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Insight Web Special: Professor Robert Weisberg Explains California’s Police Use Of Force Bills

A Yee / Flickr

A Yee / Flickr

Sacramento County District Attorney Anne Marie Schubert and Attorney General Xavier Becerra’s decisions not to file criminal charges against the two police officers who killed Stephon Clark has prompted a statewide discussion about police use of force policy.

Mayor Darrell Steinberg himself has expressed interest in updating California state law to change the rules around when police officers are allowed to use deadly force.

Professor Robert Weisberg, who co-directs the Stanford Criminal Justice Center, joined CapRadio’s Ben Adler to talk about what current law states and what new bills are on the table to change state use of force policy for law enforcement.

On current use of force policy

Use of force by police, use of deadly force, is really not that different from the general law of self-defense. Because first of all, the police are defending themselves against possible harm from the person they're pursuing. But also the law of self-defense also includes the right of so-called third party defense, where I can take reasonable action, including deadly force, to protect people other than myself. Obviously, more leeway is given to the police state. They have powers and responsibilities that others don't have to capture suspects and they expose themselves to harm. But the gist of it has always been that 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.

On how state use of force law could go further than federal use of force law

They can go as far as they want because remember, we're talking about protecting the victims of a shooting. The federal cases say what the minimum protection is that is provided by the Fourth Amendment. The states cannot violate the Fourth Amendment by giving people weaker rights than the Fourth Amendment requires. But it is perfectly legitimate for a state to give people more rights than the federal constitution offers.

On the two use of force bills in the Legislature

SB 230, the law enforcement-backed bill, requires that a state agency generate best practices for avoiding deadly force by police except where absolutely necessary. In other words, we'd go into some details about particular steps and approaches that the police should take before using deadly force and the criteria they must think about. It encourages local jurisdictions to adopt whatever practices would be announced at the state level… Obviously the opponents of 230 will say it just doesn't change the law. The proponents will say, well, it will change the police practices. It will make the police more professional and more careful.

The other bill, AB 392, would very significantly change the law. It would say that a killing is not reasonably justified —, it is not legal in other words, it could be manslaughter — even if at the time of the shooting the officer reasonably perceived he had no choice, if the police officer had choices earlier in the encounter that could have avoided this critical moment in the first place. And what those earlier steps could be will depend on a huge variety of factors including, for example, whether you can surround the area in which the suspect is by bringing in lots of other police and avoiding directly encountering him, trying to seize the area and lock down the area so that the person can't escape… particularly in cases where there's any reason to think of a mental health problem on the part of the suspect

… a requirement that the police take all kinds of steps to calm him down, soothe him, avoid direct encounters and so on and so on.

It also might in certain circumstances, though, mean that police officers might have to allow felons to escape. If when they first see a felon trying to escape from a felony and there's no evidence that the person poses any deadly force, it may be under AB 392 that there will be situations where the police will simply have to run the risk of him escaping because if they try to seize him, he might do something which could then cause them to believe that he has a gun.

This interview transcript has been edited for clarity and brevity.

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