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In California, two proposed laws with one aim: saving lives

Why We Wrote This

California last updated its use-of-force law in 1872. “So much about this discussion is getting people ... to recognize that things need to change,” says one law enforcement expert.

Rich Pedroncelli/AP
Police stand in front of City Council chambers in Sacramento, California, as a disruption breaks out March 5. Community members expressed anger over the decision by the Sacramento County district attorney to not file criminal charges against the two police officers involved in the fatal shooting of Stephon Clark last year.

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Beyond the protests, fallout from Stephon Clark’s death could reverberate beyond Sacramento. In the coming months, state lawmakers will weigh a pair of bills to reform police conduct that would precipitate a significant shift in officer training statewide.

One proposal would require the more than 500 law enforcement agencies in California to strengthen internal policies for de-escalation training and limiting the use of lethal force. Another measure would tighten the state’s use-of-force guidelines and enhance the ability of prosecutors to charge officers for killing civilians.

“Police training basically hasn’t changed in 25 years,” says Chuck Wexler, executive director of the Police Executive Research Forum. “There’s a growing recognition that some of the strategies we had don’t work and that police culture needs to change and catch up to where American culture is.”

Police agencies in California endorse plans for more training but warn that efforts to expose officers to greater criminal liability could cause them to hesitate when confronted by suspects.

“Every officer wants to avoid using deadly force whenever possible,” says David Mastagni, a lobbyist for police labor unions. “But you also have to give weight to not increasing the exposure of officers and private citizens to unnecessary harm.”

The two police officers who shot and killed Stephon Clark behind his grandmother’s home in Sacramento last March recounted their actions in interviews with police investigators later that night. Officers Terrence Mercadal and Jared Robinet described the frenzied seconds when they pursued Mr. Clark after responding to a report of a suspect breaking car windows on the city’s south side.

As a police helicopter swirled overhead, the officers spotted him at the side of the house and ordered him to stop and show his hands. He instead slipped around the back, and as they ran after him, Mr. Mercadal reached the rear corner of the house first.

According to interview transcripts released last week, the officer said he saw Mr. Clark in a shooting stance and “a metallic reflection or muzzle flash – something coming at me. So I – I was scared. I thought he was shooting at me.”

He lurched back behind the corner. Moments later, as captured in police videos, he and Mr. Robinet peered around it again and opened fire. They hit Mr. Clark at least seven times. He was unarmed; they found his cellphone on the ground next to his body.

Twenty-one seconds elapsed between when the officers first yelled at Mr. Clark and when they fired the last of 20 bullets. In that span, the father of two joined the list of unarmed black men fatally shot by police in recent years, a series of high-profile deaths that includes Michael Brown in Ferguson, Missouri; Corey Jones in Palm Beach Gardens, Florida; and Philando Castile in Falcon Heights, Minnesota.

Earlier this month, following separate investigations, the Sacramento district attorney and the California attorney general announced that no criminal charges would be filed against Mr. Mercadal and Mr. Robinet. The decisions reignited protests that flared a year ago in the capital city in the days after Mr. Clark’s death, with police arresting more than 80 people during one march last week.

The fallout from Mr. Clark’s death could reverberate beyond Sacramento. In the coming months, state lawmakers will weigh a pair of bills to reform police conduct that would precipitate a significant shift in officer training statewide.

One proposal would require the more than 500 law enforcement agencies in California to strengthen internal policies for de-escalation training and limiting the use of lethal force. Another measure would tighten the state’s use-of-force guidelines and enhance the ability of prosecutors to charge officers for killing civilians.

Some law enforcement experts regard both bills as essential to deter fatal shootings by officers.

“Police training basically hasn’t changed in 25 years,” says Chuck Wexler, who leads the Police Executive Research Forum, a law enforcement research and policy organization in Washington that has taught de-escalation tactics to law enforcement agencies across the country. “There’s a growing recognition that some of the strategies we had don’t work and that police culture needs to change and catch up to where American culture is.”

Many of the fatal confrontations between police and unarmed black men that have gained national attention ended within seconds. The pattern has incited public outrage amid the mounting toll of officer-involved shootings – 3,943 people died in such incidents from 2015 through the end of last year, The Washington Post found.

