Assessing California's Amended Use-of-Force Law

In August 2019, California enacted a new use-of-force law assigned Assembly Bill 392¹ that will take effect in January 2020.²  This bill amends the state’s Penal Codes § 196 and § 835a, which regulate the use of deadly force by California police officers.^3,4

• Under the expiring law enacted in 1872, police officers would not be prosecuted for the use of force if the officers had a subjective but “reasonable” fear for their safety.  Virtually, any use of deadly force was legal, which meant officers effectively were rarely prosecuted, in any situation, for the use of deadly force.
• The new California law states that the police are allowed to use deadly force only “when necessary in defense of human life.”⁵  Although what is “necessary” is undefined, the situation must include an imminent threat of death or serious injury to the officer or another person.

Under the new criminal law, the biggest change is that an officer’s actions—not just the subject’s—will be evaluated for the period leading up to the use of force.  In other words, the officer’s conduct leading up to a fatal shooting can affect the determination of whether the officer’s use of force was appropriate.  To charge an officer, a prosecutor must evaluate “each situation in light of the particular circumstances of each case,” which looks to the totality of the circumstances as reasonably perceived by the officer.

• Under the new “necessary” standard, an officer now could be prosecuted for a shooting if there was no need to get to the point of deadly force, even if the officer appropriately used deadly force in that moment.
• The amended law is likely to spur police departments to focus on training; however, it will take time to train the state’s 80,000 officers in de-escalation, awareness of bias and cultural competence and responding to mental health crises.

While the amended penal code no doubt transforms California criminal law, it remains unclear how the new law may influence civil claims for damages against officers.  That is because much of the new law is already baked into the legal framework of civil rights litigation.

• The new law substantively mirrors the standard in the U.S. Supreme Court’s 1989 decision in Graham v. Connor, which adopted an “objectively reasonable” use of force standard.⁶
• Under both California’s amended Penal Code § 835a and the Graham v. Connor standard, the force used by the officer must appear necessary under the totality of the circumstances as perceived by the officer.
• Even so, the criminal prosecution of an officer could affect decisions by police departments about whether they defend or indemnify officers in civil litigation.  It is essential to watch to see how litigants rely on the amended law in civil litigation, and how judges interpret the statute.
• On top of that, whether the officer is prosecuted criminally will affect the optics of a civil rights action and may inflame some jurors.

The amended California Penal Code is now among the most stringent nationwide, but it is challenging to compare the new law to existing laws in other states.  Some states remain more restrictive, where deadly force is allowed.

1. Deadly force is only allowed when either no risk to innocent bystanders exists,
2. Or the officer must first exhaust all other options before deadly force is allowed.⁷ beggert

Both of these restrictions differ from California’s standard.

Still, police reform advocates expect that the new California law will become a template for other states to follow for police reform.

If you want to talk about this issue in a specific state, feel free to give us a call.

Endnotes:

1. https://www.gov.ca.gov/2019/08/19/governor-gavin-newsom-signs-use-of-force-bill
2. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB392
3. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=196.&lawCode=PEN
4. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=835a.&lawCode=PEN
5. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB392
6. https://supreme.justia.com/cases/federal/us/490/386/#tab-opinion-1957951
7. https://infogram.com/deadly-force-policies-1h706ejn7ze545y