Calif. may limit police gun use
Officers could face prosecution in fatalities
SAN FRANCISCO – A showdown over when police in California can use deadly force is set to unfold in the state Legislature this week, and it could result in sweeping changes to law enforcement departments that give officers broad latitude in deciding when to shoot to kill.
At issue is Assembly Bill 392, which would put the onus on officers to justify discharging their weapon, shifting the standard from “reasonable” – as defined by the Supreme Court’s Graham v. Connor ruling in 1989 – to “necessary.” That means, under the bill, police must feel confident it is necessary to shoot to protect themselves or others from danger or they could be prosecuted for killing a person.
Instead of reaching for their guns,
officers would be pressed to engage in de-escalation tactics that aim to reduce tension between officer and suspect. Experts said those include listening to the suspect’s story, explaining the actions a police officer is about to take and ensuring that the suspect’s dignity is preserved throughout the interaction.
California has the highest percentage of police shootings per 100,000 people among states with more than 8 million residents, said Seth Stoughton, a former police officer who is a law professor at the University of South Carolina and an expert on deadly-force rules.
“The states are all over the map in the way they regulate deadly force, with some being very permissive, and that’s where California is right now,” he said, noting that the Western state shares that reputation with Georgia, Texas and Florida. Among large states, New York has the fewest officer-related shooting deaths.
“This new bill would make the preservation of life law enforcement’s top priority in California,” he said.
AB 392’s co-sponsor, Assembly member Shirley Weber, D-San Diego, said the law would encourage police to consider nonlethal methods when bringing suspects into custody. “The piling on of killings of often unarmed civilians by police for the past six or seven years now is wearing on the conscience of this nation,” she said. “The thought after these shootings often is, ‘Isn’t there something else police could have done?’ And maybe sometimes there are other things.”
Critics said AB 392 ignores the nuanced difficulties inherent in police work.
“This bill is an affront against anyone who wears a badge, and if people understood its consequences, nobody would vote for it,” said Assemblyman Tom Lackey, R-Palmdale, who served on the California Highway Patrol for 28 years. “Unless you’ve been in this arena, you don’t understand how fast things unfold.”
Lackey said officers take their power to kill extremely seriously, recounting a CHP colleague who became so distraught after a fatal shooting that he became an alcoholic and killed himself.
Lackey said there is a problem with policing protocols, which have resulted in the high-profile shooting deaths of civilians such as Stephon Clark, a Sacramento man who was killed by police officers in March 2018 while carrying only a cellphone.
“But this bill isn’t the solution to that problem,” he said. “You change the policy midstream, and you’ll cause officers to think before reacting, and that time gap is going to be deadly.”
AB 392 pits victims’ relatives and the American Civil Liberties Union against a massive statewide force – state and local officers serving 40 million people across 600 agencies with 120,000 personnel – that until recently was protected by one of the toughest police privacy laws in the country.
On Jan. 1, Senate Bill 1421 became law, allowing the public to seek access to police records and internal investigation files to get more information about incidents in which police use lethal force or are suspected of criminal activity.
Theresa Smith is among many victims’ rights advocates who has spent time in Sacramento sharing her story in support of both bills. Her son, Caesar Ray Cruz, was killed in 2009 in Southern California after a tipster told police he was a gang member and armed.
After being confronted by police in a Walmart parking lot, Cruz was fatally shot. Officers said they thought Cruz was reaching into his waistband, but he was not armed.
The deadly-force bill “is important simply because if it had been in effect when my son was shot, there might be some accountability for their actions,” Smith said.
Senate Bill 230 was put forth by law enforcement as an alternative to AB 392 and focuses largely on increasing training, but it doesn’t address changing the standard for use of force.
Lawmakers and advocates were tentatively optimistic that conversations between both sides of the issue would result in a bill that police officers and victims’ rights groups can support.
“We’re looking to pass what would be the strongest use of force bill in the nation, one that defines it as being usable only when necessary, not when reasonable,” Weber said. “We’re in conversations with law enforcement, and we hope that will net some positive results.”
Robert Harris, president of Protect California, a coalition of law enforcement associations and trade unions, said changing the terms on use of force “is a line in the sand we don’t want to cross.”