Terry McLaughlin: Bill would wrongly change standard for officer’s use of force
July 18, 2018
With the introduction of Assembly Bill 931, California's Assembly members Shirley Weber of San Diego and Kevin McCarty of Sacramento are attempting to change the standard by which California's law enforcement officers go about doing their jobs.
Existing law authorizes a peace officer to make an arrest pursuant to a warrant or based upon probable cause. An arrest is effected by the actual restraint of the suspect or by voluntary submission to the custody of the arresting officer.
Assembly Bill 931 changes the legal standard for the use of force by law enforcement officials to effect an arrest from using "objectively reasonable force" to using "necessary force" before resorting to the use of potentially deadly force.
Under the 1989 Supreme Court decision of Graham v. Conner, force used by law enforcement officers must be "objectively reasonable under the totality of the circumstances."
Creating hesitation in the mind of a law enforcement officer could result not only in the loss of the officer’s life, but in the loss of civilian lives as well.
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Peace officers are authorized to use reasonable force to effect an arrest, to prevent escape, or to overcome resistance by a suspect. They are not required to retreat or desist from attempting to make an arrest because of resistance from the person being arrested. Officers are, however, required to take into account everything they know and believe to be true at the moment when they make their force decision, and then be judged on whether their assessment was reasonable and the degree of force used did appear to be necessary. The 1989 ruling is a well-established legal precedent that judges a law enforcement officer's use of force from an in-the-moment perspective, which is exactly the same way the law enforcement officer is required to make his or her decision.
Assembly Bill 931 is a reaction to pressure put on lawmakers by groups such as the ACLU and Black Lives Matter, which believe the use of deadly force should be allowed only if "there were no other reasonable alternatives to prevent serious bodily injury or death."
This bill would allow prosecutors to judge an officer's split-second decision after the fact, from the safety of their desk, while they consider whether, in their opinion, the officer could have de-escalated a situation with a verbal warning, retreat, or the use of non-lethal force. The officer, on the other hand, is acting in real time, without the luxury of exact information and days or weeks to review and evaluate the situation. This is the nature of their work and the job that the citizens of our state have asked them to do.
Creating hesitation in the mind of a law enforcement officer could result not only in the loss of the officer's life, but in the loss of civilian lives as well. It is not possible for an officer in a real-time situation to determine what might be considered "necessary" by someone else who would later review their actions and have all the information available to them, such as whether the suspect was pointing a real gun at the officer or a civilian, or whether it was only something that looked like a gun. It is so easy to judge from behind a desk or keyboard, when you have never actually faced these types of life and death situations.
Law enforcement's use of deadly force is extremely rare, and the numbers just don't support the claims of abuse. FBI Statistics for 2012 indicated 12,196,959 arrests and 410 cases of death caused by an arresting officer – roughly .00003 percent. The California Highway Patrol estimates that they make approximately four million contacts a year. According to CHP data, the overall use of force in those contacts is around 0.02 percent, and the use of deadly force is far less – about 0.000006 percent.
ACLU statistics designate Kern County as having the most arrest-related deaths per capita in California between 2009 and 2014, with 3.54 deaths per 100,000 persons – roughly .0035 percent. The percentages for use of force are similar across the board for other law enforcement agencies in California.
Our peace officers go to work each day to keep the peace, serve and protect the public, and go home alive to their families at the end of their shift. An entire career without firing a shot beyond the training range is their goal — but only they can make the split-second decision needed when faced with danger to themselves or others in the field, using their extensive training and their best assessment of the situation.
Assembly Bill 931 recently passed through the Public Safety committee on a 5-2 vote and is now headed to the Appropriations committee. If it passes through Appropriations, it would go to the Assembly floor for a vote and if approved there, on to the governor's desk for signature.
If signed, California would be the first state to put this restriction on its peace officers through legislation.
Should this bill pass, any qualified candidate considering a career in public service as a law enforcement officer would have to think twice about putting themselves in a position where they could potentially be prosecuted and imprisoned for doing their job of protecting the public, using their extensive training and best judgment.
Who would want to voluntarily sign up for that?
I encourage you to voice your concern and opposition to this dangerous bill to the authors, Weber and McCarty, as well as co-authors Assembly members Chris Holden, Reggie Jones-Sawyer and Mark Stone, and State Senators Steve Bradford and Holly Mitchell.
Terry McLaughlin, who lives in Nevada City, writes a twice monthly column for The Union. Write to her at email@example.com.
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