Courtesy of James R. Touchstone, Esq.
On August 19, 2019, Governor Gavin Newsom signed AB 392 into law. Of note, Governor Newsom’s office and members of the legislature took significant input from a variety of law enforcement associations and their legal counsel in amending AB 392’s original language. AB 392 effectively updates California’s legal standard governing when force can be used, and how it is to subsequently be evaluated, by modifying the state standard so that it is consistent with the federal standard of “objective reasonableness,” as articulated in numerous United States Supreme Court and lower federal court rulings. The new law goes into effect on January 1, 2020.
Under state law prior to AB 392’s enactment, California Penal Code section 196 provided that:
“Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either—
1. In obedience to any judgment of a competent court; or,
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.”
Moreover, California Penal Code section 835a, governing use of force by peace officers provided:
“Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.
A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.”
As set forth more fully below, AB 392 significantly modifies these two sections and redefines the circumstances under which use of force is permissible and when a homicide by a peace officer is deemed justifiable.
The revisions to Penal Code sections 196 and 835a are effective on January 1, 2020. AB 392 amends Penal Code section 196 to state:
“Homicide is justifiable when committed by peace officers and those acting by their command in their aid and assistance, under either of the following circumstances: (a) In obedience to any judgment of a competent court; and (b) When the homicide results from a peace officer’s use of force that is in compliance with Section 835a.”
Accordingly, it falls to Section 835a to provide the majority of guidance to peace officers concerning use of force.
AB 392 extensively amends Penal Code section 835a. Subdivision (a) of 835a lists a variety of declarations and findings by the Legislature. Specifically, the new language of Penal Code section 835a, subdivision (a)(1), provides that the authority given by the section to peace officers to use physical force is a serious responsibility that should be exercised judiciously and with respect for human rights and dignity and for the sanctity of human life. Subsection (a)(1) also expresses the Legislature’s declaration that every person has a right to be free from excessive use of force by officers acting under color of law. These are principles by which law enforcement in California and elsewhere have lived by for a number of years.
Subdivision (a)(2) of Section 835a conveys that peace officers may use deadly force “only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.” As such, this section incorporates the “objectively reasonable officer” standard and tacitly acknowledges that an officer is only required to use non-deadly force if it is reasonably safe and feasible for the officer to do so without endangering the officer’s life or the lives of others.
Subdivision (a)(3) of Section 835a states, “[t]hat the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.” Again, the standard by which law enforcement has operated in California for years.
In Section 835a, subdivision (a)(4), the Legislature declares: “That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.” (Italics added.) Importantly, this standard incorporates the “reasonable officer” standard, which has been in effect under federal law since Graham v. Connor. In addition, this subdivision incorporates Graham’s “totality of the circumstances” test, and requires those judging an officer’s use of force do so by placing themselves in the officer’s shoes at the time the officer utilized force, rather than with the benefit of infallible hindsight.
In subdivision (a)(5), the Legislature proclaims that “individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.” In making this assertion, the Legislature did not indicate what study or studies that it relied upon to set forth these statistics concerning use of force on those with disabilities. Moreover, these statistics, if anything, are static with time. Nevertheless, they are included in the amended Section 835a.
In subdivision (b) of Section 835a, the Legislature begins setting forth the actual law governing use of force. Subdivision (b) states “Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.” This standard simply restates what previously was set forth in Section 835a. Another pertinent observation is that it maintains the “objectively reasonable force” standard, which, again, is consistent with longstanding federal law.
Subdivision (c) of Section 835a articulates the standards governing the use of deadly force. AB 392 provides in subdivision (c)(1) that deadly force may be used by a peace officer “only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary”for either of the following reasons (italics added, and subsequently): “(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.”
AB 392, in the newly enacted subdivision (e)(2) of Section 835a, defines a threat of death or serious bodily injury as “imminent”: “when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.” (Italics added.) As such, an officer must be prepared to articulate facts to justify his use of deadly force. Fear alone is insufficient to meet this standard. Once more, this is the standard that law enforcement has been judged by for years.
