PORAC and law enforcement leaders statewide sponsor SB 230 to bring police standards and training into the 21st century
DAVID E. MASTAGNI
Mastagni Holstedt, APC
Through the leadership of President Brian Marvel and lobbyists Randy Perry and Aaron Read, PORAC and a coalition of law enforcement stakeholders successfully prevented a strong legislative effort last session to radically limit peace officer rights to self-defense and defense of others. Assemblymember Shirley Weber (D–San Diego) introduced Assembly Bill 931 on behalf of the ACLU and a coalition of anti-law-enforcement zealots to redefine the necessary standard for the use of deadly force set by the U.S. Supreme Court in Graham v. Connor. PORAC successfully opposed this unconstitutional attempt to erode peace officers’ inalienable right to self-defense.
At the request of California Senate President Pro Tempore Toni G. Atkins, we met repeatedly with ACLU representatives and Weber in good-faith efforts to reach a compromise bill to update force policies and training while preserving Graham v. Connor. Unfortunately, the ACLU remained strident in criminalizing peace officers. As a result, Senate Bill 230 was introduced by Senator Anna Caballero (D–Salinas) and sponsored by our law enforcement coalition to build upon existing efforts to improve outcomes in serious use-of-force incidents. SB 230 modernizes California’s common law use-of-force statutes to comport with U.S. and California Constitutional standards and provides standardized force policies and training for all California public safety officers. Predictably, Weber and the ACLU rejected our proposals, instead introducing a rehash of AB 931.
The Fight Against AB 931
Tellingly, Weber and the ACLU introduced AB 931 via a press conference, without giving law enforcement prior notification or an opportunity to provide feedback. In fact, the language of the bill was initially withheld for two weeks and was misleadingly presented as a requirement that officers only use deadly force when necessary — a general proposition everyone supports and which the Supreme Court has required for decades. Despite the intentional blindsiding, law enforcement offered to discuss their concerns with the bill and provide alternative solutions focused on policy, education and training.
AB 931 was predicated on the false narrative that current law and constitutional standards permit officers to use deadly force under circumstances where deadly force is not necessary and that such force should only be a last resort. In reality, the courts have long held that officers may only use necessary force. In applying an objectively reasonable standard, Graham held, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation” (emphasis added). In fact, the current jury instruction for an officer asserting a justifiable homicide defense under Penal Code Section 196 requires that “the [attempted] killing was necessary” (CALCRIM No. 507).
The actual purpose of AB 931 was to radically alter the standard by which the court would determine necessity by overriding the Supreme Court’s objectively reasonable standard and embedding a new subjective standard for determining necessity of the officer’s force (i.e., officers would be denied self-defense rights if any other lesser course of action was available). Despite assertions to the contrary, this impossible standard represents the epitome of second-guessing by determining necessity based upon the trier of fact’s consideration of alternative options with the benefit of tranquility and time to reflect.
Our Ninth Circuit has recognized, “(r)equiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment” (Scott v. Henrich [9th Cir. 1994] 39 F.3d 912, 915). Rather, officers must act within that range of conduct that is objectively reasonable with regard to the amount of force that is necessary in a particular situation. The appellate court explained further:
“In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.” (Id.)
Using familiar language in a disingenuous context, AB 931 redefined “necessary” to mean a “reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force,” such as “verbal communications, warnings, de-escalation, and tactical repositioning.” As a practical matter, there is always someone out there who will opine that there was an alternative to employing deadly force. Thus, the bill would strip officers of a justification defense both criminally and civilly whenever a “reasonable alternative” is conjured up after the incident.
Additionally, AB 931’s legal framework was fundamentally flawed. Its standard for evaluating the reasonableness of deadly force provides no deference to a reasonable officer’s often split-second evaluation of whether lesser force is safe or effective under the circumstances. For example, if a suspect 3 feet away draws and aims a handgun at an officer, it will take the officer about 1.5 seconds to perceive this threat, decide to draw his or her gun and shoot at the suspect. Nearly everyone would agree the officer’s decision was an objectively reasonable use of deadly force. However, under Weber’s bill, that officer’s right to self-defense would hinge on the “reasonableness” of the officer’s alternatives, such as the use of a gun take-away technique or quickly advancing on the suspect and knocking him off balance and taking him to the ground. Replace the suspect’s gun with a knife in this scenario; the officer could reasonably determine that discharging his or her firearm at the suspect is more effective and safer than the purported reasonable alternatives, such as trying to retreat to cover or deploying less lethal weapons (e.g., electronic control devices, pepper spray or batons).
