Assemblywoman Shirley Weber has introduced AB 931, seeking to criminalize law enforcement's use of deadly force, and allowing prosecution for homicide if a prosecutor disagrees with a deputy's tactical decisions prior to use of deadly force. Her legislation eliminates the long-enshrined standard that such force be "reasonable," and instead replaces it with a standardless term that such force be "necessary" while also disallowing a justifiable homicide defense if tactics prior to the shooting were "grossly negligent."  The bill should be rejected by the state legislature.

Existing law in California allows any person to use deadly force in self-defense or defense of others when it reasonably appears to the person that he or others are in imminent danger of great bodily injury or death; actual danger is not required ( Penal Code section 197). If a person acts from reasonable and honest convictions, they are not responsible for a mistake in the extent of danger when other persons would have also been mistaken.

In the landmark case of Graham v. Connor, the United States Supreme Court reiterated the standard of review for judging, under the Fourth Amendment proscriptions on search and seizure, a police officer's use of force. "The reasonableness of the particular force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." The court concluded, "The calculus of reasonableness must embody allowance for the fact that police officers are required to make split-second judgments-in circumstance that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation."

The Weber legislation not only eliminates the "reasonableness" standard, it replaces it with a standard which explicitly calls for the type of second guessing rejected by the United States Supreme Court. The law would make a deputy criminally liable if a prosecutor decided that a deputy should have used different tactics, such as verbal warnings or "non-lethal" force, before using deadly force. Further, it would make a deputy criminally liable - even if the force was "necessary"- should a prosecutor decide the deputy's tactics leading up to the shooting were "grossly negligent" and thereby placed the deputy in harm's way.

As a federal circuit court aptly wrote, the real world of policing is "dangerous and complex" and cannot be replaced by the "theorized and sanitized world of our imagination." This bill turns that admonition on its head, encouraging the filing of criminal charges against law enforcement officers based on leisurely second guessing in a "theorized and sanitized world" regarding a deputy's use of force.

The surest way for a deputy to ensure they will not be subjected to second guessing is to not put themselves in a position that could lead to use of deadly force, such as ending proactive policing. We recently blogged about a study showing the skyrocketing homicide rate in Chicago was precipitated by a consent decree which was designed to stop proactive policing. It will be a bitter irony if this bill is enacted into law, because while designed to encourage prosecution of law enforcement officers, it will instead lead to a public which is less safe.

ALADS opposes AB 931 and will oppose legislation that will lead to the reduction of public safety for the citizens of California.