Why a former police chief is backing a state bill to tighten standard for police shootings

Police tape blocking the Culver City Police Department's parking lot following an officer-involved shooting Saturday morning, Sept. 21, 2013.
Police tape blocking the Culver City Police Department's parking lot following an officer-involved shooting Saturday morning, Sept. 21, 2013.
Wendy Lee/KPCC

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When State Senator Kevin McCarty (D-Sacramento) and  Assemblywoman Shirley Weber (D-San Diego) introduced a bill Tuesday that would change the standard for when a police officer can shoot at a suspect, virtually nobody in law enforcement came to their support.

Initial backers included the American Civil Liberties Union, whose attorneys suggested some of the language of the bill, Black Lives Matter activists and members of the legislature’s black caucus.

There was one exception: San Francisco District Attorney George Gascon told KPCC the bill would “move policing in California into the 21st century" and called the current standard for shooting “absurd.”

Gascon is hardly a lawyer in a suit who helps police lock away bad guys. He wore the LAPD uniform for nearly 20 years, first working the streets then rising to assistant chief. He left when the mayor refused to appoint him chief and has since been the police chief in Mesa, Arizona and San Francisco before becoming DA.

When he looks at a police shooting or other uses of force, Gascon said the law limits him to evaluating officers’ decisions in the few seconds before he or she pulled the trigger or swung the baton.

“So you can have an incident where an officer or a group of officers does a bunch of things that make no sense,” Gascon said. But those mistakes would not be part of any evaluation and the officer would not be charged. 

Under the proposed bill, prosecutors could ask whether officers tried to de-escalate first, and whether they contributed to the confrontation by any negligent actions or bad tactics.

That standard already is applied by the LA Police Commission. In one of its first applications of the standard, the five member civilian panel that oversees the department decided a South LA shooting that left a mentally ill African American man dead, was in part caused by the officer. The panel ruled the officer's lacked reasonable suspicion to stop him in the first place.

The city settled a federal civil rights lawsuit with the family of Ezell Ford for $1.8 million.

Gascon believes putting the "necessary force" standard in state law would force all departments to follow suit, change how officers interact with people, and change how people respond to them.

“I think that as the community feels that officers are less likely to use force, people are going to be more receptive to cooperating and submitting to police direction,” said Gascon.

That’s the sell he’s trying to make with the rank and file across the state and its leadership. Gascon argues officers will be more relaxed as they lower tension, and they won't resort to force as quickly. Officers will get injured less often, he argues.

The head of the LA Police Protective League, which represents rank and file officers, is not buying the argument - at least initially. He hasn’t read the detail of the bill yet, but Craig Lally warns any such changes could endanger officers on the job. 

“We look forward to talking to the bill’s authors,” said Lally.

He also noted the U.S. Supreme Court’s ruling earlier in the week that upheld Arizona’s officers’ qualified immunity in a shooting involving a woman with a kitchen knife on her front porch. She was not threatening anyone, according to witness accounts.

The high court held nearly three decades ago that a deadly threat does not have to be real for an officer’s shooting to be legal. The officer’s fear only needs to be reasonable.

“Last time I checked, the Supreme Court was the law of the land,” Lally said.

When crime was on the rise in California, and public safety was the number one issue in just about every election in the state for three decades, police and prison union lobbies reigned supreme in the capitol rotunda. 

As crime came down early in the 21st century and voters approved several measures to roll back penalties, the police unions moved to a more defensive posture, said USC political analyst Dan Schnur.

The bill still faces an uphill battle because police unions still wield considerable clout. 

“What may have changed here is there is a particularly compelling story,” he added, referring to the police killing of Stephon Clark in the state capital.

Like the 1993 kidnapping and killing of 12-year-old Polly Klaas led to the passage of California’s three strikes law, the police shooting of 22-year-old Stephon Clark in his grandmother's backyard could lead to new limits on when cops can kill.

“The rules for governing when police can use force are not working,” ACLU attorney Peter Bibring said. “Too many people are being killed by police. Too many are unarmed.”