HomeMy WebLinkAboutItem 12b - Opposing Assembly Bill 931 (Use of Force by Peace Officers)
DATE: August 21, 2018
TO: Honorable Mayor and City Council
FROM: Dominic Lazzaretto, City Manager
By: Michael Bruckner, Assistant to the City Manager
SUBJECT: RESOLUTION NO. 7230 OPPOSING ASSEMBLY BILL 931 (WEBER)
CRIMINAL PROCEDURE: USE OF FORCE BY PEACE OFFICERS
Recommendation: Adopt
SUMMARY
At the August 7, 2018, City Council meeting, Council Member Chandler requested that
the City Manager provide a discussion item at an upcoming City Council Meeting to
oppose Assembly Bill 931 – Criminal Procedure: Use of Force by Peace Officers (“AB
931”). This request was concurred by Mayor Tay and Mayor Pro Tem Verlato. AB 931
would modify California’s legal standard governing peace officers’ use of deadly force,
which could put officers at-risk during dangerous situations and could potentially subject
the City of Arcadia to costly litigation. Therefore, it is recommended that the City
Council adopt Resolution No. 7230 (Attachment “A”) urging the City’s legislative
delegation in Sacramento to vote NO on AB 931 and authorize City staff to send letters
to key legislators and organizations to communicate the City’s opposition to AB 931.
BACKGROUND
AB 931 (Weber) is co-authored by Assembly Members Shirley Weber and Kevin
McCarty, and is sponsored by the American Civil Liberties Union (“ACLU”). AB 931 was
originally introduced as a bill regarding suicide prevention by Assembly Member
McCarty. The author opted to gut and amend the bill and it is now focused on use of
force with Assembly Member Weber as the sponsor. AB 931 would modify California’s
legal standard governing peace officers’ use of deadly force. The bill was introduced by
Assembly Member Weber along with the California Legislative Black Caucus at a press
conference at the Capitol on April 3, 2018. The bill was introduced in the wake of the
killing of Stephon Clark by Sacramento Police, which resulted in several weeks of
protests in the City. The latest version of AB 931 is included as Attachment “B”.
Resolution No. 7230 Opposing Assembly Bill 931
August 21, 2018
Page 2 of 4
Upon reintroduction, AB 931 was first heard in the Legislature on June 16, 2018, in the
Senate Public Safety Committee. The bill passed the Committee on 5 -2 vote and was
sent to the Senate Appropriations Committee for mark-up on August 6, 2018, where the
matter is still pending action. Should the bill pass out of Committee, it would then head
to the Senate Floor for a vote. The League of California Cities has taken a position of
OPPOSE regarding this bill, along with numerous public safety organizations throughout
the state. A list of supporting and opposing organizations can be found in Attachment
“C”.
The California Police Chiefs Association held a press conference and issued a
statement regarding concerns about AB 931. Specifically, the concerns focused on , "the
higher standard referred to in the bill which means officers would have to delay, second -
guess their decision, and wait to pursue or otherwise employ a checklist during rapidly
advancing and extraordinarily dangerous situations. This only complicates the already
complex split-second decisions required by officers in a deadly force situation."
DISCUSSION
Current law allows a peace officer to use reasonable force to affect an arrest, to prevent
escape, or to overcome resistance. Additionally, existing law authorizes the use of
deadly force by peace officers when it is necessarily committed in overcoming actual
resistance to an arrest, when it is necessarily committed to apprehend a felon who has
escaped custody, or when it is necessarily committed while arresting a person charged
with a felony that was fleeing from justice or resisting arrest. AB 931 would make
changes to the conditions under which peace officers may use deadly force.
