California Police Deadly Force Statute: Law or Guidance?


By: Caleb Saggus

The California State Legislature recently enacted a criminal statute aimed at police officer use of force, which went into effect January 1, 2020  (Assembly Bill 392).  Prior California state law permitted an officer to use reasonable force to effect an arrest and deemed a homicide justifiable when necessarily committed in arresting a person who has committed a felony and the person is fleeing or resisting such arrest.  Case law deems such a homicide to be a seizure within the Fourth Amendment and, accordingly, requires the actions to be objectively reasonable.
AB 392 narrows the focus of this inquiry, at least for determining when an officer commits criminal homicide in the line of duty, and provides a reasonableness determination explicitly.  The Act provides that “a peace officer is 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: (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.  (B) 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.”
Although this law provides substantive parameters on police use of deadly force and utilizes a framework that generally can aid courts in deciding whether an officer has committed criminal homicide, the law may not significantly affect civil excessive force claims in California.
Most excessive force claims are brought under 42 U.S.C. § 1983 to vindicate a constitutional violation—generally the Fourth Amendment.  A state criminal statute cannot alter the meaning of the Fourth Amendment, and thus this Act should not have any bearing on the merits of a civil § 1983 excessive force claim.  Thus, the more prominent effect this Act might have is to serve as a model for other states to utilize in molding their own criminal statutes and best practices training.  Such statutes, while not providing a viable vehicle for plaintiffs to seek civil redress, might nonetheless be seen as a State’s view on the extent to which deadly force should or should not be used by police officers.  Therefore, the reach of these types of statutes might more practically be seen in a trickle-down to police officer training than in use of force civil litigation. If nothing else, AB 392 and other statutes like it represent the public’s shifting attitude towards police use of force and what constitutes “reasonable” force.
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