Capitol Beat – 2019 Wrap-Up

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

On September 13, the Legislature adjourned the first half of the 2019–2020 session. Governor Newsom had until midnight on October 13 to sign or veto the multitude of bills that were sent to him. If he did not take action on a bill, it automatically became law without his signature.

This year, 3,033 bills were introduced, of which 1,169 have been chaptered (signed by the governor) and 172 were vetoed. The remaining 1,692 bills are either inactive, dead, made into two-year bills or are resolutions that, by law, do not have to go to the governor. If a bill was made into a two-year bill, it means the measure is taken out of consideration during the first year of a regular session with the intent of taking it up again during the second year.

PORAC monitored over 250 bills this year and took a position on nearly 100, with three sponsored bills, two co-sponsored bills, 13 active support bills, eight active oppose bills, 16 oppose bills and 54 support bills.

This legislative year has proved to be one of the most challenging in the history of PORAC. SB 230 by Senator Caballero and AB 392 by Assemblymember Weber were our top priorities as we worked to ensure they put the safety of our members and our communities first. As a result of the work put in by PORAC leadership and the involvement of legislative leadership, informed and thoughtful amendments were made to SB 230 and AB 392 that created a unified solution.

Our job did not stop at use of force. PORAC was on the front lines of fighting many other bills that would negatively impact the daily lives of our members. We are happy to report that PORAC successfully stopped significant bills from reaching the governor this year. Below are a few that PORAC either opposed or actively opposed, all of which have been made into two-year bills that will be eligible in January.

AB 516 by Assemblymember David Chiu (D-San Francisco)

AB 516 would allow drivers to park vehicles in excess of 72 hours anywhere in the state without repercussions. Storage of those vehicles would take up parking spaces for paying customers and would impact retail and restaurant activity in downtown areas. Sales receipts would decline, as would property values. That would result in fewer tax dollars to both the city and the state that could be used to provide meaningful social services for the very people the legislation attempts to assist.

AB 516 unfairly treats those who comply with laws regarding vehicle registration and parking of vehicles. This proposed legislation would give the same rights to people who flout the law as those who obey the laws and register their vehicles in a timely fashion. If a vehicle’s owner cannot afford to pay their vehicle registration, then perhaps a more equitable solution would be to allow them to enter into a payment plan with the DMV that would give them a conditional vehicle registration.

AB 516 may be a well-intentioned bill that attempts to address the financial impacts of some categories of towing, but it actually creates unwarranted incentives for lawbreakers that will result in negative impacts on the broader community.

AB 1185 by Assemblymember Kevin McCarty (D-Sacramento)

This bill would authorize a county to establish a sheriff oversight board, either by the action of the board of supervisors or through a vote of county residents. It would authorize a sheriff oversight board to issue a subpoena or subpoena duces tecum when deemed necessary to investigate a matter within the jurisdiction of the board. Finally, it would authorize a county to establish an office of the inspector general to assist the board with its supervisorial duties.

PORAC believes this bill is unnecessary because many jurisdictions already have civilian oversight over the office of the sheriff without the need for this measure. In addition, our state sheriffs are already overseen or monitored in some way by the California Department of Justice, Board of State and Community Corrections, and county grand juries. Furthermore, this bill will put unnecessary pressure on county boards of supervisors to create an oversight system even if they feel one is not warranted.

AB 1555 by Assemblymember Todd Gloria (D-San Diego)

This bill would require any law enforcement agency that operates encrypted police radio communications to provide access to the encrypted communications to a duly authorized representative of any news service, newspaper, or radio or television station or network, upon request. By imposing new duties on local law enforcement agencies, the bill would impose a state-mandated local program.

Encrypted communication is vital for surveillance, confidential informants, undercover operations, tactical communications and more. Allowing the media and public access to encrypted channels could jeopardize investigations as well as the safety of the public and our officers. PORAC recommends that this bill be amended to create a public safety/media protocol for sharing information so that the media and public get the information they need to report on incidents without jeopardizing investigations, while also allowing for privacy of all people law enforcement comes in contact with.

ACA 12 by Assemblymember Marc Levine (D-San Francisco)

This measure would amend the California Constitution to prohibit the death penalty from being imposed as a punishment for any violation of law. In 2016, California citizens voted “no” on Prop 62 to repeal the death penalty and “yes” on Prop 66 to keep the death penalty, while making some necessary fixes. Those fixes include ways to save California taxpayers millions of dollars every year, assure due process protections for those sentenced to death and promote justice for murder victims and their families. ACA 12 undermines the public’s 2016 vote.

