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Op-Ed: When Is a Shooting “Necessary”? Legal Questions Remain After the Passage of CA Bill to Restrict Deadly Police Uses-of-Force

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Written by WLA Guest

By DeWitt Lacy

When California Governor Gavin Newsom signed the Stephon Clark bill on August 19, the move was widely hailed as a breakthrough in curbing the uncalled-for use of deadly force by police officers. The bill, formally known as AB 392, set the state’s threshold for police to justifiably use deadly force to only when it is “necessary,” a change from current wording permitting deadly force when it is “reasonable.”

The goal is to restrict the circumstances in which officers may shoot to kill during encounters with civilians.  A Rutgers University-Newark study released earlier this year found police violence to be the sixth-leading cause of death among young men between the ages of 25-29 in the U.S. And black men are 2.5 times more likely to be killed by police over their lifetime than white men. Stephon Clark, a 22-year-old black man, was shot to death in March 2018, when Sacramento Police officers responding to a call of a man seen breaking into cars, mistook the cellphone in Clark’s hand for a gun.

But what is “necessary” … and when is an officer’s use of deadly force legally justified, and when is it a violation of civil rights? The new law doesn’t say.

And that’s cause for concern.

Here’s why. Prosecutors and courts will still decide when an officer is criminally liable, when a killing was “necessary,” however they individually choose to interpret the word. And law enforcement’s response likely will be more of a masking agent than real reform. In the past, law enforcement just changed the rhetoric around their training or their written policies, and civil rights violations continued without pause. Officers will now be trained to say it was “necessary” to shoot a person – regardless of the circumstances.

Civil Rights Attorney DeWitt Lacy

California is known for its progressive policies. However, in the area of civil rights, California is significantly behind the federal standard set by Graham v. Connor, the 1989 Supreme Court decision establishing that use of force claims should be evaluated under the “objectively reasonable” standard of the Fourth Amendment’s requirement that courts consider the facts and circumstances surrounding an incident, rather than the officer’s intent or motivation.

Yet in California – three decades after that ruling – under the Tom Bane Civil Rights Act, (California Civil Code 52.1), some courts hold that a plaintiff must prove the officer’s intention in order to prove a civil rights violation in a civil lawsuit.

That’s a nearly impossible burden for plaintiffs to overcome. No law addresses an officer’s state of mind. This means that each court is left to decide whether, and how, a plaintiff must demonstrate that an officer had the specific intention of violating someone’s civil rights.

This requirement burdens plaintiffs with the almost impossible task of catching a law enforcement officer in a “Scooby-Doo”-like confession of their intent to violate an individual’s civil rights.

Civil rights law should move forward, not backward. To fully protect people victimized by law enforcement, California’s Legislature should make changes to the Bane Act in line with the lawmakers’ intention of curbing civil rights violations.

These should include:

  • Ensuring that the courts do not hold a plaintiff responsible for proving there is some separate and specific intent to violate someone’s civil rights apart from the action that violated their civil rights.
  • Making it easier for someone to sue under the Banes Act and receive all of the damages they are entitled to, including triple damages, which Banes allows the court to award.
  • Guaranteeing that a plaintiff’s attorney fees will be awarded in a successful case. Right now, that’s left to the court’s discretion. There’s a significant amount of time and effort that goes into litigating civil rights cases. The Legislature wanted to give people redress, but without it being a mandatory application of attorney fees, the expense provides a disincentive to filing these cases.

A broad coalition of individuals and organizations, including the American Civil Liberties Union, the National Police Accountability Project, and many civil rights attorneys throughout California argue for changes in the law that would truly reflect the Legislature’s original intent.

These changes are necessary as soon as possible, so court decisions are based on a clear understanding of the law and give redress to persons who have been made victims of those who have been designated as heroes and our protectors.


DeWitt Lacy is a Los Angeles civil rights attorney at the John Burris Law Firm, and has practiced civil rights law for over a decade, with a focus on Section 1983 Civil Rights Litigation, employment discrimination, and personal injury. Lacy has successfully prosecuted wrongful death actions and civil rights violations against San Francisco, Vallejo, Santa Clara, and Hayward.

Image: Salinas Police Violence Suppression Unit, courtesy of U.S. Marshals, Flickr.

14 Comments

  • Mr. Lacy, first of all, the question mark goes inside the quotation marks in the title of your piece.

    Secondly, you’re right, police will get around this ridiculous new legislation…mainly because they have a penchant for living.

    Thirdly, blacks (and Latinos) will continue to die in disproportionate numbers until they either:

    1. Learn to obey the law or

    2. Follow police instructions when they DON’T obey the law.

    It really IS that simple.

    Of course, as an attorney, it’s not in your interest for that to happen. You’ll make a LOT more money if the families of more “victims” of police shootings come knocking on your firm’s door.

  • One more thing…with regard to Stephon Clark, you neglected to leave out a few key points. It was MUCH more than officers mistaking a cellphone for a gun.

