The new U of F Policy incorporates 835a PC
This is a companion article to last month’s Warning Bells article on the new Use of Force Policy approved by the Police Commission and issued by the Department on Aug. 26, 2020. That policy referred directly to the newly-changed state law (AB392) as 835a PC. “The Department will analyze an officer’s use of deadly force by evaluating the totality of the circumstances of each case consistent with California Penal Code Section 835a as well as the factors articulated in Graham v. Connor.” [emphasis added] Therefore, to understand how the policy will be implemented, you must understand the new law. It is a substantial revision of the previous 835a PC, and it went into effect on Jan. 1, 2020.
LAPD officers will be familiar with the new statute. Many of its provisions are the same or similar to current LAPD policy. The difference is that what is now policy is now law as of Jan. 1, 2020. A violation of policy that now involves an Administrative Disapproval and possible suspension days may now be joined with a criminal filing. In addition, the new use of force policy draws 835a into the policy by reference.
As has been stated in previous “Warning Bells” articles, avoiding a violation of policy involves knowledge, articulation and accuracy. Knowledge has always been important, but now it is even more important. You must know the law and policy. Your freedom may depend on it.
Let’s go through the new law, a section at a time. Penal Code Section 196 was also heavily modified. Yes, it is time for officers to read black letter law. All emphasis is mine.
“Penal Code Section 196: Homicide is justifiable when committed by peace officers and those acting by their command in their aid and assistance, under either of the following circumstances: (a) In obedience to any judgment of a competent court. (b) When the homicide results from a peace officer’s use of force that is in compliance with Section 835a.” COMMENT: As you can see, Section 196 defers everything to Section 835a. Formerly, Section 196 included the foundation of use of force determinations by saying in part, “when necessarily committed in overcoming actual resistance to the execution of some legal process…” as well as the fleeing felon rule. Section 196 has been neutered in favor of 835a.
“Penal Code Section 835a: The legislature finds and declares all of the following:” COMMENT: The next five sections are “findings” by the legislature. The importance of this is that judges, when interpreting the statute, will look at the “legislative intent” to determine how the statute should be used. It is good to know what these legislative findings are.
“835a (a) (1): That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.” COMMENT: This mirrors the LAPD policy of “reverence for human life” prominent in our policy.
“835a (a) (2): As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.” COMMENT: This is a mandate to use de-escalation techniques similar to the requirements of LAPD policy. Policy is now law.
“835a (a) (3) That the decision by a peace officer to use force shall be evaluated care-fully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.” COMMENT: This is promoting the LAPD investigation protocol for all departments. We already have the most robust officer-involved shooting evaluation in the United States. This may be a burden for others, but we are already ahead of the curve. It does, however, reflect a legislative intent that officers obey policies. The downside of this is that, again, a violation of LAPD policy might be elevated to the status of a violation of state law, or at least an element to be considered by a prosecutor in deciding whether or not to file criminally on the officer.
“835a (a) (4) That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.” COMMENT: This is a slight rewording of the Graham v. Connor view of evaluating a use of force that is quoted in LAPD policy and provides the basis for our policy. This is good. Graham v. Connor has been elevated to the status of statutory law.
“835a (a) (5) That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.” COMMENT: The effect here is that there is legislative intent that impaired people may not understand commands and, therefore, officers will be under extra scrutiny when dealing with suspects who have mental problems. Expect that there will be a closer examination of the availability of de-escalation techniques and requests for mental evaluation units.
“835a (b) Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.” COMMENT: This refers only to non-deadly force. Exceptions follow for deadly force.
“835a (c) (1) Notwithstanding subdivision (b), a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:” COMMENT: One of the following two reasons must exist before an officer can use deadly force.
“835a (c) (1) (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer rea- sonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.” COMMENT: This language encapsulates traditional LAPD policies. The devil is in the details of the definitions that follow a little further down the statute which will have important practical modifications. They will be discussed below.
“835a (c) (2) A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.” COMMENT: This brings into question what an officer is supposed to do when a relative calls the police because their family member is in his bedroom with a gun threatening to shoot himself. Walk away? To be determined. The Department should issue a specific training bulletin on how to properly handle this type of situation.
“835a (d) A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, ‘retreat’ does not mean tactical repositioning or other de-escalation tactics.” COMMENT: So, you do need to retreat if there might be a tactical reason that fits under de-escalation. The tactical maxim that you should not give up ground now has a statutory exception.
“835a (e) For purposes of this section, the following definitions shall apply:
COMMENT: A couple of these definitions add significant changes in the meaning of the words used in the previous sections. They must be completely understood as to how they change the requirements in the statute. use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.” COMMENT: Baton blows to the head, choke-outs, front-bumper takedowns, etc., could be classified as deadly force. If so, then one of the previous two requirements for the use of deadly force must be met.
“835a (e) (2) A threat of death or serious bodily injury is ‘imminent’ when, 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.” COMMENT: This language appears to address the ACLU’s theme that officers get away with murder by simply claiming that they were in fear of their lives. It defines specific requirements of present ability, opportunity and apparent intent, and discounts fear. Expect close examination of this element in the justification for uses of force and the requirement that it “must be instantly confronted.”
“835a (e) (3) ‘Totality of the circumstances’ means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.” COMMENT: This definition sneaks in the Hayes doctrine that was in the former LAPD policy. The conduct of the officer leading up to the use of force can make the use of force illegal. Bad tactics can now contribute to a criminal filing against an officer. Should have retreated? Didn’t de-escalate enough? Should have called MEU? Questions such as those can affect the decision to file criminally on the officer. The good news is that the conduct of the subject can also be considered.
Conclusion: It is so important that you as an officer know the rules, develop the ability to fully express yourself in reports and interviews, and ensure that your reports and interviews are accurate.
Rule No. 1 is review the videos before you write a report, before you submit to an interview and before you testify. Your reports, interviews and testimony exist alongside the various videos. There are a lot of people out there who want to compare them and find inconsistencies to use them against you. Now that all information on shootings are subject to release under the California Public Records Act, you can be sure that teams of people who do not like law enforcement will be searching those records with the objective of finding inconsistencies that they will call “lies.”
Training is your best defense. The League, in conjunction with the Department, developed a one-day school called “After the Use of Force” to train officers on how to survive the investigative protocol that follows each categorical use of force. Metro has been put through the school. COVID-19 has brought a halt to schools, but hopefully all officers can be put through a school as time passes.
An officer in Alameda County may be the first officer criminally filed on under the new 835a when he was called to a Walmart for a disturbance by a person with a bat. Officer Fletcher approached the suspect and tried to grab the bat. The suspect pulled the bat away and the officer drew his gun and ordered him to drop the bat. The officer tased the suspect twice before shooting him. He was filed on for voluntary manslaughter. The District Attorney is reported to have said: “I believe Officer Fletcher’s actions, coupled with his failure to attempt other de-escalation options, rendered his use of deadly force unreasonable.…”
This is serious, folks. Get all the training you can, and hit the books. Wrap yourself in knowledge.
Be legally careful out there.
