Transformation in California’s Use-of-Force Landscape is Now

The New Era in California Policing

Every use-of-force incident has the potential to undermine community trust, expose officers to liability and create an operational, financial or reputation risk to the agency. With a newly state-mandated emphasis on de-escalation and alternatives to force, law enforcement agency leaders will be responsible for carefully reviewing their policies, training their officers and assuring a robust internal review process is in place.

In 2018, 677 civilians in California were involved in officer use-of-force incidents that resulted in death or serious bodily injury – or an officer discharging his or her firearm. Those incidents resulted in 146 civilian deaths¹ – a decrease from the 741 civilians involved in serious force incidents in 2017 that resulted in 172 deaths².

The primary reason described by officers – both in 2017 and 2018 – for using serious or deadly force, was to effect an arrest or to take a civilian into custody. In 40 incidents in 2018 and 22 incidents in 2017, an officer used serious force to prevent an escape. With the enactment of AB 392, new restrictions on using deadly force during an attempted escape mean there will be more scrutiny than ever before³.

The message sent by the Legislature was clear when it recently enacted bill AB 392: “[I]t is the intent … that peace officers use deadly force only when necessary in defense of human life.” AB 392 requires officers only respond with deadly force when a threat of death or serious bodily injury is “imminent,” meaning the assailant has “the present, opportunity, and apparent intent to immediately cause death or serious bodily injury” to the officer or another person. Officers are also required to use available resources and techniques other than deadly force If “reasonably safe and feasible to an objectively reasonable officer.”

SB 230, as one police chief said, is equally – if not more so – important as AB 392, the landmark bill recently signed by Governor Newsom that rewrote California’s deadly force standard.

Until AB 392, California’s use-of-force standard had not been amended since it was enacted in 1872. Understandably, department leaders have expressed concern about the demands new reforms will place on their agencies by the new reforms. Chiefs and Sheriffs understand change is necessary, but they also know they will be under intense pressure to make sure the requirements of AB 392 are effectively implemented.

This is where SB 230 comes in. Initially, it was meant as an alternative to AB 392. Over the last several months though, lawmakers transformed it into a powerful set of policy and training requirements agency leaders will need to thoroughly understand and implement. This transformation will benefit their officers as well as the communities they serve.

Another law enforcement veteran called SB 230, “absolutely critical,” if California’s leadership wants to see meaningful and lasting change in the application of the use of force.

Once it takes effect, SB 230 will require law enforcement agencies enact a full set of use-of-force policies that will stretch from training . . . to the actual use of force . . . to its immediate aftermath and beyond. Those policies need to be in place by January 1, 2021, meaning the 500-plus agencies in California will need to train nearly 80,000 peace officers in a little over a year.

Agencies will have to enact and maintain policies covering the following topics involving use-of-force incidents:

• De-escalation techniques
• Crisis intervention
• Vulnerable persons (pregnant women, children, the elderly and the disabled)
• Tactics, such as using time and distance
• Deadly force guidelines
• Alternatives to force
• Proportional force
• Approved methods and devices
• Fair and unbiased policing
• Guidelines for drawing or pointing a firearm
• Shooting at or from moving vehicles
• Consideration of surroundings and bystanders
• Intervening when observing force clearly beyond which is necessary

Agencies will also have to enact policies for actions taken in the immediate aftermath of the force incident, including:

• Providing, if properly trained, or promptly procuring medical aid
• Prompt internal reporting and notification
• Reporting the witnessing of potential excessive force

Chiefs and Sheriffs will also have to put policies in place regarding supervision, accountability and transparency, including:

• Supervisors’ roles in reviewing uses of force
• Factors for evaluating and reviewing use-of-force incidents
• Procedures for the filing, investigation and reporting of force complaints
• Procedures for complying with Penal Code § 832.7 (public disclosure of records)
• Procedures for complying with Government Code § 12525.2 (reporting of serious force to the State Attorney General)

Of course, policy without training is meaningless, and each of the described requirements will demand training of your peace officers. SB 230 specifically requires:

• Training standards and requirements relating to knowledge and understanding of use-of-force policies
• Training for situations involving vulnerable persons, including those with physical, mental or developmental disabilities

Minimum training and course titles required to meet force policy objectives

State legislation has now fully entered areas that were until recently the domain of department policy. SB 230 states “in all circumstances, officers are expected to exercise sound judgment and critical decision-making when using force options.” This is not an expectation without teeth, as the very next subparagraph allows for the introduction of an agency’s policies and training as evidence in proceedings for consideration of the totality of circumstances of the involved officer. In other words, your agency’s policies and training regime are going be part of the record in administrative, civil and criminal matters.

Those are not the only challenges chiefs and sheriffs will have to consider. With the new legislation, peace officers will believe they are at greater risk for being held criminally and civilly liable, community expectations will increase, there will be more news media scrutiny into whether your department is complying, and there will be more operational and reputation risks for agencies than ever before.

