In recent years, law enforcement officers have been the recipients of an ever-increasing wave of denunciations and accusations concerning allegations of the use of excessive force in the line of duty. Although officers are authorized to use necessary force within reasonable limits, much of the public opinion is based on the assumption that officers should use the least lethal option available instead of using the reasonable option. The debate on ‘reasonable versus necessary’ force that a police officer can use has been led by misconceptions and confusions in the public domain with regard to an officer’s duties and rights ( Blake, 2019). The pro and con positions of this debate have attracted support from different quarters leaving the individual law enforcement officers in the middle ground between those extremes. Different states have different laws that direct how officers may use lethal force. In California, a bill introduced by California Assembly members to amend California Penal Code section 196 and 835a seeks to change the legal standard for law enforcement in the state from using reasonable force to necessary force ( Blake, 2019). The Assembly Bill (AB) 392 has undesirable effects on law enforcement in the state because it increases the criminal and civil liability of officers based on a highly subjective legal standard, and threatens the safety of officers and communities by eliminating objective reasonableness of an officer as the determinant for the necessity to use force .
Law enforcement officers have institutional authority to use necessary coercive to neutralize situations that pose a danger to them and other people. The option of force that an officer chooses among an available range depends on many factors including the level of the threat, the type of weapon, as well as the perceived intent of a subject. Although an officer may have a range of options for the use of force in a particular situation, there is no requirement for such an officer to use the option with the least amount of force. That discretion on the amount of force to use is left for the officer to decide depending on the unique facts and circumstances of a situation ( Barkan & Bryjak, 2011). However, an officer is supposed to make an objectively reasonable choice when exercising the necessary use of force. The importance of having reasonable force as the standard is to enable law enforcement officers to judge the threat levels of different situations and take appropriate actions according to their training.
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Law enforcement officers are supposed to use necessary force within reasonable limits depending on the nature and circumstances of a situation. The nature and amount of force used by an officer are deemed to be within the reasonable range if another individual with the same skills, training, and experience would have taken similar action (Wolf, Mesloh, Henych & Frank, 2009). The reasonableness of the use of force can also be determined by experienced senior officials within the law enforcement profession. Objective reasonableness covers the fact that officers are often required to make quick decisions and responses without having to make reference or consultation.
Whether or not a decision made by an officer for the necessary use of force was within the reasonable range depends on the facts available to that officer at the time of the incident. Therefore, the reasonableness of that decision is independent of other facts that may be discovered after the fact. This provision helps law enforcement officers make instant decisions that are appropriate to the unique nature of a situation according to the available fact without having to second-guess the possibility of other absent facts ( Alpert & Dunham, 2004). The ability of officers to use objectively reasonable force enables them to not only ensure their safety but also to effectively undertake their fundamental duty of serving and protecting the community with confidence and commitment.
There are some instances when law enforcement officers are deemed to have used force beyond any necessity or reasonable justification. These instances have sparked heated debates in both public and legal quarters calling for the cutting of the legal standard for objective reasonableness down to limited necessity. One of such incidences was the officer-involved shooting of Stephon Clark in March 2018 in Sacramento, California ( Blake, 2019). This incident sparked much public debate on ‘reasonable force versus necessary force and, consequently, attempts to institute legislative changes affecting the authority to use force.
The bill AB 931 was introduced in the California Assembly by Kevin McCarty Shirley Weber for the first time in 2018 with the intention to enhance the accountability of law enforcement officers for their use of excessive force. However, the bill failed then due to the efforts of various stakeholders in law enforcement. Independent investigations by the state Attorney General and Sacramento District Attorney were then done on the Clark officer-involved shooting, and the use of force was deemed by both authorities to have been reasonable ( Blake, 2019).
In another attempt to make changes on the authority of law enforcement officers to use force, the bill AB 392 has been introduced by the same California Assembly members in 2019 with similar general objectives to the failed bill AB 931. In this latest attempt, the bill seeks to amend the California Penal Code (CPC) sections 196 and 835a that describe the Justifiable Homicide by a Peace Officer and Authority to Use Force respectively ( Blake, 2019). This bill was predicated on the false narrative that the current state laws and constitutional standards in California permit law enforcement officers to use deadly force in circumstances where the use of such force is not necessary or should be of last resort.
In reality, however, courts have held that officers should use necessary force within the objectively reasonable legal standard. Therefore, the reasonableness of a decision by an officer to use force should be judged from the perspective of a reasonable on-scene officer using the facts and circumstances available at the time the decision was made. By altering the standard by which courts determine necessity and reasonableness, this bill would require officers to second-guess their decisions, and hence compromising their safety and that of others. If passed, this bill will expose law enforcement officers to increased civil and criminal liability for the instantaneous decisions made for the use of force without consideration of the available fact at the time of an incident.
AB 392 contains unconstitutional flaws that replace the rights of an officer to self-defense and the defense of others with a relatively inferior right that limits the officer to the least intrusive alternative when faced with situations where the use of force is necessary. This requirement is not only a superhuman expectation on the part of the decision-making process of an officer but also an attempt to redefine ‘necessity’ in the context of law enforcement and the use of force ( Blake, 2019). AB 392, therefore, strips of their right and authority to utilize the objectively reasonable option to defend their lives and those of others.
