The American Civil Liberties Union has sued the City of Pomona for improperly training its police officers on the new legal standard for justifiable use of deadly force enacted by 2019’s Assembly Bill 392. AB 392, which was sponsored by the ACLU, changed the standard for use of deadly force in California, now codified in Penal Code section 835a.

According to the ACLU’s complaint, Pomona, relying on advice from Lexipol and the Peace Officers Research Association of California, incorrectly instructed its officers that AB 392 did not meaningfully change the use of deadly force standard. Lexipol is a private company that drafts policies for many police agencies in California, and the Peace Officers Research Association is a law enforcement lobby. The ACLU argues these private special interests successfully and improperly influenced Pomona’s use of force policy such that it misstates the law as amended by AB 392. At bottom, though, this lawsuit is an attempt to determine whether AB 392 really did raise the threshold for use of deadly force.

The “reasonable officer” standard in place before AB 392 was developed in case law stemming from Graham v. Connor. The United States Supreme Court derived the standard from the Fourth Amendment’s guarantee of freedom from unreasonable seizures of the person. According to the Supreme Court, “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘ “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” ’ against the countervailing governmental interests at stake.” “Reasonableness” is “not capable of precise definition or mechanical application.” Instead, it “requires careful attention to the facts and circumstances of each particular case.” Most importantly, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

The authors of AB 392 clearly intended to include the “reasonable officer” standard. However, the ACLU, relying on Senate Rules Committee statements, asserts it was AB 392’s intent to “exceed the standards articulated and set forth by the U.S. Supreme Court in Graham and” Tennessee v. Garner. The ACLU’s own argument in favor of AB 392’s passage states the bill “will replace the lax standard currently set by California law and the U.S. Constitution that police officers can use deadly force whenever ‘reasonable,’ and replace it with a more stringent standard that appropriately authorizes police officers to use deadly force only when necessary to defend against an imminent threat of death or serious bodily injury.”

It is quite possible these policy statements will matter little to the appellate judges who determine how the word “necessary” should be interpreted. The plain text of the statute controls, and it reflects the legislature’s intent to maintain the “reasonable officer” standard throughout the statute.  For example, the law states that “it is the intent of the Legislature that peace officers 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.” The law also states that “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 … [t]o defend against an imminent threat of death or serious bodily injury to the officer or to another person” or to apprehend a fleeing felon “if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”

Yet the Legislature did add the word “necessary” to the statute. The “reasonable officer” standard persists, but in the context of “necessary” force. The court must now interpret this statutory language in its totality. Until then, the more immediate question is how closely a police department’s use of force policy aligns with the standard in Penal Code section 835a. A policy that does not track the new standard may be susceptible to challenge.

We can expect the ACLU to continue to advocate its interpretation of the law to the courts and to the public. We will continue to monitor this lawsuit, so stay tuned!