AB 392 Use of Force Checklist

AB 392 Use of Force Checklist

NOTE: Email Jennifer Rojas [jrojas [at] aclusocal.org] for policy support and to connect with local and statewide networks working on AB 392 implementation. Full AB 392 Implementation Toolkit forthcoming in 2020. 

CHECKLIST: REVIEW YOUR LOCAL USE OF FORCE POLICY 

Below is a list of key provisions to look out for when evaluating whether your local law enforcement agency’s use of force policy complies with AB 392. You can also fill out the attached chart to compare your local use of force policy to AB 392’s requirements. 

The policy says deadly force may only be used when necessary. Under AB 392, officers may use deadly force only when “necessary in defense of human life.” Previously, the law authorized officers to use deadly force, like any other kind of force, when “reasonable.” 

Example from an AB 392-compliant policy: 

o “Deadly force shall be used only when necessary to protect human life...” 

Example from an outdated/noncompliant policy: 

o “Officers are authorized to use reasonable force to arrest, prevent escape, or overcome resistance. 

The U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 (1989), acknowledged that reasonableness is not capable of precise definition or mechanical application.” (No separate “necessary” standard for deadly force

The policy requires officers to use alternatives to deadly force if safe and feasible. AB 392 states that officers “shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.” 

Example from an AB 392-compliant policy: 

o “Deadly force shall be used only when all reasonable alternatives have been exhausted or appear 

impractical” 

The policy considers the officer’s conduct leading up to the use of deadly force. AB 392 specifies that “the conduct of the officer ... leading up to the use of deadly force” should be considered as part of the totality of the circumstances to evaluate the force. 

Example from an AB 392-compliant policy: 

o “Factors for evaluating the use of force include ... The officer's tactical conduct and decisions 

preceding the use of force” o “[Evaluation] of an officer’s use of deadly force includes consideration of the officer’s tactical conduct and decisions leading up to the use of deadly force.” 

Example from an outdated/noncompliant policy: 

o “Factors used to determine the reasonableness of force include (a) immediacy and severity of the 

threat to officers or others; (b) the conduct of the individual being confronted...” etc. (Officer’s conduct leading up to use of force is not included in the list of factors

The policy limits the use of deadly force against fleeing persons to situations involving a felony that threatens or causes death or serious bodily injury. Until AB 392 changed the law, California law stated that officers could use deadly force to arrest persons charged with any felony. AB 392 further limits the use of deadly force against fleeing persons in several ways. One limitation is that the felony the person committed must have “threatened or resulted in death or serious bodily injury.” 

Example from an AB 392-compliant policy: 

o “An officer may use deadly force to apprehend a person when the officer has reasonable cause to 

believe that the person has committed or has attempted to commit a violent felony involving the use or threatened use of deadly force...” 

Example from an outdated/noncompliant policy: 

o “Department members may use deadly force to effect the arrest or prevent the escape of a fleeing 

felon...” 

The policy limits the use of deadly force against fleeing persons to situations where the person would pose a threat of death or serious bodily injury to another unless immediately apprehended. AB 392 also limits the use of deadly force against fleeing persons to when “the person will cause death or serious bodily injury to another unless immediately apprehended.” An officer’s speculation that the person may eventually harm another person is not enough to justify deadly force. 

Example from an AB 392-compliant policy: 

o “An officer may use deadly force to apprehend a person when the officer has reasonable cause to believe that a substantial risk exists that the person will cause death or serious bodily injury to officers or others if the person's apprehension is delayed...” 

Example from an outdated/noncompliant policy: 

o “Department members may use deadly force to effect the arrest or prevent the escape of a fleeing 

felon only when they have probable cause to believe that the suspect represents a significant threat of death or serious physical injury to the member or other person.” (no immediate need to arrest

The policy requires officers to give a warning before using deadly force against a fleeing person. AB 392 requires officers to “make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used” prior to using deadly force against a person who is fleeing. 

Example from an AB 392-compliant policy: 

o “If feasible, and if doing so would not increase the danger to the officer or others, an officer shall give a verbal warning to submit to the authority of the office before discharging a firearm or using other deadly force.” 

The danger that a person poses to themselves is not a justification for deadly force. AB 392 states: “A peace officer shall not use deadly force against a person based on the danger that person poses to themselves.” 

Example from an AB 392-compliant policy: 

o “An officer is prohibited from using lethal force against a person who presents only a danger to himself/herself and does not pose an immediate threat of death or serious bodily injury to another person or officer.” 

The policy appropriately defines “deadly force.” AB 392 defines “deadly force” as “any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.” It does not require proof that an officer specifically intended to cause death. 

Example from an AB 392-compliant policy: 

o “Deadly force - Any use of force substantially likely to cause serious bodily injury or death, including but not limited to the discharge of a firearm...” 

Example from a noncompliant policy: 

o “Deadly force - Force reasonably anticipated and intended to create a substantial likelihood of causing death or very serious injury.” 

The policy appropriately defines an “imminent” or “immediate” threat. Most use of force policies authorize deadly force against someone posing an imminent or immediate threat of death or serious bodily injury. AB 392 clarifies that a threat of death or serious bodily injury is “imminent” when, “based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.” 

Example from an AB 392-compliant policy: 

o “A person is an immediate threat if the officer reasonably believes the person has the present 

intent, means, opportunity and ability to complete the threat regardless of whether the threatened action has been initiated” 

Example from a noncompliant policy: 

o “Imminent does not mean immediate or instantaneous. An imminent danger may exist even if the suspect is not at that very moment pointing a weapon at someone. For example, an imminent danger may exist if an officer reasonably believes the person is attempting to access a weapon...”