When Sacramento police shot dead Stephon Clark on March 18, he was the 51st black man killed by cops in 2018. (An additional 15 have been killed since.) Officers Terrence Mercadal and Jared Robinet fired 20 bullets, seven of them hitting Clark in his back and side according to an independent autopsy conducted by his family. (The official police autopsy report released May 1 showed only three bullets entering his back.) The 22-year-old died in his grandmother’s backyard clutching a cellphone that officers had misidentified as a gun.
Since his death, which was captured on video, activists across California have been demanding justice and accountability. Protesters have disrupted traffic, blocked access to Sacramento’s multimillion dollar stadium, and, for the past month, rallied at District Attorney Anne Marie Schubert’s office three times a week, prompting the prosecutor’s office to install a temporary 10-foot fence.
Despite this pressure from demonstrators, state courts are likely to side with the police. If precedent holds, landing a conviction against the officers will be virtually impossible. The Supreme Court has ruled that cops can’t be held criminally liable for shooting a suspect if they legitimately feared for their lives when they pulled the trigger—even if they misjudged the threat. In 2016, the Los Angeles Times reported that police in six southern California counties had shot more than 2,000 people since 2004, yielding only a single prosecution. The officer in that case was later acquitted.
Most often, family members are left holding questions that may never be answered. At a press conference, Sequita Thompson, Clark’s grandmother, tendered an emotional plea: “I just want justice for my grandson and for my daughter. Please give us justice.”
In response to the public uproar, Democratic lawmakers Shirley Weber and Kevin McCarty announced a “first of its kind” bill in California that could raise accountability standards statewide by implementing stricter guidelines governing how and when officers may use lethal force. The legislation is aimed at making it easier to bring cases against law enforcement.
The Police Accountability and Community Protection Act (AB-931) would raise the current guideline from “reasonable force” to “necessary force,” requiring officers take deadly action “only when it is necessary to prevent imminent and serious bodily injury or death” and if, given all circumstances, there was no reasonable alternative. Assemblymember Weber said lawmakers must ensure the state’s policy “stresses the sanctity of human life.”
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According to UCLA law professor Joanna Schwartz the current standard of “reasonable force” affords police too much discretion. The language of the 1989 Supreme Court decision in Graham v. Connor, which forms the basis of many police departments’ policies, has been interpreted to look at use of force in the split second it was delivered—not the totality of circumstances or whether it was necessary.
Schwartz used the example of a suspect who has been pulled over for a traffic stop and has fled his vehicle. The officer gets out of their car and pursues the suspect down an alley, because they think he’s holding a weapon; the officer shoots and kills the suspect. Under Graham v. Connor, many courts would find the officer’s actions “reasonable.” “That standard doesn’t give officers enough guidance on when that force is appropriate,” she told me.
If California were to raise its standard to “necessary force,” a court might question if it was necessary for the officer to pursue the subject into the alley or if the person had other ways of assessing the situation that might not have required lethal force—like creating a perimeter of vehicles or calling back-up.
Right now, the Sacramento Police Department’s use-of-force policy is built on the state’s standard that advises officers use reasonable force to effect arrest, prevent escape, or overcome resistance if they have reasonable cause to believe a person has committed a public offense. They are under no obligation to retreat or abandon pursuit.
AB-931 would attempt to make California law less ambiguous by requiring that police officers exhaust all other options—verbal persuasion, de-escalation, or other nonlethal methods—before attempting lethal force.
There is evidence that changing a department’s use-of-force policy can reduce the number of police killings. Campaign Zero has been tracking and aggregating data on this since 2014. “We looked at the administrative policies of 97 of the 100 largest police departments across the country and saw that when policies were implemented that raised use of force standards those departments had 25 percent fewer killings by police,” said Sam Sinyangwe, a data scientist and Campaign Zero’s co-founder.
Four states currently have laws governing use of force that are higher than the Supreme Court’s guidelines, though none go as far California’s proposed bill. In these states, Sinyangwe said police departments experienced a 16 percent drop in deaths. In departments with more restrictive policies, officers were also less likely to be killed in the line of duty. Moreover, Sinyangwe’s data showed that stricter department policies had no effect on crime rates.
