This week, California lawmakers announced two new bills in response to public outrage over the death of Stephon Clark, who was fatally shot on March 18 by Sacramento police officers who believed the cell phone he was holding was a gun.
On Tuesday, flanked by community members and advocates, as well as a member of Stephon Clark’s family, Assemblymembers Shirley Weber (D-San Diego) and Kevin McCarty (D-Sacramento) introduced AB 931—the Police Accountability and Community Protection Act—a bill that would change the circumstances under which officers can use deadly force.
Current law says that officers can use deadly force when “objectively reasonable”—when another officer with similar training and experience would have behaved similarly under the same circumstances.
“It’s time for California to modernize our century-old deadly force standard,” said Assemblymember Kevin McCarty. “Our current law enforcement use of force threshold does not work. Revising California’s use of force standard will help law enforcement transition to a police system that can prevent the deaths of unarmed individuals and build much needed public confidence in how we keep all our communities safe.”
AB 931 would permit officers to use deadly force only to prevent imminent bodily harm or death, and when there are no reasonable alternatives to de-escalate the situation through verbal warnings, persuasion, or other non-lethal efforts. Under the bill, prosecutors would also be able to look at an officer’s actions leading up to a deadly use of force, and whether those actions were “grossly negligent” and put the officer unnecessarily in danger.
“Existing use-of-force laws have made an encounter with law enforcement – no matter how ordinary and no matter whether an individual is unarmed or even cooperative – into one that ends in the death of a civilian,” Weber said. “The worst possible outcome is increasingly the only outcome, especially in communities of color.”
In announcing their bill, the legislators pointed out that only half of the 162 people police fatally shot in 2017 were armed with guns.
Weber and McCarty’s bill also garnered the support of the ACLU, Black Lives Matter, the Alliance for Boys and Men of Color, and San Francisco District Attorney George Gascón.
“As a former police officer, police chief and current District Attorney, I’ve learned that policies that prioritize de-escalation are not at odds with officer safety,” Gascón said. “This legislation will enhance community trust, improve officer training, and make the job of policing and those they police safer.”
The Association for Los Angeles Deputy Sheriffs (ALADS), however, disagreed with the bill’s supporters, and called for legislators to reject AB 931. “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,” the ALADS Board of Directors said in a statement. “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.”
Bill Two: Transparency and Police Personnel Files
The second law enforcement-related bill, SB 1421, aims to open up law enforcement personnel records to the public when officers use force or are found by their departments to have committed misconduct.
Most states have far more public access to peace officer records, including misconduct allegations, than California does. There’s even less access to police officer records in California than in Texas, for example, where the public gains access to personnel information once a law enforcement agency finds an officer has committed misconduct.
The California Public Records Act, in the name of government transparency and accountability, establishes the public’s right to view public records. But it has certain exceptions to the rule. Law enforcement personnel files fall under the “exemptions” category. And the Public Safety Officer Procedural Bill of Rights, sometimes called the Peace Officers Bill of Rights (POBR), prevents public release of officer discipline issues.
If passed, SB 1421 would force police agencies in California to publicly release records related to incidents in which officers use force—specifically, when they discharge their firearms or Tasers, use a weapon to strike a person’s head or neck, or use force that results in serious bodily harm or death. The bill would also make public records of on-duty sexual assault, including when cops exchange sex for leniency. Finally, SB 1421 would give the public access to records when officers are found to have been dishonest in the “reporting, investigation, or prosecution of a crime.”
The records would be redacted to remove some personal information, like the officer’s home address and family members’ names, as well as certain information about complainants and witnesses. Certain information would also be removed if “disclosure would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct by peace officers and custodial officers,” or if there was a specific reason that disclosing the information would pose a serious physical danger to the officer or others.
“The vast majority of our law enforcement officers have excellent records,” said Senator Nancy Skinner (D-Berkeley), the bill’s author. “SB 1421 will help us hold accountable the few bad actors and build greater community trust in law enforcement.”
