Come Jan. 1, 2020, California police will only be allowed to resort to deadly force if they have no other options. That’s the new standard set by Assemblywoman Shirley Weber’s AB 392, which Gov. Gavin Newsom enthusiastically signed into law earlier this week.
“As California goes, so goes the rest of the United States of America,” he declared with aplomb Monday at a televised presser in Sacramento. “And we are doing something today that stretches the boundaries of possibility and sends the message to people all across this country: that they can do more.”
Weber’s landmark accountability law raises the standard for justifiable force from “objectively reasonable” to “necessary.”
People who lost loved ones to police killings hailed the legislation as a life-saver.
Barbara Okamoto said her grandson Christopher Okamoto, who was fatally shot by a Bakersfield cop last year, might be alive today had that officer abided by the standard set by AB 392. “It’s long overdue,” she said. “[An] officers’ gun is not their only option. They have many more options that they should use instead of taking someone’s life. They must stop killing our loved ones.”
San Jose’s cop union, however, contends that AB 392 changes nothing in practice.
“This bill that was signed into law does not change the Supreme Court standard,” San Jose Police Officers’ Association (POA) spokesman Tom Saggau told San Jose Inside. “The Supreme Court standard is what an ‘objectively reasonable’ officer in a similar situation would do.”
ACLU senior staff attorney Peter Bibring said that assessment misses the mark.
“That is technically true, but it's beside the point,” Bibring said. “Current California law essentially mirrors the Supreme Court. But this [bill] clearly imposes a higher standard.”
Ultimately, California courts will have to rule on an officer’s conduct leading up to his or her use of fatal force when the bill takes effect at the start of next year. And for Bibring, that’s a pretty significant change.
“Police unions have argued that you should only evaluate the moment the officer pulls the trigger,” Bibring explains.
By way of example, he cited a case in which two LA County sheriff deputies mistakenly shot the wrong suspect while searching for a parolee in 2010. During the pursuit, they kicked down the door of a shack in Lancaster to find Angel Martinez holding an airsoft gun. They shot him 14 times.
“[The police] argued that the court didn’t need to evaluate the fact that the officers didn’t identify themselves as police officers when they kicked the door down,” Bibring said. “Now, police will be held accountable if they fail to use reasonable and available tactics to de-escalate the situation, or if they unnecessarily escalated the situation—for example, by kicking the door down.”
Granted, earlier versions of AB 392 had more teeth.
But, acquiescing to the powerful police lobby, lawmakers removed explicit language that required cops to use strict de-escalation tactics. That’s because police groups rallied hard against the bill, prompting lawmakers to make enough amendments to appease them.
Weber spokesman Joe Kocurek said the compromise saved AB 392 from an otherwise certain demise. “Any of those things removed was done to preserve the core objective of this bill—to save lives,” he added.
And even though Weber continued to tout the law as the harbinger of sweeping changes for police agencies throughout the state, the cop lobby insists that it will only codify the current best practices of departments in Los Angeles, San Francisco and San Jose.
“These current standards emphasize de-escalation of volatile situations and a reverence for life,” San Jose POA President Sgt. Paul Kelly said.
The San Jose Police Department (SJPD) will be working with the City Attorney’s Office to review the new law and make changes if necessary. But SJPD spokesperson Officer Gina Tepoorten said the department has already changed many of its use-of-force policies over the last few years.
“We currently, and have for some time now, required de-escalation tactics in all aspects of our training, both at the police academy and in our continuous professional training,” she told San Jose Inside.
The new bill therefore may not be the landmark legislation that lawmakers had hoped for, but at the very least, it’s a signal to police departments that the public has them under watchful eye.
Meanwhile, a push for stricter force standards at the federal level is gaining traction.
Rep. Ro Khanna (D-Fremont) has introduced the PEACE Act—that is, the Police Exercising Absolute Care for Everyone Act—a proposal that builds upon California’s new lethal force law. According to the Silicon Valley congressman: “It is past time to end a legal standard for use of force that permits Americans to be killed as a first resort—rather than only when absolutely necessary—and with little accountability.”