Legislative Update 2019-05-27 | AB 392

On the afternoon of May 23, Assembly Bill 392, Assembly Member Weber’s use of force bill, was amended to remove many of its features which were objectionable to law enforcement.  As a result of those amendments, a number of law enforcement organizations have shifted their position on that bill from “oppose” to “neutral.”  The groups who have changed their position include PORAC, the California Police Chiefs Association, the Association for Los Angeles Deputy Sheriffs, the California State Sheriffs Association, and the Los Angeles Police Protective League.

The bill is now backed by the Senate President Pro Tempore Toni Atkins, Assembly Speaker Anthony Rendon, as well as Governor Gavin Newsom.

The language of the bill continues to direct officers to “use deadly force only when necessary in defense of human life.”  The bill also directs officers, “when possible,” to use techniques to de-escalate the situation before using their firearm. The language “when possible” represents a distinct change. The original version of AB 392 explicitly required officers to exhaust nonlethal alternatives before resorting to deadly force.

Changes in AB 392

As further amended, the bill no longer defines what would constitute a “necessary” use of force (previously, AB 392 defined “necessary” as being where there is “no reasonable alternative” to use of force).  Instead, the bill now provides that the actions of both the officer and the suspect would be considered in court in determining whether a shooting is justified.

Previously, the bill defined what constituted “necessary” circumstances and provided that the court would determine the actions of only the officer in determining whether a shooting was justified.  Under the current version of the bill, the issue of whether the use of deadly force was “necessary” will now be left to the courts on a case-by-case basis.

Under this revised version, officers are not required to retreat or back down in the face of a suspect’s resistance. Additionally, officers will continue to have their right to self-defense if they use “objectively reasonable force.”

The amended version of AB 392 also strips out the specific requirement of attempting de-escalation before using deadly force.  The courts are allowed to consider actions leading up to a fatal shooting, but both the conduct of the officer and the suspects must now be considered.

The bill does retain language that expands the scope of investigations around lethal incidents.  Current law permits only the moment of deadly force to be used in considering whether an officer acted legally.  Under AB 392 the “totality of circumstances” would be examined, which includes actions the officer took leading up to the use of deadly force.  There is a slight amendment to this provision: what will provide that the actions of the suspect, as well as the officer, are to be considered in evaluating the totality of circumstance.

The impact of the totality of circumstance standard could change how officers are disciplined and trained.  It could even allow officers to be prosecuted based on their conduct leading up to a lethal event.  Removed from the bill, however, is a section that held officers liable in cases of criminal negligence resulting in a death.

Other Voices on AB 392

Robert Weisberg, professor of criminal law at Stanford University, characterized the amended bill as being “a middle ground” between the parties.  Professor Weisberg also indicated that he suspects the new “necessary” standard to be a difficult standard for the courts.  Since the “necessary” standard represents largely untested legal waters, it can be expected to be a challenging standard for officers and for police agencies in training standards, as well.

Although AB 392 would constitute significant changes in California use of force law, Delaware and Tennessee go further than the California proposal because they include a requirement that police exhaust other alternatives before using force.  And Washington state law calls for police to de-escalate situations.  None of those concepts are articulated in AB 392.

Thursday’s amended AB 392 also includes SB 230 by Senator Caballero, which sets new statewide “best practices” and training for use of force standards.  This bill is supported by the Law Enforcement community and is supported by CCUPCA

Proponents of the original AB 392 continue to tout the major changes that will be effectuated under the bill.  Further, Governor Newsom, now a supporter of AB 392, has said that AB 392 “is an important bill that will help restore community trust in our criminal justice system.”

Interesting, however, are the comments by Ed Obayashi, a use of force consultant to law enforcement agencies and a Plumas County Deputy Sheriff: “This is so watered down,” he said. “The language is virtually synonymous with current constitutional standards for use of force.  It really is a distinction without a legal difference.”