Amendment and therefore must meet the constitutional standard of reasonableness.
The new law changes how force is used and viewed
The new law redefines when a homicide is justifiable. Under AB 392, a homicide is justified when the 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 another. A homicide that occurs while apprehending a fleeing felon may also be justified if the felony threatened or caused death or serious injury, and the officer reasonably believed the person would cause death or serious bodily injury to another if not immediately apprehended.
A key change to the law is the injection of the word "objectively" to modify "reasonable force." Whether force was reasonable is not to be judged by the standard of what a reasonable officer in the same situation would do. That said, the law recognizes that quick judgments by police are sometimes called for, and the objective standard is not meant to replace hindsight with what was known or perceived by the officer at the time force was used.
Death inspires movie and movement for justice
AB 392 is described as a step in the right direction by Cephus Johnson, whose nephew Oscar Grant was the subject of the popular 2013 movie Fruitvale Station. That movie detailed Grant’s death at the hands of Bay Area Rapid Transit (BART) police officers in 2009. Johnson currently sits on the executive board of California Families United 4 Justice, an organization aimed at stopping police misconduct and increasing police accountability. In a statement on the bill’s passage posted on Representative Weber’s website, Johnson said that “there is no horror comparable to the excessive use of force by the police that takes your loved one’s life. This horror is forever etched into your memory, perhaps, because it could have been prevented.”
The language of AB 392 itself includes a finding and declaration by the California legislature that "every person has a right to be free from excessive use of force by officers acting under color of law."
