Today, Explained - When killing is "necessary"

Episode Date: August 23, 2019

This week California passed what some call the toughest law on police use of deadly force in the country. It hinges on one word: necessary. Learn more about your ad choices. Visit podcastchoices.com/adchoices

People say the United States has a gun problem, but we've actually got a bunch of different gun problems. There's obviously the mass shooting problem, but then there's also the suicide by firearm problem. There's domestic violence involving firearms. There's drug and gang violence involving firearms. And then there's a problem of police shooting unarmed black men. There are the videos, the grand juries, the trials, the protests, the legal questions around the use of lethal force. Was it reasonable? This week, California passed a bill to try and change the way police use lethal force. Some people are calling it the strictest bill of its kind. I'm ready to sign this damn thing, so why don't we just cut to the chase? Governor Gavin Newsom stood on a stage surrounded by families who lost loved ones

in fatal interactions with cops and signed Assembly Bill 392. Because as California goes, so goes the rest of the United States of America. And we are doing something today that stretches the boundaries of possibility, that sends a message to people all across this country that they can do more and they can do better to meet this moment in their respective states. Anita Chabrier has been covering the legislation's complicated path for the L.A LA Times. The one shooting that really brought a lot of energy to this bill was the shooting death of Stephon Clark in Sacramento in March of 2018. Stephon was a young Black man in a historically, very ethnically mixed, actually, neighborhood in South Sacramento who was chased into his grandmother's backyard.

There had been a 911 call about vandalism and some broken car windows. The police came out. A chopper above the situation, a sheriff's helicopter, saw him in a backyard. Police gave pursuit, chased him around a blind corner and fired on him, mistaking a cell phone in his hand for a weapon. Stop on court! Stop on court! Stop on court!

Stop on court! Stop on court! And that really set off a lot of anger and angst here in the capital city of California at the same time when shootings of Black and brown people around the country were really at the forefront. And it enabled the legislature to sort of gain momentum around the issue and move something forward that the prior year they had not been able to do. But this law isn't just about Stephon Clark, right? Well, you know, from Ferguson forward, we've seen more and more

robust responses, for lack of a better word. I mean, there's a lot of community anger out there about the inequities in the justice system, not just around officer-involved shootings, but about mass incarceration and other things. 49ers quarterback Colin Kaepernick says he did the right thing when he sat out the national anthem. Kaepernick, who is biracial, says he wants to bring awareness to issues of race and policing in the country. I'm going to continue to stand with the people that are being oppressed. To me, this is something that has to change. And I just think you've seen such an awareness of that growing over the past few years. Stephon Clark here in Sacramento, I think, is part of an evolution where things just came together at a moment when we had this shooting happen here in the capital of California.

Well, the national discussion was really gaining momentum as well. How hard was it to get this law passed? The law enforcement lobby here has been all powerful. So for decades, really, if law enforcement did not want legislation to advance, it did not advance. And I think that they really felt that they would be able to have that same kind of influence over AB 392, which is the law we're talking about, that they would just be able to stop it in its tracks. What was different this time, in addition to the really strong community support for this bill, I mean, family members of those who have been killed by police violence packed the Capitol. They were there. They were testifying. They were telling their personal stories.

My name is Shannon Grote. I'm here for my cousin John Thomas Whitten III, who was beaten down by five L.A. sheriffs in the men's Central Drill. So I really support this bill because it needs to stop. My name is Jenny Reese. I'm the sister of Charlie Salinas, killed by the police in 2012, Sanger, California. I support this bill. My dad was shot by the police and I support this bill because it hurts little kids' lives like mine. But at the same time, we also had new leadership. We had a new governor, Governor Gavin Newsom. We had a new head of the Assembly and a new head of the Senate.

And the three of them together had a willingness to go against this tradition of deferring to the law enforcement unions that we just really hadn't seen prior to that in California. What did that mean for the legislation? Was it easy to pass? It was a brutal fight. Good afternoon, Mercedes Wallace. I'm a survivor spouse of a murdered deputy, and I'm in total opposition of this. My name is Kim Wallace, family member of a fallen officer. I am in opposition of this bill. I'm brother to slain Deputy Robert Paris. I'm here on behalf of my family in opposition to the bill as written.