According to Campaign Zero, California police killed 929 people between 2013 and 2017. Sixteen percent of the victims were black, making African Americans almost three times as likely to be killed by police than the average.
A new standard could help bring these numbers down, but even many of the bill’s supporters acknowledge that a solitary piece of legislation won’t bridge the historical gap between California’s police and its African American communities, who have suffered disproportionate rates of violence at the hands of officers.
Cat Brooks, Oakland resident and founder of the Anti Police-Terror Project, told me that when it comes to law enforcement, the problem is rooted in racism. “We live under militarized occupation,” she said.
She described the reality of everyday life for many of Oakland’s black and brown residents: “There are people that are not of our community … that are armed with military-grade weapons patrolling, harassing, and stopping people…. You could compare it to having checkpoints. If [the police] don’t feel like you’re supposed to be in a particular place at a particular hour of the day, they can stop you, ask you for your ID, and then it oftentimes can escalate from there.”
Many policing experts say the law may be a helpful step, but it’s no panacea. Alex Vitale, a professor of sociology at Brooklyn College, told me the proposal could generate some progress, but ultimately, is likely to fumble: “The mechanisms of accountability require discretion by prosecutors and juries who typically have given police tremendous latitude in their use of force, regardless of what the legal standard is.”
NYU Law professor, Barry Friedman, is of a similar mind: “I think the California bill proposes exactly the right standard … the problem is that [it] is trying to do that with criminal law alone.” He told me that in order to really reform the police, California must overhaul the system from the ground up—meaning that police-department policies, officer training, civil and criminal law liability would all need to change.
Across the country, police-reform advocates face an uphill battle, and the fight to pass AB-931 is no different. The Sacramento Police Officers Association, Los Angeles Police Protective League, and Peace Officer’s Research Association of California have all come out against the proposed bill. In a statement issued after the proposal’s announcement, LAPPL said it would “decimate law enforcement’s ability to safely respond to dangerous encounters” while PORAC labeled it a “dangerous rush to judgement.” LAPPL wrote that the bill “demands that officers have a Monday Morning Quarterback’s perspective before game day on Sunday.” Asserting that in the time it would take officers to run through the checklist of proposed techniques, the officer would be dead.
Peter Bibring, the police practices director for the ACLU of California, whose team helped craft the legislation, told me he was skeptical that the proposed bill would impact officer safety: “Police unions have been writing the laws for decades so as to protect officers. This [bill] is the community finally asking to have their voice heard.”
The Sacramento Bee reported that days after Stephon Clark was killed, the capital’s district attorney received campaign donations totaling $13,000 from law-enforcement unions. Activists were incensed at what they saw as collusion between prosecutors and police. According to Sinyangwe, law-enforcement agencies spend more money in California’s elections than the NRA.
Through her grassroots organizing, Brooks has become all too familiar with the alliance between cops and prosecutors. “They have a symbiotic relationship. … How are you going to piss off the very person you need to be able to do your job well? Brooks said. “It’s an unholy setup.”
In an April 5 interview with Insight on California Public Radio, SPOA president Timothy Davis defended the organization’s right to donate funds to prosecutors and politicians, saying that they sought out candidates that aligned with their belief system and could keep them safe.
In the state legislature, police unions wield extraordinary power. But Vitale is insistent the key to righting the system is still political pressure: “The police didn’t invent the War on Drugs, and they didn’t invent mass homelessness. They’ve been asked to come in and manage these things by our political leaders. If we want to really reduce the impact of policing on communities of color, then we need to be focused on getting our politicians to quit trying to solve every problem under the sun with more armed police.”
AB-931 will likely face stiff opposition in the Assembly and Senate, but police accountability activists and reformers aren’t looking to retreat.
“Fighting is my healing,” said Brooks, who is currently engaged in planning a mass-mobilization campaign with other activist groups around the state. “I could sit back and try to pretend that I don’t see parades of black bodies going across my news screen, but that’s not healthy. The fight is why I get up in the morning.”