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Op-ED: 1872 Law Gives Police a License to Kill

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Written by WLA Guest

By Dan Walters, CALmatters

Penal Code Section 196, enacted in 1872 when California was the nation’s sparsely populated westernmost frontier, declares that a police officer may lawfully kill someone while “arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.”

Similar laws in other states have been overturned by the courts, but California’s remains intact, described in a legislative report as “the single oldest unamended law enforcement use of force statute in the country.”

In practice, it is the basic reason why California’s police officers are almost never prosecuted when they kill someone, even when the circumstances indicate that deadly force was not needed.

Last Saturday, Sacramento County District Attorney Anne-Marie Schubert declared that two police officers who, a year earlier, had fired a barrage of bullets at the shadowy figure of Stephon Clark, will not be prosecuted. The two “acted lawfully under the circumstances,” Schubert said.

Three days later, Attorney General Xavier Becerra agreed, saying, “Based on our review of the facts and evidence, in relation to the law, I’m here to announce today that our investigation has concluded that no criminal charges against the officers involved in the shooting can be sustained.”

It turned out that Clark, a much-troubled young man who had been vandalizing cars in a South Sacramento neighborhood, was wielding a cell phone, not a gun. Moreover, just eight of the 20 rounds fired at Clark hit their target, which meant those other bullets could have easily killed someone in a neighboring home.

Had a civilian done what those two officers did – fired multiple rounds blindly at an indistinct figure in a backyard – he or she would almost certainly be prosecuted, at least for manslaughter if not for murder.

Knowing your target, firing only to protect oneself or another from death or great bodily harm and using minimum force to end the threat are drummed into civilian gun owners during firearms training.

California’s police shoot and kill more people than those of any other state – 162 in 2017 – and, according to a legislative bill analysis, “Of the 15 police departments with the highest per capita rates of police killings in the nation, five are in California: Bakersfield, Stockton, Long Beach, Santa Ana and San Bernardino. Police in Kern County have killed more people per capita than in any other US county.”

The legislative analysis was for Assembly Bill 931, which Assemblywoman Shirley Weber, a San Diego Democrat, carried last year to change the legal standard for police use of deadly force.

Instead of the virtually unlimited legal protection that Penal Code Section 196 and other laws give police, Weber’s bill would allow justified shootings “to defend against a threat of imminent death or serious bodily injury to the officer or to another person,” with few exceptions.

That’s similar to the justified homicide laws governing civilians. Law enforcement organizations bitterly opposed the measure, saying it would put the lives of cops in jeopardy, and Weber’s bill died in the Senate.

She’s back this year with an almost identical measure, Assembly Bill 392, and the Stephon Clark episode, occurring as it did just a few miles from the Capitol, seems to give it a much better chance of passage. Gov. Gavin Newsom and Sacramento Mayor Darrell Steinberg are among those calling for revising California’s use-of-force law.

Police work can be very dangerous, to be certain, and most officers are very reluctant to shoot people. However, we are seeing far too many cases of shoot-first-and-ask-questions-later.

That might have been acceptable in 1872 California. It can’t be in the 21st century.


Dan Walters is an opinion columnist for CALmatters, where this commentary first appeared.

Image: Assemblymember Shirley Weber announces AB 392.

16 Comments

  • 2 Supreme Court cases that have already established case law and a precident that this author, apparently hasn’t read: Graham v. Connor and Tennessee v. Garner. The high court has already decided this issue.

  • The justification for the Sacramento police shooting had nothing to do with the 1872 law. The shooting was even in line with Ms. Weber’s proposed new law. Somewhat ironically, the thing that saved the officers from a long show trial and probably Sacramento from riot and burning ,were the officers own body cams. Ironically because the last thing biggest supporters of body cams wanted or expected was to clear cops accused of bad shootings.

    • @MK – Agreed. Body cams, recorders, etc. are a real help when it comes to defending against malicious accusations, including those of quasi journalists that publish stories that are superficial and incomplete and that serve to inflame people and support their political agendas in the process.

  • Mr. Walters have you been through a simulator or done a few ride-alongs. I’d be happy to help set that up for you.

    Interestingly we offered that very thing to the legislators who supported Weber’s bill, and I believe most, if not all of them, passed.

    My point is, it’s easy to judge from the comfort of your office, but pathetic to do so when you have never experienced a life or death situation.

    If you are going to mention Stephon Clark, perhaps you should post the detailed report which suggests he may have been suicidal and may have purposely created the ending to this unfortunate incident. But then that would not fit your agenda.

  • Mr. Walters, I’m not a writer/journalist and know very little about that noble profession. I’m certain you’ve never worked as a police officer as it’s obvious you know nothing about that equally noble occupation…particularly what it’s like to be in a life or death situation. There are several problems with your article.

    You first mention that “California’s police shoot and kill more people than those of any other state…” but fail to mention California, with 40 million residents, has BY FAR more people than any other state (10 million more than the next most populous state, Texas). California also has BY FAR more total violent crime than any other state. Also, with the exception of Texas, there are more GUNS in California than any other state. Don’t you think those facts are relevant?