PORAC believes the most egregious crimes deserve the worst punishment. At some point, we have to say that we will not house, clothe and feed those who have murdered, raped and tortured.

As always, please do not hesitate to contact the team at Aaron Read & Associates at (916) 448-3444 if you have any legislative questions or concerns.

Capitol Beat – Use of Force: Where Are We Now?

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

AB 392 by Assembly Member Weber (D-San Diego), the use-of-force bill we have been working against (but, as amended, we are neutral), passed the Senate floor on July 10. It was approved by both houses and is now enrolled and sent to the governor. PORAC and the law enforcement community worked diligently to ensure that AB 392 did not make it out of the Legislature in its original form, which would have created a “necessary” standard that eliminated officers’ right to self-defense by requiring them to exhaust all other alternatives before using deadly force. In April, the bill was dramatically amended. It now strengthens the state’s current standard for authorizing use of force, but its definition of “necessary” conforms to Graham v. Connor and the objectively reasonable force standard. Due to these amendments, PORAC removed our opposition to AB 392 and went neutral, as did all other law enforcement groups.

Our sponsored legislation, SB 230 by Senator Caballero (D-Salinas), is currently waiting to be heard in the Assembly Appropriations Committee. SB 230 is on suspense file, meaning it is determined to have an annual fiscal impact of $150,000 or more; therefore, it will be heard at a special Appropriations hearing with the other suspense bills in late August. PORAC and the team at ARA spent nearly a year developing SB 230 and ensuring that it stays true to our original intent. SB 230 provides officers with the tools and training they need, including de-escalation tactics, interacting with vulnerable populations and alternatives to use of deadly force. We continue to receive pushback on our bill and requests for amendments from the opposition, but we oppose any substantive amendments. We are proud of the work of PORAC leadership has done on SB 230 and the commitment of Senator Caballero in maintaining the integrity of this bill.

The intense debate on use of force continues, but we are confident that our hard work will pay off. PORAC’s primary goal throughout this whole process has been to ensure the safety of our officers and the public we serve. PORAC has played a vital role in working with the governor, legislative leadership and stakeholders to communicate the needs of our members and reach solutions that everyone can agree on. Ultimately, as the largest law enforcement association in California, it is our job to advocate for a reasonable use-of-force package that includes training and sound policy.

Use of force is a topic that will likely be discussed for years to come, but we are confident in PORAC and ARA’s platform, and our strong relationship with our legislative leaders, to ensure that our voices are heard now and in the future.

Summer Recess

The kids aren’t the only ones who get a summer break in California. From July 12 to August 12, the State Legislature adjourns for summer recess. In a non-election year like this, the month is often spent traveling, spending time with family and connecting with constituents in their districts. Next year, it will likely be spent campaigning for re-election. July 12 marked the last day for policy committees to meet and report bills, but the bills that survive policy still have a long road ahead. The reality is, the job of the Legislature never ends.

When legislators return from summer recess, they will have five weeks to get their bills passed. For the team at Aaron Read & Associates (ARA), this means there will be days full of meetings, negotiations and long hours spent in our State Capitol building. Bills can continue to be amended on the floor until the deadline of September 6, and the final day for bills to pass in each house is September 13. If, in the five weeks after summer recess, a bill passes through both the Senate and the Assembly, it is sent to the governor, who then has 30 days to sign or veto it. If bills fail to meet deadlines, they are not necessarily dead; they can oftentimes be brought up again next year as “two-year bills.” However, there are hearing deadlines they must meet. In the coming months, PORAC, along with ARA, will continue to create opportunities to work with legislators and their staff to address the critical issues facing law enforcement.

As always, please do not hesitate to contact the team at Aaron Read & Associates if you have any legislative questions or concerns at (916) 448-3444, or email Aaron Read (aread@aaronread.com), Randy Perry (rperry@aaronread.com) or Michele Cervone (mcervone@aaronread.com). We are proud to be a part of the PORAC family.   

Capitol Beat – Key Bills Affecting Law Enforcement

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

Defeating AB 392 and ensuring the success of SB 230 continues to be our top priorities this year. AB 392 (Weber) was heard in the Assembly Public Safety Committee on April 9. The bill was debated for more than three hours. Ultimately, and as expected, the bill passed out of committee on a party-line vote of 6–2. It now goes to the Assembly Rules Committee. At the time of this writing, SB 230 was not yet heard in Senate Public Safety but, as always, we will keep you apprised as developments occur.