Designing and enacting the appropriate policies and then training all officers or deputies will require a significant organizational effort. With the right tools in place, though, not only will the coming transformation be manageable, they will bring about lasting change.

The coming challenge will be an opportunity to rethink how your agency does a lot of its work. You will be able to ask questions you often do not have the time to get to.

7 Key Steps for Successful Implementation

There are several important measures department leaders will need to take for a successful transition into the new use of force environment.

1. Have the right policies and procedures in place.

Your policies will need to comply with new state laws as well as local rules and collective bargaining agreement provisions.

2. Assure everyone is thoroughly trained

The learning and training mandates of SB 230 are vast, and departments will be under pressure to complete the training by January 1, 2021. This will require extensive tracking as new courses are brought online and rolled out to sworn staff. In providing human capital solutions to the law enforcement community, Benchmark Analytics^® has developed a learning management system (LMS) that meets the unique needs of public safety. The LMS includes the capability for managing certifications and has a specific configuration incorporating California POST requirements. Benchmark will further customize its LMS solution for a partner department’s unique training and course titles.

3. Carefully monitor and evaluate each use-of-force incident

AB 392 amends Section 835a of the Penal Code to state “the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers.” The Benchmark Management System^® (BMS) delivers a complete police force management system with which to carry out a thorough investigation of serious use-of-force incidents and complaints, including evidence management and command-channel review. BMS is built to be configured to specific agency needs like those emerging in California. For example, BMS can easily help your agency comply with the strict timing requirements of the Peace Officer Bill of Rights so critical deadlines are never missed. Benchmark also has the added capability to automatically notify your records or discovery unit so your agency can stay in compliance with the Public Records Act and the recent significant opening of records under Penal Code section 832.7.

4. Collect the information you need to carry out your mandate

The Benchmark Management System includes a use-of-force module that can be readily configured to streamline your agency’s compliance with California’s requirements. This puts a platform at your agency’s fingertips that allows for thorough documentation and capture of data, such as officer and civilian information, geographic and lighting characteristics, the sequence and types of weapons used, and injuries sustained. In Benchmark, users can easily indicate whether a force incident falls within the California Code definition of “serious” force. Workflows can be developed to automatically notify your internal affairs team and activate timers to track video recording release schedules, helping your agency stay in compliance with Government Code section 6254. Additionally, Benchmark automatically flags the appropriate data fields for later export to the California Department of Justice URSUS use of force reporting platform.

5. Develop a thorough understanding by measuring and analyzing what you collect

In a changing landscape, “[police] forces must put analysis at the heart of their decision-making processes.”⁴ BMS is designed to give agency executives and supervisors the tools they need to review data, analyses and progress or designated periods of time . . . from a week or several months, to a year or more. Moreover, with its built-in analytics and machine learning capabilities, BMS gets smarter over time so you can uncover new insights with which to raise your department’s performance to a higher level.

6. Learn who is exceeding expectations and who is getting off track

Not knowing is not a management practice. You end up just hoping you can make it through the next watch without an event occurring that will endanger your officers, or the public, or put your agency’s reputation at risk by undermining community trust. A sophisticated early intervention system ought to be preventative by design so officers can, in fact, get the additional support they need as soon as possible. First Sign^® Early Intervention is a first-of-its-kind research-based early intervention system that incorporates officer history, context of assignment and patterns of problematic behavior instead of relying on simplistic threshold-based systems.

7. Act on what you learn

Identifying an officer who is at risk of engaging in adverse behavior is just the first step. Next, a department has to develop effective interventions and provide the additional support to get the officers who need it, back on track. To address this critical need, Benchmark has developed a proactive intervention support platform called the Case Action Response Engine^® or C.A.R.E. With C.A.R.E., you have access to proven best practices, demonstrated to be most effective at moving employee behavior in the right direction with non-punitive interventions. You can facilitate the intervention planning process with templates of actionable steps, goal-setting and follow-up actions, and also provide your supervisors with the capability to provide meaningful progress reports.

The last several years have presented many new challenges to policing. With those challenges comes the opportunity to develop and publish new policies, train your sworn staff and put in place robust review and reporting tools.

If you would like to know more about what Benchmark can do, click the button below to request a demo of our technology or a consultation with me to develop a plan to help your agency navigate the new use-of-force landscape in California.

 

Sources and Notes

¹ Use of Force Incident Reporting, 2018, California Department of Justice.

² Use of Force Incident Reporting, 2017, California Department of Justice.

³ Section 196 of the Penal Code is amended to say that “a peace officer is justified in using deadly force. . . to apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”

⁴ Policing – a vision for 2025, McKinsey & Company, January 2017, at p. 12.