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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. 95 — 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 95 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 95 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