While the current use-of-force legislation is the most critical issue we are facing this session, there are still many other bills that we have taken a position on or is sponsoring. Here are a few:

SB 416 by Senator Ben Hueso (D–San Diego) — Sponsor

Workers’ Compensation Presumptions

SB 416 is long overdue and will extend to all peace officers and their families the same protections that have long been afforded to a majority of peace officers in California.

The Penal Code designates individuals as peace officers in many various sections and subdivisions commencing with Section 830 and is based upon their employing agency. The Labor Code, commencing with Section 3212, identifies specific injuries and ailments that are presumed to be work-related (due to those conditions often manifesting over a period of time) and applies workers’ compensation protections to specific classifications of peace officers as defined in the Penal Code. Those Labor Code provisions have not been adapted to include the various classifications of peace officers added into law over the years.

The California Commission on Peace Officer Standards and Training (POST) certifies individuals as California Peace Officers upon their successful completion of the standardized training guidelines required of all peace officers in this state and their continued training throughout their public service. All peace officers are exposed to the same risks associated with those specific conditions identified within the Labor Code. SB 416 corrects the inequities to public safety professionals by extending the Labor Code protections to all individuals defined as peace officers in the Penal Code. With the passage of SB 416, the employing agencies of peace officers not currently afforded these protections will also be better equipped to recruit and retain quality law enforcement personnel, enhancing public safety and helping to level the field of competition for those agencies. SB 416 is a much-needed fix that will allow all peace officers to be protected as they should.

AB 1600 by Assemblymember Ash Kalra (D–San Jose) — Active Oppose

Discovery: personnel records: peace officers and custodial officers.

AB 1600 proposes a handful of amendments to the statutory Pitchess process — amendments to Code of Civil Procedure (“CCP”) Section 1005 and Evidence Code Sections 1043 and 1045 and repealing Evidence Code Section 1047. The proposed amendments to CCP Section 1105 and Evidence Code Section 1043 make the standard 16-day advance notice requirement for a Pitchess motion applicable only to such motions filed in civil proceedings while shortening to 10 days the advance notice requirement for Pitchess motions filed in criminal proceedings. This creates an unfair due process for an affected peace officer by shortening the time in which they may seek out and obtain legal representation to contest a Pitchess motion, and it likewise shortens the time available for a member’s public agency employer to prepare for and oppose the motion. AB 1600 does not identify the reason for this proposed change and does not provide a justifiable basis to do so other than to speed up the process of seeking confidential personnel file information and make it more difficult for a peace officer to oppose, solely to the advantage of a criminal defendant.

PORAC opposes this measure because its provisions seek only to further erode the confidentiality rights of peace officers to their personnel file information, make it more difficult for peace officers to lawfully protect the confidentiality of that information when disclosure is sought in civil and criminal proceedings and appears to open a loophole whereby requests for relevant peace officer personnel file information could result in the disclosure of patently irrelevant information without affording courts the authority to limit disclosure. In summary, AB 1600 constitutes a continued effort to roll back peace officers’ confidentiality rights.

AB 1555 by Assemblymember Todd Gloria (D–San Diego) — Active Oppose

Police radio communications: encryption.

This bill would require a law enforcement agency that operates encrypted police radio communications or a joint powers authority that operates encrypted police radio communications on behalf of a law enforcement agency to provide access to the encrypted communications to a duly authorized representative of any news service, newspaper or radio or television station or network, upon request. By imposing new duties on local law enforcement agencies, the bill would impose a state-mandated local program.

PORAC opposes this bill because encrypted communication is vital for surveillance, confidential informants, undercover operations, tactical communications and more.  Allowing the media and public access to encrypted channels could jeopardize investigations as well as the safety of the public and our officers. PORAC recommends that this bill be amended to create a public safety/media protocol on sharing information so that the media and public get the information they need to report on incidents but don’t jeopardize investigations, while also allowing for privacy of all people law enforcement comes in contact with.

Modernizing Use of Force on Our Terms

PORAC and law enforcement leaders statewide sponsor SB 230 to bring police standards and training into the 21st century

DAVID E. MASTAGNI
Partner
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.

Current Law

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 [1974] 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 [1985] 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 [2017] 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.

Conclusion

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

  1. 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.

  2. 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.

  3. 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.  