    He broke into and vandalized multiple cars
    He smashed the rear slider of an 89 yr old man’s house while the man was inside
    He jumped over fences and hid from police
    He had marijuana and codeine in his system
    He lunged toward while disobeying orders
    He had previously beat up the mother of his kids and last, but DEFINITELY not least, he had researched ways to commit suicide.

    But, of course, I’m sure you already knew these facts.

  • Ambulance chaser wants to make it easer to sue the government for more money, shocking. Can’t wait to see what the simian sisters have to say about this one.

  • Is this an op-ed or a self serving lobbying effort by an attorney who specializes in suing police. I wont get too deep into the issue but at face value it would seem like your policy suggestions would be an ineffective way to deal with new deadly force laws. The person would still be dead, the villainous cop would still be free and the only person(s) to benefit would be the lawyer and the family suing. Most lawsuits are paid by the agency and lord knows you are after way more than the small amount a cop might be able to pay.

  • Mr. LASD Apostle is correct. Clark deserved to die for all of the reasons listed. How dare he jump over a fence and hide. And, he previously beat up the mother of his kids. I’m sure it had just happened. Damn, right. And, he could have killed one of the fine porcine in uniform with that iPhone. Correct me if I am wrong, I have a Samsung phone so I may be wrong, but doesn’t an iPhone look very different than a gun. If you are stupid enough to confuse them, you should be in another profession. No doubt you think the piglet from Texas was justified for shooting that black man in his apartment. Had he only followed her instructions and moved to another apartment he would still be alive.

    Side lines, what are you talking about. As soon as a portly officer gets in trouble they run to the union paid defense attorneys. You are like the other whiners complaining about the government, yet you have a government job. You squeal about defense lawyer until you have run to them after you “mistaken” a phone for a gun on a young black man. Oh what fine specimens are paid with my tax dollars. No worries, I support welfare.

    • @cf..

      In reading your opinion, I couldn’t help but notice that you are trying to make a correlation of distinction between a cellular telephone and a gun. You are absolutely right! They are different and noticeable. Especially in broad daylight and during normal circumstances. However, when it is night time (the preferred hour of perpetrating a crime), and the police are chasing a young, black man (who refused verbal commands), and had just committed a crime(s) and is running through da hood and has a black object in his hand, that distinction between a cellular telephone and a gun cannot be readily discernible.

      Further, I notice that you like to deflect from the topic / discussion at hand, while making disparaging remarks about the appearance of others (i.e., “piglet,” portly). Just out of curiosity, is this an inherited trait or is it a learned trait?

      Furthermore, if you are trying to come across as an intellect, may I suggest that you proofread your writings and choose the appropriate terminology. For example, on one of your rebuttals you stated, ” I know your little brain (apes do have bigger brains than pigs) cannot phantom that there may be Jews in Latin America.” The proper term to be utilized here would be fathom not phantom. I would hate to see a ghost out there.

      One last question, you make reference to apes having bigger brains than pigs. I am going to go out on a limb here and extrapolate that you are making reference to yourself as an ape and the pig as a law enforcement officer?

  • Madame Kong-

    I am glad you can use the new word you learned in a sentence. But, there is no fascination. In fact, you may not believe this, but I do not even eat pork; a remnant of my parents attempt to raise us as somewhat observant Jews. Despite the ad campaign from national pork board about pork being the other white meat, I never got into it. (Maybe that is why its associated with white officers; blame the Board and not me) That ended, to my maternal grandparents’ horror, when my parents divorced, just before I had to do my bar mitzvah. I know your little brain (apes do have bigger brains than pigs) cannot phantom that there may be Jews in Latin America. Expand your horizons. The world does not start at the police station and end at Winchell’s. Take care my porcine friend.

  • I think CF thinks he/she/it is clever using the word “porcine.” It seems to be uterly fascinated with the word. It reminds me of a little kid using a potty chair for the first time, getting up and looking at their mother for praise and acknowledment because they took a dump. Well CF, ill be one of the multitude to acknowledge the crap that flows out of that hole you call a mind is just that…..crap.

  • Madame Kong, I am impressed. Another new word, and, again, you were able to use in a sentence. Retirement has expanded your vocabulary, not just your waistline. That, or sitting around watching Planet of Apes movies.

    Conspiracy, no, not clever. I just thought it would me more acceptable to the folks running the site than for me to actually call you pigs. That may seem too vulgar and uncouth for some. You cannot imagine how many times our friend Celeste has either deleted my posts, not publish them or warned me about them. And, I do not want to deprive you of knowing there is an alternative world view out there were potbellied men in uniform, LA’s finest, are not seen as heroes, but as pigs. Sorry, porcine.

    • I hope you’re referring to the ape movies with Charleston Heston (the only good ones) . And I have no doubt Celeste knows better than the rest of us the extent of your neurosis.

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