Analysis: The mischaracterization of California’s use-of-force bill
Some politicians, national media, plaintiffs’ attorneys and anti-law enforcement activists are mischaracterizing AB 392 as a major re-writing of the law on use of force
By Attorney Mildred (Missy) O'Linn
California Assembly Bill 392 was signed into law by Governor Gavin Newsom on August 19, 2019, and takes effect on January 1, 2020.
This amendment is being sensationalized and mischaracterized by some politicians, national media, plaintiffs’ attorneys and anti-law enforcement activists as a major re-writing of the law on use of force. In my opinion, that is simply not the case, although the changes will undoubtedly result in years, if not decades, of litigation.
The bill amends California Penal Code § 835a (PC 835a), which regulates the use of force by peace officers in California.
Initially the legislative effort was drafted in a manner that was of grave concern in regard to the language and provisions that were proposed. Ultimately, as a result of enormous efforts by law enforcement labor organizations, associations and executive-level leaders, the law, as amended, simply does not “fill the bill” as inappropriately touted by law enforcement naysayers.
A section by subsection analysis provides clarity on some of the ramifications of the provisions of the amended statute as stated. Throughout the discussion of the amended statute, note that much of what has been enacted into law is merely what is contained in jury instructions, case law in the United States Court of Appeals for the Ninth Circuit and arguments of counsel in federal civil rights litigation. The new language of PC 835a is substantively the Graham v. Connor (1989) Fourth Amendment and Kingsley v. Hendrickson (2015) Fourteenth Amendment, and their progeny, “objectively reasonable” force standards.
The substance is that force must appear to be necessary under the totality of the circumstances as reasonably perceived by the officer – which is generally the equivalent of objective reasonableness. However, it is important to keep in mind that like any newly enacted consensus legislation, this statute is subject to judicial interpretation and thus, this battle is far from over.
“Sanctity of every human life”
PC 835a (1) states: “That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.”
This section is merely a feel-good platitude. As an example of conflated language, this section is limited to “physical force.” In law enforcement, the term “physical force” is usually limited to hands-on physical force and does not include intermediate force options or weapons. This section generally codifies a concept that has been used in law enforcement policies and in litigation by plaintiffs for decades citing “the sanctity of human life” provision from the California Peace Officer Standards and Training (POST) Basic Academy Workbook Series, LD 20 on Use of Force. The plus side is that the language as amended makes it clear that the concern is for “sanctity of every human life” and thus this could be construed as a positive for law enforcement because it clarifies that officers, civilians and suspects’ lives are all part of the issue. In fact, that concept has always been true for law enforcement and, as stated, counters the commonly used tactic that omitted the “every” human life provision.
“When necessary in defense of human life”
PC 835a (2) states: “As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”
Here, the “when necessary in defense of human life” would be of concern standing alone because it would arguably impose an ultimate subjective correctness standard as opposed to a Graham v. Connor (1989, Fourth Amendment “seizure”) and Kingsley v. Hendrickson (2015, Fourteenth Amendment) objective reasonableness standard. However, because the additional provisions of the amendment define how the determination of “whether deadly force is necessary” will be made, the concern is generally alleviated, although now open for more debate. An evaluation of “each situation in light of the particular circumstances of each case” is the totality of the circumstances as reasonably perceived by the officer component – which is discussed further and defined below.
The amendment language that states, “shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer” is new California law. However, it is in reality merely a codification of the Ninth Circuit perspective on alternative force options. This provision will likely result in further debate, litigation and judicial interpretation about what was and was not reasonably available to officers or in 20/20 hindsight which force options were arguably safer in various circumstances. For those of us embroiled in this battle of explanation and justification on a regular basis, it is something that is already part of the evaluation of officers’ actions. “Other available options” is a question that we have been dealing with for over a decade. What needs to be made clear is that the time available and opportunities to consider, transition and utilize other resources, techniques, risks, force options and quantum of force may arguably preclude officers from finding the optimal solution to a force event. Thus, the requirement is for officers to find a reasonable way to do everything – not the best way to do anything.
“Use force consistent with law and agency policies”
PC 835a (3) states: “That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.”
This provision will likely be used to reinforce allegations of failure to properly investigate and discipline officers. Also, by including “consistent with … agency policy,” this in effect conflates agency “policy” to a legally recognized standard. Thus, it is even more important to avoid department policies that are more restrictive than legal standards. Otherwise, this is not a substantive change to use of force law.
“Perspective of a reasonable officer”
PC 835a (4) states: “That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.”
The language of this portion of the amended statute is, in many respects a codification consistent with the Graham line of cases. This entire section is advantageous to the defense of officers and codifies beneficial provisions of case law.
“Disability may affect their ability to understand or comply”
PC 835a (5) of the amended statute states: “That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.” This section states a fact that is well established and confirms the difficulty of dealing with such issues and it imposes no new requirements.
“Objectively reasonable force”
PC 835a (b) states: “Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.” The amended portion of this section adds the word “objectively” and that is an improvement because it is explicitly consistent with Graham.
“Officer reasonably believes”
PC 835a (c) (1) states: “Notwithstanding subdivision (b), a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons: …”
This is generally paraphrased in a manner consistent with using deadly force under the Fourth Amendment standard of “objectively reasonable” under the totality of the circumstances.
