On Monday, July 8, 2019, the California Legislature passed Assembly Bill 392 (“AB 392” or “the Bill”), redefining the circumstances in which police officers are justified in using deadly force. The Bill is now on Governor Gavin Newsom’s desk and he has already said that he intends to sign it into law. AB 392 will take effect in 2020 and be one of the strictest laws in the nation regulating police use of force.
As a foundational principle, the Bill changes the current deadly force standard from when “reasonable” to only when “necessary.” Deadly force is only justified when the officer reasonably believes, that based on the totality of the circumstances, such force is necessary to: 1.) defend against an imminent threat of death or serious bodily injury to the officer or another person, or, 2.) to capture someone for committing a felony that resulted in death or great serious bodily injury, if the officer believes the suspect may cause further death or serious bodily injury unless immediately apprehended.
To enforce this standard, the Bill establishes the following definitions:
- “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including but not limited to, the discharge of a firearm.
- “Necessary” means the need to (1) defend against imminent threat of death or serious bodily injury to the officer or to another person, or (2) apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury who the officer reasonably believes will cause death or serious bodily injury unless immediately apprehended.
- “Imminent threat of death or serious bodily injury” is when, based on the totality of 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.
- “Totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.
This Bill requires consideration of an officer’s conduct prior to and during the use of deadly force, and in comparison to an objectively reasonable officer in a similar situation, to evaluate whether the use of deadly force was justified. Importantly, this Bill expressly states that the officer’s decision will not be judged against the benefit of hindsight.
Finally, the Bill establishes that an officer has a responsibility to use de-escalation techniques “if reasonably safe and feasible” and, prior to the use of deadly force, identify themselves as a police officer unless they have “an objectively reasonable grounds to believe the person is aware of those facts.”
Practice Tip
In anticipation of this Bill becoming effective, law enforcement agencies or departments should consider updating their internal polices to reflect the Bill. To alleviate anticipated stress on officers who must wrestle with “real time” decision making in extremely tense situations, police officers might participate in regular trainings on de-escalation tactics.
Questions
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Olivia Clark
ofilbrandt@kmtg.com | 916.321.4290