The magnified scrutiny has prompted a reckoning for law enforcement. Police agencies in California endorse plans for more training yet warn that efforts to expose officers to greater criminal liability could cause them to hesitate when confronted by suspects for fear of later facing prosecution.

“Every officer wants to avoid using deadly force whenever possible,” says David Mastagni, a Sacramento attorney and lobbyist for police labor unions. “But you also have to give weight to not increasing the exposure of officers and private citizens to unnecessary harm.”

Rich Pedroncelli/AP
Flojuane Cofer joins other in expressing her anger during a disruption of the Sacramento City Council during meeting Tuesday, March 5, 2019, in Sacramento, Calif. Community members expressed anger over the decision by the Sacramento County district attorney to not file criminal charges against the two police officers involved in the fatal shooting of Stephon Clark, 22, an unarmed vandalism suspect, last year.

A dawning awareness

Mr. Wexler’s group has devised a set of guiding principles for officers to defuse confrontations through nonlethal methods. The approach emphasizes verbal tactics, slowing down an encounter by backing off, and calling in mental health specialists, more officers, and other personnel.

National law enforcement groups, including the Fraternal Order of Police and the International Association of Chiefs of Police, have adopted the strategies. An embrace of de-escalation techniques by police departments has corresponded with a decline in officer-involved shootings in several cities, ranging from Dallas and Philadelphia to Las Vegas, Los Angeles, and Seattle.

The reforms in Los Angeles and Seattle, among other cities, occurred under federal oversight after investigators uncovered patterns of discriminatory policing and excessive use of force. Federal authorities announced last week they would evaluate whether Sacramento police violated Mr. Clark’s civil rights; his family has filed a $20 million wrongful death lawsuit against the city and the officers involved.

Mr. Clark’s death led Sacramento Police Chief Daniel Hahn to request a state review of his department’s use-of-force policies. In January, the California attorney general’s office recommended dozens of changes, urging the agency to expand its use of de-escalation tactics and require officers to “exhaust all reasonably available alternatives before using deadly force.”

A report from Sacramento County’s inspector general last fall prescribed similar remedies after the shooting death of an unarmed, mentally troubled black man by three officers in 2017.

Americans own an estimated 393 million firearms, and the number of guns in the hands of criminals presents what Mr. Wexler, who began his career with the Boston Police Department, dubs “an occupational concern” for officers. At the same time, he points out, the rising support for de-escalation methods parallels a dawning awareness among police for the need to reconsider an enduring tenet of law enforcement.

“We used to hear police say, ‘The most important thing is for officers to go home safely tonight,’ ” he recalls. “Now we’re hearing more police say, ‘The most important thing is for everyone to go home safely tonight.’ ”

Police in California fatally shot an average of 151 people a year between 2015 and last year, the most of any state. New York officers killed a combined 68 people over the same period. Eugene O’Donnell, a professor at the John Jay College of Criminal Justice in New York City and an expert on use of force, ascribes the toll in California, in part, to a failure of training.

“The average cop isn’t an elite, special-forces operator. You’re recruiting civilians to be cops and then you’re asking them to make life-and-death decisions,” he says. “But they don’t have enough training to know how to resolve these situations. And so it’s not really a surprise that there are bad outcomes.”

State Sen. Anna Caballero has proposed the legislation that would establish a statewide training standard for use of force. The measure, backed by California’s major law enforcement labor groups, would also mandate that police agencies create policies for using de-escalation tactics and other alternatives to lethal force.

Senator Caballero suggests that conditioning officers to pull back and consider their options when circumstances allow will lower the odds of encounters turning deadly. “We want to give police the training so they can make better choices to keep themselves safe as well as the public,” she says.

In his 2017 book “When Police Kill,” Franklin Zimring explored why the annual number of people shot dead by police in recent years has remained almost constant at about 1,000, even as the overall violent crime rate has dropped. He concluded that the internal policies of most of the country’s 18,000 police agencies give officers too much latitude to start shooting – and keep shooting.

“The rules that are in place now tend to be, ‘If the first shot was justified, so was the 19th.’ That’s nuts,” says Mr. Zimring, director of the criminal justice research program at the University of California, Berkeley. Nearly half of the victims of police shootings were either unarmed or carrying a weapon other than a gun. He estimates that requiring agencies to amend use-of-force guidelines and integrate de-escalation strategies would save hundreds of lives a year.

