The Corner

Law & the Courts

California Looks to Redefine ‘Justifiable’ Police Shootings

(John Roman/Dreamstime)

Tensions are coming to a head in California over AB 931, a bill to restrict when police may use lethal force. Law-enforcement groups vociferously oppose the legislation, but some respected experts wholeheartedly support it. The dispute is largely over what the bill says, rather than what it should say.

Here’s an attempt to clear things up. Settle in; it’s on the long side.

First, the underlying problem: California’s current statute is an outdated mess. Read literally, it would give cops the right to shoot nonviolent felons in the back to stop them from escaping. California’s own courts watered this rule down decades ago by deciding that the word “felony” no longer meant “felony,” and the written standard also runs afoul of a 1985 Supreme Court decision. Nowadays the statute bears only a passing resemblance to the law as courts apply it in practice, typically requiring officers to have probable cause to believe there’s a threat to life or limb to justify lethal force. In “bench notes” to judges handling these cases, the state’s jury instructions note that some nuances of the policy are still unclear.

It’s long past time for the legislature to do its job and update the law, and the new legislation tweaks two different sections of the California Penal Code. One of them (835a) explains how police are supposed to behave; the other (196) lays out when they can be held liable for failing to behave that way. The chief allegation against the bill is that it would allow prosecutors to unfairly second-guess the decisions that cops make under intense pressure, while defenders say the changes are minor, commonsensical, and in keeping with standard practice in much of the country.

To begin with, let’s take a look at the new 835a rules. This is a big one, for example:

A peace officer who makes or attempts to make an arrest shall not be required to retreat or desist from his or her efforts by reason of the resistance or threatened resistance of the person being arrested and shall not be deemed an aggressor or lose his or her right to self-defense by the use of reasonable force to effect the arrest, to prevent escape, or to overcome resistance. However, peace officers shall attempt to control an incident by using time, distance, communications, and available resources in an effort to deescalate a situation whenever it is safe and reasonable to do so.

And here’s another:

A peace officer may use deadly force only when such force is necessary to prevent imminent death or serious bodily injury to the officer or to another person. . . . “Necessary” means that, given the totality of the circumstances, an objectively reasonable peace officer would conclude that there was no reasonable alternative to the use of deadly force that would prevent imminent death or serious bodily injury to the peace officer or to another person.

These are okay as general guidelines. But as legal standards, they are indeed quite demanding for someone making a life-or-death decision on the fly. They basically require an officer to choose the least aggressive “reasonable” option, rather than simply requiring his actual decision to be reasonable.

So what’s the consequence if a cop fails to live up to this ideal? For that, we consult the rewritten version of Section 196 (in relevant part):

Homicide is justifiable when committed by public officers . . .

(2) When resulting from physical force used consistent with Section 835a.

(b) A defense to a charge of homicide in violation of Section 192 [manslaughter] shall not be available pursuant to this section or Section 197 [justifiable homicide by “any person”] for a public officer whose conduct is such a departure from the expected conduct of an ordinarily prudent or careful officer under the same circumstances as to be incompatible with a proper regard for human

That’s rather confusing, and conflicting interpretations of this language drive a lot of the acrimony over the bill. Do officers lose protection whenever their behavior isn’t strictly “consistent with” the exacting new rules? Or are they protected so long as their behavior isn’t “such a departure from the expected conduct . . . as to be incompatible with a proper regard for human life”?

Joe Kocurek, communications director for bill sponsor Shirley N. Weber, squared the circle for me via email: “If it was not ‘necessary’ (not in full compliance with 835a) but was not criminally negligent, the officer would still be able to invoke California Penal Code section 197 — self-defense, the justifiable homicide statute.” In other words, the police groups are right that officers can lose some protection if they make reasonable mistakes. But so long as their behavior isn’t “incompatible with a proper regard for human life,” they can still win an acquittal under the same self-defense law available to ordinary civilians.

I’m not sure much is achieved by kicking these cases over to a different section of the statute books; for one thing, the standards for civilian self-defense aren’t that different from those for police homicides, though they were obviously written with very different scenarios in mind. If lawmakers want to address situations where officers made some bad decisions but might not deserve to be convicted of manslaughter or murder, it might be better to devise a new set of penalties appropriate for such situations, rather than tinkering with the legal standard that will apply at these officers’ homicide trials.

The bill isn’t as bad as its detractors say, but its confusing language and design leave something to be desired — and make it difficult to have a serious debate about it.

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