In short, officers’ right to self-defense under Article I, Section 1 of the California Constitution would be severely impaired, and officers would be relegated to constitutional protections inferior to those of private citizens, in violation of the equal protection guarantees of the Fourteenth Amendment. His or her right to use force for self-defense or the defense of others would hinge on whether the alternative was reasonable (albeit less effective and more dangerous), rather than whether their use of force was reasonable. Thus, the necessity of the force would be redefined from an inquiry of the objective reasonableness of the officer’s force decision into an inquiry of the reasonableness of the alternatives the officer did not utilize. An officer’s reasonably necessary use of deadly force could lead to a homicide conviction if a trier of fact determined a lesser alternative was also reasonable. It could also impose uncalculatable civil liability for the employing agencies and officers.
About a month after the introduction of AB 931, Weber met with various law enforcement groups in a single meeting where she and the ACLU presented AB 931 and expressed an unwillingness to consider our law enforcement concerns. We were told that ensuring criminal “liability” (i.e., increasing criminal prosecutions of officers) was essential to the proponents. We warned of unintended consequences, such as disincentivizing proactive policing or causing hesitation in a life-or-death moment. Amazingly, the ACLU’s lawyer claimed the bill would enhance officer safety because the criminal liability would discourage officers from exposing themselves to dangerous situations, i.e., create a “Ferguson effect.”
Post-Session Negotiations With the ACLU
After AB 931 moved to the Rules Committee, law enforcement stakeholders offered a major proposal to set minimum standards for use-of-force policies in California. I was privileged to participate in small group meetings with the Pro Tem and her staff to explain the superiority of our proposal, an earlier version of SB 230 intended to provide the most universal and robust use-of-force policy standards in the nation. Our group, which included President Marvel, lobbyists Perry and Read and California Police Chiefs Association lobbyist Jonathan Feldman, also pointed out the unconstitutionality and irreparable defects in Weber’s bill.
Weber never responded to our proposals, and instead falsely claimed law enforcement never came to the table. However, she did respond to our lobbying against AB 931 by moving forward her own amendments and falsely claiming to have removed criminal liability for officers from the bill. We again met with Atkins’ staff and legal advisors who recognized the cosmetic amendments in no way assuaged our legitimate concerns, and after direct discussions between President Marvel and Atkins, AB 931 was tabled.
PORAC and the law enforcement coalition agreed to negotiate with Weber and the ACLU over use-of-force legislation between legislative sessions with the oversight of Atkin’s chief advisor, Diane Griffiths, Esq. Our small group met with the ACLU’s lawyer, its lobbyist and Weber’s chief of staff about every two weeks in the Capitol. We explained our concerns with AB 931 in detail. We advocated for more uniform force polices and hands-on training of force scenarios so that officers could develop muscle memory and refresh perishable skills and practice alternative tactics to increase options and improve outcomes in actual encounters. We also advocated for state funding to address the mental health, homelessness, and drug addiction crises that often contribute to deadly force encounters. While some common ground was established, these negotiations failed because the ACLU insisted on criminalizing otherwise reasonably necessary force by limiting defense options to the least intrusive alternative.
AB 392: Dangerous and Ineffective
AB 392 creates a highly subjective standard for evaluating and holding officers criminally liable for using force based on hindsight. The bill fails to include any proactive measures to reduce the use of force and instead:
Creates a muddy and subjective standard for evaluating officers.
Maintains the status quo for use-of-force policies and training.
Threatens the safety of our families, communities and officers.
Aims to criminalize police officers, creating a disastrous disincentive to joining California law enforcement.
Introduction of SB 230
The larger California law enforcement coalition continued meeting throughout this process, and we ultimately drafted our own legislation regarding serious use-of-force incidents. On February 2, Caballero and our coalition announced SB 230, comprehensive legislation focused on improving outcomes during peace officers’ involvement in serious use-of-force incidents. SB 230 overhauls antiquated common law statues to comport with actual practices and court mandates on force. This bill also establishes first-in-the-nation use-of-force policy requirements for departments and creates standardized training for all California public safety officers on force scenarios, including de-escalation, intervention and medical aid.