The provisions under PC 835a (c) (1) (A) states that “such force is necessary for either of the following reasons: (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.” This again creates a phrasing confusion between the words “imminent” and “immediate”. A careful review of Graham, Garner and their progeny use “immediate” not “imminent.” Both “immediate” and “imminent” appear in Garner, however, “imminent” is only used in footnote 15 in quoting an Indiana Court of Appeals decision. However, arguably the use of these two words in this manner may be viewed as creating greater latitude for officers given that “immediate” means now and “imminent” means soon. Again, more opportunity for judicial intervention.
The provisions under PC 835a (c) (1) (B) states that “such force is necessary for either of the following reasons: (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.” Note, here the drafters now use “immediate” rather than “imminent.” Next, the section uses the adjective “will” cause death or serious injury, rather than “may,” or a less rigid adjective. It is quite difficult to pre-determine what a subject “will” do. The fleeing felon rule (Garner) is generally interpreted as an imminent standard as to the suspect’s anticipated actions. The provision is generally comparable to the Model Penal Code’s more restrictive fleeing felon standard. The “where feasible” warnings provisions have been the clearly established law since, at least, Garner (1985) and are nothing new and already an issue of primary concern in reviewing use of deadly force in particular.
“Person does not pose an imminent threat of death or serious bodily injury”
PC 835a (2) provides: “A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.”
This section generally deals with responding to people threatening suicide and suicide-by-cop issues. I do not believe that this significantly changes the standard of care or the current law on use of force. This section will likely be used to reinforce the discussion in many circles currently about walking away from suicidal subjects who are only an imminent threat to themselves and avoiding lethal-force encounters that may result from trying to save those individuals from themselves.
“Tactical repositioning or other de-escalation tactics”
PC 835a (d) provides: “A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, “retreat” does not mean tactical repositioning or other de-escalation tactics.” The amended language referring to tactical repositioning and de-escalation tactics is intended to place an additional burden on officers in my opinion. This is an attempt to conflate less than optimally perfect in 20/20 hindsight tactics or decision-making into excessive force. It does not affirmatively make that leap of turning negligence into an intentional tort (i.e., excessive force), but it probably cracks the door open a bit on that argument.
PC 835a (e) provides: “For purposes of this section, the following definitions shall apply:
(1) “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.
(2) A threat of death or serious bodily injury is “imminent” when, based on the totality of the 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 to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.
(3) “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."
The deadly force definition is the classic standard definition that officers are familiar with and thus generally a non-issue. Other than my own irritation over the confusion between the Garner and Graham “immediate” standard substantively (2) is relatively inconsequential.
Finally, in regard to the definition of totality of the circumstances under subpart (3), this provision is arguably a codification of the Ninth Circuit’s “provocation” theory that the U.S. Supreme Court rejected in the Mendez v. County of Los Angeles (2016) decision. However, between the Ninth Circuit re-addressing the issue on remand in Mendez as “proximate cause” and the Hayes v. County of San Diego (2013) decision on negligent tactics and decision-making, we have had to deal with these issues administratively and civilly prior to this amendment.
Thus, with the passage of this amendment it is highly foreseeable that there will be more questions asked, more debates, greater need for judicial interpretation and more discussion about whether there were other options available to an officer, in particular when deadly force was used. In my opinion, the language of section (d) above, referring to “retreat” does not mean tactical repositioning or other de-escalation tactics,” and the definition of the totality of the circumstances are primarily what we will be dealing with substantively in litigation.
Finally, it is important to understand what this amended law does not say. The language clearly does not mean that force must ultimately be necessary. Objectively reasonable force by definition must appear to be necessary. There are so many times that this distinction is absolutely critical in evaluating officers’ actions that the importance simply cannot be overstated. Additionally, while officers will be critically and strenuously second-guessed and interrogated about what alternatives were available to them, it is important to keep in mind that this amended statute does not require officers to find the best way to do anything. Caution should be used in policy language, administrative proceedings and training materials not to inadvertently expand that burden to finding the least intrusive alternative.
About the author
Attorney Mildred (Missy) O'Linn is a trial lawyer with over 30 years of experience defending law enforcement. She is a senior partner and co-team leader of the Police Defense Team with the Los Angeles-based law firm of Manning & Kass, Ellrod, Ramirez, Trester. Missy is a member of the distinguished American Board of Trial Advocates and has been repeatedly recognized as a Southern California Super Lawyer and as one of the Top Women Attorneys in Southern California.
Missy is a former peace officer, FTO, defensive tactics instructor trainer, academy manager and accreditation manager, and served as the legal and technical advisor for the Law Enforcement Television Network. She currently serves on the Legal Affairs Committee and the Professional Development Committee for the Major County Sheriffs of America and the Police1 editorial advisory board, and has served on numerous CA POST committees, including the LEOKA and LD20 committees.
The awards Missy has received include 2005 Los Angeles County Deputy Sheriffs Association's recipient of the Award for Civilian Leadership; 2006 Meritorious Service Award from the City of Gretna, Louisiana Police Department for her assistance to law enforcement in the aftermath of Hurricane Katrina; 2015 California POST Lifetime Achievement Award for Excellence in Law Enforcement Training; and 2016 induction into Safariland Training Group's "Monadnock Hall of Fame.