After a determined and diligent effort, California policy makers have put into law a new statute governing when police there can use deadly force.
As with any compromise, the final results won’t please everyone. Still, in an era when dismaying cell phone videos have captured police officers shooting black and brown men who presented no apparent physical threat to them or anyone else, this was an important endeavor. It’s one other states should undertake as part of the urgent effort to stop unjustified police shootings.
Officers who have used deadly force in highly problematic situations have often won acquittal because the general, Supreme Court-set parameter has been that such force is justified if an officer made a reasonable judgment that his or her life or the lives of others was in danger. Given the split-second decisions entailed in police work, juries on deadly force cases have often been unwilling to second-guess an officer.
But this is clearly an area in need of stricter standards. Nine states, including Massachusetts, do not have a statute governing police use of deadly force, according to a 2015 Amnesty International report. Rather, case law — court decisions — guide what is and isn’t permissible. (One key difference in Massachusetts: Rather than having police departments themselves handle deadly force cases, the district attorneys investigate and make the initial decision about whether to prosecute.)
In states that do have such laws, none accord with international standards, according to the Amnesty International report. None stipulate that deadly force can only be used as a last resort or only in situations that present an immediate threat of death or serious injury to the police officers or others. Some fail even to meet the broad minimum parameters set by the US Supreme Court.
California’s new law makes several signal changes to the status quo. First, it says deadly force may be used only when “necessary in defense of human life,” not merely when it can be justified as reasonable. The law also prohibits police from firing at a fleeing suspect unless he or she is (1) suspected of having committed a felony involving the threat of death or serious bodily injury and (2) thought to present a threat of death or serious injury to others unless immediately apprehended.
Further, the California overhaul says that in evaluation of deadly force incidents for department discipline, civil suits, or criminal prosecution, the entire context of the encounter must be reviewed, and not just the immediate moments preceding a shooting. Accompanying legislation provides money for police departments to develop new training standards.
Critics note that the final bill was stripped of a legislative definition of when deadly force is necessary; that will be left to the courts to decide. That omission was enough to lose the legislation the support of Black Lives Matter.
But others, such as the American Civil Liberties Union, see this legislation as an important step. For starters, the word “necessary” is a tighter and tougher standard than “reasonable,” which can be stretched to cover many different situations, particularly when a jury tries to assess reasonableness through the eyes of an officer on the scene. The new stricture against shooting at a fleeing suspect is a big improvement on the status quo, under which deadly force could be justified merely to prevent someone from fleeing. And lastly, because the totality of the incident will be considered in after-action reviews, the expectation is that police will opt to use de-escalation techniques more frequently.
Again, no compromise is perfect. But by listening to all sides, California policy makers were able to take an important step forward, one that even the police were willing to support, albeit grudgingly. Others states should follow California’s lead. This is exactly the kind of work conscientious policy makers should embrace, not avoid.