Specifically, this bill would:
Require peace officers to attempt to control an incident using time, distance,
communication, and available resources in order to deescalate a situation
whenever it is safe and reasonable to do so;
Not require an officer to retreat or desist from an attempt to make an arrest due
to the resistance or threatened resistance of the individual being arrested;
Limit the use of deadly force by a peace officer to instances where it is necessary
to prevent imminent and serious bodily injury or death to the officer or another
person;
Prohibit the use of deadly force when an individual only poses a risk to
themselves;
Prohibit the use of deadly force on a fleeing individual unless the person has
committed or intends to commit a felony involving serious bodily injury or death
Resolution No. 7230 Opposing Assembly Bill 931
August 21, 2018
Page 2 of 4
or there is an imminent risk of such if the person is not immediately
apprehended;
And, make the legal defense that a homicide was justifiable on the grounds of
self-defense unavailable to an officer charged with manslaughter whose actions
are inconsistent with the provisions of the bill and are incompatible with a proper
regard for human life.
Proponents of the bill argue that the standard for the use of deadly force in AB 931 will
improve the safety of both peace officers and members of the community. They argue
that tightening the standard by which peace officers are allowed to use deadly force will
counter the perception that officers use force unnecessarily, too frequently, or in
problematic ways. This negative perception, they argue, erodes public trust and
confidence in law enforcement, making it harder for officers to enforce the law and
maintain public safety.
The bill is primarily opposed by law enforcement organizations who argue that the legal
standard contained in the bill would endanger officers. They note that the legal standard
contained in the bill would have the actions of officers, made in the heat of the moment,
judged with the virtue of hindsight. They further argue that this will put officers at risk by
limiting their ability to quickly and confidently respond to dangerous situations. Further,
should an officer be accused to have used force excessively, cities could be subject to
costly litigation and fees.
It is this final concern which could have the most widespread impacts. The changes
proposed in the text change the standard of care for an officer’s actions from being
“reasonable” to being absolutely necessary. Litigating split second decisions to this high
of a standard after the fact in a court setting would likely be impossible.
The unnecessary use of force and its devastating impacts should be avoided whenever
possible and measures to decrease errors in judgement by police officers should be
pursued aggressively; however, the legislation as written is vague and would ultimately
cause more harm than good. A viable and more effective alternative to AB 931 would be
offering advanced officer training on the use of deadly force as well as developing and
circulating a standard use of force policy that could be adopted and used by agencies
statewide.
If the City Council desires to take a formal position opposing AB 931, it should adopt a
Resolution 7230 Opposing AB 931 and direct staff to send a letter to the bill’s authors,
as well as our local legislators and key industry organizations regarding the position
taken (Attachment “D”).
Resolution No. 7230 Opposing Assembly Bill 931
August 21, 2018
Page 2 of 4
ENVIRONMENTAL IMPACT
The proposed action does not constitute a project under the California Environmental
Quality Act (“CEQA”), and it can be seen with certainty that it will have no impact on the
environment. Thus, this matter is exempt under CEQA.
FISCAL IMPACT
There is no direct impact to the General Fund by taking a position on AB 931; however,
if enacted, the proposed legislation could lead to significant legal defense costs over
time.
RECOMMENDATION
It is recommended that the City Council adopt Resolution No. 7230 opposing Assembly
Bill 931 (Weber) Criminal Procedure: Use of Force by Peace Officers; and authorize
City staff to send letters to key legislators and organizations to communicate the City’s
opposition to AB 931.
Attachment A - Resolution No. 7230
Attachment B - AB 931 Text
Attachment C - List of Proponents and Opponents
Attachment D - Draft Opposition Letter
AMENDED IN SENATE JUNE 26, 2018
AMENDED IN SENATE JUNE 12, 2018
AMENDED IN SENATE APRIL 16, 2018
AMENDED IN ASSEMBLY MARCH 23, 2017
california legislature—2017–18 regular session
ASSEMBLY BILL No. 931
Introduced by Assembly Members Weber and McCarty
(Principal coauthors: Assembly Members Holden, Jones-Sawyer,
and Mark Stone)
(Principal coauthors: Senators Bradford and Mitchell)
February 16, 2017
An act to amend Sections 196 and 835a of the Penal Code, relating
to criminal procedure.
legislative counsel’s digest
AB 931, as amended, Weber. Criminal procedure: use of force by
peace officers.
