Clearly , necessary force is not a new concept , so why was the debate in California framed as the “ new necessary standard ”? The reason stems from the original definition of “ necessary ” used in AB 392 .
As introduced , AB 392 used familiar terms – “ objectively reasonable ,” “ necessary ,” “ totality of the circumstance ” – but grossly defined what they meant . Most problematic was the first definition of “ necessary .” AB 392 originally defined necessary meaning :
“ given the totality of the circumstances , an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person . The totality of the circumstances means all facts known to the peace officer at the time and includes the tactical conduct and decisions of the officer leading up to the use of deadly force .”
In this definition , an officer could be held criminal liable if the prosecution could prove there was any “ reasonable alternative to the use of deadly force .” This effectively created a statute that would allow anyone to second guess an officer ’ s split-second deadly force decision with the benefit of 20 / 20 hindsight , since there are endless hypothetical alternatives to any given situation . It was this definition that all of law enforcement saw as a complete sea change and existential threat to public safety .
In the fight against AB 392 , the primary focus of the law enforcement coalition – led by CPCA , PORAC , and CAHP – was to remove this definition , not to remove the term “ necessary .” In the final moments during the negotiations , we were able to secure numerous major concessions , which included the complete removal of the definition . Ultimately , the statute simply codified what the standard has always been under established case law – an officer can only use deadly force if they have objective reasonable belief it is necessary to protect life against and imminent or immediate threat .
While some may continue to push the narrative that AB 392 created a new higher standard for officers ’ use of deadly force in California , the reality is that words are what matter in law and these words are nothing new . ■
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WINTER 2019 | California Police Chief 11