Less heralded than AB 392, SB 230 may have greater long term impact on police practices

California's Legislature passed two laws this year, Assembly Bill 392 and Senate Bill 230, which modernize the state's use of force and related training requirements for police officers starting Jan. 1, 2020, replacing standards first established and, incredibly, unchanged since 1872. The former got star attention to date, but the latter may ultimately prove more important.

AB 392, authored by Assemblymember Shirley Weber, garnered the most public attention and debate. It amends Penal Code Sections 192 and 835a and updates -- at least for state criminal law purposes -- the standards under which police use of force is judged. At present, under state law, deadly force by a police officer is justifiable when "necessary" to overcome resistance or apprehend a felon. Effective Jan. 1, 2020, force must be objectively reasonable under the totality of the circumstances and meet other criteria as well.

While some critics of AB 392 posit that the more detailed calculus spelled out in AB 392 is too complex to reasonably expect officers to apply in the split seconds in which decisions are sometimes made, the new standards are largely familiar to California's law enforcement officers. In Tennessee v. Garner, 471 U.S. 1 (1985), the U.S. Supreme Court found a state's use of force statute unconstitutional as applied to a certain set of circumstances.

In doing so, it explained: "where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force."

Four years later, in Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court elaborated: "today we make explicit what was implicit in Garner's analysis, and hold that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach."

Indeed, the vast majority of use of force policies already adopted by California's hundreds of law enforcement agencies have long reflected these limits. One can plausibly argue that while Penal Code 192 was ripe for updating, the newly enacted standards mostly update the state's statutes to reflect existing legal requirements.

In the long term, SB 230, authored by Sen. Anna Caballero and supported by many law enforcement leaders, may prove more transformative. Effective Jan. 1, 2021, use of force policies must incorporate 20 specific items, including a "requirement that officers utilize de-escalation techniques, crisis intervention tactics, and other alternatives to force when feasible." De-escalation techniques are actions that seek to minimize the likelihood of using force and increase the likelihood of gaining voluntary compliance; crisis intervention tactics are similar techniques tailored to interactions with individuals with mental illnesses. De-escalation techniques are now required. Officers who do not employ them could face administrative discipline although not necessarily civil liability.

SB 230 also mandates that every department's policy include a "requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance." Many existing policies focus on what is reasonable to overcome resistance, but most do not make express reference to proportionality.

SB 230 requires that policies contain unspecified "comprehensive and specific guidelines for the application of deadly force," while simultaneously recognizing that "no policy can anticipate every conceivable situation or exceptional circumstance which officers may face." Similarly, agencies must also include in their policies specific requirements pertaining particularly to the use of firearms.

First, policies must include "clear and specific guidelines regarding situations in which officers may or may not draw a firearm or point a firearm at a person." Second, policies must contain a requirement that, before discharging a firearm, officers must consider their surroundings and potential risks to bystanders, to the extent reasonable under the circumstances. Finally, policies must contain "comprehensive and specific guidelines" regarding when a firearm may be fired at or from a moving vehicle.

Department policies, amended per SB 230, will place two notable obligations on officers who are present when another officer uses force. An officer must report to a superior officer when he or she observes force he or she "believes to be beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances based upon the totality of information actually known to the officer." Where the officer observes force that is clearly beyond what is necessary, he or she must intercede. Most current policies contain similar requirements. The statute also contains various mandates regarding reviewing and reporting force incidents and filing, investigating, and reporting citizen complaints of force incidents

Police must contain an "explicitly stated requirement that officers carry out duties, including use of force, in a manner that is fair and unbiased." Additionally, the statute requires training and guidelines for interactions with vulnerable persons including children, elderly persons, people who are pregnant, and people with physical, mental and developmental disabilities.

SB 230 also requires the Commission on Peace Officer Standards and Training to provide courses for peace officers aimed at reducing the use of force, with emphasis on de-escalation, cultural competence and reduction of bias, and alternatives to use of physical force and deadly force. The commission is also required to develop uniform, minimum guidelines for departments to use in developing their use of force policies.

AB 392 changes, or at least updates the rules for police use of force, but SB 230 puts policy and training requirements in place that will impact how police view their roles and interact with the public. Therefore, while AB 392 got most of the attention, the policy changes mandated and stringent training requirements imposed by SB 230 may actually have the most transformative effect on police practices. 