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California Advances Biggest US Change to
Police Use of Force
By Associated Press, Wire Service Content |June 19, 2018, at 8:06 p.m.
https://www.usnews.com/news/best-states/california/articles/2018-06-19/emotion-chargedhearing-advances-bill-on-police-shootings
California would lead the U.S. in significantly changing the standard for when
police can fire their weapons under legislation that has cleared its first hurdle.
By SOPHIA BOLLAG and DON THOMPSON, Associated Press
SACRAMENTO, Calif. (AP) — California would lead the U.S. in significantly changing the
standard for when police can fire their weapons under legislation that cleared its first hurdle
Tuesday after an emotionally charged debate over deadly shootings that have roiled the country.
It's time to change a "reasonable force" standard that hasn't been updated in California since
1872, making it the nation's oldest unchanged use-of-force law, said Assemblywoman Shirley
Weber, a San Diego Democrat who introduced the measure "It must be guided by the goals of
safeguarding human life," she said.
A state Senate committee advanced the legislation that would allow police to use deadly force
only in situations where it is necessary to prevent imminent and serious injury or death to the
officer or another person.
Now, California's standard makes it rare for officers to be charged after a shooting and rarer still
for them to be convicted. Frequently it's because of the doctrine of "reasonable fear": if
prosecutors or jurors believe that officers have a reason to fear for their safety, police can use
deadly force.
Law enforcement lobbyists said the stricter standard could make officers hesitant to approach
suspects out of fear their actions could be second-guessed.
Democrats on the committee acknowledged that officers have difficult and dangerous jobs but
argued the bill would make everyone safer by promoting de-escalation and fostering trust
between police and people of color.
"It always blows me away when law enforcement only fear for their life only when they're facing
black and brown people," said Democratic Sen. Steven Bradford of Gardena, who is black. "We
don't have a problem with law enforcement, we've got a problem with racism."
Dozens of advocates lined up to list the names of young men killed by police across California,
including Stephon Clark, who was shot this year when Sacramento officers say they mistook his
cellphone for a handgun. The shooting sparked protests, and a prosecutor says it may be months
before her office decides if police broke the law
It comes as police killings of black men have stirred upheaval nationwide.
David Mastagni, a lobbyist for the California Peace Officers Association, said the proposed
language creates "a hindsight, second-guessing game that puts not only the officers at danger but
puts the public at danger as well."
Randy Perry, representing several rank-and-file police unions that encompass 90,000 officers,
called it "a radical departure from criminal and constitutional law."Critics could almost always
argue that deadly force wasn't necessary because officers could have considered alternatives such
as "tactical repositioning," which Perry called "a euphemism for retreat."
Republican Sen. Jeff Stone of Temecula, the only senator on the committee who spoke in
opposition, said the measure could stop people from becoming police officers and deter officers
from responding to calls for help.
Democratic Sen. Hannah-Beth Jackson of Santa Barbara pointed to "troubling" statistics about
California's high incidence of police shootings and the disproportionate use of force against
black men.
She and fellow Democrat Scott Wiener of San Francisco said they believe the changes clarify
when police can use lethal force and adequately address concerns raised by law enforcement
opponents.
"We all agree that we don't want to put police officers in harm's way, but we also don't want to
put the public in harm's way," Jackson said.
The measure now heads to another committee.
Would Changing the Rules for Police Change
the Outcomes?
Governing
http://www.governing.com/topics/public-justice-safety/gov-california-police-lethal-force-legal-standard.html
by Natalie Delgadillo | April 19, 2018
Last month, Sacramento police fired 20 rounds at Stephon Clark in his grandmother’s backyard,
fatally striking the unarmed, black 22-year-old eight times.
According to the officers, they mistook the cellphone in Clark’s hand for a gun and fired after
they said he advanced toward them with the item outstretched. The body camera video does not
confirm or deny whether Clark advanced on them because Clark's body is not visible until he is
shown laying on the ground.
The young man’s death has sparked protests in Sacramento, as well as nationwide accusations of
racist and overzealous policing. The county District Attorney, with oversight from the state, is
investigating the matter.
In most cases where police are responsible for the death of citizens, which disproportionately
involve black men, officers are either cleared of criminal charges or not charged at all.
In California, though, cops in similar situations could soon find themselves subject to a new legal
standard -- the strictest in the country. If passed, it could provide a model for other progressive
states that have followed California's lead on other issues, including immigration and the
environment.
