AB 392Steven Lieberman
Some of you may have heard about AB 392. This bill, which has passed through the California Assembly’s dreaded “Public Safety Committee,” is more than likely going to make its way to the governor’s desk… where I suspect he will sign it.
This will be an unmitigated disaster for California.
More importantly, it is the culmination of a perfect storm, which will ultimately result in greater frequencies of crime and, potentially, the deaths of law enforcement officers.
Yeah… it is that bad.
To understand this, you need to understand two very important Supreme Court cases: Graham v Conner and Tennessee v Garner.
Graham v Conner established the legal concept of “objective reasonableness” when it came to use of force involving law enforcement and a suspect. Essentially, the Court said that in an analysis to determine whether someone’s Fourth Amendment rights have been violated, a court must determine if similarly situated law enforcement officers would have seen the facts as they were presented to the defendant law enforcement officer in the same way. Flowing from that analysis, we then move to the second step and ask if the actions of the officer in using force against the suspect were also objectively reasonable using the same standard.
Tennessee v Garner involves a specific application of use of force against a fleeing felon. Basically, the analysis that comes from Garner is does the fleeing felon (or suspected felon) represent an imminent threat of death or grievous bodily injury to the public at large. If the answer is yes, then deadly force is authorized even though the officer himself is not necessarily under an imminent threat.
AB 392 seeks to change this…
Instead of the Graham test of “objectively reasonable,” it creates a predicate test of “necessary”.
Basically, is deadly force even an option that needs to be considered? Specifically, were other options available, including disengaging with the suspect, that would have prevented deadly force from being used in the first place?
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This analysis would typically come up in a motion to dismiss or a demurrer based on an officer’s or agency’s “qualified immunity”. Basically, the plaintiff (or plaintiff’s family) would sue the officer and the department based on a theory that the plaintiff’s Fourth Amendment rights had been violated by the use-of-force conduct of the officer.
The officer and the department would counter that their actions were consistent with Graham and the officer’s actions were objectively reasonable under the circumstances. Since they are a government agency or actor, they enjoy what is referred to as “qualified immunity”… another way of saying “immune to civil suit”.
Now… that does not mean the State gets off scott free, or can run roughshod over citizens’ rights. “Qualified immunity” can be theoretically pierced. If the actions of the State actor were malicious and outside “Constitutional norms,” then “qualified immunity” is removed and the legal action against the State can continue.
AB 392, essentially, makes it easier for a plaintiff to assert that “qualified immunity” should not apply in these circumstances since the use of force fell outside “Constitutional norms”.
So, what is the practical result of this?
More crime and more violence.
Taxes are a device used to regulate human behavior. It is believed that people make rational economic judgments about their behavior and, as such, we can look at the cost of doing something and predict the likely behavior of someone contemplating buying or doing that “thing”. If the cost is high, then his likelihood of doing it is low; conversely, if the cost is low, then his likelihood of doing it goes up dramatically.
When something is inherently cheap, taxation can artificially inflate the price to make the conduct or purchase prohibitively expensive.
When an officer knows that she is potentially on the hook for life and death decisions that require action in milliseconds, she is less likely to engage in that action.
This is exactly what the authors of AB 392 want. If the officer is second guessing herself, she is less likely to engage in an act of force.
What does this mean from a practical standpoint? Three things: 1) officers at greater risk; 2) officers less likely to be proactive in police services; and, inevitably, 3) less officers.
The “officers at greater risk” thing should be pretty obvious. If officers are confronted with an act that will result in an imminent likelihood of death or great bodily injury, and they are focused not on stopping the threat but, rather, analyzing the appropriate level of personal restraint actually “necessary,” their reaction time has been catastrophically compromised, often times with lethal results to the officer.
The second one is more interesting. That economic analysis works both ways. Law enforcement officers will have little to no incentive to engage in proactive policing. If they see someone or something that would warrant further investigation, they have little upside for getting involved and, potentially, a life-changing downside if things go sideways. With the risk/reward ratio being so utterly skewed against them, rational officers will elect to “not get involved” unless summoned to do so by a superior or a call for service.
Worse… the criminals will be keenly aware of this dynamic. They are also engaged in a risk/reward analysis. If they know that criminal activity will more likely than not be free of police harassment, then they have, essentially, been incentivized to engage in more criminal acts. (We have taxed the cops and subsidized the criminal.)
The last is an inevitable result. With the stakes being so stacked against the officer, we will have a drain on applicants to the departments. Along the same lines, the applicant pool will become decidedly more shallow. This de-professionalization of police services will, ironically, potentially result in greater civil rights violations since a thinned department, and one that is staffed with arguably “less than qualified” officers, runs a greater risk of civil rights encroachments or, potentially, outright criminal activity than a more robust professional agency (see Rampart scandal).
AB 392 is a dangerous attempt to enhance the survivability of criminals’ intent on violent actions. I am deeply concerned that it will become law. I would like to say that karma will strike back against the legislature on the theory of “unintended consequences,” but, I feel that I am being too charitable. Others have stated to the legislature and the governor what I have written to you, and most have done so more eloquently than I. The lawmakers are fully informed. Their actions are intentional.