In California, our justifiable homicide statute, Penal Code Section 196, mirrors the common law parameters for using force against a fleeing felon from 1872. Section 196 permits deadly force “in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.” As such, Section 196 is currently outdated and does not reflect the decisions of the California and U.S. Supreme Courts. For instance, our Supreme Court held in 1974 that “the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime” (People v. Ceballos  12 Cal.3d 470, 478). “Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery.” (Id.) The U.S. Supreme Court agreed. In Tennessee v. Garner, the seminal “violent fleeing felon” decision, the U.S. Supreme Court held, “[i]n California, the police may use deadly force to arrest only if the crime for which the arrest is sought was ‘a forcible and atrocious one which threatens death or serious bodily harm,’ or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed” (Tennessee v. Garner  471 U.S. 1, 17, fn 15). SB 230 revises Section 196 to reflect the Ceballos and Garner standard for force against fleeing suspects, as well as the Graham v. Connor standard for overcoming actual resistance in the performance of legal duties. SB 230 retains the legal justification for officers to administer capital sentences.
SB 230’s Comprehensive Three-Pronged Approach
SB 230 strengthens California legal standards for the justified use of deadly force, use-of-force polices and use-of-force training requirements. The first prong amends Penal Code Section 196 to restrict the use of deadly force when arresting a fleeing suspect to circumstances where the officer reasonably believes the suspect poses a significant threat of death or serious injury to the officer or others, or when the suspect has committed a forcible and atrocious felony. The bill also clarifies that deadly force is only justified when necessarily committed in overcoming actual resistance to the discharge of legal duty if the officer reasonably believes the suspect poses an imminent threat of death or serious bodily injury.
Secondly, SB 230 enacts Section 7286 of the Government Code to require every law enforcement agency to implement clear guidance in their use-of-force policies pertaining to the circumstances when deadly force is authorized, utilizing de-escalation tactics, considering reasonably available alternatives to deadly force, proportionality, rendering medical aid, interceding to prevent excessive use of force, securing medical assistance, interacting with vulnerable populations, reporting requirements and more.
The third prong standardizes use-of-force training by adding Section 13519.10 to the Penal Code. The legislation will ensure each course covers the topics mandated by Section 7286, including the sanctity of life. Moreover, SB 230 furthers the recent recommendations of Attorney General Xavier Becerra to provide greater specificity in departmental force policies and enhance training by “providing use of force training annually.” Recognizing that a “use of force situation is a low frequency but high risk event,” he noted, “critical decision-making skills and abilities are perishable skills that need to be routinely refreshed.”
By mandating that force policies and training provide clear and specific directives, this bill will provide officers more tools and alternative tactics when confronted with life-threatening situations to achieve better and safer outcomes. Critics of this bill falsely claim it lacks accountability, but officers will be subject to administrative actions if they violate their department’s force policies. Further, the Ninth Circuit model jury instruction on use of force has long included the availability of alternative methods to subdue or take a suspect into custody as a factor to be considered as part of the calculus of objectively reasonable force. However, SB 230 protects the right of officers to choose from a range of objectively reasonable force options without being stripped of their constitutional self-defense rights simply because some for-hire police practice expert conjures up a less intrusive alternative.
SB 230: Proactive and Collaborative
SB 230 will proactively and effectively minimize the use of force while ensuring that our peace officers can continue protecting California’s communities. The bill will ensure that the state’s 500 law enforcement agencies will be required to:
Adhere to the use-of-force standard developed by the U.S. Supreme Court.
Establish the most comprehensive use-of-force policies and guidelines in the nation.
Undergo the necessary use-of-force training they’ve been asking for.
Continue to uphold their commitment to protecting all Californians.
The Reincarnation of AB 931
Unsurprisingly, Weber introduced AB 392, an arguably more flawed regurgitation of AB 931. AB 392 contains the same unconstitutional flaw as AB 931 described above — it replaces officers’ right to self-defense (and defense of others) with an inferior right limited to the least intrusive alternative, thus requiring officers to exercise superhuman judgment. In short, AB 392 again seeks to redefine “necessity” to require the least intrusive means of responding to an exigent situation, thereby stripping officers of their right to utilize objectively reasonable means of defending their lives and the lives of others. But that’s not all.
Weber’s bill would convolute clear and concise legal standards into an unconstitutionally vague, four-page muddling of Penal Code Sections 835a, 196 and 197. The virtually unintelligible bill purports to set separate criminal, civil and administrative standards in the Penal Code for justifiable homicide and use of force to affect arrest. Tellingly, the foreword to the bill reveals its true intent, which is to “redefine the circumstances under which a homicide by a peace officer is deemed justifiable.”
