The case against AB 392, “use of force” bill

By Sue Frost, Supervisor, Sacramento County Board of Supervisors

There is a bill quickly making its way through the California Legislature (AB 392) that if passed, will create a highly subjective standard for evaluating and holding law enforcement officers criminally liable for using force when responding to life-or-death situations based on hindsight, without providing any extra training to officers. Because this bill would have a direct impact on the law enforcement officers that work for us here in Sacramento County, such as the Deputy Sheriffs and CHP, I want to take an opportunity to give you more detail on this important issue, and explain why I am staunchly opposed to this bill.

Law enforcement officers today are allowed to only use deadly force when there is a reasonable fear of death or serious bodily harm to the officer or another person. Due to this, peace officers are held to the standard of what an objectively reasonable officer on the scene would do. Under AB 392, this would change so that peace officers would need to pause when contemplating the use of deadly force, only allowing them to use deadly force in circumstances when “the homicide would be justifiable in self-defense or the defense of another person.”

By requiring officers to further hesitate in their actions, we not only put the officer and his or her partner at an even greater risk, we put the general public at a greater risk. In these high stress situations, quick reaction time is imperative and a matter of seconds can mean life or death. Creating doubt in the minds of our officers will make them vulnerable to even greater dangers than those that they already face. It is critical that we do not tie the hands of law enforcement and that we uphold the safety of our officers and those they are sworn to protect.

To understand this issue more clearly, shortly after I was sworn-in as your County Supervisor, I had the Sheriff’s Department allow me participate in their “use of force simulator” so I could personally experience some of the training our deputies undertake to help them handle potentially deadly situations. The experience opened my eyes to what our deputies have to be prepared to face while on patrol – and the training they receive on how to handle those situations. Before this experience, it was easy for me to watch a video of a police encounter and say how I would have done things differently. But after going through it, it has changed my perspective on all the police encounters I have watched – and has given me a greater appreciation for how hard it is for the officers.

The decision to apply this level of force is the most solemn, serious, and scrutinized choice an officer could be asked to make. It must often occur without notice and with only milliseconds to contemplate his or her actions. As such, shifting the standard that guides the use of lethal force from one of objective reasonableness in light of the facts and circumstances, to necessity given the totality of the circumstances, is an impossible standard to achieve.

California’s police officers take an oath that they will run towards danger when everyone else is running away – and they do so to protect our families and communities. The subjective legal standards AB 392 seeks to implement will have a chilling effect on the men and women in uniform by undermining their ability to respond to life-or-death situations – creating new challenges that would threaten the safety of our families, communities and officers.

Even if this change in standards were appropriate, agency policies would have to be changed and tens of thousands of peace officers would have to receive all new training. But this bill does not provide any additional funding for training – the foundation for minimizing the use of force – nor does it put in place even one proactive measure to reduce the use of force. In addition, this opens the door for trial attorneys to severely reduce law enforcement budgets due to the need for departments to hire more lawyers to defend the sudden rise in lawsuits.

There is a bipartisan competing bill in the legislature that I do support (SB 230) that attempts to find ways to improve outcomes for use of force incidents. That bill will refine the circumstances by which an officer could discharge their weapon in alignment with U.S. Supreme Court decisions, require all law enforcement agencies to establish a comprehensive policy on Use of Force, require this written policy to be made accessible to the public, and emphasize officer training and education through coursework prepared by the well-established Commission on Peace Officer Standards & Training.

The loss of even one life is too many, and an officer’s use of serious force is and must be a last resort. This is a sensitive and important issue that we must proactively address, but AB 392 is not the answer – and will only create new problems threatening the safety of California’s families and communities. I urge the bill’s authors, sponsors, and supporters to develop truly effective and achievable improvement to help California law enforcement minimize the use of force.

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