California’s Use of Force Law Offers Hope of Reducing Police Killing

The cornerstone of our constitutional democracy is the principle that no person can be deprived of life or liberty without due process of law. As the events of recent weeks have confirmed, there is no greater threat to due process than the arbitrary use of lethal force by the police; no clearer gap between the ideal and reality of our democracy than the police’s needless killing of George Floyd and so many other black and brown men and women. A number of proposals to reform, defund, and even abolish the police are being currently debated. This post will discuss one recent change in California law concerning police use of lethal force that could make a difference.

California in August 2019 changed its lethal force standard. Previously, in California, police officers were justified in using deadly force if a “reasonable” officer could have acted a similar way, following US Supreme Court precedent. Only if they failed to meet this reasonableness standard could they be criminally prosecuted. The new law, Penal code section 835, replaces a general reasonableness standard with one more focused on whether a suspect poses an immediate threat of grave harm. It now provides that a police officer is legally permitted to use deadly force only when “the officer reasonably believes, based on the totality of the circumstances, that such force is necessary … to defend against an imminent threat of death or serious bodily injury to the officer or to another person.”

The law further clarifies: “A threat of death or serious bodily injury is ‘imminent’ when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.”  “Totality of the circumstances” 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.” This latter provision is significant. A court or jury can consider not only the necessity of using force at the instant of the confrontation, but also whether the police officer’s conduct before the time of the confrontation was so risky as to place him in a position where he had to use force to protect himself.

Originally, the legislation defined necessity in terms of a requirement by the police to exhaust other measures before resorting to force. This provision was dropped after lobbying from the police unions.

This new use of force standard raises two questions. First, how does the new “necessary” standard differ, in practical terms, from the old reasonableness standard? Second, will the change of the legal standard matter? Does it have an actual effect in the real world?

The answer to the first question isn’t clear yet. The law only went into effect in January and we don’t yet have the benefit of case law interpreting it. What might the difference be? Certainly, there will be cases where the standard makes no difference. The George Floyd killing was by any reckoning neither reasonable nor necessary. On the other hand, there’s the case of Stephon Clark, whose 2018 death was the main impetus behind the adoption of the new law. Officers fatally shot Clark while he was standing in his grandparents’ backyard and holding a cellphone, which police claimed they thought was a weapon. Given that a court must judge the necessity of an officers actions based on what he knew at the time, and not with the benefit of hindsight, an officer might be able to successfully argue that he reasonably believed his action was necessary to protect himself and his fellow officer from harm.

But in other cases the standard could make a difference, when a victim’s actions are less than perfect but short of posing a real threat. For example there’s the case of Rayshard Brooks, the man killed in Atlanta in the Wendy’s parking lot in June 0f 2020. He had been drinking and was apparently sleeping it off in his car. The police were called on him, he volunteered to walk home, he was given a sobriety test, arrested, resisted arrest, grabbed one of the officers’ Tasers, fired the Taser wildly as he was fleeing and the officers were giving chase, and then was fatally shot. It might be argued successfully to a jury that the officers acted reasonably, after Brooks stole and fired the Taser. It would be harder to argue that the killing of Brooks, who was intent on running away and not posing an imminent danger to the police or anyone else, was necessary to protect the lives of the police officers or anyone else.

Does the subtle difference between the “reasonable” and “necessary” standard matter in terms of saving lives and preventing senseless killing? There is some evidence that it does. Samuel Sinyangwe, an activist and policy analyst with the Black Lives Matter movement who has collected and analyzed data regarding police violence and police department practices, concluded that the adoption of certain policies could be correlated with significant reductions in police-involved killing. “The policies that were associated with the largest reductions in police-involved killings per population were policies that require comprehensive reporting (25% reduction), require officers to exhaust all other reasonable means before shooting (25% reduction), and that ban chokeholds and strangleholds (22% reduction.” [1] The “exhaust all other reasonable means” policy is arguably implicit in California’s “necessary” standard, and was explicitly included in the original bill. Although it may be hard to imagine that in the heat of the moment, a police officer would be thinking, “Wait, is this necessary, or just reasonable,” it is likely the case that a stricter use-of-force legal standard alters police behavior by changing the way the police are trained: with the right training, officers internalize the policy and, when the adrenaline is pumping, but when their lives or the lives of others are not in danger, they may be more likely to ask the right question: “Is my use of (potentially) lethal force really necessary?”

Because most criminal law is state law, it is up to the states, more than the federal government, to define when the police commit a justifiable homicide through the deadly use of force. How robustly California’s legislation is interpreted and how it acts as an example for other states remains to be seen. A use of force policy is at best one of a number of measures needed to reduce police killing. But, by making clear that the law now places a greater value on the lives of the human beings who have encounters with the police, this legislation has the potential to save lives and prevent at least some of the needless tragedies with which we’ve become all too familiar.

1 ( See Sinynagwe,“Examining the Role of Use of Force Policies in Ending Police Violence,” Sept. 16, 2016; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2841872

Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County. He has a Master’s Degree in Political Science from UC Santa Barbara and a JD degree from Stanford Law School.


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