Weber’s proposed legislation imperils public safety by eliminating an officer’s right not to retreat or desist in the face of resistance or threatened resistance when arresting a suspect. An officer would be required to avoid the use of potentially deadly force by “tactically repositioning,” i.e., retreating, or similar tactics, “whenever it is safe, feasible, and reasonable to do so.” These revisions to Section 835a further limit an officer’s right to self-defense so that civilians would have a greater right to self-defense and defense of others than actual officers.
Of equal concern, the bill seeks to overturn U.S. Supreme Court precedent regarding the so-called “provocation rule.” Under U.S. constitutional standards, an officer does not lose their justification to use otherwise objectively reasonable force simply because the officer “provoked” a violent confrontation through an independent Fourth Amendment violation (County of Los Angeles, Calif. v. Mendez  137 S.Ct. 1539). The ACLU seeks to deprive officers of their right to self-defense and subject them to criminal jeopardy for manslaughter if their preceding negligence contributes to an encounter that ultimately results in the use of deadly force. This standard would include, but not be limited to, detaining or arresting the wrong person. Even the Ninth Circuit’s repudiated “provocation rule” only applied to civil liability. This unprecedented attack on constitutional self-defense rights would force a Hobson’s choice if an erroneously detained subject attempts to shoot an officer: potential death — a far too common occurrence in the current anti-law-enforcement climate — or a potential manslaughter prosecution.
Further, the bill creates an impossible standard to justify the prevention of the escape of dangerous suspects. Under national standards and our bill, deadly force is justified to prevent a fleeing suspect’s escape if they pose a significant and deadly threat or if they are suspected to have committed a forcible and atrocious felony. For example, an officer would be justified in using deadly force to prevent the escape of the San Bernardino terrorists before their murders because of the “significant” threat of death posed by allowing them to evade arrest. Additionally, deadly force would be justified to prevent their escape after they committed forcible and atrocious murders. The ACLU would require that the suspect had already committed a felony involving the use of deadly force and that the suspect will cause death or serious bodily injury unless “immediately” apprehended (emphasis added). The bill also creates an immediacy requirement that effectively limits the use of deadly force to prevent escape in circumstances that would independently be justified under Graham v. Connor standards. Thus, their bill would prevent officers from using deadly force to prevent a future terrorist attack or the escape of a fleeing mass murderer, such as the Golden State Killer.
The increasingly anti-police climate throughout California and the well-organized coalition of anti-law-enforcement groups have created conditions at the Capitol where AB 392 is a viable threat to the public and officer safety. Atkins has stated her two key principles: “We must recognize that peace officers make incredibly difficult decisions in rapidly evolving situations and deserve our protection. And, we must acknowledge that we have a problem with disproportionate police use of force.” SB 230 presents a balanced approach to address concerns, real or perceived, regarding force standards and training without criminalizing officers for failing to choose the least intrusive, but otherwise reasonably necessary option. SB 230 effectively standardizes use-of-force training and implements force policies with clear guidelines, while at the same time preserving some local control that enables agencies to define the contours of those policies to match the needs of their community and differences in their jurisdiction.
I strongly encourage all PORAC members to actively support SB 230 and educate your representatives about the dangers of AB 392. I am grateful to President Marvel and lobbyists Perry and Read for the privilege of advocating for PORAC and its members alongside them.
HOW YOU CAN HELP PASS SB 230
Email your representatives with our digital action alert. Visit www.porac.org/sb230 to send a prewritten email opposing AB 392 to your legislators. It only takes a few seconds to have your voice heard.
Spread the word. Tell your family, friends, colleagues and public safety advocates about the importance of SB 230 and the dangers of AB 392. Encourage them to call, write and visit their representatives.
Stay informed and engaged. Visit www.ProtectCA.com for the latest news and updates on the law enforcement coalition’s legislative efforts to create a safer California.
About the Author
David E. Mastagni is a partner with the law firm of Mastagni Holstedt, APC, who specializes in labor and employment representation of peace officers. David is an experienced panel attorney for the Peace Officers Research Association of California’s (PORAC) Legal Defense Fund. David provided legal analysis and advice to PORAC in opposing AB 931 and AB 392 and assisted in drafting SB 230.