Fatal police shootings could become a crime under proposed California law

SAN FRANCISCO – A showdown over when police can use deadly force is set to unfold in the California Legislature next week, which could result in sweeping changes to law enforcement departments that give officers broad latitude in deciding when to shoot to kill.

At issue is Assembly Bill 392, known as the California Act to Save Lives, which would put the onus on officers to justify discharging their weapon, shifting the standard from “reasonable” – as defined by the Supreme Court's Graham v Connor ruling in 1989 – to “necessary.” That means that, under the proposed bill, police must feel confident it is necessary to shoot to protect themselves or others from danger, or they could be prosecuted for killing a person. 

Instead of reaching for their guns, officers would be pressed to engage in de-escalation tactics that aim to reduce tension between officer and suspect. Experts said these include listening to the suspect's story, explaining the actions an officer is about to take and ensuring that the suspect's dignity is preserved throughout the interaction.

California has the highest percentage of police shootings per 100,000 people among states with more than 8 million residents, said Seth Stoughton, a former police officer who is a law professor at the University of South Carolina and an expert on deadly force rules.

"The states are all over the map in the way they regulate deadly force, with some being very permissive, and that’s where California is right now," said Stoughton, noting that the Western state shares that reputation with Georgia, Texas and Florida. Among large states, New York has the fewest officer-related shooting deaths.

"This new bill would make the preservation of life law enforcement's top priority in California," said Stoughton, who wrote letters to California lawmakers in support of the bill. "Having the state Legislature tell police officers, 'This is the job we expect you to do' is an important piece of symbolism."

AB 392's co-sponsor, Assembly member Shirley Weber, D-San Diego, said the law would encourage police to consider nonlethal methods when bringing suspects into custody.

"The piling on of killings of often unarmed civilians by police for the past six or seven years now is wearing on the conscience of this nation," she said. "The thought after these shootings often is, ‘Isn’t there something else police could have done?’ And maybe sometimes there are other things."

Assemblywoman Shirley Weber, D-San Diego, discusses her bill that would allow police to use deadly force only when there is no reasonable alternative, during a news conference, Wednesday, Feb. 6, 2019, in Sacramento, California.

Critics said AB 392 ignores the nuanced difficulties inherent in police work and will have a calamitous effect on everything from policing practices to recruiting.

“This bill is an affront against anyone who wears a badge, and if people understood its consequences, nobody would vote for it,” said Assemblyman Tom Lackey, R-Palmdale, who served on the California Highway Patrol for 28 years. “Unless you’ve been in this arena, you don’t understand how fast things unfold.”

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Lackey said officers take their power to kill extremely seriously, recounting a CHP colleague who became so distraught after one fatal shooting that he became an alcoholic and killed himself.

Lackey said there is a problem exists with policing protocols, which have resulted in the high-profile shooting deaths of civilians such as Stephon Clark, a Sacramento man who was killed by police officers in March 2018 while carrying only a cellphone.

“But this bill isn’t the solution to that problem,” he said, warning that the new policy could lead to tragic results for officers. "You change the policy midstream, and you’ll cause officers to think before reacting, and that time gap is going to be deadly."

AB 392 pits victims’ relatives and the American Civil Liberties Union against a massive statewide force – state and local officers serving 40 million people across 600 agencies with 120,000 personnel – that until recently was protected by one of the toughest police privacy laws in the country.

On Jan. 1, Senate Bill 1421 became law, allowing the public to seek access to police records and internal investigation files to get more information about incidents in which police either use lethal force or are suspected of criminal activity.

Theresa Smith is among many victims’ rights advocates who has spent time in Sacramento sharing her story in support of both SB 1421 and AB 392. Her son, Caesar Ray Cruz, was killed in 2009 in Southern California after a tipster told police he was a gang member and armed.

After being confronted by police in a Walmart parking lot, Cruz was fatally shot. Officers said they thought Cruz was reaching into his waistband, but he was not armed.

The deadly force “bill is important simply because if it had been in effect when my son was shot, there might be some accountability for their actions,” said Smith, who started a nonprofit group called LEAN to help relatives of those killed by police deal with grief and seek answers.

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“This bill is about saving lives,” she said. “That includes police lives, and it includes the lives of bystanders. My son was shot in a Walmart parking lot at Christmas.”

Smith said she understands that police work is difficult and dangerous, and “if you’re in imminent danger for your life, you have to make that decision. But if someone’s running from you or has their back to you or is having a mental breakdown, that’s something else.”

Theresa Smith, right, the mother of Caesar Cruz, who was killed in a confrontation with police, wipes her eyes after testifying against a police-backed law enforcement training bill by state Sen. Anna Caballero, D-Salinas, during an April 23 hearing in Sacramento.

Advocates for stricter parameters on police use of force said evidence abounds of instances in which violent armed shooters were taken into custody without incident.

Some argued there often is a racial component at play. 

“Time and time again, officers manage to safely arrest people who are armed and dangerous, though often those people are white,” said Lizzie Buchen, legislative advocate for the ACLU of California.

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“We know police have the tools and skills to apprehend people without harming them,” she said. “But there are just dramatic discrepancies of outcomes when you’re dealing with people of color.”

Buchen said the bill is not aimed at neutering police but rather suggests a best-practices solution that should result in a lower use of force, fewer deadly incidents and a rebounding of trust between police officers and the communities they serve.

Senate Bill 230 was put forth by law enforcement as an option to AB 392 and focuses largely on increasing training, but it  doesn't address changing the standard for use of force.

Lawmakers and advocates  were tentatively optimistic that conversations between the two sides of the issue would result in a bill that police officers and victims’ rights groups can support.

“We’re looking to pass what would be the strongest use of force bill in the nation, one that defines it as being usable only when necessary, not when reasonable,” said bill sponsor Weber. “We’re in conversations with law enforcement, and we hope that will net some positive results.”

Robert Harris, president of Protect California, a coalition of law enforcement associations and trade unions, said changing the terms on use of force “is a line in the sand we don’t want to cross.”

Salena Manni, the fiancee of Stephon Clark, wipes tears from her eyes during a news conference. Sacramento prosecutors determined that no charges would be filed against officers for the shooting death of Clark, a 22-year-old black man who was killed by police in his grandmother's back yard.

The problem with requiring officers to, in the moment, determine "if force is necessary is that it creates a standard officers will never reach and allows for 20/20 hindsight,” he said. “I don’t think 392 will reduce incidents, and I fear that officers, out of fear of being second-guessed, won’t be as proactive as they can be about their policing.”

For Smith, who lost her son to a deadly encounter with police, setting a new standard for when police should discharge their firearms is critical to rebuilding a rapport with law enforcement that is rapidly eroding.

“Right now, if you’re an officer, you can kill someone and have there be no consequences,” she said. “A badge shouldn’t be equal to a license to kill. We just want law enforcement, with all their training, to be held accountable. Because no one should be above the law.”

Follow USA TODAY national correspondent @marcodellacava