On Monday morning, August 19, 2019, Governor Newsom signed California Assembly Bill 392, a police use-of-force bill that redefines the circumstances under which the use of lethal force by a peace officer is considered justifiable. The law is intended to encourage law enforcement to increasingly rely on alternative methods such as less-lethal force or de-escalation techniques.
Under the new law, lethal force by a peace officer is only justifiable “when necessary in defense of human life.” Specifically, AB 392 provides that a peace officer is justified in using deadly force only when the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary for one of two reasons:
- to defend against an imminent threat of death or serious bodily injury to the officer or 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.
The Legislature did not designate AB 392 as emergency legislation, so the change in the law will take effect on January 1, 2020. Before that date, law enforcement agencies should review their existing use-of-force policies to verify whether department policy is consistent with the law, and to identify areas that may need revision.
The Court of Appeal recently reaffirmed, in San Francisco Police Officers’ Association v. San Francisco Police Commission (2018) 27 Cal.App.5th 676, that use-of-force policies are primarily a matter of public safety and fall outside the scope of representation defined under the Meyers-Milias-Brown Act. Therefore, in the event that an agency’s current policies need to be updated to be consistent with changes in the law, the agency is not required to “meet and confer” with the peace officers’ recognized employee organization before making the necessary policy revisions. Even so, agencies considering a change in policy should give advance notice to the employee organization and be prepared to meet and confer over any negotiable impacts or effects of the policy change identified by the union.
Going forward, agencies should also ensure that future criminal and administrative investigations of use-of-force incidents follow the revised standards set out by the new law and any change in Department policy. Agencies should consult with their trusted legal counsel regarding how to bring their policies and practices into line with the new laws, as well as to assist with navigating the requirements of California labor law.