Introduction
On March 18th, 2018 at 9:13 p.m., a man called 911 to report an individual breaking windows and attempting to jump a fence into a backyard in South Sacramento, California.1 This call prompted both an aerial and a ground pursuit, which ended with two officers firing approximately twenty shots at the suspect.2 At 9:26 p.m., that individual, twenty-two-year-old Stephon Clark, lay dead in his grandmother’s backyard.3 Body camera audio following the shooting captures one of the officers claiming he saw “something in his hands, it looked like a gun from our perspectives.”4 Stephon Clark was unarmed; only a cell phone was recovered from the scene.5
This was one of two police-involved shootings in Sacramento in 2018 and one of thirty-nine police-involved deaths in California that year.6 Stephon Clark was one of approximately 990 people shot and killed by the police in the United States in 2018.7 A more alarming figure: unarmed Black people like Clark are killed by police at a rate four times higher than unarmed white people.8 This phenomenon of police killing unarmed Black men, women, and children is hardly new for the American consciousness—in 2014 it was Michael Brown, Eric Garner, and Tamir Rice; in 2015 it was Walter Scott; and in 2016 it was Philando Castile.9 In the summer of 2020, the world erupted in social unrest and calls to end police brutality following the police killing of George Floyd in Minneapolis, Minnesota, Breonna Taylor in Louisville, Kentucky, and Jacob Blake in Kenosha, Wisconsin, among countless others across the United States.10
The 2018 killing of Stephon Clark gained national attention and sparked protests across Sacramento, in which activists and community members called for city and state officials to hold the officers involved accountable.11 Nearly a year later, Sacramento District Attorney Anne-Marie Schubert announced that Officers Jared Robinet and Terrence Mercadal would not face criminal charges.12 California Attorney General Xavier Becerra conducted an independent investigation and also concluded that no criminal charges could be brought.13 This announcement revived a more fervent round of protests in the community.14 At the same time, responding to Clark’s death, the California State Legislature was already well at work on legislation to change the standard for when police are justified in using force.15
In February 2019, California Assemblymembers Shirley Weber and Kevin McCarty introduced A.B. 392, and by that August, California Governor Gavin Newsom signed the strictest standard justifying police use of force into law.16 California is now one of two states that authorizes a police officer to use deadly force only when it is necessary to prevent an imminent threat of death or serious bodily injury,17 rather than when force is reasonable, which was the old standard under which Sacramento D.A. Schubert declined to charge the officers that killed Stephon Clark.18 A.B. 392’s amendment of Penal Code § 835a is significant not only for California’s effort to curb police violence and its disproportionate impact on communities of color,19 but also as a model of reform for states and the federal government. At a ceremony for the signing of A.B. 392, Governor Newsom told the crowd, “[a]s California goes, so goes the rest of the United States of America. And we are doing something today that stretches the boundaries of possibility and sends a message to people all across this country—that they can do more.”20
However, given that the definition of what constitutes “necessary” force was removed from the bill to garner the needed support, it is uncertain what impact California’s new use of force standard will have on saving lives and holding police accountable for unnecessary force.21 Policymakers have opted to leave this pivotal interpretation of the new law to the courts,22 thus raising fundamental questions of how prosecutors will charge police officers with unnecessary use of force, and how courts will construe this unprecedented legal standard in fidelity to the objectives of legislators. Despite legislators’ sincere hopes that A.B. 392 will save innocent lives and that officers will never have to be charged with unjustified homicide,23 experience tells us this is an improbable expectation. There is little doubt that courts in California will be forced to interpret the new standard for police use of force. This Note aims to establish a framework that the California courts should apply to interpret the new standard in the absence of guiding precedent. The framework can also serve as a baseline for scholars, activists, and reformers in states across the country seeking to restructure the standards under which police are justified in using deadly force.24
Part I examines how federal and California courts have analyzed deadly force by police under the “reasonable” standard, surveys police use of force laws across the country, and outlines the precise details of California’s reformed “necessary” standard for the justified use of deadly force by police. Part II explores sources of interpretation including legislative history, justification defenses, and law from other jurisdictions that California courts should look to when faced with the challenge of determining when and how much force is necessary.
