California's 'Model' Police Use-Of-Force Law Won't Change Much About Deadly Force Deployment

Legal Issues

from the we're-from-the-government-and-we're-here-to-grandstand dept

In response to controversial shootings of citizens by police officers, California’s governor has (far too proudly) signed into law a bill that will do almost nothing to prevent more of these kinds of killings:

The precipitating factor in changing the standard was the March 2018 police shooting of Stephon Clark in Sacramento.

Police shot and killed him in the back yard of his grandmother’s house, after mistaking his cell phone for a weapon. Police suspected Clark of breaking into cars, and they shot him after he refused orders to show his hands. Instead, police said, he pointed what turned out to be a cell phone at them.

As is almost always the case when police officers kill unarmed people, the officers’ decision to kill Stephon Clark was found to be justifiable — a reasonable response to a situation in which the officers feared for their safety.

The new law says these kinds of killings will no longer be justified. Oh, wait. It says nothing of the sort. In fact, it says officers can keep killing people as long as they fear for their safety or the safety of others.

A peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:

(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.

(B) 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. Where feasible, a peace officer shall, prior to the use of force, 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.

This law would have done nothing for Stephon Clark. It will do nothing for future Stephon Clarks — people who aren’t carrying weapons but are responding poorly to conflicting commands being shouted by multiple officers who are carrying weapons.

This failure to make any substantial change to the everyday business of killing citizens is being hailed by the man who signed the bill as the future of police use of force legislation.

California Gov. Gavin Newsom (D) announced on Monday that California is now a “model for the rest of the nation” when it comes to the use of deadly force by police officers.

Good news, rest of the nation! To keep up with California, you really won’t have to do anything.

The reason this law is so weak is because it had to be this weak to even get passed. Concessions were made after the bill got hung up in negotiations with law enforcement agencies and their unions. Assemblywoman Shirley Weber’s bill only moved forward once it had been watered down enough to be agreeable to the government agencies it would affect.

To get the bill through the Legislature, Weber accepted amendments that eliminated provisions that would have made it easier to prosecute officers.

It still gives some power to courts to decide if an officer’s application of force is justifiable, but it’s unclear if more officers will face criminal charges because of the new law.

It’s not a total loss, though. It does make at least one drastic change to police force deployment. It forbids the killing of people who pose a threat only to themselves.

A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

This will keep officers from “helping” suicidal people end up dead faster. Hopefully, it will also slow down the rate at which cops kill mentally ill people. But sufferers of mental issues are frequently perceived as threats by police officers. This clause won’t help much because it leaves it up to officers to decide whether or not a person threatening their own life also (somehow) poses a threat to them. With body cams routinely “failing” to operate in situations like these, it’s the word of cops against all other witnesses. Not exactly a game changer.

Perhaps the best part of the bill is the definition of “imminent harm,” which should at least prevent a few officers from making deadly assumptions using facts not in evidence.

A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.

This is good, but see also things like this:

During the interview, [Officer] Browder stated that he first saw Nehad when Nehad was twenty-five to thirty feet from Browder’s car and that Nehad was “aggressing” the car and “walking at a fast pace . . . right towards [the] car.”

These are actual words used by a cop to justify the near-instantaneous shooting of man armed only with a pen. The officer claimed he thought it was a knife — a statement he didn’t make until his second interview about the shooting. So, that’s the standard that’s being laid down: if an officer believes harm is “imminent” — or at least thinks a court might buy it — the guns will come out and unarmed people will die.

Fortunately, the governor has backed up this mostly-worthless law with something that might have an effect.

Newsom said “no,” police officers shouldn’t be worried about the change from reasonable force to necessary force. “They should only be worried if we don’t, commensurate with this legislation, support the training of those officers.”

“What kind of training?” Jones asked. “What is the difference … when you’re training an officer to use deadly force only when it’s necessary as opposed to when it might be reasonable? What’s the difference?”

“Well, we’re about to explore that,” Newsom said, “because we’re going to invest an unprecedented amount of money, tens of millions of dollars, to move through a process of going, step by step, through de-escalation and focusing, now, with much more specificity, on changing the culture of policing.

This is good. But all Californians have at the moment is a law that says nothing really needs to change. If and when this new training is implemented, we may see improvements. Any improvement will depend on the quality of the training and the discretion of prosecutors. And prosecutors aren’t really known for their “tough on (cop) crime” mentalities. This law is an improvement over all the laws no one else is actually trying to pass. But it’s only very slightly better than doing nothing at all.

Filed Under: california, gavin newsom, police, stephon clark, use of force