A bill signed into law this week in California strengthens the standard by which police officers can use deadly force. Gov. Gavin Newsom said the new law, introduced in response to the spate of police killings of unarmed people, “stretches the boundaries of possibility and sends a message to people all across the country that they can do more” to prevent police shootings.
The legislation — AB 392, or The California Act to Save Lives — came as the result of months of negotiation between law enforcement lobbying groups and civil rights organizations, and some advocates of police reform view the new law as a watered-down effort. The Black Lives Matter Global Network, for example, pulled its support of the legislation, saying, “AB 392 does not provide the kind of substantive change that we imagined when the process began.”
But other groups, and the families of victims of police shootings, have praised the bill, several of whom were invited onstage alongside Gov. Newsom as he signed it into law. In made to the Los Angeles Times, Stevante Clark, the brother of Stephon Clark, who was shot to death by police in March 2018, said, “The bill is watered-down, everybody knows that. But at least we are getting something done. At least we are having the conversation now.”
In short, the bill aims to “affirmatively proscribe” — as in, explicitly limit — the instances when police officers can use deadly force, changing the standard from one based on a “reasonable belief” that the officer or another person is in imminent danger to one that requires police officers to use deadly force only when necessary.
The California Act to Save Lives, explained
California saw a spate of high-profile deadly police shootings in 2018, including the death of Willie McCoy, who was shot at more than 55 times by six police officers while asleep in his car with a gun in his lap and the doors locked, and Clark, shot to death in his grandmother’s backyard while holding a cellphone officers allegedly believed to be a gun. So in February, Assembly member Shirley Weber (D-San Diego) introduced AB 392 to reform California’s laws on when and how police officers can use deadly force.
The laws that had been governing officers’ use of deadly force in California — Penal Code 835a and Penal Code 196 — dated back to 1872, 22 years after California became a state; they are notably vague. For example, Penal Code 196 reads in part that law enforcement officers can commit homicide if they encounter “actual resistance to the execution of some legal process, or in the discharge of any other legal duty” — meaning that police officers in California can affirmatively defend shooting and killing a person who poses no threat because they weren’t obeying orders.
As Peter Bibring, senior staff attorney at the ACLU of Southern California and director of police practices for the ACLU of California, wrote in April 2018, “Officers are rarely held accountable [in California] because the law allows police to use deadly force whenever an ‘objectively reasonable’ officer would have done so under the same circumstances, and courts have said that police don’t have to use the least amount of force possible for their conduct to be ‘reasonable.’”
But the fight to reform California’s laws on police conduct has been challenging. A previous version of a bill, AB 931, stalled and died in the California Senate in 2018 due to concerns from law enforcement unions and lobbying groups that the bill was too tough on police officers. However, advocates behind AB 392, including the ACLU, which reported spending at least $1.1 million lobbying for the bill, think that the compromises it struck with law enforcement groups to get the bill to the governor’s desk will make a real difference. It’s the shift from a “reasonable” to a “necessary” standard that most matters in the eyes of the bill’s supporters.
I spoke with Bibring, who told me that while “reasonable” is a relatively loose standard for the actions of law enforcement, “necessary” is less so.
“The ‘reasonableness’ standard is inherently vague,” he said. “There are no clear boundaries to it. If I tell you about a game in which you can do anything ‘reasonable’ to get the ball in the goal, that doesn’t tell you anything. It is inherently subjective. The ‘necessary’ standard is not.” He added that the word “necessary” was clear, and wouldn’t give courts “additional leeway” to arbiter the necessity of a police killing to the benefit of police.
The legislation also means that after a deadly shooting, the actions of police officers that led up to the violent encounter will be considered in the decision of whether or not the shooting was in fact “necessary.” Bibring told me that under AB 392, “the decision makers — juries, police captains, prosecutors — have to look at the officer’s conduct leading up to the shooting. That means they can consider whether an officer failed to use deescalation tactics or escalated the situation,” leading to a violent encounter.
For police officers who fail to meet the “necessary” standard, their punishment can come from multiple sources, whether it’s getting fired, getting sued in civil court, or being criminally prosecuted.
By changing the law to raise the standard under which police officers use deadly force — and allowing the courts and authorities within police departments to use the moments that led up to such usage to determine whether or not it was acceptable — advocates are hopeful that this will reduce the incidence of police using deadly force in the first place. As the bill itself says, “it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life.”
“It wasn’t the kind of meaningful legislation we envisioned.”
But while the ACLU described the new law as “extraordinary, precedent-setting” legislation, some groups that originally signed on to support the bill — like Black Lives Matter and Silicon Valley De-Bug, a group focused on poor and nonwhite people within the tech industry — withdrew their support due to concerns that the legislation had changed to meet the demands of law enforcement lobbying groups.
Melina Abdullah, chair of the Pan-African Studies department at California State University Los Angeles and a co-founder of the Los Angeles chapter of Black Lives Matter, told Vox, “When Black Lives Matter initially came on as a co-sponsor for AB 392, we had high hopes,” but said that “much of our vision and values” for AB 392 “were overshadowed by the pragmatism needed to pass the bill.”
For example, a specific definition of the “necessary” standard was removed from the bill text, as was language that would require police officers to attempt deescalation tactics and aspects of the legislation that focused on criminal liability. (In a write-up from the conservative outlet HotAir.com, Jazz Shaw described the new bill as meaningless “word salad” because of those changes.)
When I asked Bibring about the criminal liability changes, he said that a previous version of the bill had included a statute meaning that officers could be charged with involuntary manslaughter if they were negligent in their conduct leading up to the shooting, but that statute was removed because the Assembly Committee of Public Safety wasn’t entirely sure what the statute would do or how it comported with California law. But Abdullah told me that because of these changes, Black Lives Matter decided to withdraw its support.
“These compromises did what they were intended to do,” Abdullah said. “Police withdrew their opposition, legislators signed on, and the bill passed and was signed by the governor, but it wasn’t the kind of meaningful legislation we envisioned.”
Joe Kocurek, a spokesperson for Assembly member Weber, told Vox in a statement that the changes made to the bill weren’t to court law enforcement groups. “Let’s be clear, no changes were made to the bill to get the support of law enforcement,” he said. “Any changes we made were to improve the mechanics of the bill or to gain the support of lawmakers because their votes were needed to pass this legislation.”
He noted that out of the over 200 organizations that backed the original bill, “including civil rights organizations, police reform groups and the families of victims of police violence, we only lost three after these changes were made.”
“Our primary focus has always been to save lives,” he said in his statement. “We have been true to the core of the policy despite considerable opposition by law enforcement.”
While Black Lives Matter withdrew support for AB 392, Abdullah said she is hopeful its passage will “open up the door for more significant legislation” to curtail deadly police shootings and critically ensure that police officers who fail to meet the new “necessary” standard for the use of deadly force are punished.
AB 392 is a big first step to stopping unlawful police shootings in California. But that’s just it: It’s the first.