I. Background: The Law on Police Use of Deadly Force
A. The “Reasonable” Standard
1. U.S. Supreme Court Precedent on the Meaning of Excessive Force Under the Fourth Amendment
State use of force laws apply in criminal prosecutions of police officers for homicide and assault, whereas Supreme Court precedent governs federal civil excessive force actions under 42 U.S.C. § 1983,25 which imposes liability on individuals for depriving another of their constitutional rights while acting “under the color of [state or local law].”26 Although the main focus of this Note will be on the California state standard, which will be applied in future criminal prosecutions of police officers, the importance of constitutional use of force doctrine cannot be understated for the enormous influence it casts on police behavior and on the California state courts’ interpretation of the reasonableness of police use of force.27 Three main U.S. Supreme Court cases guide when use of force by police is excessive and thus unconstitutional under the Fourth Amendment: Tennessee v. Garner,28 Graham v. Connor,29 and Scott v. Harris.30
The Supreme Court began shaping modern use of force jurisprudence in 1985 in Garner. A Tennessee police officer, responding to a prowler call, chased and then shot and killed Edward Garner, a fifteen-year-old African American teenager, fearing that Garner would elude capture as he began climbing over a fence.31 The Court found that the common law rule in Tennessee was “constitutionally unreasonable,” for allowing the use of force, including deadly force, by peace officers to prevent the escape of all felony suspects, regardless of the circumstances.32 The Court held that the use of deadly force to prevent escape was reasonable only if the officer has probable cause to believe that the suspect poses a threat of serious physical harm to the officer or others, and if, where feasible, some warning is given prior to using deadly force.33 It is worth noting that Garner’s “change in the law [had] a significant impact on the ground,”34 as evidenced by a dramatic decrease in the number of persons shot and killed by police, largely due to many police departments abandoning the common law rule and changing their policies to conform to the decision.35
Several years later, in Graham v. Connor, the Court pivoted from Garner and embraced a vaguer balancing test for determining whether an officer’s use of force was reasonable.36 A police officer suspected Dethorne Graham to have stolen something from a convenience store and followed his car for a half-mile before stopping him.37 Graham was having a diabetic episode at the time.38 Despite being informed about Graham’s insulin reaction, the officer and several backup officers handcuffed Graham, threw him against the back of Graham’s car and then into the back of a police car, and refused to give him juice for his insulin reaction.39 Once the officers confirmed that Graham had not done anything illegal at the convenience store, they drove him home and released him.40 He suffered multiple injuries, and brought an excessive force suit against the officers, which made its way all the way to the Supreme Court.41
The Court announced that determining whether the force used was “reasonable” requires careful balancing between the individual’s Fourth Amendment interests and the countervailing government interest at stake.42 Incapable “of precise definition or mechanical application,”43 the balancing test is fact-intensive and examines: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade arrest by flight.”44
In this inquiry, courts must apply an objective standard of reasonableness45 from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”46 Three decades later, the Graham factors remain at the forefront of the federal courts’ analysis of police use of force, but scholars criticize the inadequacy of this legal standard in guiding the public, law enforcement, juries, and the courts in understanding what constitutes legitimate police force.47
Most recently, in Scott v. Harris the Court seemed to back away from both Garner and Graham,48 instead employing “an ad hoc balancing of state and individual interests unconstrained by any specific criteria.”49 After a high-speed chase on a Georgia highway, Officer Scott rammed Harris’s car to stop the pursuit, causing Harris to lose control and crash, ultimately rendering him a quadriplegic.50 Applying Graham, the district court denied the defendants’ summary judgement motion on Harris’s Fourth Amendment claim and the court of appeals affirmed.51 The Supreme Court reversed, concluding not only that Scott’s seizure of Harris’s car was reasonable,52 but that “no reasonable jury could conclude otherwise.”53 Notably, Justice Stevens, dissenting, did conclude otherwise,54 as did the district court judge and the Eleventh Circuit panel.55 In Scott, the Court failed to refine Graham’s vague and inconsistent framework for analyzing police uses of force.56 Instead, the majority essentially blessed a case-by-case balancing based on intuition as to what is reasonable given the particular circumstances of a situation,57 and seemingly established a narrow rule for most high-speed chases.58
An imprecise legal framework for what constitutes reasonable force, and reasonable deadly force in particular, undermines public safety and justice.59 The inadequacies of the Supreme Court’s use of force jurisprudence ought to serve as a cautionary tale of the importance of establishing a principled framework for analyzing police force as the California courts are confronted with the task of giving shape to the “necessary” standard.
