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AB 392

Why AB 392?

Under current California law, law enforcement officers have been protected from adverse consequences when they commit misconduct. Literally, they’re able to get away with murder. These protections for law enforcement officers include:

  • withholding from the public the officers’ names, footage from dashcams or body cameras
  • lack of true civilian oversight
  • the approbation of lethal force

Additionally, when district attorneys investigate officer misuse of force, they rely on evidence and testimony from other officers who have an interest in protecting their colleagues. This testimony often contradicts itself and/or lacks logic. The investigations are not conducted independently; a conflict of interest always exists when the DA prosecutes an officer whose cooperation may be needed in another case. Nor is there any civilian oversight. Thus, officer testimony is frequently used to substantiate the claims that deadly force was reasonable and necessary. Victims end up taking the blame and then are further pathologized, dehumanized, and vilified by the local media. Ultimately the public comes to see the victims, rather than the overreacting officer, as culpable for their own deaths.

Furthermore, the California Police Officer Bill of Rights enshrines protections for law enforcement in government code. These rights include:

  • Paid leave during the course of a misconduct investigation
  • The ability to refuse a polygraph without consequence
  • When interrogated for misconduct, a right to comfort and protection from duress
  • Alerting media can only occur with expressed written consent
  • The ability to review “comments” in the officer’s personnel file
  • A right to appeal disciplinary actions before they are implemented

These are only some protections afforded to law enforcement personnel; unfortunately, civilians are not afforded similar protections--allowing law enforcement to assume the role of judge, jury and executioner.

State Bill to Improve Accountability and Why this is Important

AB 392 is a state bill co-sponsored by Black Lives Matter-Los Angeles, that aims to reduce the use of deadly force at the hands of law enforcement. It changes existing law to mandate that deadly force be used only if there are no alternatives remaining for the officer; it also takes into account the officer’s actions leading up to the use of deadly force. Officers currently evade accountability for their actions by stating they “feared for their life” even when they were responsible for escalating the situation in the first place.

AB 392 changes existing law to mandate that deadly force is only used if there are no alternatives remaining for the officer, while also taking into account the officer’s actions leading up to the use of deadly force.

Currently, officers are held to a standard determined by how another officer would have acted in a similar circumstance. This is the standard by which a “reasonable” use of deadly force is measured. Countless victims of police brutality in this country have been killed for what was perceived as threatening by a “reasonable” officer in the moment, such as:

  • selling loose cigarettes on the street
  • being a 12 year old boy playing with a toy in a park
  • running away from a police officer after a traffic stop and shot in the back while running
  • SWAT team serving a warrant for a traffic violation
  • being a stranded motorist

To some, AB 932 may seem to simply reword current law and practice. We believe, however, it will put law enforcement on notice to think twice before pulling up to a scene and shooting first, as they did with Stephon Clark, and in too many other instances. This bill authorizes police officers to use deadly force only when it is necessary to prevent imminent and serious bodily injury or death. According to the bill’s text:

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“Necessary” means that, given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.

A peace officer shall, however, attempt to control an incident through sound tactics, including the use of time, distance, communications, tactical repositioning, and available resources, in an effort to reduce or avoid the need to use force whenever it is safe, feasible, and reasonable to do so.

By changing “reasonable” to “necessary” the standard for the use of deadly force becomes higher. Each encounter will be closely scrutinized on its own merits and not based on how another officer would have reacted. We can hope that this will create a paradigm shift to overcome the “shoot first” culture endemic to policing in this country. Protocols and training to equip law enforcement to assess threat levels and attempt to de-escalate first, before immediately acting with deadly force, should always have been in place. As with any other agency of the state that uses our tax dollars to conduct business, we need to mandate regulations to ensure accountability and encourage rational decision making.

Poor Training and a Deadly Culture

Law enforcement training in this state is 664 hours, compared to 1600 hours for a licensed cosmetologist, an occupation with far fewer lethal consequences for the public. Law enforcement training is woefully inadequate. Of the training hours required, 64 are dedicated to arrests and firearms, compared to only 6 hours in dealing with people in crisis, with mental health issues, and physical disabilities. With nearly 11 times more training devoted to deadly force over de-escalation, it’s no wonder that officers resort to what they know, what the organization prioritizes, and what the culture values - engaging with communities as if in a war zone.