Law enforcement came out with their own proposal, a different bill, Senate Bill 230, which would have basically kept the status quo with use of force, but provided more training to officers. And they, I think, very much expected that that bill would just end up winning out over this one. But to Shirley Weber's credit, she fought this out and she managed to keep it alive and move it forward. Assemblywoman Shirley Weber from San Diego came to reiterate and ask for support for her bill, AB 392. What this bill simply says is that before you do these other things, make sure there aren't any other strategies available to you. And the

governor and the other leadership got it that last mile. So what does the final legislation that passed this week say? What does AB 392 do? Well, what you're going to hear over and over again is that it changed the word reasonable to necessary. So officers previously could use deadly force when they found it to be reasonable, when another officer in the same situation would find those actions reasonable. The bill now changes that out with when it is necessary. That has led many to call it the toughest standard in the nation. However, in reality, it really doesn't change day-to-day policing and what's going on now. Police were never supposed to use force when

it was unnecessary, right? So changing it to necessary in a sense isn't as earth shattering as you would think. It also basically what it's doing is taking rules that were already in play on the civil side and putting them to the criminal side. How so? So in 2006, there was a man named Shane Hayes who suffered from mental illness and had a history of trying to harm himself, but not others. He was in San Diego. He became suicidal.

His girlfriend at the time called the sheriff's department. They came out. She tried to tell them before they went in the house that Shane had this history of mental illness. They kind of brushed her off, pushed her aside, went in the house. Hayes was in the kitchen, came towards them holding a knife. They shot and killed Shane Hayes. That case went all the way to the California Supreme Court on the civil side. His family sued for wrongful death. And what came out of it was

a change that was really fundamental in California. Up until that moment, there was a Supreme Court decision called Graham versus Connor that really defines when police in the entire United States can use force and how we look at that. A reasonable governmental action does not become unreasonable simply because the police did not take the best possible option. And another problem with petitioners' least drastic means approach is that it practically invites the jury to second-guess the actions of the police officers and to substitute its judgment for theirs as to what should have happened. And it basically says that you can only look at that very instant when the deadly force was used.

So when the trigger is pulled, did the officers fairly believe that they or someone else was in danger? What the Hayes case did was pull that timeline back. The judge said, no, the officers perhaps should have taken more care and learned about his mental illness because they had the opportunity to do so before going into the house. So it expanded the timeline for when you can look at an officer's behavior in a deadly force incident. What 392 does is take that expanded timeline and put it onto the criminal side. So now if a DA chooses, they're not obligated to. If they choose to, they can look at that expanded timeline when doing an investigation of one of these officer-involved uses of deadly force. One last thing that 392 does is clean up sort of some of our old Wild West laws, one in particular that allowed officers to shoot at a fleeing felon under basically all circumstances.

That is now off the books. There would have to be an actual threat that the person was causing or some other kind of harm they could cause before officers would be justified in shooting. Okay. The bill does three things. First, it changes the reasonable force standard to necessary force. Second, it expands the timeline that is considered when looking at the use of lethal force. And third, it takes away cops' power to just shoot a fleeing felon under any circumstances. How do cops in California feel about AB 392? It's really interesting. There's a split. So there's some in the law enforcement community

who just shrug their shoulders. They could care less. This is just the Hays standard. They were doing it anyway. It's not a big deal. There are others who really it's a sky falling moment. That idea of expanding the timeline is hugely controversial because what law enforcement fears is that if you start picking it apart in a Monday morning quarterback fashion, you could always find an alternate action. Right. Well, I think what you're doing is, is you're creating a situation where officers are trying to respond to situations that are extremely tense. They're making decisions and split-second reactions. You know, we have to get beyond the myth of an unarmed person is not dangerous. There's always going to then be questions about did they do the right thing. Their argument is these things unfold very rapidly. A lot of times you're talking within seconds or minutes

of them arriving on the scene that something happens to turn it to violence. And they feel that they don't have the luxury, perhaps. They're reacting. They're not, perhaps, thinking everything through. They feel that they are already in a profession that is under attack. We had an officer killed very recently,

a CHP officer here in California. It started with what seemed to be a routine traffic stop, a CHP officer pulling over a white pickup truck. He started to impound the truck, doing the paperwork, sitting in his own vehicle. And as the other man went back to his own vehicle to try to retrieve some personal effects, he also took out a long gun and began firing right on that officer's car. And you can see there's a lot of fear and anger, I think, among some in law enforcement that they are facing such scrutiny and that there have been so many killings of police officers recently or it's seeming to be.

What about people who are advocating for this change? What about Stephon Clark's for this change? What about Stephon Clark's family? Was it a win for them? Stevante Clark, who is Stephon Clark's brother, calls it the Stephon Clark Law. He has a great deal of pride around something having taken place and sees it as a legacy for his brother, but is also very aware that's a very much a first step. I actually spoke to him right after the law was signed and, you know, he was saying he knows that this isn't the be-all and end-all of changes, but it's something, it's a step, it's forcing us to have a conversation that we were not having just a few years ago.