2. Pre-A.B. 392 California Statutory and Case Law Foundation on the Use of Force Standard
Prior to the reforms of A.B. 392, the law that defined when peace officers were justified in committing homicide was the same for 147 years since its inception.60 Under that law, peace officers and civilians assisting them were justified in committing homicide under a broad range of circumstances, including, inter alia: (1) in obedience of a court judgment, (2) when necessary to overcome resistance to the execution of some legal process, (3) when necessary to capture felons who have escaped, or (4) when necessary to arrest a person charged with a felony and fleeing or resisting such arrest.61 The disjunctive clauses and vague language of unreformed § 196 consequently permits a shockingly broad range of justified police killing. The justified use of deadly force was somewhat statutorily limited by California Penal Code § 835a in 1957, which defined what constituted “reasonable force to effect [an] arrest”: “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.”62
California case law further clarified the parameters of when deadly force was reasonable. California courts adopted the Garner standard: a police officer’s use of deadly force is reasonable if there is probable cause to believe that a suspect poses a significant threat of death or serious physical injury to an officer or others.63 California courts also embraced the Graham “objectively reasonable” standard, and the reasonableness of a particular use of force is judged from the perspective of a reasonable officer on the scene.64 In pursuing a fleeing suspect, officers are “authorized to press forward in an attempt to make an arrest, using reasonably necessary force.”65 Case law defining what constitutes an unreasonable use of force under §§ 196 and 835a is scant, however, likely due to how infrequently prosecutors charged officers under the previous versions of these standards.
B. Survey of Police Use of Force Laws
A brief overview of use of force laws across the United States is particularly illuminating in understanding the monumental nature of California’s reform and its potential for influencing meaningful reform across the country. There is no federal standard governing use of force by law enforcement.66 State statutes on the use of lethal force vary considerably seeing as “federalism is the rule in the substantive criminal law in the states.”67 Nine states and Washington, D.C. have no statute on the use of lethal force by law enforcement officers at all, instead relying on Supreme Court decisions in regard to the use of force under the Fourth Amendment.68 As of 2015, thirteen states had laws that did not comply with constitutional law on the use of lethal force,69 as set forth in the seminal case of Tennessee v. Garner.70
Prior to California’s reform, only Washington had a statute that authorized the use of lethal force by law enforcement only in instances in which such force was necessary to protect against the threat of death or serious bodily injury.71 Instead, states mostly adhere to a “reasonableness” standard in various forms.72 This is a problematic standard because it is often too open-ended, provides little guidance in determining whether an officer’s use of force was justified, and is equated with typicality.73 This across-the-board adherence to a reasonable standard for police use of force has effectively shielded law enforcement from prosecution. In the decade between 2005–2015, of the thousands of officers who fatally shot someone while on duty, only fifty-four officers were charged and only eleven were convicted,74 often for lesser charges than homicide and with unusually light sentences.75
C. California’s New “Necessary” Standard
1. A.B. 392
A.B. 392 amends both §§ 196 and 835a in significant ways. § 196 was amended to constrain the broad language of the 1872 version:
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.