    You also conveniently omit a few details about Stephon Clark which convinced both DA Shubert and Attorney General Xavier Becerra the shooting was justified:

    -Police received calls Clark was breaking into/vandalizing multiple cars
    -Helicopter crew members said he had a “tool bar”
    -Clark smashed the rear slider of an 89 yr old man’s house while the man was inside
    -Clark was seen on video jumping over fences and hiding from police
    -The autopsy report lists marijuana, codeine and cocaine in his system
    -He was shot seven (not eight) times, three times in the back, “in a manner consistent with the police
    account.
    -An independent review by Dr. Gregory Reiber, a forensic pathologist, concluded “Clark was very likely
    walking toward police, possibly in a crouched position, at the time of the first shot.”

    Oh…and besides the fact that Clark had a history of beating his kid’s mother, he had been searching the internet for ways to commit suicide.

    All THIS and you, Mr. Walters, feel the officers unjustly killed Stephon Clark in a “barrage” of bullets? Really? You state the officers, “fired multiple rounds blindly at an indistinct figure in a backyard.” I wonder how YOU would have reacted in that dark backyard with the noise of a helicopter over head and a hooded man ignoring your orders as he held something dark in his hand and advanced toward you.

    Comparing a civilian shooting to a police shooting is comparing apples to oranges. Unlike civilians who can avoid dangerous, sometimes lethal situations, police are OBLIGATED to respond to them. As a result, many legal experts, the Supreme Court and society in general, understand the job of policing is fundamentally different and inherently more dangerous than any other job and have historically granted police more leeway. With writers like you, this slight margin granted by society may be changing. I understand you think that’s a good thing, but society will lose in the end as police become less and less pro-active. Mr. Walters, if you knew the next piece you write could bring criminal charges against you or even get you killed, what affect would that have on your writing?

    Assembly Member Weber thinks, “something should be done about unarmed black men being killed by police.” I agree. But the problem is rarely with the police…the problem is a society that thinks it’s OK to commit a crime or multiple crimes and, when confronted by police, ignore their orders or even attack them. A culture that teaches it’s children police are bad and they should disobey and disrespect them at every opportunity. A culture that is encouraged by writers like you.

  • “Out of touch,” there probably won’t be a response from either CF (who I greatly respect) or Walters. These are inconvenient facts that dont fit their narrative.

    As I’ve said before, we’ve gone through the looking glass and everything is backward these days. Cops are the bad guys, bad guys are the good guys and victims are irrelevant.

  • LASD Apostle – Good points, however I would call the cop-haters a subculture of society which is not limited to any race or community.
    Unfortunately without making excuses for them, some of the reasoning behind that is negative experiences with law enforcement officers which is another conversation by itself.

    Let’s be real about this, there are many people who don’t fit the narrative of the hateful and disrespect of the cop-hating subculture, but people dislike cops who act like assholes as you know some of them very well do. We’re talking suburbia here, not just communities of color.

    I’d like to add that even in “the hood” there are still cops who are respected based upon their professionalism & policing with a committment to crime fighting and not harrassment.

    Not meaning to go on a tangent but while the public is aware of Cops vs Cops, (3000 Boys, Bandito’s) along with other in-house scandals, they know damn well that they (the public) have nothing good coming to them, period.

    I had a negative experience with two “up-to-no-good” cops, but it did not deter me from being a cop at a young age and I vowed to myself that I would never be like them.

    • Well said. Whether a cop or not, no one likes dealing with someone that’s an asshole and amen for mentioning the ‘hood cops’ that are respected. They are out there – contrary to what some would like to believe. Years ago, a friend with another big agency had his life saved by a gang member that he had a good rapport with. He did his job – but he was decent and cared about people. For a variety of important reasons, relationships count.

  • LASD Apostle – Even the title of this article is inflammatory. I truly appreciate you bringing some balance to it. I want a healthy, fair criminal justice system that respects the rights of all and that includes police. Are there some hiring mistakes? Of course and helping them move on is ultimately in everyone’s best interests but the generalizations heaped upon all behind the mistakes of a few has gotten old.

  • If you’re going to print this report, please conduct a thorough investigation. Did you conduct any research on how many California police officers are killed? You mention there are moe shootings in California than any other state. Well, California is one of the state’s with ther most police officers killed every year. Besides New York, California unfortunately is always in the top three in losing police officers. Conduct a full investigation!!!

  • Oh, no! Private citizens have a “license to kill,” too? Say it ain’t so…

    CHAPTER 1. Homicide [187 – 199] ( Chapter 1 enacted 1872. )

    197.

    Homicide is also justifiable when committed by any person in any of the following cases:

    (1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.

    (2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.

    (3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.

    (4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
    (Amended by Stats. 2016, Ch. 50, Sec. 67. (SB 1005) Effective January 1, 2017.)

    • Apostle’s insight of the new administration in LASD, specifically Sheriff Villanueva, is also some of his best work.

      Reality and truth can’t be cherry picked.

  • This “dog and pony show” is great to stir up controversy and fodder for the voters, but all Governor Newsome has to do is sign this into law by executive order. The people voted they were in favor of the death penalty being reformed, not abolished. What did the new governor just do, with the stroke of a pen abolish the death penalty in the state entirely. What about the will of the people who voted? Did their vote count? Or is it that pompous politicians think they no better?

    In the end, the legislature will do whatever it wants, the actual will of the people is just a momentary distraction.

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