Our country was founded on anti-Black racism and the promotion of stereotypes that equate Blackness with violence and criminality. These stereotypes are extended to indigenous people and other people of color, and are no doubt a driver behind the epidemic of violence against Black and Brown people at the hands of law enforcement. In 2016, then Attorney General Kamala Harris implemented Principled Policing: Procedural Justice and Implicit Bias which was “designed to help law enforcement officers overcome barriers to neutral policing and rebuild the relationship of trust between law enforcement and the community.” This course was an effort to support local law enforcement agencies in implementing an 8 hour implicit bias training. It is doubtful, however, that an 8 hour course could ever reverse the culture of racism so entrenched in the DNA of law enforcement with its origins in early slave patrols.

While racism in policing continues, the FBI reports that this profession is also a haven for active white supremacists. Information obtained by The Intercept revealed that the Federal Bureau of Investigation found a proliferation of active white supremacists in law enforcement positions across the country, as well as the existence of implicit and explicit racism, with only weak measures to actively confront and uproot it. With racial bias and stereotypes unchecked and imbedded in the institutional culture, it’s no wonder that officers may “fear for their lives” in situations that are not threatening at all. Nor is it implausible for officers to use “fear” as a shield, to cover for acts of brutality committed as an expression of white supremacist racism.

Funding Law Enforcement Over Communities

In Los Angeles, our financial investment in law enforcement demonstrates our priorities as a city and county. In fact, the LAUSD peace officer budget (separate from police and sheriff) is $60,000,000, which amounts to an investment of $200,000 per officer - compared to an investment of only $6,000 per student in the LAUSD budget. The city of Los Angeles budget for LAPD is more than $1.5 billion, yet we cannot fund housing for people living on the streets. The Sheriff’s budget is more than $3 billion, yet we still lack adequate funding for mental health, substance abuse treatment, housing, and other social services. Lastly, while our communities are suffering, the County Board of Supervisors determined it a priority to fund a $3.5 billion new jail project - which was halted only because of community organizing against this measure. Prioritization of tax dollars in law enforcement guarantees the expansion of jail beds instead of community programs. We invest in repression, surveillance and brutality over healthy children and families, or people who are experiencing health and mental health issues and need resources to heal.

The dominant narrative in our country holds that these levels of funding are necessary for law enforcement because of it being one of the most dangerous and potentially deadly occupations. Law enforcement officers need this level of support, the narrative goes, to carry out their daily duties to “protect and to serve.” The narrative also elevates peace officers, because “they put their lives on the line everyday,” to a protected class that’s not held to the same standards or accountability as other public employees. According to the Bureau of Labor Statistics, however, law enforcement is not within the top 10 most dangerous occupations in this country. Fifty one officers were killed in the year 2016, while 918 truck drivers were killed on the job (the 7th most deadly occupation). The constant threat to law enforcement we hear about simply fails to hold up when tested by the facts. Yet, this perceived heightened threat on the part of officers themselves is frequently behind their split second decisions to use deadly force. It is disheartening and disappointing to witness the prioritization of funding for criminalizing marginalized populations over public health and social services, in an effort to give us the illusion of an investment in public safety.

The Road Toward Justice Is Long: While AB 392 Is not the Answer, It Is One Step Along the Way

This bill is indeed limited in that it will not require a divestment from the criminal justice system as a whole, or from policing in particular. However, by providing a mandate to use less than lethal force first, it is a step toward law enforcement being held accountable for their actions. To some, it is going too far; to others, not far enough in preventing unnecessary killing. Those on the side of justice are hopeful that AB 392, if passed, will help to save lives. Meanwhile, we will continue working to dismantle the entire deadly and repressive system of of policing. According to the Los Angeles chapter of Black Lives Matter, and in the words of Huey P. Newton, this bill is important for “survival pending revolution.”

Interested in taking action? Contact your assembly member and tell them you support AB 392.

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Dahlia Ferlito

Dahlia Ferlito is a white, queer, anti-racist organizer and co-founder of White People 4 Black Lives (WP4BL). Special thanks to editors Karen Hilfman, Cicely Nelson, and Casey Jayne. WP4BL is a white anti-racist collective and activist project of the Alliance of White Anti-Racists Everywhere (AWARE-LA) and operates within a national network of white anti-racists called Showing Up for Racial Justice. WP4BL is rooted in acting in solidarity with Black Lives Matter: Los Angeles. Visit www.awarela.org and follow us @wp4bl