California's 'Model' Police Use-Of-Force Law Won't Change Much About Deadly Force Deployment

from the we're-from-the-government-and-we're-here-to-grandstand dept

In response to controversial shootings of citizens by police officers, California's governor has (far too proudly) signed into law a bill that will do almost nothing to prevent more of these kinds of killings:

The precipitating factor in changing the standard was the March 2018 police shooting of Stephon Clark in Sacramento.

Police shot and killed him in the back yard of his grandmother's house, after mistaking his cell phone for a weapon. Police suspected Clark of breaking into cars, and they shot him after he refused orders to show his hands. Instead, police said, he pointed what turned out to be a cell phone at them.

As is almost always the case when police officers kill unarmed people, the officers' decision to kill Stephon Clark was found to be justifiable -- a reasonable response to a situation in which the officers feared for their safety.

The new law says these kinds of killings will no longer be justified. Oh, wait. It says nothing of the sort. In fact, it says officers can keep killing people as long as they fear for their safety or the safety of others.

A peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:

(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.

(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

This law would have done nothing for Stephon Clark. It will do nothing for future Stephon Clarks -- people who aren't carrying weapons but are responding poorly to conflicting commands being shouted by multiple officers who are carrying weapons.

This failure to make any substantial change to the everyday business of killing citizens is being hailed by the man who signed the bill as the future of police use of force legislation.

California Gov. Gavin Newsom (D) announced on Monday that California is now a "model for the rest of the nation" when it comes to the use of deadly force by police officers.

Good news, rest of the nation! To keep up with California, you really won't have to do anything.

The reason this law is so weak is because it had to be this weak to even get passed. Concessions were made after the bill got hung up in negotiations with law enforcement agencies and their unions. Assemblywoman Shirley Weber's bill only moved forward once it had been watered down enough to be agreeable to the government agencies it would affect.

To get the bill through the Legislature, Weber accepted amendments that eliminated provisions that would have made it easier to prosecute officers.

It still gives some power to courts to decide if an officer’s application of force is justifiable, but it’s unclear if more officers will face criminal charges because of the new law.

It's not a total loss, though. It does make at least one drastic change to police force deployment. It forbids the killing of people who pose a threat only to themselves.

A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

This will keep officers from "helping" suicidal people end up dead faster. Hopefully, it will also slow down the rate at which cops kill mentally ill people. But sufferers of mental issues are frequently perceived as threats by police officers. This clause won't help much because it leaves it up to officers to decide whether or not a person threatening their own life also (somehow) poses a threat to them. With body cams routinely "failing" to operate in situations like these, it's the word of cops against all other witnesses. Not exactly a game changer.

Perhaps the best part of the bill is the definition of "imminent harm," which should at least prevent a few officers from making deadly assumptions using facts not in evidence.

A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.

This is good, but see also things like this:

During the interview, [Officer] Browder stated that he first saw Nehad when Nehad was twenty-five to thirty feet from Browder’s car and that Nehad was “aggressing” the car and “walking at a fast pace . . . right towards [the] car.”

These are actual words used by a cop to justify the near-instantaneous shooting of man armed only with a pen. The officer claimed he thought it was a knife -- a statement he didn't make until his second interview about the shooting. So, that's the standard that's being laid down: if an officer believes harm is "imminent" -- or at least thinks a court might buy it -- the guns will come out and unarmed people will die.

Fortunately, the governor has backed up this mostly-worthless law with something that might have an effect.

Newsom said "no," police officers shouldn't be worried about the change from reasonable force to necessary force. "They should only be worried if we don't, commensurate with this legislation, support the training of those officers."

"What kind of training?" Jones asked. "What is the difference ... when you're training an officer to use deadly force only when it's necessary as opposed to when it might be reasonable? What's the difference?"

"Well, we're about to explore that," Newsom said, "because we're going to invest an unprecedented amount of money, tens of millions of dollars, to move through a process of going, step by step, through de-escalation and focusing, now, with much more specificity, on changing the culture of policing.

