Bill would change legal standard for deadly force by police

SACRAMENTO -- A bill that would change the legal standard for the use of deadly force by police officers passed its first committee test Tuesday. The measure would make it easier to charge officers with homicide or other criminal wrongdoing for officer-involved shootings.

The Senate Public Safety Committee approved AB 931 by 5-1 party line vote after a contentious two-hour hearing.

Advocates on both sides said the other's position was rife with violations of the state and U.S. constitutions. Law enforcement groups claimed police would be effectively paralyzed by the standards.

Proponents of the bill said California is among the worst states in terms of the number of people killed by police. Dozens of people stood in line for nearly an hour during the hearing's public comment period to briefly tell the story of friends and family who died at the hands of law enforcement officers.

"It always blows me away when law enforcement fear for their life only when they're facing black and brown people," said Sen. Steven Bradford, D-Compton, before noting one of several recent cases in which armed white shooting suspects were apprehended without being killed.

The bill's author, Assemblywoman Shirley Weber, D-San Diego, agreed to take amendments from the committee designed to maintain an officer's flexibility in a confrontation. For instance, the bill would no longer require officers to physically withdraw to de-escalate.

But lobbyist Randy Perry, representing the California Association of Highway Patrolmen and several other groups, said law enforcement would continue to oppose the amended bill. The new system flips the legal tests for reasonableness by finding a shooting is "unlawful if there are any reasonable alternatives," he said.

"The requirement of no reasonable alternative is unacceptable," Perry said. "The criminal and liability exposure of this aspect of the bill cannot be overstated. ... The 'necessary' requirement is a radical departure from criminal and constitutional law."

California's current statute governing deadly force by officers dates from 1872, making it the oldest such statute in the country. It allows officers to kill suspects who are resisting arrest, or for fleeing if the person is a wanted felon.

AB 931 would recast the standard for a police killing to when it is "necessary ... given the totality of circumstances." It would continue to allow an officer to use force to prevent "imminent and serious bodily injury" to themselves or others.

It would also requires officers to also use "reasonable alternatives," such as verbal warnings and de-escalation tactics. It would also "prohibit the use of deadly force by a peace officer in a situation where an individual poses a risk only to himself."

Bill proponents point to the 162 people in California who were shot to death by police officers in 2017 alone. Half did not have guns. According to a committee bill analysis, unarmed black men are 20 times more likely to be killed by police than unarmed white men.

Supporters of AB 931 also said officers are too quick to assume they are under threat. According to the National Law Enforcement Officers Memorial Fund, only two California officers were murdered in the line of duty in 2017.

In jurisdictions that teach officers de-escalation techniques, supporters said, death and injury rates from police confrontations are lower for both suspects and officers.

Seth W. Stoughton, a professor at the University of South Carolina School of Law and a former police officer, testified that California's current force standard is "painfully outdated."

"It maintains an approach to deadly force that has been rejected by a vast majority of the states and by the Supreme Court," Stoughton told the committee.

Stoughton and others based their analysis largely on a U.S. Supreme Court ruling, Tennessee v. Garner, 471 U.S. 1 (1985). The decision found that the use of deadly force to prevent a felon from escaping was not reasonable when the suspect posed no immediate threat to the officer or others.

The high court weighed in again with Graham v. Connor, 490 U.S. 386 (1989), which held that a shooting must be objectively reasonable based on what the officer knew at the time.

The court has recently gone in a very different direction.

In an April ruling, the high court -- by 7-2 -- reversed the 9th U.S. Circuit Court of Appeals finding that a police officer had qualified immunity based on his limited knowledge of the situation when he shot a mentally ill woman holding a butter knife at her side. Kisela v. Hughes, 2018 DJDAR 2997 (April 2, 2018)

Testifying on behalf of the California Police Officers Association, attorney David E. Mastagni said the reasonableness standard under AB 931 would violate the right to protect oneself under both the California and U.S. constitutions.

The partner with Mastagni Holstedt A.P.C in Sacramento pointed to another Supreme Court ruling, in which justices ruled officers could reasonable use force even though the confrontation itself was created by a the officers violating the Fourth Amendment -- in this case by entering a private property without a search warrant. County of Los Angeles v. Mendez, 2017 DJDAR 4912 (May 30, 2017).