Existing law authorizes a peace officer to make an arrest pursuant to
a warrant or based upon probable cause, as specified.
Under existing law, an arrest is made by the actual restraint of the
person or by submission to the custody of the arresting officer.
Existing law authorizes a peace officer to use reasonable force to
effect the arrest, to prevent escape, or to overcome resistance. Existing
law does not require an officer to retreat or desist from an attempt to
make an arrest because of resistance or threatened resistance of the
person being arrested.
95
This bill would, notwithstanding that provision, require peace officers
to attempt to control an incident by using time, distance,
communications, and available resources in an effort to deescalate a
situation whenever it is safe and reasonable to do so.
Under existing law, the use of deadly force resulting in the death of
a person is justified when it was necessarily committed in overcoming
actual resistance to an arrest, when it was necessarily committed in
apprehending a felon who had escaped from custody, or when it was
necessarily committed in arresting a person charged with a felony and
who was fleeing from justice or resisting arrest.
Existing case law prohibits the use of deadly force by a peace officer
unless, among other criteria, there is a reasonable fear of death or serious
bodily harm to the officer or another.
This bill would limit the use of deadly force, as defined, by a peace
officer to those situations where it is necessary, as defined, to prevent
imminent and serious bodily injury or death to the officer or to another
person, as specified. The bill would prohibit the use of deadly force by
a peace officer in a situation where an individual poses a risk only to
himself or herself. The bill would also limit the use of deadly force by
a peace officer against a person fleeing from arrest or imprisonment to
only those situations in which the officer has probable cause to believe
that the person has committed, or intends to commit, a felony involving
serious bodily injury or death, and there is an imminent risk of serious
bodily injury or death to the officer or to another person if the subject
is not immediately apprehended.
This bill would make a homicide committed by a peace officer
justifiable only if the use of deadly force by a peace officer was
consistent with the aforementioned provisions.
Under existing law, a homicide is justified when a person is acting
in self defense self-defense or defense of another, as specified.
The bill would make this defense unavailable to an officer charged
with manslaughter whose actions were such a departure from the
expected conduct of an ordinarily prudent or careful officer in the same
circumstances as to be incompatible with a proper regard for human
life.
This bill would make legislative declarations regarding its provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
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— 2 —AB 931
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 196 of the Penal Code is amended to
line 2 read:
line 3 196. (a) Homicide is justifiable when committed by public
line 4 officers and those acting by their command in their aid and
line 5 assistance, as follows:
line 6 (1) In obedience to any judgment of a competent court.
line 7 (2) When resulting from physical force used consistent with
line 8 Section 835a.
line 9 (b) A defense to a charge of homicide in violation of Section
line 10 192 shall not be available pursuant to this section or Section 197
line 11 for a public officer whose conduct is such a departure from the
line 12 expected conduct of an ordinarily prudent or careful officer under
line 13 the same circumstances as to be incompatible with a proper regard
line 14 for human life, and where an officer of ordinary prudence would
line 15 have foreseen that the conduct would create a likelihood of death
line 16 or great bodily harm. life.
line 17 SEC. 2. Section 835a of the Penal Code is amended to read:
line 18 835a. (a) The Legislature finds and declares that the authority
line 19 to use physical force, conferred on peace officers by this section,
line 20 is a serious responsibility that must be exercised judiciously and
line 21 with respect for human rights and dignity and for the sanctity of
line 22 every human life. The Legislature further finds and declares that
line 23 every person has a right to be free from excessive force by officers
line 24 acting under color of law.
line 25 (b) Any peace officer who has reasonable cause to believe that
line 26 the person to be arrested has committed a public offense may use
line 27 reasonable force, other than deadly force, to effect the arrest, to
line 28 prevent escape, or to overcome resistance.
line 29 (c) A peace officer shall not who makes or attempts to make an
line 30 arrest shall not be required to retreat or desist from his or her
line 31 efforts by reason of the resistance or threatened resistance of the
line 32 person being arrested and shall not be deemed an aggressor or
line 33 lose his or her right to self-defense by the use of reasonable force
line 34 to effect the arrest, to prevent escape, or to overcome resistance.
