Officer’s homicide charge a test of new law?
AB 392 redefines when police can resort to deadly force
A new law that raises the bar for justifying police shootings is being touted as the reason a prosecutor has decided to press the first homicide charge against a Bay Area law enforcement officer in over a decade.
But does the surprise announcement by Alameda County District Attorney Nancy O’Malley — who has been vilified by police critics for never having taken a cop to court — signal a sea change in the way officers are held accountable for deadly force or just an anomaly?
Although only time will tell, what’s clear is that police officers’ actions in the face of real or perceived danger and the options they had to avoid a fatal outcome will be scrutinized as never before by prosecutors and, ultimately, trial jurors.
“It certainly, in language, pushes putting the burden on the police officer to justify the use of force,” Stanford University law professor Robert Weisberg said about the new law. Likewise, it strengthens the prosecutor’s case when that force doesn’t appear justified, he added.
Others remain skeptical, however, among them Keith Wattley, executive director of Uncommon Law, an advocacy organization that also represents inmates accused of violent crimes.
“I don’t have confidence it will lead to much,” Wattley said in a statement to this newspaper. “Every month, week or day we add
another name to the list of people killed or seriously injured by police reminds us we’re not likely to see justice any time soon, however you define that.”
On Wednesday, O’Malley announced she would pursue voluntary manslaughter charges against San Leandro police Officer Jason Fletcher, 49, in the fatal shooting of Steven Taylor, 33, at a Walmart store April 18.
Her decision comes in the wake of the recent shooting of Jacob Blake in Kenosha, Wisconsin, which sparked the latest wave of protests across the nation and locally in cities such as Oakland and San Jose, as well as the ongoing civil unrest from the killings of Black Americans including George Floyd in Minneapolis and Breonna Taylor in Kentucky.
And it comes after a new state law changed the standard for when prosecutors can charge officers for illegal use of deadly force.
Assembly Bill 392, which went into effect this year, says police can resort to deadly force only “when necessary in defense of human life.”
O’Malley determined such force wasn’t necessary in Taylor’s case. According to the district attorney’s office, Taylor was holding an aluminum bat when police arrived at the store. Fletcher approached him and tried to grab the bat, but when Taylor pulled away, Fletcher drew his gun and told him to drop the bat. He used his Taser twice on Taylor before shooting him with his gun, killing him.
“Mr. Taylor was struggling to remain standing as he pointed the bat at the ground,” according to a declaration by the district attorney. “Mr. Taylor posed no threat of imminent deadly force or serious bodily injury to defendant Fletcher or anyone else in the store.”
Stanford’s Weisberg said the officers had alternatives when they confronted Taylor — they could have backed up or lowered their guns and Tasers and tackled him to the ground.
“What would be their risk of death if they ran at him without weapons?” he said.
Until recently, a police killing was “lawful” unless a reasonable police officer in the same situation would clearly not have seen a need to use lethal force, UC Berkeley criminal justice law professor Jonathan Simon said.
“That’s a very hard standard for the prosecution to prove, especially when you add reasonable doubt. Very few police officers have been charged because of that evidentiary/ proof barrier,” he said. “Those that have — BART Officer Johannes Mehserle who shot and killed Oscar Grant on New Year’s Day 2009 — was caught on video and was eventually ruled an accidental shooting.”
The combination of the new state law and current police reform climate may have swayed O’Malley to prosecute the case, Simon said. This is the first time O’Malley has ever charged a police officer in a fatal shooting since she became district attorney in 2009.
“With the racial justice movement going on not only in this area and in the country, it’s also a factor,” he said. “It’s one of the reasons we have elected DAs, as they respond to the community’s concerns.”
O’Malley herself cited the new law as she explained her reasoning for the involuntary manslaughter charge. “I believe Officer Fletcher’s actions, coupled with his failure to attempt other de-escalation options, rendered his use of deadly force unreasonable and a violation of Penal Code Section 192(a), Voluntary Manslaughter,” the district attorney said in a statement.
But Wattley suggested that one fix in state law isn’t the precursor of an entire overhaul of the criminal justice system.
“From what I’ve seen, incarceration doesn’t stop cycles of violence in our communities,” he said. “And a focus on an individual officer often distracts us from a system that involves police in too many community interactions, a reliance that is itself fundamentally destructive. Whatever happens to Jason Fletcher for killing Steven Taylor, we still need to replace the police,” he said.
Sikander Iqbal, deputy director of the Urban Peace Movement, an Oakland advocacy group of social and economic change, said although he was surprised by
O’Malley’s announcement, he is wary of the upcoming court proceedings.
While Mehserle was charged and convicted for Oscar Grant’s death, that case didn’t lead to meaningful change, he noted.
“It’s definitely increased awareness and outrage the way Black and brown people in society are treated,” he said. “But it hasn’t changed policing and their use of lethal force. We haven’t felt real changes.”
For political organizer Mary Tieh, who became aware of Taylor’s story at a Black Lives Matter protest in San Leandro, O’Malley’s announcement was bittersweet.
“I was happy and disappointed at the same time,” she said in an interview. “Because it took this many consistent peaceful protests, persistent advocating, everything you can think of … for such a low charge.”
Tieh said she hopes that the San Leandro officer being charged will serve as an example not only in the city but also in the nation “that you cannot use your power to ‘serve and protect’ and take a life away.”