(b) When the homicide results from a peace officer’s use of force that is in compliance with Section 835a.76
Thus, § 835a takes on pronounced import, and the breadth and specificity of the amended version offers a more principled starting point from which courts must analyze police use of force. The most significant amendment comes in the form of a detailed and explicit deadly force provision: “[A] peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary.”77 There are only two circumstances in which a peace officer will be justified in using deadly force:
(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person[; or]
(B) To 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.78
Where feasible, an officer shall “make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used,” prior to using deadly force, “unless the officer has objectively reasonable grounds to believe the person is aware of those facts.”79 The amended law makes clear that deadly force shall not be used against a person if that person only poses a danger to themselves and does not pose “an imminent threat of death or serious bodily injury to the peace officer or to another person” from the perspective of an objectively reasonable officer.80 The legislature also clarified its intent that “peace officers use deadly force only when necessary in defense of human life,” and directs officers to “evaluate each situation in light of the particular circumstances of each case” when determining whether deadly force is necessary and to “use other available resources and techniques if reasonably safe and feasible.”81
Subsection (e) defines “deadly force,”82 “imminent,”83 and “totality of the circumstances.”84 However, the definition of “necessary,” the key word in this statute, was intentionally removed by the legislature,85 leaving its interpretation to the courts. Under the removed definition, “‘[n]ecessary’ mean[t] that, given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.”86 The legislative history from both the Assembly and Senate does not address the reason for withdrawing the explicit definition,87 but the corresponding timing between this amendment and the removal of law enforcement opposition seems beyond coincidence.88
Two distinct principles have been preserved from the former reasonable standard. Under subsection (a)(4), the “objectively reasonable officer” standard from Graham persists.89 Thus, when evaluating an officer’s use of force, the question will be whether a reasonable officer considering the totality of the circumstances surrounding the particular incident would find the level of force employed to be necessary, not just reasonable.90 An officer’s subjective belief that a particular use of deadly force was necessary is irrelevant; that use of force can only be justified if the trier of fact finds that an objectively reasonable officer, under the same circumstances, would find the force to be necessary to defend human life.91 Additionally, subsection (d) preserves no duty to retreat by an officer when making or attempting to make an arrest, and affirms that an officer does not lose the right to self-defense by the use of objectively reasonable force.92 The last line of subsection (d) clarifies that “‘retreat’ does not mean tactical repositioning or other de-escalation tactics,”93 and reflects the legislature’s intent that force-alternative strategies and de-escalation tactics must be considered where an arrest attempt is met with resistance.94
2. S.B. 230
At the same time as A.B. 392 was making its way through the amendment process in the California State Assembly, the California State Senate was developing a rival, law-enforcement backed bill: S.B. 230. 95 After negotiations on both bills had stalled, S.B. 230 was amended so that it could only become law if A.B. 392 did as well, a move which was essential to getting both bills passed.96 S.B. 230 establishes the minimum standard for policies and reporting procedures regarding use of force in California law enforcement agencies and requires local agencies to maintain policies and training in accordance with these state-mandated minimum standards.97 The law includes almost every single recommendation that Attorney General Xavier Becerra included in his report following the Department of Justice’s independent assessment of the Sacramento Police Department following Stephon Clark’s killing.98
