Law Enforcement Groups Remove Key Opposition to New Stricter Standard for Lethal Use of Force

06.05.2019

On May 23, 2019, proposed legislation regarding officer use of lethal force cleared a major hurdle to passage as law enforcement groups removed their opposition to Assembly Bill (“AB”) 392.  The bill, championed by activist groups such as Black Lives Matter, restricts police use of lethal force while increasing accountability for the same.  Pressured by the legislature, law enforcement groups removed their opposition in exchange for amendments to AB 392, a budget increase, and new training equipment to facilitate the changes.  The opposition removal coupled with support from Governor Newsom almost guarantees AB 392 will pass.  If enacted, California will have one of the strictest lethal force policies in the nation, a far cry from its current position as one of the most permissive.

AB 392   

Police officers must make split second decisions in the face of immediate danger.  In certain circumstances, the decision may involve use of lethal force.  AB 392 affects officer decision making regarding lethal force by (1) Limiting when lethal force is acceptable; and (2) Expanding the scope of investigation into lethal incidents.  Law enforcement advocates voiced concern that the bill would cause officers to second guess their decisions which could result in injuries to the officer, or members of the public.  As a result, the legislature made amendments to lessen the severity of AB 392.   

            Lethal Force Standard  

Currently, lethal force may be used when it is “reasonable.”  AB 392 limits use of lethal force to when it is “necessary” to defend human life.  Officers must evaluate the totality of circumstances to determine whether deadly force is necessary.  To address law enforcement concerns, the legislature amended the bill to remove a requirement that all nonlethal alternatives be exhausted prior to use of lethal force.  Another amendment removed the definition for “necessary” as used in the bill, allowing for circumstances outside the previously included definition to make lethal force “necessary.”

            Scope of Investigation into Lethal Incidents

Presently, analysis of an officer’s decision to use lethal force is limited to considerations the moment the officer used lethal force.  AB 392 expands examination to the “totality of circumstances,” including officer actions leading up to the use of lethal force.  This may change the scope of internal investigations for misconduct, as well as the officer discipline and training process.    

Future Implications

AB 392 comes one year after California’s legislature passed SB 1421 – despite strong opposition from law enforcement – which made some police records available to the public.  If AB 392 is passed and enacted, which appears likely, it may signal a new statewide policy prioritizing law enforcement transparency and accountability.  Moreover, this additional legislative intrusion calls into question the political capital of law enforcement groups who could historically kill legislation in the state Capitol.  Law enforcement agencies should be aware that proposals for additional similar legislation may be forthcoming, and that law enforcement groups may struggle to prevent enactment and changes.

The expanded scope of investigations into lethal incidents also carries implications.  Officers must be aware that AB 392 allows for examination of their actions leading up to use of lethal force in determining whether the use was acceptable.  Thus, the bill creates the possibility of officer discipline or prosecution based on conduct before the lethal event.  Law enforcement agency procedures regarding investigation and discipline must mirror these developments. 

Special thanks to Natalee Jung  for assisting in drafting this alert.

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