They’re baa-aack
Worse and scarier than the repeated “Poltergeist” movies, Democrat Assembly member Shirley Weber and her ACLU buddies have brought AB 931 back to life under a new, yet-to-be-determined name for 2019. The bill, meant to change the standards for uses of force, is reborn and will start its journey through the Legislature shortly. Basically, in their view, not enough cops are going to jail for uses of force, and this bill will fix that problem.
Last year, the League, led by Director Rob Harris and T.J. Tarjamo, spent days in Sacramento trying to bring reality to the members of the Assembly and Senate by knocking on dozens of doors and bringing an FOS unit up there to provide personal experience in how that split-second decision to shoot or not shoot is not so simple. Their efforts were successful, but it was no secret that there would be a repeat attempt again
this year.
Modifications in the new bill include establishing “legislative intent.” These are “findings” by the Legislature that courts can use to assist them in interpreting cases having to deal with the new statute. For instance, the Legislature “finds” that “every person has a right to be free from excessive use of force by officers acting under color of law.” OK, but how about a legislative finding that “every officer has the right to not be
assaulted and to have the officer’s lawful orders obeyed because every citizen has the duty to respect and follow the law and refrain from resisting?” That is strangely missing from the proposed bill.
If the bill passes, de-escalation will become state law. “A peace officer shall, however, attempt to control an incident through sound tactics, including the use of time, distance, communications, tactical repositioning and available resources, in an effort to reduce or avoid the need to use force whenever it is safe, feasible and reasonable to do so.”
Local policy would be elevated to state law under the new bill. Violation of local policy means Administrative Disapproval now; if this bill passes, a violation of de-escalation policy could be the basis for a criminal prosecution.
Of further concern is the definitions that are part of the statute. Use of deadly force must be necessary.” Necessary is a term defined as “given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.”
On the Monday-morning quarterback field, there is always an alternative way to do something. In fact, running from the suspect may be required. After all, you must de-escalate, by law, and “tactical repositioning” is in the de-escalation playbook. The analysis of a use of force in both the criminal prosecution world and the civil tort world will be turned upside down, and not to your benefit.
In the new proposed statute, before deadly force can be used, the threat of death or great bodily injury must be “imminent.” The definition of imminent in the statute means “based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.”
I guess things aren’t imminent” until you see the trigger being squeezed. Seeing a weapon pointed at someone may not be enough.
Then there is the definition of “totality of the circumstances” in the bill. That means “all facts known to the peace officer at the time and includes the tactical conduct and decisions of the officer leading up to the use of deadly force.” The Hayes rule in our use of force policy is being made into a statute.
A proper use of force can be made into an improper use of force by conduct that occurred prior to the use of force. If your tactics going into a use of force are bad, you must allow yourself to be murdered in order to stay in policy and not be prosecuted. Yup, it’s a tough world out there.
What is needed is public education. The media and anti-police groups have convinced folks that police officers are hunting down minorities with the sole purpose of executing them. When you can force people to actually look at the facts, that narrative is laughable. That is where the League and other police unions are becoming more and more active. ACLU lies are called just that by the League, and accurate information is being provided to the public. Unfortunately, there is no help coming from most of the media, so funds must be expended to get the message out, and Sacramento doors must be pounded on.
Reducing uses of force to almost zero is relatively easy. Virtually all uses of force start with a fleeing or resisting civilian. “Comply now. Complain later” should be on billboards across the city. Funds should be expended to educate students from grade school through college on the duty to obey the law and cooperate with the police, along with how to obtain remedies if someone feels they have been mistreated. And finally, no sympathy should be given if someone resists the lawful orders of an officer.
The most effective statute that Assembly member Weber could pass would be one that denies someone damages if they fail to follow lawful police orders. An entire industry of lawyers would collapse to the benefit of all taxpayers. The Legislature did it for doctors, why not police?
Finally, educate the police. Funds need to be expended to train our officers how to do the job right within the parameters of the law. The multitude of cameras examine an officer’s every move, so officers need to know the right moves. Spend the time and money to get it done.
Of course, none of this will be done, and Weber-type bills will continue to be pushed through. That is why it is important for departments across California to band together to fight the misinformation being fed daily to the public. If the anti-police groups win, our officers will stop policing, and then we all lose.
Be legally careful out there.
