Sacramento, CA - Following the recent justified shooting of Stephon Clark, California lawmakers are moving to make it easy to prosecute officers who shoot suspects.
Lawmakers in California are well-aware that the shooting was legally justified, and the only way to change that fact is to change the law itself, so that's what they are doing.
Currently, federal use of force is governed by federal case law. The case law allows officers to use deadly force if, considering the facts and circumstances presented to them at the time, and considering the officer's training and experience, they believe that a suspect is posing a deadly threat.
Individual states may establish their own laws which are more strict than federal law on police use of deadly force.
I am not aware of any state which actually has a more strict standard than the federal standard. Some law enforcement agencies have set more strict policies, but the outcome of violating those policies generally means that an officer could be fired. By changing a state law, it could send officers to prison.
They define "necessary force" as force used when “there were no other reasonable alternatives to the use of deadly force.”
This initially seems close to the old standard, as they both require reasonableness. However, it does not allow for the officers to use force based on how circumstances appear to them at the time. Instead, it allows the officer to be judged in hindsight if the force was actually necessary.
For example, if a suspect pulls a pellet gun on an officer, they are not actually presenting a deadly threat. The officer would have no reasonable way to know that the gun isn't a lethal firearm, but under the new law, they could be charged if they shoot that suspect.
This law would also appear to apply if somebody pulled an unloaded gun on an officer, or drew a malfunctioning gun. In these circumstance, unbeknownst to the officer, the suspect is not actually presenting a deadly threat. If the officer reasonably responds by shooting that person, they could be criminally charged.
This is why the U.S. Supreme Court has ruled, "The '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 proposed change to California law would also open the door for second-guessing officers' decisions when they are actually presented with a deadly threat. If, in hindsight, it's determined that retreating was an option, or "de-escalating" a gunfight, then an officer could be charged.
If these changes are allowed, then it would be near-impossible for an officer to use deadly force and know at that time if it's justified.
Do you think that it's possible for officers to reasonably work while knowing that any use of force will be judged in hindsight, based on factors unknown to them at the time? We'd like to hear from you. Please let us know in the comments.