Police subvert shooting measure
ACLU details unions’ efforts to blunt law on standard for using force
Three years ago, California legislators and Gov. Gavin Newsom hailed the passage of a new police use-of-force law, calling it one of the strongest measures in the country to combat racial bias in police shootings.
But soon after the law passed, a major police lobbying group and a company that creates training materials for public safety workers began claiming it didn’t actually raise the state’s legal standard for when police can shoot a suspect.
That effort to undermine state leaders’ interpretation of AB392 is detailed in a new settlement agreement and a trove of public records released
Tuesday by attorneys for the American Civil Liberties Union, a civil rights advocacy group that supported the bill. The
ACLU has led a yearslong effort to stop police unions from spreading training materials that downplay its scope.
In one glaring example, a Pasadena police sergeant circulated an email and training webinar provided by an association of statewide police unions about AB392, outlining a controversial interpretation of the law’s effect, one that seemingly contradicted the Legislature’s intent.
“Is it true, that you can now only use force when necessary? NO. This is not true. The new standard is the exact same thing we have had for the last 50 years,” the email from late 2019 stated.
Adrienna Wong, a senior staff attorney at the ACLU of Southern California who worked on the case, said such documents show that police unions and their allies brazenly sought to hamstring the law’s intended effect of restricting when officers can use deadly force.
“We saw this really coordinated effort to undermine that intent. That’s just deeply,
deeply troubling,” she said. “They were saying nothing had changed, essentially.”
The agreement settles a lawsuit between the ACLU and the city of Pomona, a Los Angeles suburb that used training materials instructing officers that AB392 did not heighten the state’s standard for when deadly force can be used.
Under the agreement, the Pomona agency did not admit liability but agreed to overhaul its training within 30 days.
AB392, which passed in 2019 following national protests over police killings of unarmed Black people, was intended to be a compromise between law enforcement groups and civil rights advocates.
The bill directed police to “use deadly force only when necessary in defense of human life” and, when possible, to use techniques to de-escalate the situation before shooting. It does not explicitly define what would be considered “necessary,” though courts could consider the actions of both the officer and the suspect when determining whether the force was justified. The law took effect Jan. 1, 2020.
Prior law on police use of force, established by a pair of U.S. Supreme Court cases, required officers to consider whether a “reasonable” officer in similar circumstances would have used lethal force.
Newsom said at the time, as he signed the bill surrounded by family members of people killed in police shootings, that California’s approach would be a national model: “It sends a message to people all across this country that they can do more and they can do better to meet this moment in their respective states.”
But a week after the law passed, a sergeant with the Pomona Police Department sent officers an email telling them that legislators had not been successful in their effort to adopt a “necessary” useof-force standard.
The email was sent to roughly 150 sworn officers and included a memo from the president of the Peace Officers Research Association of California, or PORAC, a lobbying group that represents hundreds of police unions, stating that a “previous version of AB392 that attempted to change the definition to ‘necessary’ is not in the final version of the bill.”
PORAC lobbied against a previous version of the bill that died the year before, but took a neutral stance after AB392 was scaled back in a legislative compromise to secure its passage.
But its interpretation appears to directly contradict AB392’s final intent language and the plain text, which stipulates that the state’s new standard requires officers to use deadly force only when “necessary” to protect the officer or another person from “imminent threat of death or serious bodily injury.”
Pomona city officials and the Peace Officers Research Association did not respond to requests for comment.
ACLU attorneys said they focused on Pomona because the city was one of the most egregious examples of how implementation of AB392 was stymied by misleading guidance circulated by the police association.
Pomona had three officer-involved shootings during the time that the ACLU says its officers were operating under outdated and incorrect guidance about when the use of force is lawful.
Those shootings were not the impetus for the lawsuit, which was triggered by ACLU attorneys reviewing public records that showed Pomona used misleading training materials. But Wong said the incorrect guidance could have impacted the department’s evaluations of whether officers acted appropriately in those shootings.
ACLU attorneys said Pomona’s misleading statements about the new law’s effect were part of a broader campaign that touched numerous police departments across the state.
Public records provided by the ACLU show that at least 10 law enforcement agencies across the state — including Contra Costa County, Pacifica, Huntington Beach, Pasadena and Riverside County — have used guidance from PORAC about the impact of AB392 in training or policy documents that often omit or downplay the new “necessary” force standard, though to varying degrees.
California police killed 149 people in 2021, the most recent year for which data is available, a 15% decrease from 172 in 2020, according to the state Department of Justice. The data does not distinguish between shootings and other types of force, such as blunt impact or choke holds.
The guidance circulated by PORAC and numerous law enforcement departments relied heavily on a legal analysis memo prepared for police chiefs by Lexipol, a Texas-based consulting company that sells training and policy materials to police departments. The company did not respond to a request for comment.
In the analysis, Bruce Praet, a police attorney and Lexipol’s co-founder, suggested that AB392 did not change the state’s prior “reasonableness” standard for when police can use deadly force, “notwithstanding a few benign changes.” The memo states that police unions succeeded in scaling back an earlier version of the law by injecting language that qualified that any references to when force is “necessary” are based on a how a reasonable officer would react in the situation.
His interpretation speaks to a concern that some police reform activists raised after proponents of AB392 negotiated with law enforcement organizations on a final version of the bill, a deal that cleared its path to passage.
The deal divided activists and led some groups like Black Lives Matter to withdraw their support. Under the deal, references to how an “objectively reasonable” officer would interpret a confrontation were reinserted into the bill. Some activists said that made it too similar to the prior standard for using force.
Wong said while it’s correct that an earlier version of the bill would have made the distinction clearer, Lexipol’s interpretation that the standard wasn’t heightened is false.
She said she hopes that the ACLU’s settlement agreement with Pomona will send a clear message to law enforcement departments across the state that the force standard did, in fact, change. The agreement requires the city to stop using communications from the Peace Officers Research Association in its formal training.
A companion bill to AB392, SB230 required the state Commission on Peace Officer Standards and Training, or POST, to develop new guidelines and courses on police use of force. The ACLU also accuses the commission of exacerbating the problem by taking more than a year to publish guidelines that made the new “necessary” standard clear for officers.
“It’s really clear to me that the legal standard changed,” Wong said. “Police departments shouldn’t be using taxpayer money to train officers using that misinformation, guidance that’s legally in conflict with state statute.”