The decisions not to charge the two Sacramento police officers who shot and killed Stephon Clark are pushing activists to focus on changing California's use-of-force laws.
While it may be the demand activists are most likely to achieve, they may need to be willing to compromise.
Earlier this week, California Attorney General Xavier Becerra joined Sacramento County District Attorney Anne Marie Schubert in declining to file criminal charges against the officers. It was the decision everyone expected, but his words gave no comfort to Stephon Clark’s family — nor community members furious over his death.
Like Schubert four days earlier, Becerra laid out the state and federal laws that govern when police — or anyone else, he said — can use deadly force. “You have the right to defend yourself if you are in imminent danger of death.”
In other words, self-defense.
Stanford criminal law professor Robert Weisberg said it’s longstanding law — with additional benefit of the doubt given to police officers.
"You’re allowed to use deadly force if it is actually necessary to prevent deadly force from being used against you or others, or if it reasonably appears that it is necessary,” Weisberg said. “And that’s the big caveat here.”
That caveat — the “reasonable” standard — infuriates the law’s critics, who argue it’s too easy for police officers to avoid accountability.
“It’s very subjective,” said Tanya Faison, who heads the Sacramento chapter of Black Lives Matter, in an interview with NPR’s Morning Edition this week. “So if you say that you fear for your life, then it validates if you kill somebody. But you can’t show physical proof that you feared for your life.”
Demonstrators have filled the streets all week, shutting down Sacramento’s largest mall and marching through the wealthy East Sacramento neighborhood, after which police arrested 84 people.
But activists are also increasingly channeling their outrage into changing California’s use-of-force law. Thursday a group of faith leaders spoke in front of the state Capitol in support of raising the state's standard for when police officers can use deadly force, before hundreds of students walked out of class and marched to the Capitol to protest the failure to charge the officers.
Last year, after Clark’s death, lawmakers tried to raise the standard from “reasonable” to “necessary.” But that effort stalled amid law enforcement opposition. Senate President pro Tem Toni Atkins (D-San Diego) said the bill needed more work.
Atkins convened negotiations between the two sides that started last fall and continued into the new year. But the talks ended last month ahead of the bill introduction deadline, and each side introduced rival proposals.
The measure from last year is back, supported once again by community activists and civil rights advocates. It’s AB 392 by Assembly members Shirley Weber (D-San Diego) and Kevin McCarty (D-Sacramento).
And for the first time, law enforcement groups have their own proposal. SB 230 by Sen. Anna Caballero (D-Salinas) keeps the “reasonable” standard but funds and implements new training.
“It’s important that we’re not creating an after-the-fact piece of legislation that criminalizes officers for doing their job and for protecting themselves and the community,” said Brian Marvel with PORAC, a state federation of local police unions.
Marvel argues the training will help officers make better decisions under pressure, — which, in turn, will reduce unnecessary deaths. But that’s not nearly enough for the backers of the “necessary” bill.
With each side calling the other’s proposal a non-starter, the question is whether there is room for compromise.
But in an interview with Capital Public Radio this week, Atkins made clear the time has come for everyone to hammer out a deal.
“Additional pressure needs to be applied to both sides,” she said. “Yes, we have got to have compromises. I don’t know what that looks like. That’s the art of what we do here. But the people are at the table. We just need to make sure they understand this has got to be addressed timely.”
Weisberg, the Stanford law professor, offered one idea for a possible compromise between “reasonable” and “necessary” that could be used in court.:
“Here’s a checklist of things that officers were told to think about before using deadly force. You, the jury, should decide whether the police officer followed those criteria.”
But, he added, striking that deal will be very, very difficult.
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