Capitol Beat – Priority Legislation

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

Over 2,750 bills have been introduced this year. Of those bills, PORAC is tracking over 215 that potentially have an impact on law enforcement or the safety of the communities we serve. All hands are on deck as we diligently work to pass PORAC’s sponsored bill, SB 230 by Senator Anna Caballero (D–Salinas), and actively oppose AB 392 by Assemblymember Shirley Weber (D–San Diego). Last month’s PORAC LE News highlighted SB 230, which was introduced by law enforcement to proactively address use-of-force policies, guidelines and training. Law enforcement in California is setting the national standard for how officers interact with the public or respond to an emergency, and it will continue to be the voice for officers nationwide on these issues. SB 230 is a comprehensive approach to reducing use-of-force incidents and ensuring that peace officers can continue protecting California’s communities. 

To break it down, SB 230 will require all of California’s over 500 law enforcement agencies to:

  • Adhere to the use-of-force standard set by the U.S. Supreme Court.
  • Establish the most comprehensive use-of-force policies and guidelines in the nation.
  • Undergo the best use-of-force training available.
  • Continue to uphold their commitment to protecting all Californians.

AB 392 has been proposed as an “alternative” to SB 230. However, AB 392 fails to include any proactive measures to reduce the use of force. This bill does not in any way change use-of-force policies, training or guidelines; rather, it creates a subjective standard for evaluating use of force that aims to criminalize officers for their split-second decisions during life-or-death situations. AB 392 authorizes police officers to use deadly force only when it is necessary to prevent imminent and serious bodily injury or death — that is, when given the totality of the circumstances, there was no reasonable alternative to using deadly force, including warnings, verbal persuasion or other non-lethal methods of resolution or de-escalation. 

An officer takes an oath to run toward danger when everyone else is running away. However, the legal standard AB 392 seeks to implement will have a chilling effect on the men and women in uniform by undermining their ability to respond in an immediate and decisive manner — creating a hesitation that would threaten the safety of our families, communities and officers.  

While these bills are PORAC’s highest priority this legislative session, it is critical that PORAC stays active in supporting and opposing all legislation relating to public safety, at any level. Over the next few months, we will introduce you to more of PORAC’s priority bills this session. The following are just a few:

SB 266 by Senator Connie Leyva (D–Chino)

SB 266 will protect a retiree’s promised and paid-for collectively bargained benefits in cases where the benefit is disallowed by CalPERS after the member has already retired. It also sets parameters for resolving future disputes over active and retired employees’ collectively bargained pensionable compensation.

Employers have a legal and actuarial obligation to correctly report pension-eligible compensation to CalPERS as a result of employer bargaining. If an item of compensation is later determined to be improper, it is appropriate policy to require the employer to bear the actuarial liability of that promise made to their retiree. If pensionable compensation is misapplied, it should be corrected. But that misapplication should not come at the cost of breaking the promise made to someone already retired and living on a fixed pension that they depend upon in retirement. PORAC is co-sponsoring this bill.

SB 542 by Senator Henry Stern (D–Canoga Park)

SB 542, “the Trauma Treatment Act,” is co-sponsored by PORAC, alongside California Professional Firefighters (CPF), California Association of Highway Patrolmen (CAHP) and CAL FIRE Local 2881. This bill was introduced to address the trauma associated with the occupational duties of law enforcement officers and firefighters. SB 542 creates a rebuttable workers’ compensation presumption for these professions in instances where they sustain occupational post-traumatic stress injuries (PTSI). Despite alarmingly high rates of PTSI and suicide among law enforcement officers and firefighters, currently, California law does not contain a PTSI presumption. PORAC hopes the passage of SB 542 will provide first responders timely access to needed treatment, raise awareness and destigmatize these conditions for those whose mental health may depend upon seeking treatment.

AB 582 by Assemblymember Jim Patterson (R–Fresno)

AB 582 is named after Gavin Gladding, a beloved Clovis Unified School District vice principal who was tragically killed in a hit-and-run incident in 2018. Currently, the penalty for an individual who leaves the scene of a vehicle accident that results in permanent or serious injury or death is a maximum of four years in prison and/or a fine of $1,000–$10,000. The potential sentence for leaving the scene of an accident is not enough to deter drivers, especially those who may be under the influence, from leaving the scene.

Hit-and-runs involving injury or death are seemingly on the rise; 42% of fatal collisions in Fresno in the past three months have involved a driver who left the scene. Right now, there is an inadvertent loophole in the law that encourages drivers under the influence to flee the scene of an accident — not to stay and help. By fleeing, they can avoid additional charges for driving under the influence and causing injury or death.