Peter Bibring, director of police practices at the American Civil Liberties Union of Southern California, praised bill authors Skinner, Weber, and McCarty, who “heard and responded to the community’s call for action.” Bibring said that the high-profile deaths of Michael Brown, Stephon Clark, and so many others reveal that the nation’s laws are meant to “protect the police” rather than the people.
“For years, communities throughout the country have experienced policing in America that is unjust, racially discriminatory, and unnecessarily violent,” Bibring said. “While our hearts are broken by tragedies such as these, our resolve to fight for change will never be. Now, more than ever, we must change state laws to ensure that police are held accountable to us – the people they are meant to serve and protect.”
#EquityandJustice Part Two
California Senators Holly Mitchell and Ricardo Lara also teamed up again this year to produce a second package of juvenile and criminal justice reform bills.
The first noteworthy, SB 1391 would prohibit California courts from trying 14 and 15-year-olds in the adult criminal justice system.
“Research has debunked the myth that children are hardened criminals at age 14 and 15 and deserve punishment in the adult system,” Sen. Lara said. “In fact, 14 and 15-year-olds are far from being adults and Senate Bill 1391 keeps them in the juvenile justice system and guarantees they receive counseling and education so they are less likely to commit crimes in the future.”
A 2017 report authored by Human Impact Partners looked at state and federal data and the effects of trying kids as adults in California and found the “ineffective, biased, and harmful” practice to be disproportionately used on kids of color, and used at different rates depending on where kids lived in California. And kids who are transferred to the adult justice system are more likely to recidivate—and recidivate faster than kids convicted of the same crimes who stayed in the juvenile system, according to a 2010 study by the US Department of Justice, Office of Juvenile Justice and Delinquency Prevention.
The senators also reintroduced a bill from last year’s justice package, SB 439 which would ensure that children under the age of 12 are excluded from prosecution in juvenile court. The bill seeks to “promote the rights, health, and well-being of the child by curbing premature exposure to incarceration” and addressing the needs “underlying their alleged offenses via alternatives to prosecution, including child welfare, education, and healthcare.
There are at least 20 states that have established a minimum age at which a child can be prosecuted. California is not among those states. In 2015, 974 children under the age of 12 were referred for prosecution. Approximately 250 of those kids were prosecuted in juvenile court. Only 8% of the cases were sustained as true.
A third bill, SB 1050 would update exonerees’ criminal records to show that they had been wrongfully convicted. The bill would also ensure that newly released exonerees receive support and services like healthcare and job training to ease their transition back into their communities.
SB 1392 would eliminate a sentence enhancement that adds an extra year onto a person’s sentence for a prior prison term or felony jail term.
A related bill, SB 1393, would give courts discretion to strike 5-year enhancements for prior, serious felony convictions when a person is being charged with a new, serious felony.
With these two bills, Mitchell and Lara hope to address the fact that California has some of the harshest sentencing enhancements in the nation. The state has “more than 100 separate” sentencing enhancements based on a person’s current or past offenses, according to the Public Policy Institute of California.
Sentencing enhancements add time to sentences beyond the base term, for things like prior convictions, using a firearm, shooting from a car, gang affiliation, and more. These enhancements can turn a sentence of a few years into one of multiple decades, and disproportionately affect poor and minority people.
“Sentencing enhancements for prior convictions result in extreme periods of incarceration and have been the primary drivers of prison overcrowding,” according to Mitchell and Lara.
A 2017 report from Californians for Safety and Justice, which focused on reducing the state’s prison population, found that approximately 80 percent of California prisoners are serving time that includes a mandatory enhancement.
The one-year enhancement for a prior felony affected one-third of all people convicted in California in 2017, according to the lawmakers.
“Our correctional system and its resources must be dedicated to corrections and rehabilitation, not incarceration,” Mitchell said.