While S.B. 230, codified as California Government Code § 7286, does not impose a legal duty on an officer to act in accordance with the policies and training that law enforcement agencies enact, they may be considered as a factor in the totality of circumstances calculation to determine whether an officer acted reasonably in using force.99 Law enforcement agencies were mandated to promulgate and maintain a policy that provides a minimum standard for the use of force with at least twenty specific requirements by no later than January 1, 2021.100 Notably, several of the twenty enumerated requirements for agency use of force policies appear to target the ambiguity of the “necessary” standard in A.B. 392. Officers are required to utilize alternatives to force when feasible and the level of force used must be proportional to the seriousness of the suspected offense or perceived level of actual or threatened resistance.101 Also, officers must follow clear and specific guidelines about uses of firearms, approved methods and devices available for the application of force, and about the application of deadly force.102 Other enumerated requirements include reporting and investigating procedures regarding use of force incidents.103 S.B. 230 complemented these policy updates with mandatory training in fourteen different topics related to the use of force, which is codified under California Penal Code § 13519.10.104
II. Analysis
Beginning on January 1, 2020, attorneys and judges in California were faced with the task of finding daylight between what was previously considered a reasonable application of deadly force by the police and when such force is necessary under the new standard. In determining whether an officer’s use of deadly force is justified, said force will be evaluated not by whether an objectively reasonable officer would have used force under the same circumstances,105 nor even whether the particular officer involved believed such force was necessary. Rather, deadly force is only justified when a police officer in the same situation would reasonably believe such force was necessary under the totality of the circumstances.106 Thus, this is an objective standard in which the individual officer’s subjective belief regarding the necessity of deadly force is immaterial. The absence of a definition for what “necessary” means under the new standard presents the risk of inconsistency and the sort of intuition-based ad-hoc decision-making that characterizes the framework established by Supreme Court jurisprudence.107 Professor Harmon agrees: “Like timing, a necessity requirement provides a framework for a coherent and productive jurisprudence on what uses of force by state actors are permissible.”108 The subsequent sections examine the sources of statutory construction that California courts should look to in defining what constitutes “necessary” deadly force under the unprecedented legal standard created by A.B. 392.
A. Textual Analysis
The California Supreme Court aims to “effectuate the intended legislative purpose”109 in its statutory interpretation, and “[i]f an ambiguity remains after this preliminary textual analysis, [the court] may consider extrinsic sources such as legislative history . . . .”110 Dictionary definitions of “necessary” include “[i]ndispensable, vital, essential; requisite.”111 “Necessary” is “susceptible of various meanings” depending on the context in which it’s used: it may mean merely that which is “convenient, [or] useful”112 or it may mean that which is absolutely compelling, “of an inevitable nature[,] inescapable,” “logically unavoidable,” or “absolutely needed[,] required.”113 With such a range of meaning, the word “necessary,” standing alone, is ambiguous.114 Obviously, the context behind the reform is important in deciphering which of the various meanings should be applied here, and a stronger interpretation aligned with “requisite” and “inescapable, logically unavoidable” is the correct one here.115
B. Legislative History and Purpose
The language of A.B. 392 implies that there is a difference between deadly force that is necessary, and therefore reasonable, and deadly force that an objective officer may perceive to be reasonable, and yet is unnecessary in light of all of the circumstances surrounding the particular use of force.116 In other words, if an officer’s particular use of deadly force is found not to be necessary, then that use of force was unreasonable and thus considered an unjustified homicide, and although some lesser amount of force perhaps may have been reasonable, deadly force was not. The new standard effectively creates a spectrum that divides deadly force by police into three segments: (1) deadly force that is unreasonable even under the pre-A.B. 392 standard, (2) deadly force that may have been objectively reasonable pre-A.B. 392 but not necessary under the post-A.B. 392 standard, and (3) deadly force that is reasonably necessary based on the totality of the circumstances under the A.B. 392 standard. Finding the daylight between segments (2) and (3) requires a precise definition of when deadly force is necessary and thus justifiable.