Subdivision (c)(1)(B) effectively incorporates the fleeing felon rule set forth in Tennessee v. Garner and its progeny. This subdivision provides that deadly force is permissible: “(B)
o apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.” (Italics added.)
In sum, you may use deadly force to apprehend a fleeing felon if the committed or suspected felony threatened or resulted in death or serious bodily injury and it is necessary to prevent that person from causing further death or seriously bodily injury unless immediately apprehended. As has always been the case, an officer must be able to articulate facts to justify his or her conclusion that he or she reasonably believed that it was necessary to use deadly force in such circumstances. These facts can vary substantially, but may include the fact that the fleeing felon was armed, had, immediately prior to the use of deadly force, threatened to use the weapon he or she was armed with in a manner that would reasonably cause death or serious bodily injury to someone, the proximity of persons to the fleeing felon who potentially could be victimized by the fleeing person, etc. It is also important to note that you should issue a warning prior to use of deadly force if it is feasible and safe to do so.
Use of the term “necessary” in the new legislation initially caused some parties angst. However, “necessary” has been part of federal case law for years. The very problematic initial definition of “necessary” present in the initial iteration of AB 392 subsequently was omitted.
Section 835a, subdivision (c)(2), prohibits a peace officer from using deadly force against a person “based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.” Accordingly, if force is used against such an individual, an officer must be prepared to explain why he or she, or others, faced an imminent threat of death or serious bodily injury from the person threatening harm to him or herself.
Importantly, Section 835a, subdivision (d) incorporates prior language of Section 835a concerning an officer’s duty to retreat when confronted with resistance or force by a suspect– specifically, the fact that one does not exist. Subdivision (d) states that:
“A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, “retreat” does not mean tactical repositioning or other de-escalation tactics.” (Italics added.)
This text makes clear that the officer maintains the right to self-defense, so long as the use of force is objectively reasonable as per the requirements of Section 835a. This language also clarifies that “retreat” does not mean tactical repositioning or other de-escalation tactics. As has always been the case, it is prudent for officers to consider use of tactics to ensure officer safety and potentially avoid the use of force. An officer who is able to explain to a jury why he or she did not utilize a particular tactic or force option is particularly necessary in a civil liability case.
Subdivision (e) of Section 835a provides additional definitions for purposes of examining an officer’s use of force. Specifically, subdivision (e) provides that:
“For purposes of this section, the following definitions shall apply:
(1) “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.
(2) (Set forth above)
(3) “Totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.”
Subdivision (e)(3) effectively incorporates the holding of Hayes v. County of San Diego into state statutory law. As you will recall, the Hayes decision provides that an officer’s tactics and conduct leading up to the use of deadly force may be considered by a trier of fact in examining a state law negligence claim.
HOW THIS AFFECTS YOUR AGENCY
Objective reasonableness remains the touchstone (yes, I went there) for the use of force under the new amended provisions of Penal Code sections 196 and 835a. Agencies and officers must be aware of these changes and ensure that they are incorporated into their policies and procedures. Assuming that the companion SB 230 subsequently is enacted, there should be additional POST funding for training officers on these “new” use of force standards, which will be of immeasurable assistance in these tight economic times. As discussed more thoroughly above, AB 392 effectively incorporates into state statutory law the longstanding legal principles originally established by Tennessee v. Garner and Graham v. Connor under which California law enforcement has been operating for a significant period of time.
In addition, however, AB 392 integrates the California Supreme Court’s 2013 ruling in Hayes v. County of San Diego into California statutory law as well. Agencies should ensure that their officers have been trained appropriately on the Hayes case and this particular aspect of AB 392, in addition to the other statutory amendments made by AB 392.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 “Deadly force” is defined in Section 835a as “any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.”
 57 Cal. 4th 622 (2013).