This bill will address this loophole by increasing the penalty for hit-and-runs that result in great bodily injury or death. AB 582 will encourage drivers to stay at the scene of a crime, even if they may be under the influence, as opposed to fleeing the scene. PORAC supports this measure.

Capitol Beat – The Introduction of Senate Bill 230

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

Over the last few years, “use of force” has become a familiar term in the halls of the Capitol. While law enforcement is all too familiar with the devastating realities of use of force in your everyday lives, legislators and stakeholders are now becoming a more involved part of the discussion. The introduction of Assemblymembers Shirley Weber and Kevin McCarty’s AB 931 in 2018 was the start of a new conversation on use of force in the state of California — a conversation that we will likely see for many years to come. AB 931 was amended near the end of 2018 to change the law regarding serious use of force. PORAC, along with most law enforcement organizations, worked quickly and diligently. We had no choice but to play defense, and AB 931 was held in the Senate. However, for the past six months, California law enforcement has been developing legislation to address the concerns of the author and sponsors of AB 931.

Law enforcement’s new legislation, SB 230 — authored by Senator Anna Caballero (D–Salinas) and co-authored by Senators Bob Archuleta (D–Pico Rivera), Bill Dodd (D–Napa), Cathleen Galgiani (D–Stockton), Steve Glazer (D–Orinda), Jerry Hill (D–San Mateo) and Assemblymembers Jim Cooper (D–Elk Grove), Jim Frazier (D–Discovery Bay), Adam Gray (D–Merced), Tim Grayson (D–Concord), Evan Low (D–Campbell), Patrick O’Donnell (D–Long Beach), Sharon Quirk-Silva (D–Fullerton), James Ramos (D–Highland), Robert Rivas (D–Hollister), Freddie Rodriguez (D–Pomona), Blanca Rubio (D–Baldwin Park) and Rudy Salas (D–Bakersfield) — would establish requirements for departments to adopt use-of-force policies and participate in training that includes comprehensive and clear guidance relating to use of force. When there is a conversation in our state’s Capitol that will directly impact the safety and security of our officers on the street, PORAC cannot simply oppose, we must use our experience and knowledge to present our own alternative solutions. Our solutions have been thoughtfully crafted by law enforcement leaders and attorneys to best protect the citizens of this state and our peace officers against the threats of unreasonable and dangerous bills such as AB 931.  Our intent in introducing SB 230 is to take proactive steps toward improving public trust and ensuring our officers can continue protecting all Californians.

Unfortunately, a day after PORAC’s press call introducing our new bill, Assemblymember Weber (D-San Diego) held a press conference introducing AB 392, a resurrected version of AB 931. PORAC has serious concerns with AB 392; including, the violation of an officer’s constitutional right to self-defense. Defeating this bill and ensuring the success of SB 230 will be our top priority this year.

To continue protecting our communities and our peace officers, we hope that SB 230 will build upon existing efforts focused on improving outcomes during law enforcement officers’ involvement in serious use-of-force incidents. It is also critically important for law enforcement to come together to better inform the public and our legislators on the realities of deadly use-of-force situations.

What SB 230 does:

  • Amends California law, Penal Code 196, governing an officer’s engagement with a fleeing felon to reflect the standards set by the U.S. Supreme Court in Graham v. Connor and Tennessee v. Garner. Penal Code 196 has not been updated since 1872, so it was time for it to reflect the current court cases referenced above.
  • Requires every agency to include provisions in their use-of-force policy that provide guidelines on the utilization of de-escalation tactics, rendering medical aid, an officer’s duty to intercede when observing excessive use of force by another officer, interacting with vulnerable populations, such as the mentally ill and homeless, reporting requirements and more.
  • Standardizes California law enforcement’s use-of-force training to ensure each course covers critical topics, including but not limited to de-escalation, rendering medical aid, and the legal standards for use of force.

By the time you read this, over 1,000 bills will have been introduced this legislative session. By the bill deadline of February 22, there will be around 2,000 more. We anticipate more bills relating to law enforcement this year than ever before.

PORAC stands as a unified political force in Sacramento. Each year, PORAC leadership, along with ARA, listen closely to the officers at every level of experience to guide our decisions at the Capitol.  As this legislative session ramps up, we will be calling on our officers at the local level more than ever. Our membership is full of knowledgeable and experienced officers who understand more than anyone else the reality of life as a law enforcement officer. It would be irresponsible to not use the most important tool we have at our disposal — our members. We also recognize the critical importance of working closely with stakeholders from every demographic in creating an environment where communities trust the officers who work to keep their streets safe. We are in this together.