California courts will have to decide how to address the definition of “necessary” that was removed in the amendment process of A.B. 392.117 The removed definition should be treated as persuasive insight into the Legislature’s intent rather than a repudiated meaning altogether. Within § 835a, the Legislature enshrined its intent that officers shall use other resources and techniques where reasonably safe and feasible, and that this should be a consideration in determining whether deadly force is necessary.118 Thus, in order to determine whether a particular use of deadly force is necessary, officers must first determine that other resources or techniques were unavailable or not reasonably safe or feasible. Under this interpretation, § 835a(a)(2) operates similarly to the removed definition of “necessary,” which would have required that an objectively reasonable peace officer in the same situation, given the totality of the circumstances, would also conclude that there was no reasonable alternative to the use of deadly force.119 In other words, a mandate for officers to “use other available resources and techniques if reasonably safe and feasible” in determining whether deadly force is necessary120 is functionally equivalent to an officer “conclud[ing] that there was no reasonable alternative to the use of deadly force.”121 Furthermore, nothing in the legislative history suggests that the removal of the definition was an outright rejection of its terms, which presumably would have been explicitly indicated.122 Rather, the removal was viewed and described as a political compromise to remove law enforcement opposition and garner legislator support.123
C. Interaction of A.B. 392 and S.B. 230
Because A.B. 392 and S.B. 230 are companion bills, provisions of the latter give insightful context that California courts should consider when evaluating whether an officer was reasonable in his belief that a particular application of deadly force was necessary.124 It was the Legislature’s intent to naturally heighten the legal standard for the use of deadly force of A.B. 392 by creating higher minimum standards for basic training in the use of force through S.B. 230.125
The reasonableness of an officer’s belief that deadly force is necessary is informed by “the totality of the circumstances,”126 which should include the training of the officer and the policies of his or her unit as a factor.127 California law enforcement agencies will now have a policy requiring that officers use alternatives to force when feasible, as well as training on these alternatives.128 Therefore, if an officer is trained in de-escalation techniques or less lethal alternatives, and it was reasonably feasible to employ such techniques or alternatives but the officer bypasses these options and resorts to deadly force, such force would be deemed unnecessary and unreasonable.129
Imagine, for example, that an agency bans chokeholds130 as part of its specific guidelines regarding approved methods available for the application of force.131 Then an officer uses a banned chokehold and kills the individual it is used upon. An officer would be unreasonable in the belief that such a use of force, directly in violation of agency policy, was necessary because an officer with similar training would not use this kind of force.132
Furthermore, S.B. 230 requires that every discharge of a firearm is reviewed by the department to determine whether the incident complies with policy and training.133 Once again, this reflects that agency policies and an officer’s training should be considered in determining whether their use of deadly force by means of a firearm was necessary. For example, if an officer discharges his firearm at a moving vehicle, but the manner in which he does this is not permissible under agency guidelines,134 this is compelling evidence that said shooting was not reasonable or necessary because an officer with similar training would not act this way.
Although agency policies do not impose a legal duty135 such that an officer would be automatically liable if he did not act in accordance with policy, California courts should consider any relevant agency policies and training when evaluating the reasonableness of an officer’s belief that deadly force was necessary under the totality of the circumstances.136
D. Self-Defense Justification Provisions
California’s new police use of force standard embodies the three main principles of self-defense doctrine: necessity, proportionality, and imminence.137 Although California’s self-defense justification law does not mention these three principles explicitly,138 their requirements are typically incorporated through case law and jury instructions.139 Therefore, in interpreting the new standard, California courts should look to its own justification defense jurisprudence in determining whether an officer’s deadly force is justified.140 Of course, courts will have to grapple with the notion that peace officers and civilians are not similarly situated in their justified uses of force: the balance of interests, training, resources, and exposure to deadly interactions are different.141
1. Necessity
Necessity is at the crux of a self-defense justification: the focus is “both what kinds of threats justify force and what kinds of force the threats justify.”142 Under civilian self-defense justification doctrine, it is difficult to prove that an individual’s belief of the necessity of deadly force was reasonable if less-deadly alternatives were available to escape the threatened harm.143 Given the emphasis on deadly force alternatives and de-escalation techniques in A.B. 392 and S.B. 230, when assessing uses of deadly force by police, California courts should always factor in the availability of reasonable alternatives, which would avoid the need for deadly force.144 Civilian justification defense law is sensitive to self-defenders’ varying strengths and limits. There is an acknowledgment that what may be necessary deadly force in the defense of a frail individual, may not be necessary for an individual whose special skills or training makes him capable of stopping a threat with less injurious force.145 Self-defense training and other alternative force training should similarly be a factor in evaluating whether an officer’s particular use of force is necessary.146
In California, for a homicide by a civilian to be justified, the force used must be necessary, or must appear to be necessary.147 California also allows for the imperfect self-defense justification for civilians, which reduces murder to voluntary manslaughter when a defendant acts in the actual but unreasonable belief that he is in imminent danger of death or great bodily injury.148 However, the legislature did not intend to make available the imperfect self-defense justification to police officers who use deadly force under the unreasonable or negligent belief of its necessity.149 This supports a reading of § 835a wherein an officer’s use of deadly force must be evaluated based on an objective belief of necessity rather than the officer’s subjective, but potentially mistaken, belief. By rejecting the availability of the imperfect self-defense justification to police officers, the legislature made clear that it will be an unjustified use of deadly force if an officer possessed a subjective belief of necessity if that belief was not objectively reasonable.150
Because “totality of the circumstances” includes the conduct of the officer leading up to the use of deadly force,151 if the officer’s pre-seizure conduct increased the risk of deadly confrontation, it is unreasonable for him to believe that deadly force was necessary.152 In other words, an officer cannot reasonably believe that deadly force is necessary if he created the need for deadly force.