Stefan's legacy will bring awareness to ending senseless gun violence from here in Sacramento across the nation. Stefan Clark's legacy is not only his children and his family, but all of you. His community, his love, his legislative change, so much more. He was bettering himself. He was growing into adulthood. He is not perfect, and neither are any of you. So much of this law hinges on just one word, necessary.

I asked Professor Robert Weisberg how that word's going to be interpreted. He's a law professor at Stanford University. First, we have to ask necessary in regard to what? The earlier law, as it's written, actually had the term necessary or necessarily in it. force where it was necessary in order to prevent a felon from fleeing or resisting arrest. That concept has now been removed. California law now would make it insufficient for the officer to argue that he needed to use deadly force to prevent escape or resistance to arrest. He can only use deadly force when the issue is a threat by the suspect that he will use deadly force against the officer or someone else. In most jurisdictions, as a matter of law and in California as a matter of practice, even if the term is merely force that is reasonable, necessary was always sort of implicit in definitions of reasonable. But California law is extremely explicit about it now.

Necessary is just a word until there's a case and a challenge and courts have to figure out what this means. Will this law further change in the coming years? The further change, if there were a further change, would be to put back in the language that was stricken from an earlier version of the bill. And it goes to the idea of elaborating the criteria by which we judge this thing called totality of the circumstances. The earlier version spelled out certain alternatives that an officer could take early in the encounter to avoid escalation. It included things like reference to time, meaning slow things down, just don't do anything for a while, just stand there and do nothing for a while. Space, meaning reposition yourself whereby you

still have a tactical advantage but you're not directly confronting the person. Wait for backup and so on and so on. That list of things would never have been an absolute requirement, but it would have been a pretty specific guide to courts and police, of course, as to the alternatives they were to consider. Those details were taken out of the final bill, though I think it's fair to say that proponents of this compromise bill are hoping that judges and again, ultimately, juries, prosecutors and the officers themselves will think about those factors as kind of guides to what we mean by the totality of the circumstances. What does this mean for police officers right now, practically? I think they're going to be more cautious. They're going to be trained much more in

de-escalation alternatives. Lots of departments have pretty good training protocols right now. I think what the bill implicitly and explicitly calls for isn't a dramatic innovation in policing, because a lot of police departments do very good work in this regard now. It's more a matter of telling departments that don't have such protocols they ought to get up to the new norm. If this bill works well, the proof may not be in more prosecutions of police officers, because if it really works well, those won't be necessary because there will be fewer shootings of civilians by police officers. But it is really, really hard to predict how this will ultimately operate. Does AB 392 change the calculus an officer has to make in a situation like this Hayes case we heard about earlier where there was this suicidal person with a knife?

Did it just get harder to open fire on someone like that? Possibly because, again, the officer would have the right to arrest the individual, no question about it. But the right to arrest the individual, no question about it. But the right to arrest the individual doesn't necessarily translate into the wisdom of arresting the individual. And the officers might have to say, look, I want to get this person off the streets right away. I want to carry out my power of arrest. I have probable cause, but I'm going to

step back and slow things down. So yes, the law certainly encourages officers to, again, abstain from doing perfectly legal things which they'd be allowed to do, but which may not be the wisest thing to do. Everybody knows from TV dramas, movie dramas, about how law enforcement treats hostage situations. If you've got a hostage situation, let's say you're a knife wielder there, but the knife wielder isn't just threatening the police with a knife, he's threatening a hostage with a knife. Those are circumstances in which the police are legally allowed to just break right in there and arrest or even shoot the knife wielder, but they're not going to do that because they want to protect the innocent person. So they step back, they call in backup, they negotiate to de-escalate and so on and so on. One way of reading this new law, and again, it doesn't say this, but I think

it's a fair interpretation, is to remind officers that other things being equal, even a dangerous suspect is a human life that should be saved if possible. So almost think about the non-hostage situation a little more like a hostage situation. Does this make an officer's job harder in any way? Does it endanger a police officer? That's what the police say. And of course it could because any law that affects behavior could overdo it. And is there a danger that an officer will be too cautious to the point of risking harm to himself. I think prosecutors are likely to limit cases to pretty egregious ones, and I think a large margin of error about the definition of necessary is still going to operate. So I think the law will be used to

prosecute police only in pretty egregious cases, and maybe in some cases that were always egregious but, and maybe in some cases that were always egregious but weren't prosecuted before. The fact is that the premise of this is that police use of deadly force is supposed to be identical to conventional self-defense law, the law that would apply to a private citizen as well. You can't use deadly force unless a person in your situation would reasonably perceive that it is necessary, that is to say, it really is a case of his life or yours. You can't use deadly force for a lesser reason. Robert Weisberg is the co-director of the Stanford Criminal Justice Center in Stanford, California. I'm Sean Ramos-Furham. This is Today Explained. Thank you.