Use of Deadly Force by Police Officers: AB 391, 392
R.C. Phillips, DDA (Ret)
October, 0201
P.C. § 196 (Amended; Effective 1/1/2020): Homicide is justifiable when committed by peace officers and those acting by their command in their aid and assistance, under either of the following circumstances:
(a) In obedience to any judgment of a competent court.
(b) When the homicide results from a peace officer’s use of force that is in compliance with Section 835a.
P.C. § 835a (Amended; Effective 1/1/2020): Reasonable Force to Effect Arrest; Resistance:
(a) The Legislature finds and declares all of the following:
(1) That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.
(2) As set forth below, 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. (Italics added.)
(3) That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.
(4) That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.
(5) That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.
(b) Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance. (Italics added.)
(c)
(1) Notwithstanding subdivision (b), 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 to another person. (Italics added.)
(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. 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. (Italics added.)
(2) A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person. (Italics added.)
(d) A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, “retreat” does not mean tactical repositioning or other deescalation tactics. (Italics added.)
(e) For purposes of this section, the following definitions shall apply:
(1) “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.
(2) A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.
(3) “Totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.
Assemblywoman Shirley Weber has introduced AB 931, seeking to criminalize law enforcement's use of deadly force, and allowing prosecution for homicide if a prosecutor disagrees with a deputy's tactical decisions prior to use of deadly force. Her legislation eliminates the long-enshrined standard that such force be "reasonable," and instead replaces it with a standardless term that such force be "necessary" while also disallowing a justifiable homicide defense if tactics prior to the shooting were "grossly negligent." The bill should be rejected by the state legislature.
Existing law in California allows any person to use deadly force in self-defense or defense of others when it reasonably appears to the person that he or others are in imminent danger of great bodily injury or death; actual danger is not required (Penal Code section 197). If a person acts from reasonable and honest convictions, they are not responsible for a mistake in the extent of danger when other persons would have also been mistaken.
In the landmark case of Graham v. Connor, the United States Supreme Court reiterated the standard of review for judging, under the Fourth Amendment proscriptions on search and seizure, a police officer's use of force. "The reasonableness of the particular force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." The court concluded, "The calculus of reasonableness must embody allowance for the fact that police officers are required to make split-second judgments-in circumstance that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation."
The Weber legislation not only eliminates the "reasonableness" standard, it replaces it with a standard which explicitly calls for the type of second guessing rejected by the United States Supreme Court. The law would make a deputy criminally liable if a prosecutor decided that a deputy should have used different tactics, such as verbal warnings or "non-lethal" force, before using deadly force. Further, it would make a deputy criminally liable - even if the force was "necessary"- should a prosecutor decide the deputy's tactics leading up to the shooting were "grossly negligent" and thereby placed the deputy in harm's way.
As a federal circuit court aptly wrote, the real world of policing is "dangerous and complex" and cannot be replaced by the "theorized and sanitized world of our imagination." This bill turns that admonition on its head, encouraging the filing of criminal charges against law enforcement officers based on leisurely second guessing in a "theorized and sanitized world" regarding a deputy's use of force.
The surest way for a deputy to ensure they will not be subjected to second guessing is to not put themselves in a position that could lead to use of deadly force, such as ending proactive policing. We recently blogged about a study showing the skyrocketing homicide rate in Chicago was precipitated by a consent decree which was designed to stop proactive policing. It will be a bitter irony if this bill is enacted into law, because while designed to encourage prosecution of law enforcement officers, it will instead lead to a public which is less safe.
ALADS opposes AB 931 and will oppose legislation that will lead to the reduction of public safety for the citizens of California
The following is from “The Informer,” a monthly newsletter published by the Department of Homeland Security’s Federal Law Enforcement Training Center, and republished here with the author’s (i.e., Tim Miller’s[1]) express permission.
This article has been updated by subsequent case law.
Can a Federal Officer be Prosecuted Under the New California Use of Force Law?
The Legal Division for the Federal Law Enforcement Training Centers (FLETC), Glynco, GA, received some questions from the field about the new California use of force law (Assembly Bill 392)[2] – particularly, whether a federal officer operating in that state may be prosecuted under the new statute. The answer involves a seldom-litigated corner of constitutional law known as Supremacy Clause immunity.[3] The legal concept regarding Supremacy Clause immunity governs the extent to which a state, like California, may impose civil or criminal liability on federal law enforcement officials. Ultimately, under certain circumstances, the state case may be removed to federal court and even dismissed.
