It has long been recognized and understood that peace officers are authorized to use reasonable force to effect a lawful arrest, to prevent escape, or to overcome resistance, and that officers have a duty to act reasonably under the totality of the circumstances when utilizing force. In 2019, with the enactment of AB 392 (California Penal Code §835a), the California legislature affirmed that deadly force should be restricted to situations where it is deemed necessary for the defense of human life and that officers are expected to use less lethal force options and other available resources and techniques if an objectively reasonable officer would find it reasonably safe to do so.
With the recent enactment of Assembly Bill 48 (California Penal Code § 13652), which became effective January 1, 2022, the legislature has now provided additional clarification concerning the expectations for law enforcement officers tasked with policing public gatherings that are not deemed to be objectively dangerous and unlawful. Specifically, officers are now prohibited from using kinetic energy projectiles or chemical agents to disperse any assembly, protest, or demonstration, except by trained officers who deem the deployment objectively reasonable to defend against a threat to life or serious bodily injury to any individual, or to bring an objectively dangerous and unlawful situation safely and effectively under control. Officers are also now specifically prohibited from using these less lethal options solely due to a violation of an imposed curfew, verbal threat, or noncompliance with a law enforcement directive. The frequency, intensity, and manner in which these force options are deployed must also be proportional to the threat and objectively reasonable.
Under the newly enacted provisions of AB 48, officers are also required to minimize the possible incidental impact of their use of these force options on bystanders, medical personnel, journalists, or other unintended targets. Noticeably, this provision of the statute does not reference any exceptions for situations where minimization of the possible impact on bystanders may be deemed impossible by an objectively reasonable officer. The new statute also prohibits the indiscriminate aiming of projectiles into a crowd or group of persons or at the head, neck, or any other vital organs of a target subject. When objectively reasonable to do so, officers are required to attempt deescalation techniques or other alternatives prior to deploying kinetic energy projectiles and chemical agents. Additionally, the statute requires officers to issue repeated, audible announcements that they intend to use kinetic energy projectiles and chemical agents and the type to be used. Prior to deployment, subjects must be provided an opportunity to disperse and leave the scene and officers must target deployment of these force options only toward those individuals engaged in violent acts. Finally, only commanding officers at the scene of an assembly, protest, or demonstration may authorize the use of tear gas and efforts must also be made to extract individuals in distress. These new statutory requirements do not apply within state and local detention and correction facilities.
These new prohibitions on deployment of kinetic energy projectiles and chemical agents are unambiguous and confirm the legislature’s intent to expand the limitations on practical options available to law enforcement officers who are tasked with upholding the law of the land. While the attendees of many assemblies, protests, or demonstrations of recent years have engaged in theft and/or destruction of property, which may be considered to be objectively dangerous and unlawful, unless the situation presents a clear threat to life or serious bodily injury to any individual, officers will likely refrain from the use of the less lethal options previously available to them. While the “objectively reasonable” standard still applies to a majority of the mandatory provisions of the statute, it provides no such latitude regarding the mandate for officers to minimize possible incidental impacts on bystanders, medical personnel, journalists, or other unintended targets. This expectation will also likely result in increased hesitation in the deployment of kinetic energy projectiles or chemical agents in situations that do not pose a crystal-clear threat to life or serious bodily injury to any individual. This scenario also raises questions concerning how officers may be expected to enforce laws designed to protect the personal property of individuals being stolen or damaged during an unlawful protest, or how they may be able to ensure those unlawful protests are brought safely and effectively under control.
