States have laws addressing when police officers may use lethal force. The laws surrounding legitimate police shootings often depend on the interpretation of words rather than concrete standards. For example, the current law in California states that the police can use deadly force to kill a person—thus, commit homicide—when reasonable and necessary. No consideration for the use of alternative, nonlethal force is necessary.
An amendment to California’s penal code, Assembly Bill (AB) 392, known as the Act to Save Lives, states that “the legislature . . . finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.” To use deadly force within the legislation’s sensible finding, employing reasonable and necessary force must be enacted by experienced police officers.
Passage of AB 392 would change the standard for the use of deadly force by police from what is reasonable to what is necessary. The bill redefines the circumstances under which a homicide by a peace officer is deemed justifiable.
In March 2019, Stephon Clark’s family and supporters of AB 392 gathered at the Capitol in Sacramento chanting “no justice, no peace, no racist police” in response to a ruling that criminal charges would not be pressed against the police officers who killed Clark. Clark, a twenty-two-year old unarmed black man holding a cell phone was shot to death by Sacramento police on March 18, 2018, in his grandmother’s backyard. The fatal shooting was captured in a disturbing police video.
The Race Component Fuels AB 392
The race issue is framed in a compelling way in an August 2018 report by the Journal of Epidemiology and Community Health. The report “quantifie[s] the number and rate of years of life lost (YLLs) due to police violence by race/ethnicity and age in the USA, 2015–2016.” Years of life lost is a measure used in public health to study the impact of disease and traumatic injuries across different groups of people. The nearly wholesale killing of black men by police is memorialized in news reports in recent history. Antwon Rose, Michael Brown, Freddie Gray, and Tamir Rice are some of the other victims of excessive police force. What these incidents have in common is that all were found to be justifiable homicides by police. While there was no criminal conviction in Stephon Clark’s case, in a federal civil rights case brought on behalf of Clark’s family, a federal judge was instrumental in reaching an undisclosed civil lawsuit settlement—the family had sued the city of Sacramento and the officers for $20 million.
According to the report, “YLLs are the difference between a person’s age at death and their corresponding standard life expectancy at age of death.” Considering race data, this statistical approach gives a forceful way to measure loss of life. The researchers extrapolate the years of life lost according to aggregate statistics based on police violence.
According to a May 7, 2018, British Medical Journal article,
this is what the researchers found:
The researchers estimated that there were 57,375 and 54,754 YLLs due to police violence in 2015 and 2016, respectively.
The estimates showed that police violence disproportionately affects the young—25–34 year olds—and people of colour, who make up 38.5 percent of the population, but comprise more than half (51.5%) of YLLs in 2015–16.
The article also notes that “estimates from the available data show that more than 100,000 years of life were lost in 2015 and 2016, with half that total among people of colour.” The more accurate number of years lost is derived by adding the 2015 and 2016 YLLs: 57,375 + 54,754 = 112,129 YLLs.
Recent Constitutional Law Background
In Tennessee v. Garner, 471 U.S. 1 (1985), the United States Supreme Court was asked to decide the constitutionality of a Tennessee statute that authorized the use of deadly force in a case where the suspect who as fleeing from police was known to be unarmed and not dangerous. The court affirmed a Sixth Circuit decision that “such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”—which were not the facts in that case.
The Supreme Court reasoned that “apprehension by the use of deadly force is a seizure subject to the Fourth Amendment,” which requires reasonableness. The court then, as it normally does in weighing its decisions in Civil Rights cases, balanced the dead man’s right under the Fourth Amendment against the government’s interest in effective law enforcement. The court found that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”
In Graham v. Connor, 490 U.S. 386 (1989), the United States Supreme Court held that
all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard. Pp. 490 U. S. 392–399.
The Supreme Court’s decision also included this finding:
“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. Pp. 490 U. S. 396–397.