“I don’t want every police officer to be running his own police department and making up his own rules,” he says. “There have to be simple administrative rules in place that make clear when and how much force is acceptable.”

‘A sense of justice’

California police officers have shot and killed 27 people so far this year, 14 percent of the national total of 197. One incident unfolded last month in Vallejo, some 30 miles from San Francisco, where six officers killed a young rap artist who fell asleep in his car in a Taco Bell drive-through lane.

Police officials released a statement after the shooting that claimed Willie McCoy was “unresponsive” and had a handgun in his lap when the first officers arrived on the scene. Finding his car doors locked, they stepped back without attempting to wake him. A short time later, he “began to suddenly move,” and they ordered him to raise his hands.

The officials say that Mr. McCoy ignored the commands and reached for his gun. The officers fired an estimated 25 rounds at him; the barrage of gunfire lasted four seconds.

The Solano County district attorney is reviewing the shooting. One of the officers involved in the confrontation fatally shot an unarmed man during a physical struggle last year. Prosecutors declined to file criminal charges against him in that case.

Federal and state court rulings on justifiable homicide grant police wide authority to use deadly force, and officers seldom face prosecution for killing civilians in California or elsewhere.

One widely cited study found that, while nearly 1,000 fatal shootings by police occur each year, a total of 80 officers were arrested on murder or manslaughter charges from 2005 to 2017. Mr. Zimring argues that the disparity reinforces a perception of police impunity.

“The limits of criminal law on officer-involved shootings are terrible,” he says. “Training and rules can change behavior, but for those officers who don’t change, there needs to be more effective criminal prosecution.”

California last updated its use-of-force law in 1872. The statute permits officers to apply deadly force if they have an “objectively reasonable belief” that a suspect could cause death or serious injury. Assemblywoman Shirley Weber has co-written a bill that would raise the threshold by allowing use of lethal force only when “necessary” to prevent a suspect from inflicting harm.

The legislation would also bar police departments from invoking that justification if an officer’s “criminally negligent actions” create the need to use deadly force. In effect, the proviso would prod agencies to adopt de-escalation policies and hand prosecutors more leverage to bring charges in fatal shootings.

“This is about trying to change the culture on the ground,” Ms. Weber says of the bill, which has drawn support from the American Civil Liberties Union. “Each police department creates its own policy, and those policies are not vetted by the public or legislature. This would be a statewide policy.”

Law enforcement groups worked to spike a similar measure that she proposed last year after Mr. Clark’s death. Then as now, opponents assert the legislation would lead to officers second-guessing their decisions in the heat of a confrontation, compounding the danger to them and private citizens alike.

Police shootings in California killed 115 people last year compared with 162 in 2017. Mr. Mastagni, the police union lobbyist, views Senator Caballero’s bill as the best approach for further lowering the figure.

“If police departments have clear use-of-force policies and you give officers the training they need, you’re going to have better outcomes,” he says. “If you change the standard for use of force, you’re only going to put them at higher risk of injury and death.”

Yet studies show that law enforcement agencies with strict use-of-force guidelines report lower rates of violence against police – in addition to fewer officer-involved shootings – than those with more lenient policies. Ms. Weber says her bill would rebalance the legal scales in questionable police shootings and restore a measure of public faith in the criminal justice system.

“The standard for use of force that we have now ties the hands of the attorney general and district attorneys, and it frustrates the community,” she says. “The change from ‘reasonable’ to ‘necessary’ will give the community a sense of justice.”

Washington voters approved a ballot initiative last fall that provides prosecutors with greater leeway to charge officers involved in negligent shootings and mandates de-escalation training for police.

Ms. Weber and Ms. Caballero are Democrats, who hold a supermajority in California’s statehouse. Lawmakers could enact reforms comparable to Washington’s by passing both bills or forging compromise legislation. Mr. Wexler suggests that, whatever the result, the debate can help policing evolve.

“So much about this discussion is getting people – law enforcement – to recognize that things need to change,” he says. “As that happens, what it will accomplish is the most important thing: saving more lives.”

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