By: Michael L. Rains
It’s been more than 40 years since I last wore a police uniform, so everything I see and experience today is viewed primarily through the professional lives and experiences of the police officer clients of Rains Lucia Stern St. Phalle & Silver, PC. I also see reports written by each of our attorneys who respond to officer-involved shootings or other critical incidents involving use of force which cause death or great bodily injury. The attorneys’ synopses of these cases often lead to additional discussion amongst the attorneys in the firm or can trigger a phone call from me trying to get additional detail as to the underlying event and the ensuing investigation of our client. I do this because I am trying to figure out how AB 392 has truly affected investigations of our clients.
Contrary to a number of mostly management officials who insisted that the new law did not substantially change the way in which an OIS or other serious use of force would be investigated or analyzed, I have always believed that the new law makes some fairly significant changes in factors officers are required to consider before using “deadly force” as that term is defined in Penal Code section 835a(e)(1). I want to take the opportunity of this article to explain my thoughts and some of the experiences our firm has had while representing officers in OISs/critical incidents during the last six months. To make it easier for the reader to follow the points I hope to make, I’m going to highlight some of my thoughts which require emphasis.
POINT 1: While I think Penal Code section 835a, as amended by AB 392, makes some substantial changes in regulating the right of peace officers to use deadly force and in the investigation of OISs and other serious uses of force, I do not see these changes in and of themselves likely leading to a rash of criminal prosecutions of police officers, which I believe are more dramatically impacted by graphic, ugly looking and sounding video evidence released to the public without background, context, explanation or any form of analysis.
I have always said and continue to believe that the criminal prosecution of police officers is going to be more the result of public disclosure of graphic and ugly video/audio evidence of a police use of force than it will be to a District Attorney seizing upon the language of Penal Code section 835a. It is for this reason that I have encouraged police management officials and DA’s offices at classes I teach to decline the public disclosure of video evidence of police use of force under Penal Code section 832.7(b)(7)(A)(ii) until the local District Attorney has made a decision whether or not to issue criminal charges against the officer. This is because the premature disclosure of graphic video and/or audio of a police use of force can not only affect the charging decision of the District Attorney to begin with, but can affect the right of an officer who is charged criminally to be tried by a fair and impartial trial by a jury which has not already prejudged the case as a result of looking at a video of the incident on the evening news.
There is probably no question that police officers in California are more susceptible to being charged criminally by the District Attorney by the combined enactment of AB 1421, which amended Penal Code section 832.7 to permit public disclosure of video evidence of officer-involved shootings or other uses of force causing great bodily injury, and some of the additional conditions/restrictions outlined in Penal Code section 835a relating to an officer’s use of “deadly force.” But the language of section 835a, in and of itself has not, to date, propelled DA’s throughout the state where we represent police officers to criminally charge our clients because the officer, in retrospect, might have employed other tactics and/or de-escalation options to possibly prevent the confrontation which resulted in the officer’s use of lethal force.
POINT 2: The changes in both the regulation of police officer use of force and in assessing the officer’s use of force after it occurs are likely to arise more frequently and become the subject of greater dispute in civil cases, rather than criminal or administrative cases.
I have concerns about some of the definitions set forth in Penal Code section 835a(e) but have purposely chosen to stay away from discussing my individual concerns in this article. As the current coronavirus subsides and we resume more traditional forms of instruction/education, I plan to be speaking more clearly and specifically to police clients on this topic.
However, for now, officers should understand that, in civil cases, the Plaintiff’s lawyers have historically and consistently “pounded the table” concerning (1) the employer’s liability for failure to properly train its employees on the requirements of the law, and (2) the alternative procedures/tactics the officer might have taken to avoid the application of force altogether. Civil suits are uniquely situated for lawyers to engage in this type of Monday morning quarterbacking and speculation, as they have extensive pretrial discovery procedures including interrogatories, requests for admissions and depositions which do not traditionally exist in criminal or administrative cases, and they have a stable of “experts” more than eager to second guess and criticize an officer’s choice of tactical repositioning or de-escalation techniques.
All of this is meant to say that while I certainly do think police officers will be charged criminally in the future with violating provisions of Penal Code section 835a, and will be fired by their employers for those violations as well, I do not believe the exposure to those legal repercussions are as great as an officer’s potential to be both criticized and second guessed in civil litigation, and subjected to a significant potential for the imposition of punitive damages in the event a use of force case is decided by a jury.
Finally, on this issue and given my disappointment in the amount and quality of practical, tactical training in the area of de-escalation, tactical repositioning, or defusing crisis situations, discussed further under “Point 3,” below, I believe that police agencies might face a greater possibility of “failure to train” lawsuits.
Failure to train liability is generally based on claims that the need for more or better training is so obvious, and the inadequacy of training is so likely to result in the violation of one’s constitutional rights that the Agency can reasonably be said to have been “deliberately indifferent” to the need to train. (City of Canton, Ohio v. Harris (1989) 489 US 378).
POINT 3: Our police officer clients seem to be paying close attention to their obligations and restrictions concerning use of force under the new law, but there seems to be a lack of high quality training for officers when they have to make split second decisions concerning force options, de-escalation and tactical repositioning, and crisis diffusion techniques/options.
