For the first time since Assembly Bill 392 amended Penal Code section 835a in 2019, an appellate opinion has interpreted the new use of deadly force standards in California. The Third District Court of Appeal in Koussaya v. City of Stockton (2020) 54 Cal. App. 5th 909, applied the new law in the context of a civil suit regarding the tactics and use of deadly force by Stockton Police Department officers during the Bank of the West robbery. Finding the officers' actions reasonable, the court provided guidance for determining the necessity of force and the consideration of pre-shooting conduct.
The Plaintiff, Koussaya, was one of the hostages taken
by armed bank robbers and used as a human shield in order to facilitate their
escape. A high-speed chase with law enforcement ensued where the robbers fired
AK-47 assault rifles at officers from the back of their SUV. Fearing a shootout when the
pursuit terminated, Koussaya decided her best chance at survival was to throw
herself from the moving vehicle. Having sustained serious injuries during her
escape, she sued the City of Stockton and the individual officers that
initiated the pursuit.
The appellate court ultimately held the officers’
tactics and use of deadly force in shooting at the getaway vehicle
was reasonable as matter of law, and thus dismissed claims for assault and battery,
intentional infliction of emotional distress, and general negligence. Applying
the new use of force standards enacted in 2019, the court concluded a
reasonable officer would have been more than justified in believing that
robbers had the present ability, opportunity, and apparent intent to
immediately cause death or serious bodily injury to the pursuing officers, as
well as any innocent bystanders who happened to be in line of fire, if
immediate action was not taken. They explained that the officers were not
required to retreat or desist from their efforts to apprehend the robbers on
account of their violent resistance, and that Koussaya’s injuries were not
caused by officers’ operation of their patrol vehicles, but rather, by her
decision to jump from a moving vehicle.
In reaching their conclusion, the court provided
guidance regarding an officer's discretion in addressing a situation, the
determination of reasonableness, and the proper consideration of pre-shooting
conduct.
First, the court clarified the analysis for
determining the necessity of deadly force.
A.B. 392 amended Section 835a(c)(1) to state, “a peace officer is
justified in using deadly force upon another person only when the officer
reasonably believes, based on the totality of the circumstances, that such
force is necessary for either of the following reasons:
(A) To defend against an imminent threat of death or
serious bodily injury to the officer or to another person.
(B) 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. Where feasible, a peace officer
shall, prior to the use of force, make reasonable efforts to identify
themselves as a peace officer and to warn that deadly force may be used, unless
the officer has objectively reasonable grounds to believe the person is aware
of those facts.
The court explained that the use of deadly force will
be considered reasonable when an officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to the
officer or others. As long as the officer's
conduct falls within the range of conduct that is reasonable under the
circumstances, there is no requirement that the officer choose the “most
reasonable” action or the conduct that is the least likely to cause harm and at
the same time the most likely to result in the successful apprehension of a
violent suspect. “Law enforcement personnel have a degree of discretion as to
how they choose to address a particular situation.”
Second, the court rejected the argument that the
existence of an applicable general order establishes the standard of care for
using deadly force. But, the court clarified, “such orders ‘may well be
extremely useful to the trier of fact’ in determining whether a particular use
of deadly force, or officer conduct leading up to that use of force, violated
the more ‘amorphous’ standard of reasonableness.” (citing, Grudt v. City of
Los Angeles (1970) 2 Cal.3d 575.) Notably, Senate Bill 230, which mandated
minimum general orders standards for use of force, states "policies and
training may be considered as a factor in the totality of circumstances in
determining whether the officer acted reasonably, but shall not be considered
as imposing a legal duty on the officer to act in accordance with such policies
and training.”
Third, the court considered the relevance of pre-shooting conduct. A.B. 392 states, "'totality of the circumstances' means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force." This new definition of totality of the circumstances is similar to the California Supreme Court ruling in Hayes v. County of San Diego that negligence liability may arise from tactical conduct and decisions officers preceding the use of deadly force. The court then harmonized A.B. 392’s adherence to Graham with this expanded definition of totality of the circumstances.
The court rejected the plaintiff's claims based on the
officers' pre-shooting pursuit tactics. The court noted that the officers
"had every right to pursue the robbers in an attempt to apprehend them for
several violent felonies, including armed robbery, kidnapping, assault with a
deadly weapon, and attempted murder." An officer is "not required to
retreat or desist from his efforts to apprehend them on account of their
violent resistance." Further, the plaintiff's injuries were not even
caused by the proximity of the pursuit vehicles, but rather by her decision to
jump from a moving vehicle.
The court held that “although an officer's
pre-shooting conduct must be considered as part of the totality of
circumstances surrounding the use of force, the ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” This
evaluation must provide “deference to the split-second decisions of an officer
and recognizes that, unlike private citizens, officers may use deadly force...They
are charged with acting affirmatively and using force as part of their duties.”
In conclusion, the court applied a common-sense
application of A.B. 392’s amendments to the law in analyzing the claims against
officers for their actions. This important ruling should help dispel the
misinformation about A.B. 392. As the court explained, these legal standards
must be applied in real world contexts:
"We must never allow the theoretical, sanitized
world of our imagination to replace the dangerous and complex world that
policemen face every day. What constitutes ‘reasonable’ action may seem quite
different to someone facing a possible assailant than to someone analyzing the
question at leisure. Placing the burden of proof on the plaintiff to establish
that an officer's use of force was unreasonable gives the police appropriate
maneuvering room in which to make such judgments free from the need to justify
every action in a court of law."