The removal statute is 28 U.S.C. § 1442. Removing the case to federal court requires the officer to show: (1) that he or she is a federal official; (2) that the prosecution arises out of acts committed by him or her under color of federal law; and, (3) that he or she has a “colorable” federal defense. “Colorable” only means that the defense is “plausible,” not necessarily “clearly sustainable.” If the defense is plausible, the district court judge should remove the case. Removal provides the officer with a federal forum for the state trial, meaning the federal court shall decide the question of guilt or innocence and the availability of any defense, like immunity.[4]
The defense under Supremacy Clause immunity means that the state has no jurisdiction to prosecute the case. The state charge may be dismissed if (1) the federal agent was performing an act which he was authorized to do by the laws of the United States and (2) in performing it, the federal official did no more than was necessary and proper.[5] In contrast, stripping the officer of immunity, means that he or she could not honestly consider the act [for which he or she is now being prosecuted] reasonable – or, that he or she acted out of malice or with criminal intent. But if the officer reasonably believed that the act was necessary to perform his federal duties, the case should be dismissed.[6]
The Supreme Court's leading case on Supremacy Clause immunity is its 1890 decision In re Neagle.[7] Neagle came at a time when the Supreme Court justices rode the federal circuit. Justice Stephen Field was hearing a case in California when two angry litigants, David Terry and his wife, erupted in violent outbursts inside the courtroom. Mr. Terry punched a deputy marshal, knocking out a tooth, and pulled a knife from inside his vest. His wife attempted to draw a handgun from her handbag. The Terrys were finally removed from the courtroom and sentenced to prison for contempt of court. Undeterred by their contempt sentence, the Terrys issued threats against Justice Field. The threats were described as "open, frequent, and of the most vindictive and malevolent character." The Attorney General’s response was to assign Deputy United States Marshal David Neagle to accompany Justice Field when he returned to California the next year.
Now under the protection of Deputy Neagle, Justice Field was traveling by railway from Los Angeles to San Francisco when the Terrys boarded the train. Justice Field was in the dining car when he encountered the combative couple. Mrs. Terry left the dining car to obtain a revolver while Mr. Terry assaulted Justice Field with his fists. Deputy Neagle pointed his gun at Mr. Terry and cried out, "Stop! Stop! I am an officer!," whereupon Mr. Terry reached into his clothing, as if to pull out a weapon. Neagle shot Mr. Terry, killing him. It turned out that Mr. Terry had no weapons on his person and California charged Neagle with murder.
The Supreme Court held that Neagle was immune from state prosecution. Deputy Neagle was performing “an act which he was authorized to do by the law of the United States, which it was his duty to do as a marshal of the United States, and [] in doing that act he did no more than what was necessary and proper for him to do.” Under such circumstances, “he cannot be guilty of a crime under the law of the State of California.”[8]
“Necessary and proper” means that the officer reasonably believed that what he did was necessary to carry out his federal duties. Clifton v. California[9] provides another example. Clifton was a federal officer operating in California and a member of a task force. The task force had a search warrant for illegal drug manufacturing as well as an arrest warrant for Dirk Dickenson, one of the owners of the property. A helicopter transported the task force to the raid site and landed. In the dust and confusion after landing, the task force jumped out and one of the agents fell. Clifton thought that the agent was shot. He rushed the cabin and kicked in the door. As Clifton ran in, Dickenson ran out into the backyard and headed towards some woods. Clifton pursued and leveled his pistol. "Halt!" he yelled. He waited a few seconds and yelled "Halt" again. He waited a second or two more and fired, hitting Dickenson in the back. Dickenson died on the way to the hospital.
Like Terry, shot dead by Deputy Neagle, Dickenson turned out to be unarmed and the State of California charged Agent Clifton with murder. Making the state case seem more likely than Neagle’s was the fact that Dickenson had offered no physical resistance other than flight. Still, the federal court dismissed the state charge. The court found that Clifton reasonably believed that:
(1) the fleeing suspect was Dirk Dickenson, the individual named in the arrest warrant for felony violations of federal drug laws;
(2) the fleeing suspect had just shot a fellow officer;
(3) the fleeing suspect was potentially armed and dangerous, and
(4) his successful entry into the woods would pose a danger to the lives of the pursuing officers.[10]
Clifton did not have to convince the court that shooting Dickenson was necessary in fact or in retrospect, justifiable, but only that he reasonably believed it to be. In this way the federal immunity defense gives federal officers ample leeway to enforce federal law without the risk of state interference – particularly, prosecution.