States’ Rights to Adopt or Make Federal Laws More Stringent
California’s AB 392 is an example of a state making a federal standard better by shifting the perspective of police officers in perceived life-threatening situations to use best practices to avoid deadly tragedies such as the shooting of Stephon Clark. Introduced by assembly members Shirley Weber (D-San Diego) and Kevin McCarty (D-Sacramento), AB 392 has one simple theme: deadly force should not be used unless there is “no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.”
At present, the existing California Penal Code Section 196(B), hereinafter, the Code, provides that homicides by police officers are justifiable when “the peace officer reasonably believes that the person will cause death or inflict serious bodily injury to another unless immediately apprehended.” Section (4) of the Code states that homicide is justifiable when used by police to prevent the escape of a person. Section 4(C)(b) of the Code states that
“necessary” means that given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.”
So much of the language in the Code is ambiguous and subject to different meanings.
AB 392 would modify the existing standard, set forth in a patchwork of statutes dating back to 1872, for when deadly force may be used. In essence, according the objective reasonable test established by the Supreme Court in Graham v. Connor, police officers may use deadly force when they consider it reasonable to do so. According to the Sacramento Bee editorial board, this vagueness has resulted in the deaths of many unarmed civilians, a disproportionate number of them black men. The editors highlight the racially skewed vulnerability of black men this way:
Michael Brown. Eric Garner. Tamir Rice. Philando Castile. Walter Scott. Mikel McIntyre. Stephon Clark. Willie McCoy. Smartphone camera videos have unveiled the deadly reality black men all too often face when interacting with police. In statistical terms, use of deadly force by police is rare. Yet every unnecessary death is an incalculable loss and a fundamental violation of human rights. The names of these men stand as testaments to the lives lost, and the pain caused, due to unnecessary police violence.
AB 392 is designed to authorize officers to use deadly force only when it is necessary to prevent serious bodily injury or death. If passed, it will expand the possibility of holding officers criminally liable for using unnecessary deadly force. According to the Sacramento Bee editorial, AB 392 would change the standard of using deadly force from reasonable to necessary in these specific ways:
- Allow officers to resort to deadly force only when there are no reasonable alternatives, and mandate de-escalation when possible
- Permit use of deadly force only when required to protect the lives of officers or citizens
- Establish clear rules to specify the circumstances under which officers can use deadly force
In February 2019, ACLU Southern California reported that “police [in California] kill people at a rate 37% higher than the national average per capita. In 2017, California police killed 172 people, more than two-thirds of whom were people of color.”
The Sacramento Bee editorial board noted that
under AB 392, . . . officers who violate rules governing the use of deadly force could be held accountable through administrative, civil or criminal charges. It’s real reform. That’s why the police groups oppose it.
The endemic of black men being shot and killed by police officers is a tragic cultural aberration in this country. It’s a serious problem that too often boils over into citizens’ consternation and the retreat of offending police officers into the vague constitutional protections articulated in Supreme Court cases.
AB 392 will require law enforcement officers to use de-escalation tactics whenever possible and to avoid using deadly force unless it is the only way to prevent death or serious bodily injury. I encourage support for AB 392. The answer to the question—when can police officers shoot you? —is being tackled by the California legislature in a way that’s intended to minimize the lawful occurrence of the shooting of its citizens.
Supporting AB 392
What can you do to support AB 392? Click here to let your state legislators hear from you. Ask them to support AB 392.
As I wrote about in a previous post, California, by means of Senate Bill 1421, joined twenty-seven other states in allowing the disclosure of peace officers’ disciplinary records (SB 1421). “California’s New Police Accountability Law—Forty Years in the Making” provides more information.
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 AB 392(e)(1) defines “deadly forces” as 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.
 Anthony L. Bui, Matthew M. Coates, and Ellicott C. Matthay, “Years of Life Lost Due to Encounters with Law Enforcement in the USA, 2015–2016,” Journal of Epidemiology and Community Health 72, no. 8 (2018): 715–718.
 Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
 Amendment X: “Rights Reserved to States or People. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
 The bill also says that “the totality of the circumstances means all facts known to the peace officer at the time and includes the tactical conduct and decisions of the officer leading up to the use of deadly force.” Section 4(C)(b) of the Code.