Changing the legal standard from the objective ‘reasonable and necessary’ to the subjective ‘necessary’ will put officers in situations where they will be faced with impossible decisions that carry unbearable consequences. In life-threatening situations where officers have to make split-second decisions, the evaluation of the actions and choices made by the officers would, therefore, be based on the outcomes of the incidents and not the facts available at the time of making the decisions. However, it would be untenable to judge the decision of an officer after the danger has passed or after the discovery of all the circumstances and actual facts. For example, officers cannot be expected to make instantaneous determinations of whether an attacker is skilled, or a weapon is real, or a knife is sharp, or a gun is loaded when there is a presence of an immediate threat to their safety and that of others.
The cost of reducing the ‘reasonable and appears to be necessary’ standard to a ‘necessary’ standard is the death of officers because of hesitations and the need to make further evaluations in dangerous circumstances. Furthermore, there would be confusion in the legal standard for federal and state claims since those two would not be in harmony. The use of deadly force is justified under the national legal standards to prevent the escape of a fleeing suspect if that suspect has committed an atrocious and forcible felony or is posing a deadly threat. Here, the bill requires that a suspect should have already used deadly force in a felony and that the suspect will cause serious bodily harm or death unless immediate apprehension is made ( Mastagni, 2019). The immediacy requirement emphasized by this bill opens up possibilities where the authority of officers to use deadly force would be limited when attempting to prevent a fleeing suspect of a possible terrorist attack or the escape of a fleeing mass murderer.
In addition to that, this bill imperils the safety of the public by eliminating the right of an officer not to retreat when faced by threats or resistance during an arrest. The requirement of this bill for an officer to ‘tactically reposition’ instead of using potentially deadly force means that an officer would need to retreat in the face of resistance. The lack of authority to use force in these situations strips officers of the ability to ensure public safety hence curtailing their ability to perform their primary mandate of protecting and serving. Furthermore, these revisions to CPC Section 835a limit the right of an officer to self-defense meaning that civilians will have greater rights to self-defense than law enforcement officers ( Mastagni, 2019). Relegating an officer’s right to self-defense to the constitutional levels that are inferior to the rights afforded to private citizens would be in direct violation of the equal rights protection guarantees contained in the fourteenth amendment. Without the right to defend the self and others, officers will not be able to keep law and order within their communities, hence leading to a potential increase in lawlessness, crime, and possible anarchy.
The cost of police and civilian lives because of the unworkable and impossible standard required by the Ab392 will be in extreme highs. The elimination of the objective reasonableness of officers would deter the officers from protecting the public and themselves. The requirement for officers to make numerous calculations to determine what is ‘necessary’ will lead to loss of lives because most encounters would turn to ‘drive through’ investigations. This factor will also affect the morale and dedication of officers because of the feeling that they do not have the full backing of the law to carry out their duties effectively ( Mastagni, 2019). Furthermore, officers may show hesitation when called upon to protect lives and property because of the possibility of their decisions being judged based on hindsight. This bill, therefore, poses a threat to families, officers, and communities in the state.
The bill also makes an unrealistic suggestion that officers must explore and use other alternatives such as verbal persuasions and warnings among other de-escalation methods. However, these methods are not practical in situations where officers may need to use force to neutralize an imminent danger. By using warnings or persuasion techniques, officers will e exposing their lives and those of others to danger and may end up losing lives. If these requirements are passed into law, then the work of law enforcement officers will be adversely affected since they would be required to expose themselves and the public to unnecessary danger.
Of equal concern to the above, this bill seeks to overturn the precedent set by the U.S Supreme Court regarding the provocation rule. This rule sets the standard where an officer does not lose justification to use objectively reasonable force in situations where the officer provokes a violent confrontation. This bill will not only deprive the officer of the right to self-defense but also subject such an officer to criminal jeopardy if the preceding negligence leads to an encounter where deadly force is used. Since this standard includes arresting or detaining the wrong person, then officers would only have the choices of facing death or potential manslaughter prosecutions if an erroneously detained individual attempts to shoot them ( Mastagni, 2019). Putting officers in that position would be disastrous since it would make it impossible for them to do their work if they are condemned by any choice of action that they take.
The attempt to water down the legal standard for the use of force would also discard well-established case law and open the gateway to no man’s land for courts and law enforcement officers. Since the standard proposed in the bill does not require an officer to exercise reasonable judgment, then it places an expectation for such an officer to foretell the future ( Mastagni, 2019). For example, consider a hypothetical case where an enraged individual advances towards an officer while screaming, brandishing a knife, and ignoring repeated commands to stop.
When the individual gets within a close contact distance with the officer, most courts of law would say that there was objective reasonableness for this officer to fire at the individual in defense of life. However, the question of necessity rises. How can it be said for sure that it would not have been effective for the officer to turn and run away? Or use empty-hand defensive tactics to subdue the individual? How can it be said for sure that if the individual would have stopped charging and abandoned the attack if the officer had pleaded for his life? If any of these other options would have worked, does it mean that shooting the individual in the first place was not necessary?