In explicitly including the officer’s pre-seizure conduct as a consideration in the “totality of the circumstances,” the California Legislature is indicating to judges that they should reconsider the Ninth Circuit’s provocation doctrine.153 This rule required finding that if an officer’s intentional or reckless conduct provoked a violent confrontation in which deadly force was then reasonable, the initial provoking conduct was unreasonable and thus an independent Fourth Amendment violation.154 The Supreme Court ruled the provocation rule was “an unwarranted and illogical expansion of Graham,”155 and unconstitutional because of its fundamental flaw “that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”156 However, California courts must evaluate police use of deadly force under the § 835a “necessary” standard in light of the “totality of the circumstances,”157 rather than Graham’s “objectively reasonable” standard. Therefore, pre-seizure conduct, including conduct that intentionally or recklessly provokes a violent confrontation, must be considered as part of the totality of the circumstances surrounding an officer’s use of deadly force, making the Provocation Doctrine suitable for reconsideration under § 835a.
2. Proportionality
Deadly force can only be justified as necessary under § 835a if it is proportional: it may only be used to defend against an imminent threat of death or serious bodily injury or to apprehend a fleeing person suspected of committing a felony, but only if that felony threatened or resulted in death or serious bodily injury, and only if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.158 In other words, deadly force can only be inflicted by a peace officer in response to deadly force or its threat.159 The requirement of proportionality is also fairly implied by the emphasis on de-escalation and alternative force in § 835a160 and § 7286.161 The requirement of proportionality in the use of deadly force is also embedded in California case law and jury instructions for justifiable homicide by persons that are not peace officers.162 In many ways, civilians and peace officers are not similarly situated, thus California courts should subject peace officers to a more rigorous proportionality analysis. Professor Harmon argues that “because officers act with state authority, are trained to use force, and are obliged to show restraint, a more rigorous proportionality requirement is appropriate for them than that imposed on ordinary self-defenders.”163
Many state statutes on justified police force do not include a proportionality requirement, despite appearing to have one.164 Despite giving two options when deadly force may be necessarily exercised, California’s standard was carefully crafted with multiple layers of proportionality protection to avoid this flaw—a threat of death or serious bodily injury is required for either of the instances in which it may be necessary for an officer to respond with deadly force. If an officer uses deadly force in pursuit of a fleeing suspect, it would not be enough for that suspect to have committed a felony that threatened or resulted in death or serious bodily injury. For that officer’s deadly force to be justified against the fleeing suspect, it must also appear that the suspect will cause death or serious bodily injury if permitted to continue fleeing. This double-layer reflects the logical link between the concept of necessity and the proportionality requirement. Catching a fleeing felon is an insufficient justification for employing deadly force; that felon must also pose a substantial danger of death to others.165 Thus, the California Legislature appears to have finally codified the Garner Court’s constitutional understanding about using deadly force against fleeing felons: “It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”166
3. Imminence
For the first time in California, peace officers are only justified in using deadly force when it is necessary to defend against an imminent threat of death or serious bodily injury.167 As it were, courts and juries already implicitly impose a “probabilistic measure of how likely an attack or escape must be to justify force” when assessing reasonableness.168 Now, the definition for when a threat of death or serious bodily injury is imminent is quite thorough:
A threat of death or serious bodily injury is “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.169
This also tracks the definition of imminence in California’s jury instructions for self-defense, which have been applied and interpreted countless times under § 197.170
