Every officer who has ever cleared a doorway understands the arithmetic of a fraction of a second. The decision to use force is made in the moment, on the information then available, against a threat that does not pause to let anyone deliberate. California law honors that reality, yet officers know that courtrooms and juries are frequently invited to second-guess split-second decisions against a leisurely reconstruction that no officer on the scene ever had. A recent Texas reversal of a verdict against an officer illustrates the point. The court’s reasoning is a timely reminder of the constitutional and statutory protections that govern peace officers in California. Although the decision is not binding here, its reasoning is persuasive in holding that a conviction built on hindsight analysis cannot survive when the governing standard is properly applied.
A Dangerous Encounter
In an appeal decided by a Texas appellate court, a
police officer had responded with three colleagues to a report that a man was
roaming the halls of a downtown building with a knife held to his own throat
and threatening suicide. The officers were told the man had a history of mental
health crises and was on an upper floor with a large kitchen knife. When the
officers reached that floor by elevator, the man was facing a mirror with the
knife at his throat. When the doors opened, he turned toward the officers,
reoriented the knife away from himself and toward them, and advanced in close
quarters while ignoring the commands shouted at him. The officers fired, and
the man died. The officer was convicted of a firearm offense and sentenced to
prison, notwithstanding testimony from fellow officers that they would not have
acted differently, expert testimony that the use of force was justified, and
the conclusion of the department’s own investigators that the conduct did not
warrant criminal charges. The appellate court reversed and rendered a judgment
of acquittal, holding that the prosecution never carried its burden of
disproving justification once the objective evidence was examined at the only
moment that mattered. Taylor v. State, 729 S.W.3d 124 (Tex. App. 2025).
Reviewing the body worn camera footage, it found that
the officers were confined with no meaningful avenue of retreat, that the man
turned toward them and advanced with the knife oriented in their direction, and
that this presented an immediate and potentially lethal threat. The
prosecution’s theory, by contrast, rested almost entirely on what the officers
supposedly should have done differently, including waiting, using the stairs,
or relying on less lethal options.
The court held that this evidence, even if accepted in
full, did not answer the dispositive question, because it showed at most that
different decisions could have been made. As the court explained, could have,
would have, and should have do not disprove justification, and tactical
misjudgments or hindsight critiques do not render an otherwise reasonable
belief in the necessity of deadly force unreasonable. The court further
rejected the notion that a subject who advances with a weapon is demonstrating
compliance, holding that the law does not require officers to treat such
conduct as surrender or to wait until an attack is completed before responding.
Finally, it observed that a mental health crisis is dynamic, so that a person
who is a danger only to himself in one moment may become an immediate threat to
others in the next, and that reasonableness is measured on what the officer
perceived at the moment force was used rather than on earlier assurances or
missed opportunities to de-escalate.
The California Framework
California officers enjoy the same core protection,
secured by both the federal Constitution and state statute. As the Supreme
Court held in Graham v. Connor, the reasonableness of a use of force
must be judged from the perspective of a reasonable officer on the scene rather
than with the twenty-twenty vision of hindsight, and the analysis must make
allowance for the fact that officers are forced to make split second judgments
in circumstances that are tense, uncertain, and rapidly evolving. That inquiry
turns on whether the person confronting the officer posed an immediate threat
to the safety of the officer or others.
The Legislature wrote these principles into Penal Code
Section 835a, which states that the decision to use force be evaluated from the
perspective of a reasonable officer in the same situation, based on the
totality of the circumstances known to or perceived by the officer at the time,
rather than with the benefit of hindsight, and it expressly accounts for the
reality that officers must sometimes make quick judgments about using force.
The statute permits deadly force when the officer reasonably believes, based on
the totality of the circumstances, that such force is necessary to defend
against an imminent threat of death or serious bodily injury. A threat is
imminent when a reasonable officer would believe the person has the present
ability, opportunity, and apparent intent to immediately cause death or serious
bodily injury, a harm that must be instantly confronted rather than a mere fear
of future harm. The same section confirms that an officer need not retreat and
is not rendered an aggressor, nor deprived of the right of self-defense, by
using objectively reasonable force.
California courts have applied this framework with a
clear eye toward the dangers of hindsight analysis. Applying AB 392, Koussaya
v. City of Stockton, (2020) 54 Cal. App. 5th 909, confirmed that the
reasonableness of force is still judged from the perspective of a reasonable
officer on the scene rather than hindsight, and the standard provides deference
to the split second decisions of an officer who, unlike a private citizen, is
charged with acting affirmatively and using force. Critically, so long as an
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 available action or the conduct least likely to cause harm.
