It could be argued the difference between the two is minimal, but legal experts say the spirit of the measure – encouraging de-escalation and crisis-intervention methods – clearly attempts to induce greater restraint from officers, likely making it the strictest such law in the land.
Here are five questions addressing the possible impacts of AB392:
What does it accomplish?
Ideally, it will change police culture and extend the downward trend in the number of fatalities at the hands of officers in California, which the state’s Justice Department tallied at 146 last year. That was 26 fewer than in 2017.
But the full ramifications won’t be clear until cases go through the courts, said Robert Weisberg, law professor and faculty co-director of the Criminal Justice Center at Stanford University.
“It’s going to depend almost entirely on how the law’s interpreted — first by prosecutors, then by judges, then by juries,’’ he said. “It certainly, by its terms, moves the law in the direction of making it more feasible to prosecute officers for homicide.’’
Momentum for the change built with increased national attention on the killing of unarmed black men by law enforcement, and further picked up steam in California when 22-year-old Stephon Clark was gunned down in Sacramento by officers who mistook his cell phone for a firearm.
One under-publicized provision of the bill brings California law on par with the federal standard by establishing that police can only use lethal force on a fleeing felon if that person is threatening violent harm to the officer or somebody else.
“On this particular issue (police use of force), this law is as significant a change as we’ve seen in the country,’’ Weisberg said.
Are supporters thrilled with its passage?
Clark’s brother, Stevante Clark, answered that question when he told the Los Angeles Times, “The bill is watered down, everybody knows that. But at least we are getting something done. At least we are having the conversation now.’’
Indeed, this is not the robust bill that activists had in mind, and the group Black Lives Matter withdrew its support over the amendments that lessened its impact. Those included the removal of specifics over what constituted “necessary’’ use of force and of the requirement that police officers attempt de-escalation tactics. The new law only encourages those methods.
DeWitt Lacy, a civil rights attorney at the John Burris law firm who is based in Los Angeles, sees the law as a positive first step that falls short.
“My concern is that changing the language from ‘reasonable’ to ‘necessary’ lends itself to the law enforcement community responding with verbal gymnastics and labeling their behavior as necessary without any type of mechanism whereby they are forced to engage in de-escalating tactics and operate more prudently,’’ he said. “I don’t think they will.’’
How do police officers feel about it?
Law enforcement groups, who are used to having their way at the state capital, initially opposed the measure vehemently, relenting only when they gained concessions and realized Newsom viewed the bill more favorably than his predecessor, Jerry Brown.
The major police unions did not attend Monday’s signing ceremony but changed their stance from opposing the measure to being neutral. They’ve also pushed for a companion bill, SB230, that would require training on the new guidelines for use of force and other options.
Ron Lawrence, president of the California Police Chiefs Association, said proper training is a key element.
“We certainly have concerns about officers hesitating because they may be worried about the hyper-scrutiny they often receive after a use of force incident,’’ Lawrence said via email. “While the police are held to a very high standard, and rightfully so, we want our officers to have the confidence they need to do an incredibly dangerous job. This is why the passage of our bill, SB230, is so crucial.’’
How big of an adjustment will this require?
It depends on the police department. Some of them, especially in larger cities, already emphasize de-escalation and crisis-intervention tactics. But even though the new law will apply statewide, policing practices vary by locality, and not all follow best practices.
Courts will now be able to take into consideration the actions of the suspect and the police officers before the use of force to determine whether it was necessary, and law enforcement leaders want to make sure their agents have a full grasp of what they’re allowed to do legally.
Lawrence estimated that implementation of the new training to the state’s 80,000 police officers could take about a year.
Will other states follow California’s lead?
Most likely, though with some variations.
Weisberg pointed out some states have already implemented versions of this law, not by statute but by judicial decision, and he expects more to use the bill as a template, despite its flaws.
“I don’t think the new law is a model of English-prose clarity. There are problems with it,’’ Weisberg said. “But even if it’s imperfect, the California law is kind of a script other states could follow.’’
Lacy said the examination of police behavior that’s now part of the national dialogue, especially as it relates to the treatment of people of color, will prompt reforms inspired by the Golden State.
“I think once folks begin to understand more what’s happening here in California, as far as what the legislature has done here, it will promote the idea that we can change, we can do things to perfect our union,” he said.
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