Deadly force proposal needs work

California’s Assembly Bill 931, which would modify the state legal standard governing police officers’ use of deadly force, is a promising advance on existing law, but the current proposal is deeply flawed. To meaningfully reform police practices and properly regulate the use of deadly force, some significant amendments are necessary.

This observation is shaped by our experience and expertise.

One of us, Arif Alikhan, is the Director of Constitutional Policing and Policy at the Los Angeles Police Department and a former federal prosecutor.  The other, Seth Stoughton, is a former Florida police officer-turned-law professor who has spent the last half-dozen years studying the regulation of policing, including the use of force.  We are both intimately attuned to the importance of properly regulating police uses of force, especially deadly force.

Assembly Bill 931 would provide some much-needed amendments to existing law, but it would also create new problems and exacerbate some old ones.

In most cases, homicide — that is, one person killing another person — is a crime.  Homicide is not criminal when it is deemed by law to be “justified.”

In California, the law governing justifiable homicides by public officials (Penal Code 196) was enacted in 1872, and it has not been amended since.  It states, in part, that homicide is justified when “necessarily committed [by a public official] in overcoming actual resistance to the execution of some legal process” or when “necessarily committed [by a public official] in arresting persons charged with a felony, and who are fleeing from justice or resisting such arrest.”

Both provisions are more permissive than the Constitution; the United States Supreme Court has held that deadly force is reasonable, and thus permissible, when there is an imminent threat of death or serious bodily to the officer or another person.  California law, in short, is outdated.

Assembly Bill 931 would provide some much-needed amendments to existing law, but it would also create new problems and exacerbate some old ones.  Although we believe the bill was proposed with the best of intentions, it may, counter-intuitively, actually lead to more officer-involved shootings.

We strongly agree with the principle that the proposed law states explicitly: an officer’s authority to use force “is a serious responsibility that must be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life.”  There should be no serious question that preserving human life should be the very highest priority in policing.

As much as we might wish it were not the case, officers will occasionally have to use deadly force in response to a deadly threat.  The proposed statute properly limits justifiable homicides to those situations in which officers use deadly force to “prevent imminent and serious bodily injury or death to the officer or to a third party.”  It also properly prohibits officers from using deadly force against individuals who present a threat only to themselves.

Further, the bill would — appropriately, in our view — not protect “a public officer whose gross negligence substantially contributed” to the situation where force was ultimately used. In the context of California criminal law, “gross negligence” means more than ordinary carelessness or inattention; it requires extreme recklessness.

Police agencies — as well as the police unions that wield significant policy-making power in California — may be motivated to protect their officers from criminal liability.

Under this statute, officers will not be criminally liable for simple tactical errors that are likely to occur during a fluid and rapidly developing situation.  If officers act with a blatant disregard for human life, however, they will be liable if their actions result in a death that was otherwise avoidable.  This strikes the proper balance between entirely ignoring police tactics on the one hand and criminally punishing officers for the type of mistakes that humans inevitably make in high pressure situations on the other.

These are significant improvements to existing law, but AB 931 creates some problems, too.  The bill requires reviewing the “totality of the circumstances,” and the most significant problem is how the proposed amendment defines that term: it  “includes, but is not limited to . . . whether the officer’s conduct was consistent with applicable training and policy.”

It is impossible to exaggerate the importance of good policy and training, especially in the context of deadly force.  Unfortunately, AB 931, if passed without amendment, may very well lead agencies to adopt more permissive policies and provide less stringent training than they otherwise would.

Police agencies — as well as the police unions that wield significant policy-making power in California — may be motivated to protect their officers from criminal liability.  If an officer’s compliance with an administrative policy can affect a prosecutor’s or a jury’s determination that the officer committed a crime, agencies and unions will have a powerful incentive to adopt less-stringent policies and lower training standards.  By weakening police policy and training, the proposed legislation could, counter-intuitively, lead to more fatal police shootings.

The proposed bill also problematically links police agency rules and training standards to the defenses available to officers being criminally prosecuted.

Imagine two officers in two different agencies:  one agency has permissive policies and training that actively encourages the use of deadly force, and the other has more restrictive policies and better training, sharply limiting deadly force to the narrowest of circumstances.

Under AB 931, those two officers would be treated very differently for using deadly force in otherwise-identical situations: The officer subject to the more permissive policy would have a greater likelihood of being found justified, while the officer subject to the more restrictive agency standards would be more likely to be found criminally liable.  In our view, the criminal law should impose the same liability for the same acts regardless of the agency.

Police shootings are literally a matter of life and death, and whether a homicide by a police officer is justifiable under the law is a serious legal and practical concern.  Although the authors of AB 931 are rightly concerned with regulating the police use of deadly force, the bill as it currently exists is fundamentally flawed.  Without amendments, this particular provision will have the perverse effect of lowering agency training standards and administrative policies.  That is likely to result in more officer-involved shootings, not less.
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Ed’s Note: Arif Alikhan is the is the Director of Constitutional Policing and Policy at the Los Angeles Police Department. Seth Stoughton is a law professor at the University of South Carolina.