Bill 392—California’s Feeble Attempt at Restricting Police’s Use of Deadly Force

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In March 2018, Stephen Clark was shot by Sacramento Police assuming he was their suspect when responding to a 911-calls about vehicle break-ins. The two officers, at the time, followed Clark into a backyard and opened fire shooting him eight times after identifying his cellphone as a weapon. The outrage sparked by Clark’s unjust shooting has finally culminated in Bill AB 392 at California’s state legislature.

The Bill, now past the Assembly floor is waiting for the governor’s signature, will require police officers to act with greater caution when using lethal force. Bill 392 lays down the rules for circumstances under which such force will be warranted:

 “the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a 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 the person is immediately apprehended.”

Excerpt from Bill 392

The Bill, introduced by California Assembly Member Shirley Weber (D – San Diego), lays out the new paradigm police would use to evaluate any situation before taking any lethal action. Under the present statue, the police are required to have “reasonable fear” of being in danger. This allows them to contend that lethal force was necessary based on what they perceived – even if they turned out to be incorrect.

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The shooting of Stephen Clark was captured on officers’ body cameras, but the Sacramento District Attorney decided not to charge the officers. The DA’s argument, consistent with the law, however wretched, was that the two officers genuinely feared Clark, and thus were justified in shooting him. This led to the outrage and calls for reform in the state’s rules on police’s use of deadly force. AB 392 passed the state’s Assembly in May and finally passed the state Senate on Monday by a margin of 34-3.

Bill 392 will require police to prove imminent threat for use of lethal force

Effectively, now, police would have to argue that there was an imminent threat to their lives, or lives of other civilians, before resorting to lethal force. Their perception of fear will no longer be valid.

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Bill 392, in its current version, is a significantly mild version of the original. It had once included an objective definition laying out what it meant by deadly force as “necessary” – that a reasonable police officer in a similar situation would conclude the same. But that will now be left to juries and prosecutors. This version also differs with amendments clarifying officers’ do not have to retreat from confrontation, and they can also claim self-defense when forcefully arresting someone. It also adds the explanation that retreating is not “tactical reposition or other de-escalation tactics.”

Lawyers representing law enforcement have, admittedly, done some great work to neuter AB 392 as much as possible. But that doesn’t change the fact that “retreat”, “tactical repositioning”, or “de-escalation tactics” like backing away from Stephen Clark would’ve given officers’ enough time to immediately realize that his cellphone was not a gun.

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I read these stories about such measures, and all of them without fail mention how incidents of police shooting have come down from ‘x’ to ‘y’. Like a report from last week, released at this opportune moment, which is quite a coincidence, says these shootings are down 20 percent from 2016 i.e. from 782 incidents in a year to 628 of which 146 were killed.

I don’t find this uplifting at all! Perhaps, AB 392 will help bring these numbers down further but as long as the legislatures representing the people are bargaining with law enforcement groups using the safety and protection of innocent-until-proven-guilty civilians, you’ll find there’s always much left to be desired.

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