E. Other Jurisdictions
California courts should look to other jurisdictions with comparable use of force laws and law enforcement agency policies for persuasive interpretation of what constitutes necessary deadly force by a police officer. As one example, the voters and legislators of Washington State enacted a police use of force law containing a version of the “necessary” standard and enhanced policy requirements several months before California’s legislators.171 Legislators in the Washington State House of Representatives detailed the new use of force standard in H.B. 1064 and by February 2019, Governor Jay Inslee signed the bill into law.172 The law became effective immediately as part of Washington’s criminal code,173 and most of its provisions match those of California Penal Code §§ 196 and 835a.174 The “necessary” standard for deadly force is phrased as follows:
A peace officer shall not be held criminally liable for using deadly force in good faith, where “good faith” is an objective standard which shall consider all the facts, circumstances, and information known to the officer at the time to determine whether a similarly situated reasonable officer would have believed that the use of deadly force was necessary to prevent death or serious physical harm to the officer or another individual.175
The Washington Legislature generously provided the definition of “necessary” to be used in evaluating the necessity of an officer’s deadly force: “‘Necessary’ means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.”176 This definition matches the definition the California legislature removed in the course of amending A.B. 392,177 and also includes a proportionality element. Thus far, Washington courts have not had the opportunity to interpret the new use of force standard. However, as they inevitably do, given the near identical provisions in both states’ police use of force laws178 and Washington’s precise definition of what it means for force to be necessary,179 California courts would be well-served in considering this persuasive precedent. Other persuasive precedent will likely arise as other states inevitably adopt a “necessary” standard and their courts apply and interpret the standard.180
Conclusion
Despite now having one of the strictest laws governing police use of deadly force in the nation, California courts have a daunting task ahead in defining the circumstances under which deadly force by a peace officer is necessary. Given the unprecedented standard for evaluating when police use of deadly force is justified, prosecutors should initially be liberal in bringing charges against police officers who use deadly force against unarmed suspects. This will give the courts ample opportunity to develop the legal standard and get it right. When considering the totality of the circumstances under California Penal Code § 835a, California courts must consider the new training policies adopted by police departments in compliance with S.B. 230. Although the bill does not impose a legal duty on police officers, it more precisely calibrates the reasonableness of an officer’s conduct when he employs force of any kind, and especially deadly force.
California precedent and Supreme Court jurisprudence interpreting the previous “objectively reasonable” standard should only be used to establish a minimum baseline of which uses of deadly force are not deemed reasonably necessary. In fidelity to the legislature’s intent, courts must consider the officer’s pre-seizure conduct, as well as whether alternatives to force were feasibly available to officers. Self-defense justification case law is instructive in how courts should interpret the implicit use of force requirements of imminence, proportionality, and necessity.
This Note imagines an interpretive framework for California’s new use of force standard that is by no means exhaustive. The legislature’s intent in saving lives and fostering trust between communities and the law enforcement agencies that protect them guides this attempt to define the daylight between the outdated “reasonable” standard and the reform. As intense public pressure mounts across the country for elected officials to correct the systemic injustices present in all facets of policing, reform to police use of force laws is no longer a radical aspiration of the coastal elite. Such reform is more politically feasible than ever. In fact, it is happening now.181 In due time, the nation’s eyes will be on California’s judiciary to show us that we can, as Governor Newsom said, “do more.”182