California decisions confronting the knife wielding
advancer have reached the same conclusion the Texas court reached, holding that
where deadly force is otherwise justified there is no constitutional duty to
use less forceful or non-deadly alternatives first, and that the proper inquiry
is whether the officer acted reasonably, not whether some less intrusive
alternative was theoretically available. Martinez v. Cnty. of Los Angeles,
47 Cal. App. 4th 334, 54 Cal. Rptr. 2d 772 (1996). The focus remains on the
vantage of the reasonable officer, not on the after the fact opinions of
bystanders who did not perceive a threat.
Why a No Reasonable Alternative Standard
Cannot Be Squared With the Constitution
This settled framework is the measure against which
the earlier legislative proposals to rewrite California’s deadly force law must
be judged. As those proposals were originally introduced, they would have gone
considerably further than any jury in the case discussed above, restricting an
officer’s use of deadly force to circumstances in which it was strictly
necessary and in which no reasonable alternative existed. Such a standard would
unreasonably invite the factfinder to convict an officer whenever some other
course could later be described as available. Representing the Peace Officers
Research Association of California (PORAC), our firm opposed that approach
because it would have transformed the objective reasonable officer inquiry into
an impossible mandate to exhaust every conceivable option before acting. In
holding such a standard unconstitutional, our Ninth Circuit has recognized,
“(r)equiring officers to find and choose the least intrusive alternative would
require them to exercise superhuman judgment. Scott v. Henrich (9th Cir.
1994) 39 F.3d 912, 915.” Our firm was privileged to assist the law enforcement advocacythat ultimately helped secure the amendments to Assembly Bill 392 that removedthe most punitive features of the introduced language and preserved thereasonable officer standard in the law as enacted.
The reversal of the Texas conviction reenforces the
point that such a standard, had it been enacted in California as introduced,
would be constitutionally infirm. A criminal conviction may rest only on
evidence from which a rational factfinder could find every element beyond a
reasonable doubt, and in a justification case that necessarily includes proof
beyond a reasonable doubt that the officer did not reasonably believe force was
necessary in the moment.
A no reasonable alternative standard collapses that
inquiry. It permits conviction not because the officer’s real time perception
was unreasonable, but because a prosecutor, working backward from a known
outcome, can always describe another path not taken. The Texas court rejected this
reasoning when it held that could have and should have do not disprove
justification. It is also precisely what California law already forecloses,
because there is no constitutional duty to resort to the least forceful
alternative where deadly force is justified. An officer is not required to
select the least harmful option to avoid liability. A statute or instruction
that made the availability of a hypothetical alternative dispositive would
nullify those protections and convert the reasonable officer standard into a
strict liability regime, judged in the calm of a courtroom rather than from the
position of the officer on the scene. Koussaya, supra.
When jurors are told to ask whether any reasonable
alternative existed, and to measure that question against a reconstruction
assembled after the danger has passed, they are no longer deciding whether the
officer’s belief was reasonable at the instant of the threat. They are grading
the officer against an idealized response that the moment never permitted. That
is the very danger the reasonable officer standard exists to prevent, because
it refuses to let a sanitized reconstruction assembled after the fact displace
the dangerous and rapidly evolving reality the officer actually confronted. An
instruction that operationalizes hindsight in this way threatens the due
process guarantee that a conviction rest on proof of an actual element of the
offense, and it departs from the constitutional command of Graham that
force be assessed from the perspective of a reasonable officer on the scene
rather than hindsight.
It is worth emphasizing that the deadly force statute the Legislature ultimately enacted, as shaped by the amendments described above, stopped far short of the standard the original proposals contemplated. Section 835a expresses the intent that officers use deadly force only when necessary in defense of human life and that they use other available resources and techniques, but it qualifies that expectation by requiring only what is reasonably safe and feasible to an objectively reasonable officer, and it preserves throughout the reasonable officer perspective and the rejection of hindsight. SB 230 also codifies the legal definition of "feasible” is defined as "reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person." (emphasis added.) This definition clarifies that tactics increasing the risk to officers are not "feasible."
In other words, the
enacted law retains the constitutional anchor that the introduced version would have disgaurded. That distinction is the difference between a statute
that channels officer discretion and one that would punish officers for failing
to achieve a perfection the law has never demanded.
Practical Significance of Taylor for
California Officers
For officers and the agencies that stand behind them,
several lessons follow. Justification is assessed on the threat as it
reasonably appeared at the instant of the decision, and neither a prosecutor
nor a jury may substitute a menu of tactical alternatives for proof that the
officer’s belief was unreasonable. A subject who advances with a weapon and
disregards commands is not demonstrating compliance merely because no blow has
yet landed, and officers are not required to absorb the first strike before responding.
Prior information that a person is troubled or suicidal does not freeze the
threat assessment, because the encounter is judged as it evolves. Where
objective evidence such as body worn camera footage confirms the threat, that
evidence can be decisive. And under existing California law, an officer who
acts within the range of reasonable conduct has no separate duty to have chosen
the least forceful option that a later critic might prefer.