In 1989, the Supreme Court set the minimum standard for police using deadly force as one of
“objective reasonableness” -- that is, the officer’s actions must be reasonable to an objective
observer, taking into account only what the officer knew at the time he or she decided to use
force. Within this framework, any reasonably perceived threat to the officer or the public justifies
the use of deadly force.
But after Clark’s death, California Assemblymembers Shirley Weber and Kevin McCarty
introduced legislation that would change the legal standard for lethal force in their state to only
be used “when necessary" and after every other nonlethal option has been exhausted.
“The bill says lethal force should only be used when it’s necessary, and that necessity is only
when the public or an officer is in imminent danger. If an officer [or member of the public] is not
about to be hurt, officers should use other [de-escalation] strategies,” such as verbal warnings,
tasers and pepper spray, says Weber.
The bill would also require investigations to assess whether officers created a situation resulting
in the necessity to use lethal force.
“Under current law, if an officer jumps in front of a moving vehicle, they can legally kill the
driver because now they’re suddenly in harm’s way,” Lizzie Buchen of the American Civil
Liberties Union told the New Republic. “What this law would say is that that officer needs to be
held accountable for creating the necessity of killing the driver.”
Two other states -- Delaware and Tennessee -- have laws on the books requiring officers to
exhaust all other options before resorting to deadly force. Broadly, though, states use the
Supreme Court's "objective reasonableness standard" when assessing officers’ actions in the
field.
According to Joanna Schwartz, a professor of law at UCLA, the ideas behind the legislation are
not new -- they're just not yet reflected in the law. Many police departments across the country
require officers to use de-escalation techniques. Campaign Zero, the policy arm of Black Lives
Matter, assessed large police departments with these kinds of policies and found that stronger deescalation policies led to fewer police killings.
Although the California law would be the strictest statewide legislation of its kind, it doesn't
mention criminal penalties. The decision about whether to prosecute would still be at the
discretion of prosecutors, says Weber.
Because of that, legal experts say it wouldn't necessarily result in jailtime for police found in
violation of the standard.
“There’s no reason this standard would have anything to do with what counts as a crime. Some
courts have imported constitutional standards about use-of-force into criminal law, but the two
don’t necessarily belong together,” says Brandon Garrett, a professor at the University of
Virginia School of Law who has researched the benefits of reducing police discretion.
But some think the new standard would make it easier to prosecute police anyway -- or at least
instill fear among officers.
“This is a giant invitation to prosecute law officers where they have not been prosecuted before,”
says Eugene O’Donnell, a professor at John Jay College of Criminal Justice and a former NYPD
officer. “I don’t understand the reason or the point to engage in this kind of lawmaking if it’s not
to threaten officers that if they make a mistake they could end up being criminally prosecuted.”
To be clear, O’Donnell believes the standards and strategies outlined in the bill are widely
beneficial to policing -- but he believes they should be adopted by departments as policies, not
legislated by politicians.
Law enforcement organizations have come out in strong opposition to the legislation. The
California Police Chiefs Association last week held a meeting to denounce it. David Swing,
president of the association, told the Mercury News that “evaluating the use of deadly force from
the perspective of hindsight and narrowing the justifiable homicide defense will lead to officers
pulling back on proactive policing, resulting in increased crime throughout the state.”
Stephon Clark's family, as well as advocacy organizations like Black Lives Matter and the
ACLU, support the bill.
It has a decent chance of passage, given that Democrats control the state's assembly, senate and
governor's office.
In a 5 to 10 sentences, respond to the following questions
American policing is an institution in crisis. Police shootings of unarmed individuals have
caused outrage nationwide. Meanwhile, police departments across the country are facing severe
personnel shortages, “[w]ith the number of applicants down more than 90 percent in some
cities.” In 2019, Baltimore alone was short 500 patrol officers
(https://www.baltimoresun.com/news/crime/bs-md-ci-officers-decline-20190205-story.html )
As a result, many jurisdictions are seeking ways to reform police processes and practices.
Proposed legislation in California would substantially alter standards for use of deadly force. 1)
Do you think the proposed legislation is a good or bad idea? 2) What are the pros and cons? 3)
Can you think of other possible reforms that might improve police-community relations and
make policing a more attractive career option than it currently seems to be?
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