This is good. But all Californians have at the moment is a law that says nothing really needs to change. If and when this new training is implemented, we may see improvements. Any improvement will depend on the quality of the training and the discretion of prosecutors. And prosecutors aren't really known for their "tough on (cop) crime" mentalities. This law is an improvement over all the laws no one else is actually trying to pass. But it's only very slightly better than doing nothing at all.

Filed Under: california, gavin newsom, police, stephon clark, use of force


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  • identicon
    Anonymous Coward, 28 Aug 2019 @ 3:25pm

    TL;DR version:

    All the training an officer receives on the law and the Constitution going thru the police academy to respect the rights of citizens and follow the law obviously has done so much good that we're going to give them more training on what they should already know and be doing.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Aug 2019 @ 3:43pm

      Re:

      ...and we're changing the law such that LEOs accused of using excessive force will now be limited to using the defense they're currently using successfully; they won't be allowed to use the other ones they haven't been using.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Aug 2019 @ 8:34am

      Re:

      All the training an officer receives on the law and the Constitution going thru the police academy to respect the rights of citizens and follow the law

      Takes second place to all the training to be as aggressive as possible so that they make it home at the end of a shift.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 28 Aug 2019 @ 4:53pm

    The reason this law is so weak is because it had to be this weak to even get passed. Concessions were made after the bill got hung up in negotiations with law enforcement agencies and their unions. Assemblywoman Shirley Weber's bill only moved forward once it had been watered down enough to be agreeable to the government agencies it would affect.

    So now the police are not only expected to enforce the law, they're given a say in writing it? Do bars get a vote on any new liquor laws that are passed? Do motorists get a vote on new traffic laws? If not, why are cops allowed to influence the law?

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 28 Aug 2019 @ 7:18pm

      Re:

      Hey, if telecom lobbyists and MPAA/RIAA lawyers can write law, why can't law enforcement? ;)

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 29 Aug 2019 @ 12:27pm

      Re:

      And yet, despite the fact that it is their job to enforce the law and the fact that they clearly play a role in writing the law, they are not necessarily expected to know the law.

      reply to this | link to this | view in chronology ]

    • identicon
      urza9814, 29 Aug 2019 @ 1:08pm

      Re:

      "now"?? Where ya been? They've been writing themselves new bills of rights since the '70s. You and I are second-class citizens; only the gangsters in blue get the full list of civil rights. I'm sure there are probably earlier examples of cops writing the laws, but that's the one I find most offensive personally....

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Aug 2019 @ 8:37pm

    Don't we just love to see the parking enforcement armed to the hilt in village smalltown America? Way to Go you dicks.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 28 Aug 2019 @ 10:43pm

    I can imagine how this goes.

    If and when this new training is implemented, we may see improvements. Any improvement will depend on the quality of the training and the discretion of prosecutors.

    "And now listen everybody: we have new laws that make an immediate threat necessary for shooting hoodlums. Now assume that there is some suspicious creep in a car. What do you do? Smith?"

    "I shoot him."

    "I don't really know why I try beating sense into you bunch of idiots. Rogers?"

    "I have a body camera malfunction. Then I shoot him."

    "Thank God somebody is paying attention."

    reply to this | link to this | view in chronology ]

  • identicon
    David, 29 Aug 2019 @ 12:28am

    That does not make sense.

    Police suspected Clark of breaking into cars, and they shot him after he refused orders to show his hands. Instead, police said, he pointed what turned out to be a cell phone at them.

    How is "pointing what turned out to be a cell phone at them" not showing his hands? It doesn't sound like "refusing orders" at all to me. Rather like failing to second-guess what the officers actually wanted rather than what they demanded.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 29 Aug 2019 @ 12:37am

      Re: That does not make sense.

      Basically, the people most likely to survive an encounter with police are those anticipating encountering hostile police, namely dangerous criminals. They can figure out what the police are afraid of when shouting wild commands, and take the correct action. For common citizens, it's curtains.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Aug 2019 @ 1:56am

      Re: That does not make sense.

