Advocates skeptical new police use of force law will save lives

In August, Governor Gavin Newsom signed into law AB 392: The California Act to Save Lives, which will prohibit police officers from using deadly force unless necessary to prevent serious bodily injury or loss of human life. Currently, the penal code allows police officers to use deadly force in “reasonable” circumstances—a standard legal experts and activists say has allowed officers to kill civilians unnecessarily, without consequence, and too often.

Legal and policing experts throughout the state are reacting to the bill’s passage. Legislation sponsor California Assemblymember Shirley Weber (D-San Diego) said she hopes AB 392 will encourage officers to use de-escalation tactics and prevent them from using fear or confusion to justify killing on the job. The new law, she said, is “really about trying to create a culture of policing that is healthier and safer for all communities.” 

But some Oakland experts wonder if the legislation, effective January 1, 2020, will be enough. Oakland police officers killed 45-year-old Marcellus Toney in 2017 and 31-year-old Joshua Pawlik in 2018. Toney died after being tased by Oakland police, while Pawlik was shot by Oakland police.

Oakland civil rights attorney John Burris, who represented the family of Oscar Grant III, a 22-year-old man who was fatally shot by a BART police officer in 2009, and Celeste Guap, a teen who was sexually exploited by Oakland police officers in 2014, said that while the law’s new language is significant, “we should remain cautiously optimistic” about its likely effects. “It will only matter if the officers are trained under it,” Burris said. 

Representatives from the Oakland Police Department and the union representing its officers have not responded to requests for comment.

The department’s use of force policy, last updated in 2014, is available on the city’s website. According to the document, police may use lethal force when an officer “objectively and reasonably” believes a person is in immediate danger of death or serious injury. 

Cat Brooks, a former Oakland mayoral candidate and co-founder of the Anti Police-Terror Project (APTP), a Black-led coalition to stop violence committed by police officers, said “the problem in Oakland isn’t the policy.” Pointing to declining rates of fatal police shootings in the city, Brooks said Oakland police have been made more accountable “through people power.” Consequently, while Brooks welcomes the new law, she said Oakland must invest city resources to implement the policy and effect real change, such as by amending Measure LL to ensure the police commission it established in 2016 is independent of political influence. 

Brooks said APTP is working to develop a model for first responders to better aid people who are having mental health crises, given that many of the people killed by police are in the throes of one. “Until we understand that it is not more investment in police, but investment in things like housing, jobs, education, substance abuse prevention and treatment of mental health – the things that keep us safe – until we get there, there’s lots of work to still do,” she said.  

Cephus “Uncle Bobby” X Johnson is a member of Families United 4 Justice, a network of people who have lost members to police shootings. Johnson is the uncle of Oscar Grant, the young man who was shot and killed by a BART police officer. “I’m a realist,” said Johnson of what he expects under the new law. “I’ve been doing this since 2009 when the murder of my nephew happened.” 

In the last decade, Johnson witnessed hundreds of police officers and police advocates testifying against legislation that limits use of lethal force, such as AB 931, which sought to require police to exhaust de-escalation tactics before exercising deadly force. AB 931 circulated the legislature in the wake of the death of Stephon Clark, a 22-year-old man who was killed by police officers in Sacramento in 2018. The bill died before reaching the senate floor last year. 

Johnson views opposition to AB 392 and other bills like it as evidence of a cultural problem in police departments that can’t be changed with legislation alone. “It’s the environment, it’s the core, it’s the historical experiences of the agencies,” he said. “It’s the culture that has to be changed, and hearts have to be changed.” 

When the new law takes effect in January, it will require courts to consider the prior conduct of police officers who stand accused of excessive use of force. This requirement will increase the ways in which police officers can be held accountable, said Peter Bibring, director of police practices and senior staff attorney with the American Civil Liberties Union of Southern California, which supported AB 392. In addition to being tried on criminal charges, officers can also be fired by their agencies or sued in civil court. 

“This is a hugely important bill,” Bibring said. “It is going to work a fundamental change in use of force in California and make California’s use of force law among the strongest in the country.”

Bibring considers the requirement that an officer must be facing an imminent threat before using lethal force to be a safeguard “against situations where officers justify a shooting because a suspect, for example, refused to put their hands on their head and the officer shot them for failing to comply with instructions even though no gun was evident.”

In the national political arena, AB 392 already has its counterpart. In August, Congressmembers Ro Khanna (D-California) and William Lacy Clay (D-Missouri) introduced legislation in the House of Representatives to require federal officers to use lethal force only when necessary to prevent imminent death or serious bodily injury. “The federal effort builds on California’s historic legislation (AB 392, ‘Act to Save Lives’),” reads their press release.  

AB 392 sponsor Weber believes the impetus behind laws that limit use of force is not simply a matter of changing hearts. More fundamentally, “what has changed is technology,” she said. Photos and videos, in her view, have raised national consciousness about violence committed by police officers, leading more people to ask questions and take action. 

ATTP co-founder Brooks also believes that “the conversation around police and policing isn’t what it was.” For Brooks, that’s because of “really good organizing tactics, really good engagement of leadership and uplifting the pain and strength of impacted family members.” 

“You can only see so many unarmed Black people get shot before you start having a conversation,” she said. 

Johnson said that families’ sharing their stories directly with legislators has made all the difference. “For the first time legislators would actually hear our voice, see our face and experience our pain,” he said. “It began to prick hearts and open ears.”  

This story was corrected on September 11, 2019 to reflect that Marcellus Toney died after being hit with a taser and was not shot.