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Law Professor On California's New Police Use-Of-Force Law


This week, California adopted new standards governing the use of deadly force by law enforcement. These new guidelines are said to be among the toughest in the country. And given California's size and influence, many are saying the new law could influence policing standards nationwide. It's being summarized this way. Previously, police could use lethal force under reasonable circumstances. Under the new law, an officer can use lethal force only when necessary. We wanted to learn more about this, so we've called on Seth Stoughton. He's a former police officer who is now a law professor at the University of South Carolina. He consulted with California lawmakers on drafting the bill. I spoke with professor Stoughton earlier this week to ask him to describe the changes further.

SETH STOUGHTON: One of the big changes in this law is it directs reviewers, courts, juries, judges to look at all of the actions leading up to a use of force, including the officer's actions, not just the subject's actions. That's a really important change because it can address a problem called officer-created jeopardy. Officers take risks. The job requires them to expose themselves to a certain amount of danger. But at the same time, we don't want them to put themselves into danger, recklessly, when it's not justified by the situation. So if an officer does that, if they put themselves into a dangerous situation in a way that's not justified, then that action prior to the use of force can affect the ultimate determination of whether the officer's use of force was appropriate.

Let me offer a little more specific example. If an officer steps in front of a car and then shoots the driver because the car starts moving toward them, under this new law, the jury, the judge, the prosecutor will analyze the propriety, the appropriateness of the officer's actions not just at the moment that the shots were fired but also the officer's actions leading up to the moment that the shots were fired. And one of the questions there is whether the officer put themselves into an unnecessarily dangerous situation and then used force to address the danger that they should've avoided in the first place.

MARTIN: Will this change the law enforcement scrutiny of an officer after a shooting occurs? I mean, I think many people will know that juries have traditionally been reluctant to convict officers who've used force in the line of duty as long as they felt that, you know, absent other circumstances, like, for example, when someone lies about it, for example, like Walter Scott, who was unarmed, who was killed while fleeing in North Charleston, S.C., in 2015. I mean, he was - first, he was shot running away. But he'd been pulled over for a nonfunctioning brake light, but then the officer also lied about it. And that tends to be the circumstance. But does this - you know, absent an officer lying about it or some other circumstance, does this change what may happen or how an officer's actions will be viewed after a lethal shooting occurs?

STOUGHTON: Will it change the way that shootings are analyzed, criminally and maybe civilly, after the fact? The short answer is yes. Because the legal standard has changed, there are different rules that now govern when officers are allowed to use deadly force. And that means that prosecutors, judges, juries and defense attorneys are going to have to analyze an officer's actions under those new standards. Just as importantly, though, not only have the standards changed but this law provides significantly more definition about what exactly those standards are that way.

MARTIN: I'm sure many people are curious about the perspective of law enforcement groups in California. They initially opposed the bill. But after some changes, they didn't support it, but they withdrew their opposition. And I wanted to ask you how significant do you think that is?

STOUGHTON: I think it's very significant. I also think it's a little bit self-serving. I don't think the law enforcement groups like the bill, but I think they saw the direction of public opinion and the direction of political will and didn't want to be on the wrong side of history in that way.

MARTIN: One of the arguments that we are hearing is that these new constraints or at least even the suggestion that police behavior requires more restraint or control is deemed by some critics to suggest that police officers will start to second guess themselves to the point where they will be in jeopardy, and then the public will be in jeopardy. What do you make of that argument that the scrutiny of police behavior can cause more harm?

STOUGHTON: I think it has a very infantilizing view of officers. I know a lot of police officers. I worked with a lot of police officers, and they are perfectly capable of being criticized and still doing their jobs, effectively. It's also I think suggestive that officers need unbridled authority. And that's not just wrong; it's kind of scary to me. Of course, officers need the authority to use deadly force in appropriate situations. But that doesn't necessarily mean that we are going to give officers carte blanche to use deadly force in whatever situations they might possibly want to. So the idea that we cannot and should not encourage officers to take seriously their obligation to preserve public safety seems both insulting to the men and women in uniform and just wrong as a basic matter of democratic policy.

MARTIN: That is Seth Stoughton. He's a former police officer. He's now a professor of law at the University of South Carolina, and he consulted on the bill just signed in California that changes the standards for the use of lethal force by law enforcement. Professor Stoughton, thank you so much for talking with us once again.

STOUGHTON: Thank you for having me. Transcript provided by NPR, Copyright NPR.