The killing of George Floyd sparked widespread demonstrations and calls for reform of police departments across the county. Campaign Zero, an activist group formed in 2015, launched a plan for reform called “#8CANTWAIT.” #8CANTWAIT proposes eight reform measures intended to reduce the frequency of officer involved shootings. Leading the nation, law enforcement labor leaders, as well as Cal Chiefs, worked with the ACLU and our elected officials to enact a package of legislative reforms achieving these policies last legislative session.
The eight policies are:
1. Require de-escalation
2. Require a warning by officers before shooting
3. Require comprehensive use of force reporting
4. Require officers to intervene if excessive force is being used
5. Ban chokeholds and strangleholds
6. Establish and require “use of force continuum”
7. Require exhaust alternatives before shooting
8. Ban shooting at moving vehicles
California law enforcement leaders conducted a comprehensive review of laws, policies, and training that could be enacted to reduce the use of force in our communities and achieve better outcomes for everyone. Our office had the privilege of working with PORAC and other stakeholders surveying best policies and practices nationwide and collecting input from legislators, the ACLU, our Attorney General, diverse experts, and impacted stakeholders. These efforts culminated with Governor Newsom signing AB 392 and SB 230 into law.
AB 392 changed the standard for lethal force by a peace officer to only justifiable “when necessary in defense of human life.” SB 230 established new statewide reporting requirements, higher training standards, uniform guidelines for when officers are authorized to use force, and specific policies across all law enforcement departments requiring de-escalation, an officer’s duty to intercede, rendering medical aid, proportional use of force and more. These two laws marked the most significant change in California’s use of force policies since 1872. Most importantly, AB 392 and SB 230, along with other measures adopted in California, have addressed all eight of the policies advocated by #8CANTWAIT:
SB 230 added section 7286 to the Government Code, which addressed law enforcement use of force policies. Section (b)(1) requires every law enforcement agency to maintain a policy that provides a minimum standard on the use of force. That policy must include: “[a] requirement that officers utilize deescalation techniques, crisis intervention tactics, and other alternatives to force when feasible.” Additionally, SB 230 added section 13519.10 to the Penal Code to require that the Police Officer Standards and Training Commission provide training for all officers in alternatives to deadly force and de-escalation techniques. Moreover, AB 392 declared, “[i]n 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.” (Pen. Code § 835a(a)(2).)
2. Require a Warning by Officers Before Shooting
AB 392 amended the Penal Code to include the requirement that “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.” (Pen. Code § 835a(c)(1)(B).)
3. Require Comprehensive Reporting of Use of Force Incidents
Pursuant to SB 230, Government Code section 7286(b)(12) requires “comprehensive and detailed requirements for prompt internal reporting and notification regarding a use of force incident, including reporting use of force incidents to the Department of Justice.” Additionally, SB 1421, enacted in 2018, made records pertaining to an incident of a discharge of a firearm by a peace officer and records pertaining to police use of force against a person resulting in death or great bodily injury publicly available under the California Public Records Act.
4. Require Officers to Intervene in the Event of Excessive Force
SB 230 also adds Government Code section 7286(b)(8), which requires agencies to set a “requirement that an officer intercede when present and observing another officer using force that is clearly beyond what is necessary.” Section 7286(b)(3) further mandates that officers report to their supervisor when they witness another officer using excessive force.
5. Ban Chokeholds and Strangulations
On June 5, Governor Gavin Newsom ordered the state’s police training program to stop teaching officers how to use a neck hold that blocks the flow of blood to the brain. Many police agencies had already amended their policies to eliminate the use of the carotid control hold except as a last resort when deadly force is otherwise appropriate. Further, AB 1196 was introduced in the California Legislature on June 4 and would prohibit a law enforcement agency from authorizing the use of a carotid restraint.
6. Require a Use of Force Continuum
SB 230 requires all law enforcement agencies to adopt use of force policies that include a “requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance.” (Gov. Code 7286(b)(2).) Additionally, AB 392 and SB 230 require officers to create space and separation in an attempt to utilize de-escalation techniques.
7. Require Officers to Exhaust Alternatives Before Shooting
AB 392 states, “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.” (Penal Code 835a(a)(2).)
SB 230 declares, “[l]aw enforcement officers shall be guided by the principle of reverence for human life in all investigative, enforcement, and other contacts between officers and members of the public. When officers are called upon to detain or arrest a suspect who is uncooperative or actively resisting, may attempt to flee, poses a danger to others, or poses a danger to themselves, they should consider tactics and techniques that may persuade the suspect to voluntarily comply or may mitigate the need to use a higher level of force to resolve the situation safely.”
Finally, AB 392 redefined the legal standard for using deadly force to a “necessary” standard. Government Code section 835a(c)(1) provides that “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: (A) To defend against an imminent threat of death or serious bodily injury to the officer or another person. (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”
8. Ban Shooting at Moving Vehicles
Although neither AB 392 and SB 320 contains a complete ban on shooting at moving vehicles, but a complete ban is not feasible. Instead, AB 392 and SB 230 require police to utilize de-escalation techniques and exhaust other options before shooting. These measures ensure that officers will not shoot at a moving vehicle unless it is absolutely necessary to preserve human life.
Given the ability to use a vehicle as a weapon or shoot at civilians from a vehicle, the legislature appropriately recognized that a complete ban is contrary to public policy. For example, officers must retain the ability to use deadly force to stop a driver from plowing through a crowd of civilians, or to prevent a terrorist from driving a car bomb into a crowded area, or to return fire at fleeing bank robbers in a getaway car.
In conclusion, California has demonstrated that meaningful change can be enacted as part of an inclusive process. These new policies must be supported with robust funding for training (including scenario simulation) and education. AB 392 and SB 230, and the collaborative process used to adopt them, should be a national model.