Following the Sacramento police shooting last year of Stephon Clark, a bill to restrict the use of deadly force by law enforcement officers was passed out of the Assembly Public Safety Committee, but is unlikely to withstand legal scrutiny.
Authored by Assemblywoman Shirley Weber (D-San Diego), AB 392 would allow criminal charges to be filed against officers who use deadly force if other enforcement options are available. Weber said de-escalation tactics and “best practices” were developed from the Obama-era Department of Justice, and already in use in Seattle and San Francisco.
Weber and co-author Assemblyman Kevin McCarty (D-Sacramento) say the change should become the standard across the country. They say the restricted use-of-force standards by police in Seattle and San Francisco have improved relations between residents and law enforcement.
Weber says the bill is a “long overdue” update to the 100-year old use-of-force statute in the country. She said her bill is not about targeting police officers, “but about how we have treated people in this nation for 400 years – people who don’t look like us.”
“In 2017, officers killed 172 people in California, only half of whom had guns,” Weber said. “Police kill more people in California than in any other state, and at a rate 37% higher than the national average per capita. Of the 15 police departments with the highest per capita rates of police killings in the nation, five are in California: Bakersfield, Stockton, Long Beach, Santa Ana and San Bernardino. A 2015 report found that police in Kern County killed more people per capita than in any other U.S. county. These tragedies disproportionately impact communities of color as California police kill unarmed young black and Latino men at significantly higher rates than they do white men.”
McCarty detailed the Stephon Clark shooting by police (one of the officers is black), and said the City of Sacramento is in negotiations with Clark’s family for $20 million, despite the year-long investigation by Sacramento District Attorney Anne Marie Schubert and her decision to not charge the police officers in Clark’s death.
AB 392, titled the “California Act to Save Lives” would require police officers to go through a mental checklist before using deadly force against suspects. Except that checklist would have to be a quick one as most shootings occur in 2-3 seconds, according to Shane LaVigne with the California Fraternal Order of Police. LaVigne testified in the hearing Tuesday in opposition to AB 392, saying the bill would create an untenable situation for police officers. “The problem is, the standard would be judged in hindsight,” LaVigne said. “It’s an impossible standard,” and would “require super-human decision making, which is not possible.”
The officer use-of-force bill would change the current “reasonable” deadly force standard to “necessary.”
“This is moving the standard from objective reasonable deadly force to subjective,” attorney Kathleen Mastagni Storm said in an interview following the hearing. Mastagni Storm said this is just a second guessing opportunity by anyone looking atvideo or body camera footage following a shooting. “AB 392 criminalizes police use of force, and tips the balance, unnecessarily jeopardizing public safety,” Mastagni Storm said. “This proposed law is based on a false narrative that the use of deadly force in situations is not necessary.”
Mastagni Storm said courts have long held that police officers may use necessary force, “but AB 392 seeks to redefine ‘necessary,’ such that there is no reasonable alternative to the use of deadly force. ‘Necessary’ has always been the standard.”
According to attorney Mastagni Storm, AB 392 would override the United States Supreme Court’s objective standard of “necessary,” with a new “subjective” standard for determining necessity. “‘Necessity’ would be officers’ denial of their self-defense rights,” she added. “It creates an impossible standard and is the epitome of second guessing.”
“Real world split decisions don’t have time, tranquility and hindsight,” she added. “Hindsight analysis has been expressly rejected by the courts.”
All Californians have the constitutional right of self defense, Mastagni Storm explained. “This bill proposes an inferior right of self defense for law enforcement officers, violating the equal protection guarantee of the Fourteenth Amendment.”
Mastagni Storm said this is whittling away at what police can do, and jeopardizing public safety.
While supporters of the bill presented painful stories of the families of police shootings, compelling testimony came from Julie Robertson, a Sacramento deputy sheriff who watched her colleague murdered by a gunman when they responded to a call at an auto parts store last year. “I was fighting for my life and fighting to protect complete strangers when I chose to stand between the gunman and the employees and patrons. The thought of having to second guess my actions in that moment is frightening,” said Robertson. “This bill makes me wonder if sacrificing everything is worth it.”
Robertson, who said there was no indication of an armed suspect at the auto parts store when the call came in, watched as her partner, Deputy Mark Stasyuk, was gunned down within 10 seconds upon their arrival. “After Mark had fallen, the gunman turned on me and began shooting,” she said. At one point, Robertson said the gunman’s back was to her. She recalled thinking that if she were to shoot him in the back she’d be the next officer to be scrutinized in the news for her actions, “despite the fact that he’d just murdered my partner, shot one of the store clerks, and shot me.”
Robertson was shot in the arm.
“My only intention is to protect and save lives,” Robertson added. “How is it that I would be questioned and judged by the ones who live so distant from the dangers we inherently face each day? Had this bill been in effect, I would have been forced to retreat.”
Assembly Bill 392, sponsored by the ACLU and Black Lives Matter, passed on a party-line vote, despite three Democrats on the committee who said the bill in its current form is not acceptable.
Police groups have backed competing legislation, Senate Bill 230, which would require each law enforcement agency to maintain a policy that provides guidelines on the use of force, utilizing de-escalation techniques and other alternatives to force when feasible, specific guidelines for the application of deadly force, and factors for evaluating and reviewing all use of force incidents, among other things. SB 230 is awaiting hearing in the Senate Public Safety Committee.
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