line 35 However, peace officers shall attempt to control an incident by
line 36 using time, distance, communications, and available resources in
line 37 an effort to deescalate a situation whenever it is safe and
line 38 reasonable to do so. This subdivision shall not be construed to
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AB 931— 3 —
line 1 conflict with the limitations on the use of deadly force set forth in
line 2 subdivision (d) or to prohibit law enforcement agencies from
line 3 requiring peace officers to employ reasonable alternatives to the
line 4 use of force or other tactics designed to make arrests without the
line 5 use of force or with the least amount of force necessary.
line 6 (d) (1) (A) Notwithstanding any other law, a peace officer may
line 7 use deadly force only when such force is necessary to prevent
line 8 imminent death or serious bodily injury to the officer or to another
line 9 person.
line 10 (B) As used in this paragraph, the following terms have the
line 11 following meanings:
line 12 (i) “Necessary” means that, given the totality of the
line 13 circumstances, a an objectively reasonable peace officer would
line 14 conclude that there was no reasonable alternative to the use of
line 15 deadly force that would prevent imminent death or serious bodily
line 16 injury to the peace officer or to another person.
line 17 (ii) “Reasonable alternatives” mean tactics and methods, other
line 18 than the use of deadly force, of apprehending a subject or
line 19 addressing a situation that do not unreasonably increase the threat
line 20 posed to the peace officer or another person. Reasonable
line 21 alternatives may include, but are not limited to, verbal
line 22 communications, warnings, deescalation, and tactical repositioning,
line 23 along with other tactics and techniques intended to stabilize the
line 24 situation and reduce the immediacy of the threat so that more time,
line 25 options, and resources can be called upon to resolve the situation
line 26 without the use of deadly force.
line 27 (iii) “Totality of the circumstances” includes all facts reasonably
line 28 known to the peace officer at the time, including the actions of the
line 29 subject and the officer leading up to the use of deadly force.
line 30 (2) A peace officer shall not use deadly force against an
line 31 individual based on the danger that individual poses to himself or
line 32 herself, if the individual does not pose an imminent threat of death
line 33 or serious bodily injury to the peace officer or to another person.
line 34 (3) A peace officer may use deadly force against fleeing persons
line 35 only when both of the following are true:
line 36 (A) The peace officer has probable cause to believe that the
line 37 person has committed, or intends to commit, a felony involving
line 38 death or serious bodily injury.
95
— 4 —AB 931
line 1 (B) There is an imminent risk of death or serious bodily injury
line 2 to the peace officer or to another person if the subject is not
line 3 immediately apprehended.
line 4 (4) For the purposes of this subdivision, “deadly force” means
line 5 any use of force that creates a substantial risk of causing death or
line 6 serious bodily injury, including, but not limited to, the discharge
line 7 of a firearm.