Since January 1, 2020, I have tried to talk to clients and police trainers about the type and amount of training police officers are receiving concerning both the academic portions of this new law and the practical/tactical provisions. From an intellectual standpoint, the law itself is reasonably clear on some of the most important issues an officer is required to consider when using deadly force. Let me review some of those most important issues:
- The “totality of circumstances” which an officer is required to consider before using deadly force necessarily includes pre-shooting conduct and tactics of the officer himself/herself – in other words, did the officers own conduct/tactics “provoke a violent confrontation” that could have been avoided through the use of alternative tactics”?
- Before an officer is authorized to use deadly force, a suspect must pose an “imminent threat” of death or serious bodily injury to the officer or another person, which requires the officers evaluation as to whether that person possess the (1) present ability, (2) present opportunity, and (3) apparent intent to immediately cause death or serious bodily injury to the officer or another. Of those three factors, the third is probably the hardest for an officer to both evaluate and articulate: a suspect may have both the ability and the opportunity to cause death or serious bodily injury, but an officer may be forced to speculate on that suspect’s intent if the suspect does not verbalize his/her intent or make a sudden obvious movement making his/her intent clear to the officer.
- Was the suspect engaged in conduct indicating that he/she was a danger only to himself/herself? If so, the law essentially tells the police that use of deadly force is inappropriate. The great danger this poses to an officer is that a person can transition from being only a danger to himself/herself to being a danger to others in a fraction of a second.
- When the officer made the decision to use lethal force, did the suspect pose an “imminent” threat of death or serious bodily injury to the officer or others, or was any such threat nearly speculative? Under the new law, the use of deadly force may not be authorized simply because the suspect has produced a firearm and waived it around without pointing it in the direction of police officers or civilians before attempting to flee. Imminent harm is not “future harm,” but harm which “must be instantly confronted and addressed.” A suspect with a gun in hand waiving it in the air and fleeing from the police may pose a threat/fear of only “future harm,” making the use of deadly force improper.
- An officer is not permitted to use deadly force against a fleeing felon unless two distinct conditions are present: (1) did the suspect commit a felony which resulted in death or serious bodily injury; (2) did the officer have a reasonable belief that the suspect would cause either death or serious bodily injury to another person unless immediately apprehended through the use of deadly force? This second condition lends itself to some degree of speculation.
- How much consideration did the subject officer give to de-escalation options and tactical repositioning options before resorting to the use of deadly force? The law mandates that such consideration occur.
The new law sets out important issues which are highlighted above which most officers are capable of understanding from an intellectual standpoint. However, I have attempted to determine what training has been given to police officers in a variety of jurisdictions where we represent those officers concerning such issues as “de-escalation” and “tactical repositioning” options, assessments of whether suspects are a danger “only unto themselves” or whether a suspect had the “apparent intent” to cause death or serious bodily injury and how that intent can manifest itself.
I have not seen the type of high-quality intensive training to officers which would give them the “tools” to meet the practical and tactical challenges of this new law. It is imperative that officers avail themselves of the opportunity to receive training in these areas, whenever possible. While the coronavirus may limit some of that training to online sources, we anticipate that soon there will also be in-person opportunities. Such training should include tactical trainers who provide hands-on advice in real-life scenarios to fill the training gap which can make an otherwise well-intentioned officer who has to make split second decisions concerning use of force potentially culpable criminally, civilly, and administratively. Also, since SB 230 will become effective on January 1, 2021, adding new policy formulation requirements for police agencies on use of force matters, training on these new policy requirements and implications is also critical.
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 40 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.
Addendum - July 14, 2020: I wrote this article in late April. Since my preparation of the article, several events have occurred that further lend support to my position, especially the video of the George Floyd case in Minneapolis, and the video of the struggle between Rashad Brooks and Officers in Atlanta, both of which ultimately ended in the death of the suspect. As we all know, the Officers in both cases were widely condemned and quickly charged with murder. Whether one agrees or disagrees with the charging decision in one or both of these cases, they illustrate the point I had hoped to make about whether newly amended Penal Code Section 835a is going to open the floodgates of California officers being criminally charged. My point is that when the nation sees the video of a graphic use of force by the Police, we cannot count on most DA’s to conduct the kind of careful, even perhaps tedious forensic examination of the video which should be undertaken in order to determine what really happened before criminal charges are filed. And we cannot expect that sincere, thoughtful and articulate explanations by the officers as to why the threat of death or serious bodily injury was “imminent,” or why there was no opportunity to consider and implement de-escalation options, will sidetrack the inevitable decision to charge. The language in Penal Code Section 835a which requires the lethal use of force by an officer to be analyzed by a “reasonable Officer standard” without “the benefit of hindsight” and which does not require Officers to retreat before using such force seems to provide some protection from politically-driven criminal prosecutions. But it does not change the fact that elected District Attorneys are going to be facing immense pressure to charge Officers by members of the public who have briefly reviewed video of an incident, have little or no idea of the events which preceded the Officer’s use of force, no understanding or appreciation of what a careful forensic analysis of the video might reveal, and no interest in the DA delaying a decision to charge until such an analysis is completed.