Compromise police use of force bill passes Assembly

SACRAMENTO -- The state Assembly has overwhelmingly passed a compromise version of a bill to change the police use of force standard.

AB 392 was just one of dozens of bills to receive floor votes on Wednesday. The state Senate passed a bill that would phase out most criminal fines and fees while the Assembly passed a bill designed to codify rules around independent contractors in the wake of a state Supreme Court decision, Dynamex Operations West Inc. v. Superior Court, 2018 DJDAR 3856.

The use of force measure was supposed to be one of the most controversial bills of the year but ended up passing 66-0. As originally drafted, AB 392 would have changed the threshold for when an officer can use deadly force from "reasonable" to "necessary."

But a set of amendments added late last week left "reasonable" in the relevant section of the state Penal Code but with a new set of caveats. These came as the result of the compromise that saw the California Police Chiefs Association and several other influential law enforcement groups drop their opposition.

"I'd like to acknowledge the law enforcement groups that recognize there has been a problem and something needs to change," said the bill's author, Assemblywoman Shirley Weber, D-San Diego, while introducing the bill on the floor. "This bill will only work because of the buy-in from communities as well as from law enforcement."

Senate President Pro Tempore Toni Atkins, D-San Diego, quickly signaled her support for the revised bill headed to her chamber.

"AB 392 will end preventable deaths and do so without jeopardizing the safety of law enforcement officers," Atkins said in an emailed press release.

Like most states, California has long relied on the standard set by the U.S. Supreme Court in Graham v. Connor (1989) 490 U.S. 386. It set a "reasonableness" standard based on what the officer knew at the time about factors such as if the person was armed and whether the officer had backup.

It has also resulted in numerous officers not facing charges after fatally shooting unarmed suspects, often young black men, critics of the current system say.

AB 392 would have changed the standard to "necessary" for "self-defense or the defense of another person." Under the changes adopted last week, the Legislature instead states its intent that deadly force only be used "when necessary in defense of human life" but allows officers to "evaluate each situation in light of the particular circumstances."

The bill also says officers can use force when someone is resisting arrest but adds deadly force should only be used on a fleeing suspect if the officer "reasonably" believes the person is likely to imminently harm others. These rules leave a lot for individual prosecutors, judges and juries to evaluate, and different courts could take different approaches.

The fines and fees bill had a somewhat harder time in the Senate, passing 23-8 with little room to spare. SB 144 would eliminate most criminal fines and fees, based on the ideat this revenue is hard to collect and burdens offenders trying to restart their lives with crippling debt.

The bill's author, Sen. Holly Mitchell, D-Los Angeles, began her floor speech by addressing one of the most common criticisms of her bill: that it should merely exempt those who can't afford to pay.

"That's already in the law and doesn't get implemented," Mitchell said.

Part of the reason, she added, was the fines and fees collection programs bring in so little revenue in many counties that they are neglected or even just farmed out to private collection agencies. Mitchell sought to assure her colleagues revenue losses would be minimal.

State courts have long been a major recipient of this fee revenue and have pushed for lawmakers to backfill this lost money from other sources -- something that is not directly addressed by the bill.

AB 5, the Dynamex bill, passed the Assembly 55-11. It codifies a multi-part test over whether a worker can be considered an independent contractor, based on factors such as whether they control their own hours and are hired through other employers.