In a more recent case, a California Army National Guard’s JAG (Judge Advocate General) officer (Larry Minasian) was sued in California state court by another JAG officer (Dwight Stirling), the plaintiff alleging that the defendant was illegally practicing law in California even though he did so only in his JAG capacity, and that he was unlicensed to do so by the State of California. Defendant Minasian, invoking 28 U.S.C. § 1442(a)(1), had the lawsuit remanded to the federal court. Plaintiff Stirling, asking the district court to remand the matter back to California state court, argued that 28 U.S.C. § 1442(a)(1) did not apply. With his motion denied, Plaintiff appealed. In ruling against the plaintiff, the Ninth Circuit Court of Appeal ruled that defendant was “acting under” a federal officer within the meaning of 28 U.S.C. § 1442(a)(1). Per the Court, defendant demonstrated that he was "acting under" an officer of the United States because he was a “person” within the meaning of the statute, there was a causal nexus between the defendant’s claims and his actions pursuant to a federal officer’s directions, and that he had raised a colorable federal defense under the Supremacy Clause. The defendant was held to have been appointed by, and reports to, a federal officer, and was therefore permitted by federal regulation to practice law in California, albeit in a specific and limited capacity.[11]
Federal officers should be mindful, however, that Supremacy Clause immunity is not the green light to ride roughshod over state law. Immunity was denied in the infamous Ruby Ridge incident in Idaho where an FBI sniper shot and killed an unarmed woman (and her dog) as she held the door open for her fleeing husband. The Court strongly suggested that the FBI sniper was not being truthful about the facts of the shooting and that he had already decided to shoot the suspects whether or not they were a threat.[12]
Another word of a caution: the Supremacy Clause offers no immunity from federal law. Of particular note is the proposed federal legislation known as the PEACE Act. If enacted, it would require federal officers to use force only when necessary – similar to the California law.[13] Supremacy Clause immunity merely confirms that federal law is “supreme” and cannot be obstructed by the states. It does nothing for a federal officer in district court, facing federal charges. How, exactly, the PEACE Act will affect federal officers if enacted is uncertain, and will certainly generate more questions from the field.
[1] Tim Miller is an attorney and instructor at the Legal Division for the FLETC, Glynco, GA. The opinions in this article are his own. They should not be attributed to the Centers or be taken as legal advice. Any information derived from this article should be shared with your agency or legal counsel.
[2] See California Assembly Bill Number 392. The California law changes the legal standard for using deadly force to “only when necessary in defense of human life.” This standard is a departure from the federal constitutional standard, of which Federal officers are familiar, objective reasonableness. Graham v. Connor, 490 U.S. 386, 396-397 (1989).
[3] Immunity for federal officers is rooted in the Supremacy Clause of the United States Constitution, which provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
[4] The removal statute has three elements. First, the defendant officer is a “federal officer.” Second, the state’s prosecution must be either (a) “for or relating to any act under color of such officer” or (b) “on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals.” Third, the defendant must “raise a colorable federal defense” to prosecution by the state. See 28 U.S.C. § 1442(a)(1) and Texas v. Kleinhert, 855 F.3rd 305, 311-313 (5th Cir. 2017).
[5] See Texas v. Kleinert, 855 F.3d at 314 (immunity was properly granted after a federal task force member used his gun like a club to subdue a resisting armed robber and he unintentionally discharged the weapon, killing the alleged robber); Wyoming v. Livingston, 443 F.3d 1211 (10th Cir. 2006)(a state charge of trespassing was properly dismissed after federal officers entered private property in the course of tranquilizing and collaring grey wolves); Kentucky v. Long, 837 F.2d 727 (6th Cir. 1988)(state criminal charges were dismissed against a federal agent under the Supremacy Clause).
[6] See Clifton v. Cox, 549 F.2d 722, 728 (9th Cir. 1977) and California v. Dotson, 2012 U.S. Dist. LEXIS 73250 (S.D. Cal. May 2012). 7 In re Neagle, 135 U.S. 1 (1890). 8 Id. at 75. 9 Clifton, 549 F.2d 722.
[7] In re Neagle, 135 U.S. 1 (1890).
[8] Id. at 75
[9] Clifton, 549 F.2d 722.
[10] Id. at 729.
[11] Stirling v. Minasian (Apr. 8, 2020) __ F.3rd __ [2020 U.S.App. LEXIS 11014].)
[12] Idaho v. Horiuchi, 253 F.3d 359 (9th Cir.) (en banc) (Hawkins, dissenting), vacated as moot, 266 F.3d (9th Cir. 2001).
[13] https://lacyclay.house.gov/media-center/press-releases/clay-khanna-s-peace-act-would-mandate-federal-law enforcement-use-deadly
