Fervor Over Reason Should Not Rule the Day on Police Use of Force

By Eric Siddall

Tragic events frequently spur legislative action, but emotions of the moment may not always guide us to the best result. Lately, tragic events have been in ample supply; it is rare for a month to pass without a story of a black man losing his life at the hands of those sworn to protect the community. The pain and frustration precipitated by these events have understandably whetted the public’s appetite for action. But in our fervor, we risk undermining clear-headed thinking. It is this emotional reaction that leads to the promise of solutions – such as Assembly Bill 931 – that may actually derail our true objectives.

Although the debate on police misconduct has acquired renewed urgency, a long legal tradition has carefully considered these questions; yet, it is receiving short shrift. In Graham v. Connor, a unanimous U.S. Supreme Court, established the rules we use to govern excessive force, leading to a Fourth Amendment-based objective analysis that balances the precarious position faced by police officers with the need to hold rogue actors accountable.<

The high court noted, “[w]ith respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” [cite omitted]violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”

Most pertinent to today’s debate, Graham held, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The logic behind this analysis still holds today. Police officers are human beings, and as such, they are not immune from error. And in our current environment, with criminals flush with guns, they may even make deadly decisions in an instant. These instant decisions often are made with the intent to protect the lives of the public and also the officer. Unfortunately, the stakes are so high that even with the best intent, officers’ decisions can yield tragic results.

This framework does not provide a carte blanche on use of force. It ensures the reasonable use of force under the known circumstances. Rogue officers are brought to justice, and officers do not act with impunity.

For example, Michael Slager, the ex-South Carolina police officer who shot a fleeing suspect was prosecuted and convicted for murder. Our system needs to vigilantly guard against the officer who acts beyond the law; it undermines individuals’ civil rights and it erodes public confidence in our criminal justice system. This respect for our institutions is what makes America great.

AB 931 would dismantle this long-standing legal doctrine. The proposed law states that officers must exhaust reasonable alternatives before using deadly force. Specifically, it defines, “Reasonable alternatives include, but are not limited to, deescalation, tactics set forth in the officer’s training or in policy, and other reasonable means of apprehending the subject or reducing the exposure to the threat.”This standard mimics the holding of Hayes v. County of San Diego, a California Supreme Court case that discussed the standards involved in a civil lawsuit seeking monetary damages. It was a standard never intended for a criminal proceeding. We do not treat criminal and civil defendants in the same manner. It radically alters the definition of justifiable homicide involving public officers, eliminates potential defenses, shifts the burden of proof against the officer, and, most importantly, it adds a new layer of analysis that directly undermines Graham‘s analysis by introducing the notion of reasonable alternatives.

How might AB 931 undermine both civil rights and public safety, in concrete terms? First, as outlined in an article by Arif Alikhan and Seth Stoughton, this reliance on “tactics set forth in the officer’s training and policy” may have the unintended consequence of police agencies lowering their standards so as to avoid the risk of officers’ criminal liability.

Second, the bill second guesses a reasonable response to the threat of force by stating that the officer must engage in “reasonable alternatives.” This means that an expert witness using the benefit of hindsight, months of analysis, incident reconstruction – all without facing imminent danger – will play an instrumental role in determining whether an officer should be filed on for murder. This type of analysis and second guessing is fine for a civil trial, but it entirely inappropriate for a criminal case where the liberty interest is so high.

Third, this additional language will create a vague and unwieldly jury instruction. Most jury instructions, including the current one, have the benefit of decades of case law. This finesses the instruction and gives it a more practical application. Even with this benefit, jurors will often have questions about terms like, “great bodily injury.” This new proposed language is so vague that jurors will not have a uniform understanding of many of the legislation’s terms of art and therefore their questions and their verdicts may be inconsistent. It is better to stick to a tried and true system rather than upend decades of jurisprudence.

Hopefully, our Legislature sees the wisdom of preserving a doctrine set by an undivided U.S. Supreme Court, the error of applying a legal standard developed for adjudicating monetary damages to a person’s liberty interest, and the benefit of using the case law method.

Eric Siddall is Vice President of the Association of Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

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