With the introduction of California Assembly Bill 931 (AB931), voters in California have an important choice to make:
1. Allow politicians to advance hastily written, confusing legislation that will unwittingly endanger public safety and substantially increase litigation; or
2. Allow the nine smartest legal minds in the country (i.e., the U.S. Supreme Court) to continue to thoughtfully balance all considerations to establish well-reasoned precedent capable of equally protecting the interests of everyone.
Every officer-involved shooting (OIS) is a tragedy. But haphazardly drafting proposed legislation to drastically change police use of force standards on the heels of a high-profile OIS is not the answer. Yet this is exactly what AB931 does: Following the March 18 incident in which an unarmed black man was killed by police in Sacramento, assembly members introduced AB931 as a statutory amendment that would significantly restrict officer use of deadly force to only that which is “necessary.” While this certainly rallied the protesters and appealed to the anti-police groups, it has understandably raised a great concern by law enforcement—and likely resulted in furthering the divide between parties that should be allies, not adversaries.
And the issue is hardly limited to California. Calls for more restrictive police use of force standards ring out after every high-profile shooting. Many law enforcement agencies have revised their policies as a result. As I argued following the release of the controversial National Consensus Policy on Use of Force, hastily amending policy—or authoring legislation—as a result of public pressure is ill-advised and endangers both officers and community members.
So, what are the changes proposed by AB931?
Changes to Penal Code 196 (Justified Homicide)
This statute has always been based on a “necessarily committed” standard. The new legislation would change that to “necessary.” But the really dangerous amendment to this section would be the following addition (in italics): “Homicide is justifiable when committed by public officers … When necessary given the totality of the circumstances … unless committed by a public officer whose gross negligence substantially contributed to making it necessary.”
As anyone familiar with real-world law enforcement knows, this seemingly innocuous change would result in complete job security for self-proclaimed “experts” willing to sell their opinions to any plaintiff’s attorney seeking to argue that the officer somehow created or even merely contributed to the need for deadly force.
Ironically, the U.S. Supreme Court recently rejected the 9th Circuit’s similar “provocation rule” in Los Angeles v. Mendez (137 S.Ct. 1539 (2017)) by recognizing that bad tactics cannot negate an otherwise reasonable use of force. If allowed to pass, this single proposed amendment under AB931 would result in the endless second-guessing of officers’ split-second decisions with the benefit of 20/20 hindsight—something long ago condemned by the Supreme Court in Graham v. Connor (109 S.Ct. 1865 (1989)).
Given that Penal Code 196 is a criminal statute, it would also encourage prosecutors to cave to protester demands by filing charges against police officers involved in fatal shootings. After all, the prosecutor simply has to argue that it was the officer’s “grossly negligent” tactics that contributed to the need for deadly force. If you think the “3% at 50” retirement option resulted in a lot of law enforcement retirements, wait until the first cop gets prosecuted under such a vague and unrealistic statute.
Changes to Penal Code 835a (Authorized Force by Peace Officer)
After inserting a flowery preface in section (a) of Penal Code 835a—and doing some acceptable clean-up to sections (b) and (c)—AB931 proposes a very dangerous amendment under (d)(1): “A peace officer may use deadly force only when such force is necessary to prevent imminent and serious bodily injury or death to the officer or to a third party” (italics mine).
The proposed language defines “necessary” in (d)(4)(A): It requires that “a reasonable peace officer would conclude that there was no reasonable alternative to the use of deadly force” under the totality of the circumstances. This is in complete contradiction to established legal precedent under both federal law (Scott v. Henrich, 39 F3d 912 (9th Cir. 1994)) and even California’s own Supreme Court (Hayes v. San Diego, 57 Cal.4th 622 (2013)), both of which recognize that officers need not select the least intrusive or even most reasonable action.
Once again, this proposed language will inevitably result in a steady stream of “experts” posing as “reasonable officers” to suggest to juries that some other “reasonable alternative” existed. In the calm and comfort of a courtroom years after the now-defendant officer had been forced to make a split-second decision under the rapidly unfolding and tense circumstances recognized in Graham, such suggestions are likely to result in large verdicts against law enforcement officers and their agencies.
Notwithstanding the huge financial cost in the already most-litigious state in the union, such second-guessing will destroy officer morale, eliminate qualified applicants and likely increase line-of-duty deaths resulting from hesitation as officers consider what alternatives they might deploy in the face of an impending threat.
AB931 and De-Escalation
AB931 concludes by noting that de-escalation is one of the reasonable alternatives officers should consider to deadly force. This is a term often thrown around as a solution to every police encounter, when in fact it has limited application.
While most agencies have already incorporated de-escalation concepts into their training, perhaps the Legislature would be better served by creating and funding such training on a state level rather than crafting unrealistic legal standards that will only serve to further inhibit law enforcement’s ability to deal with increasingly violent criminals. Given that calls for de-escalation often involve the rapidly increasing number of police encounters with mentally ill persons, the Legislature might also direct their efforts and funding to solve the root of this growing problem instead of imposing unrealistic, but politically attractive, restrictions on officers forced to confront these situations.
While many have suggested that AB931 could never pass, it is being aggressively supported by many highly vocal protesters, anti-police groups and liberal reformists. It is, therefore, incumbent upon law enforcement, from chief executives down to line officers, to educate the public about this ill-conceived and dangerous legislation and actively campaign for its defeat.
BRUCE PRAET is the co-founder of Lexipol and a partner with Ferguson, Praet & Sherman, a law firm with over 30 years of specializing in defending police civil matters such as shootings, dog bites and pursuits while representing management in personnel matters. Bruce started his law enforcement career in 1973 as a police officer in Laguna Beach. In 1974, he moved to the Orange Police Department where he worked Patrol, Detectives, SWAT and K-9. After finishing law school, he went to work as an Assistant General Counsel to the Los Angeles Police Protective League and later served as an Assistant City Attorney for the City of Orange, exclusively handling police litigation. Bruce has been heavily involved with POST committees and curriculum and is a frequent presenter to federal, state and local law enforcement groups across the country.