      Do the police not know that people often have phones in their hands, and that dropping them may cause them damage? Also the way people hold a phone is different from the way they hold a gun or knife, because they do wrap their finger round the phone, but do wrap them around a weapon.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 29 Aug 2019 @ 12:40am

    'Hmm, no, I think I'll pass on any checks again my power.'

    The reason this law is so weak is because it had to be this weak to even get passed. Concessions were made after the bill got hung up in negotiations with law enforcement agencies and their unions. Assemblywoman Shirley Weber's bill only moved forward once it had been watered down enough to be agreeable to the government agencies it would affect.

    And there's the main problem with attempts to reign in the killers and/or thugs in blue: the politicians keep making requests rather than issuing orders. If someone is not following the current rules you don't invite them in and give them veto power over the new proposed rules, you craft those rules, put some real teeth into them, and tell them that they will follow the new rules or suffer the consequences.

    A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

    That this even needed to be said just says so many things about california police, none of it good.

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 29 Aug 2019 @ 5:30am

    The second item...

    seems more helpful.
    "(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended."

    could cut down on police chases and fatal crashes for suspects fleeing non-violent charges. OTOH, the chase itself could be construed as "an imminent danger" to others, so maybe not.

    reply to this | link to this | view in chronology ]

  • identicon
    dd, 29 Aug 2019 @ 7:37am

    fyi...thefreethoughtproject.com/police-mass-shooters-guns/

    'Already, in 2019, American police have killed 488 people.
    This number
    is set to increase by one, on average, every 8 hours.'

    The numbers do not lie,
    police in America have killed 12.8 times more citizens
    than
    mass shooters in just the last 4 years.

    US Police Have Killed Over 1,200% More Citizens Than Mass Shooters Since 2015

    --Matt Agorist

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Aug 2019 @ 8:04am

    responding poorly to conflicting commands

    That is the result of no tactical control, and I wonder if that could be grounds for at least manslaughter charges. The police should have a protocol to decide who will issue commands to a suspect, so that the suspect does not have to choose between conflicting commands.

    reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 29 Aug 2019 @ 12:52pm

    Not to defend this really weak law, which changes virtually nothing, it does do one thing: it says that deadly force is no longer justified by a concern that the person may be a danger to themselves. While I believe that the general standard for justifying use of force by cops is BS for a number of reasons, I can at least wrap my head around the rationale behind most of it. However, I cannot fathom the logic that is used to justify using potentially deadly force against someone on the basis that that person poses a reasonable threat to themselves.

    Here’s the scenario: John Doe is standing on a ledge of a bridge over a river threatening to jump off and kill himself. There is a barrier between John and the cops in the form of the fence on the sides of the bridge, which John is currently clinging onto with both hands for stability before he makes the jump. There is no reason to believe there are any persons in the river below, which is too shallow to support water-based transportation but also too wide and fast for rescue teams to be waiting below to catch him. Cops on the scene have a reasonable belief that John poses an immenant threat to himself (obviously). They do not have a reasonable belief that John poses an immediate threat to the cops or any other persons other than John himself. The solution to John’s threat to himself? Shoot him. Under what logic does this make sense? And yet it is justified under the “poses a threat to himself or others” rationale so often used to justify the use of force.

    So good on California for closing that particular loophole, at least.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 29 Aug 2019 @ 1:19pm

      Re:

      So good on California for closing that particular loophole, at least.

      As I pointed out above the fact that they felt they even needed to is pretty damning. If someone is only a threat to themselves the only reason a cop could have to kill them is if they just really wanted to murder someone and get away with it, such that the fact that that 'loophole' even needed to be 'closed' tells you a lot about california police.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 29 Aug 2019 @ 1:41pm

    However, I cannot fathom the logic that is used to justify using potentially deadly force against someone on the basis that that person poses a reasonable threat to themselves.

    You save them from eternal damnation. This is the U.S. we are talking about, right?

    If you don't want to swallow that one, you can shoot with the intend to disarm or incapacitate a suicidal person. A gun is not necessarily the greatest tool for that purpose but if you have nothing else readily available...

    reply to this | link to this | view in chronology ]


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