As it stands in the current law, ‘necessary,’ as a standard for the use of force in law enforcement does not represent the layman definition of the word, but it means what is believed to be necessary by the officer. However, if ‘necessary’ as use-of-force standard is watered down, as is the requirement in the AB392, to mean what popular opinion would understand it to mean, then that officer must have used the option that he went with because no lesser option of force would have sufficed. This is a clear requirement for such an officer to foretell the future and act with certainty that no other lesser force would have worked. Another fact for consideration, in this case, is that the subjective popular opinion on whether it was necessary to use deadly force would most likely come from members of the public, politicians, or media commentators who do not understand the factors that an officer considers when making the decision for the use of force.
AB 392 will also cause confusions in law enforcement regarding the use of force. If passed this bill would be in direct conflict with the training procedure and policies for officers within the state. Although the bill seeks to change how necessity is determined for the use of force by officers, it does not seek to influence any changes in how officers are trained, especially on the use of force. Officers spend months in training on how to handle different situations with professionalism and how to make decisions that are objectively reasonable when handling situations that pose a danger to them and to others ( Scarry, 2018). Since officers are supposed to use their training to perform their duties with effectiveness, this bill would cause confusion and disconnect between officer training and active duty.
In addition to that this bill also maintains the status quo for the use of force policies in California such as SB 230, which is comprehensive legislation drafted by the larger California law enforcement coalition. This legislation focuses on improving the outcomes in incidences where the use of force by officers is involved. Some of the requirements for SB 230 include standardized training for all officers in California on various use-of-force scenarios such as intervention, de-escalation, and medical assistance. The AB 392 does not make considerations to such policies in the state, hence creating the potential for confusions and conflicts ( Weber & McCarty, 2019). More proactive suggestions instead of punitive requirements would probably have aligned with the need for law enforcement in the state to work closely with the community.
Another effect of changing the legal standard using the AB 392 would be a decrease in the number of individuals who seek to join California law enforcement. This disinterest would be created by the fact that one of the aims of the AB 392 is to prosecute more law enforcement officers who use deadly force. Much of the criticism of police behavior from the media, political circles, and members of the public is born of ignorance of many factors including potential dangers posed by suspects, laws that govern the use of force, the options available to officers for the use of force, and the reality of deadly force encounters. The intention to use AB 392 to criminalize officers creates a disastrous disincentive for individuals seeking to pursue careers in California law enforcement ( Mastagni, 2019).
AB 392 is a threat to the safety of officers and the public alike. This bill has been created in the midst of the increasingly volatile anti-police environment in California and the emergence of numerous anti-law-enforcement groups. Officers are required to make split-second decisions in rapidly evolving situations where their lives and the lives of others are in imminent danger. Although these are some instances of disproportionate use of force within the law enforcement community, the AB 392 does not provide any proactive solutions or proposals but appears to offer more problems which endanger the lives of officers and members of the public.
The bill creates a highly subjective legal standard where officers would be stripped of the authority to make objectively reasonable determinations for the necessity of the use of force. By changing the legal standard to a subjective ‘necessary,’ this bill seeks to hold officers criminally liable for the use of force based on hindsight without consideration of the available facts and circumstances at the time of an incident. By criminalizing officers, this bill will create a disastrous disincentive to potential recruits into police academies throughout the state. In addition to that, AB 392 threatens the safety of the officers, families, and communities by deterring the law enforcement officers from making decisions and taking life-saving actions according to their training and experience.
References
Alpert, G. P., & Dunham, R. G. (2004). Understanding police use of force: Officers, suspects, and reciprocity . Cambridge: Cambridge University Press.
Barkan, S. E., & Bryjak, G. J. (2011). Fundamentals of criminal justice: A sociological view . Sudbury, MA: Jones & Bartlett Learning.
Blake, D. (2019). Calif. battle over use of force legislation rages on: Assembly Bill 392 is a difficult web to untangle. The Science of Training . Retrieved May 4, 2019, from https://www.policeone.com/use-of-force/articles/483441006-Calif-battle-over-use-of-force-legislation-rages-on/
Mastagni, D. E. (2019). Modernizing Use of Force on Our Terms . Retrieved on 4 May 2019, from https://porac.org/2019/04/modernizing-use-of-force-on-our-terms/
Scarry, L. (2018). What changing the UOF standard would mean to cops . Retrieved on 4 May 2019, from https://www.policeone.com/legal/articles/474037006-What-changing-the-UOF-standard-would-mean-to-cops/
Weber, S. N., & McCarty, K. (2019). Assembly Bill. Retrieved on 4 May 2019, from https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB392
Wolf, R., Mesloh, C., Henych, M., & Frank, T. (2009). Police use of force and the cumulative force factor. Policing: An International Journal of Police Strategies & Management, 32. doi:10.1108/13639510911000795.