O
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AB 931— 5 —
Agencies Supporting AB 931
ACCE Action
Advancement Project
Alliance for Boys and Men of Color
Alliance San Diego
American Civil Liberties Union of
California
American Friends Service Committee
Amnesty International USA
Asian Law Alliance
Bend the Arc Jewish Action
Black American Political Association of
California
Black Women Organized for Political
Action
California Association of African-
American
Superintendents and Administrators
California Calls
California Cannabis Coalition
California Faculty Association
California Immigrant Policy Center
California Minority Alliance: Inland
Empire Chapter
California Nurses Association
California Public Defenders Association
California State Conference of the
NAACP
Californians for Justice
Californians United for a Responsible
Budget
Center on Juvenile and Criminal Justice
Center on Policy Initiatives
Chinese for Affirmative Action
City of Berkeley
Cindy and Bill Simon Technology
School
Clergy and Laity United for Economic
Justice (CLUE)
Climate Action Campaign
Coalition for Humane Immigrant Rights
(CHIRLA)
Coalition for Justice and Accountability
Coleman Advocates for Children and
Youth
Consumer Attorneys of California
Council on American-Islamic Relations,
California
Courage Campaign; Californians United
for a Responsible Budget (CURB)
Drug Policy Coalition
Ella Baker Center for Human Rights
Fathers and Families of San Joaquin
Friends Committee on Legislation of
California
Hispanic National Bar Association
I Am…
Immigrant Legal Resource Center
Koreatown Immigrant Workers Alliance
League of Women Voters of California
Legal Services for Prisoners with
Children
Lutheran Office of Public Policy –
California
Mid-City CAN
National Action Network
National Center for Lesbian Rights
National Nurses United; Oakland
Privacy
Orange County Congregation
Community
Organization
Oscar Grant Committee
Paving Great Futures
People Acting in Community Together
PICO California
PolicyLink
Press4word
Public Health Justice Collective
Riverside Temple Beth El
Root and Rebound
San Diego Immigrant Rights Consortium
San Diego La Raza Lawyers
Association
San Francisco District Attorney’s Office
San Francisco Public Defender’s Office
San Jose Peace and Justice Center
Santa Ana Unidos
Santa Barbara Women’s Political
Committee
Santa Clara University
Service Employees International Union
(SEIU)
SF LGBT Center
Silicon Valley De-Bug
Showing Up for Racial Justice (SURJ),
Bay Area
Showing Up for Racial Justice, Sacred
Heart
Together We Will – San Jose
Transgender Law Center
True Hope Church
UAW 2865, UC Student-Workers Union
United Food and Commercial Workers
(UFCW) – Western States Council
White People 4 Black Lives
Women’s Foundation of California
Youth ALIVE!
Youth Justice Coalition
85 Private Individuals
Agencies Opposing AB 931
Association of Orange County Deputy
Sheriffs
California Association of Highway
Patrolmen
California Association of Code
Enforcement Officers
California Coalition of Law Enforcement
Associations
California College and University Police
Chiefs Association
California Narcotics Officers Association
California Peace Officers’ Association
California Police Chiefs Association
California State Sheriffs’ Association
California Statewide Law Enforcement
Association
City of Oakley
City of West Covina
Cloverdale Police Department
Fraternal Order of Police
Law Enforcement Managers’
Association
Long Beach Police Officers Association
Los Angeles Police Protective League
Los Angeles Professional Peace
Officers Association
Peace Officers Research Association of
California
Riverside Sheriffs’ Association
Sacramento County Deputy Sheriffs’
Association
[Date]
[Name]
[Title]
[Address]
[Address]
RE: Opposition Letter to AB 931 (Weber) – Criminal Procedure: Use of Force
Dear [Name]
The City of Arcadia opposes AB 931 (Weber), modifying California’s legal
standard governing peace officers’ use of deadly force, which could put officers
at-risk during dangerous situations.
Current law allows a peace officer to use reasonable force to affect an arrest, to
prevent escape, or to overcome resistance. AB 931 tightens the legal standards
which would have the actions of officers made in the heat of the moment
judged with the virtue of hindsight. This will put officers at risk by limiting their
ability to quickly and confidently respond to dangerous situations.
The changes proposed in the text change the standard o f care for an officer’s
actions from being “reasonable” to being absolutely necessary. Litigating split
second decisions to this high of a standard after the fact in a court setting would
likely be impossible, potentially exposing the City of Arcadia and other law
enforcement agencies to costly litigation and fees.
The City of Arcadia understands that the unnecessary use of force and its
devastating impacts should be avoided whenever possible and measures to
decrease errors in judgement by police officers should be pursued aggressively;
however, the legislation as written is vague and would ultimately cause more
harm than good. A viable and more effective alternative to AB 931 would be
offering advanced officer training on the use of deadly force as well as
developing and circulating a standard use of force policy that could be adopted
and used by agencies statewide.
For these reasons, the City of Arcadia opposes AB 931 and urges you to vote
NO.
Sincerely,
Sho Tay
Mayor