On August 19, 2019, California Governor Gavin Newsom signed into law new standards for use of deadly force by police officers in California. The law, introduced by AB 392, exceeds standards set forth by the United States Supreme Court in Tennessee v. Garner and Graham v. Connor.
In Garner, the Court held that the Fourth Amendment prohibits the use of deadly force to prevent the escape of a suspected felon unless (1) it is necessary to prevent the escape, and (2) the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Tennessee v. Garner, 471 U.S. 1 (1985). In Graham, the Court held that reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Court explained that it (and presumably lower courts) will look at the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether he (or she) was actively resisting arrest or attempting to evade arrest by flight. Graham v. Connor, 490 U.S. 386 (1989).
Under the new law in California, police officers are justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:
- To defend against an imminent threat of death or serious bodily injury to the officer or to another person.
- To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the office has objectively reasonable grounds to believe the person is aware of those facts.
“Totality of the circumstances” as defined in AB 392 means “all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.” Thus, in California, the use of deadly force is only considered justifiable in the above-described two (2) scenarios. Restricting the justifiable use of deadly force to these scenarios goes beyond the case-by-case analysis articulated in Graham to determine whether a deadly use of force was justified given the case-specific facts and circumstances.
Additionally, there is a companion bill currently before the California General Assembly. SB 230 has not yet passed, but it involves training and policies for California law enforcement with respect to the use of force. The purpose of that bill is to require law enforcement agencies to implement use of force policies that utilize de-escalation techniques, crisis intervention tactics, and other alternatives to force when feasible.
Crabbe, Brown & James’ Managing Partner Larry H. James has served as General Counsel to the National Fraternal Order of Police since 2001. In that role, we monitor legislation affecting officers across the country. The National FOP is the world’s largest organization of sworn law enforcement officers with more than 350,000 members in more than 2,100 lodges across the United States.