Commentary: Is Stephon Clark Shooting Bad Enough to Change the Rules of the Game?

Press Conference on Tuesday

The shooting of Stephon Clark is not the first shooting in Sacramento by police in recent years, and there have been a string of killings across the state – ranging from Mario Woods in San Francisco to Kelly Thomas in Orange County and Luis Gutierrez here in Yolo County.

Dashcam video showed officers in the Joseph Mann case talking about trying to run the mentally ill man over, prior to shooting him – but investigators for law enforcement ultimately saw the shooting, however it was precipitated, as lawful.

Protesters, activists and other critics believe that that culture led to the officers in the current case to come to believe their actions were justified.  While there were protests over Joseph Mann and Dazion Flenaugh, something about Stephon Clark’s death and the perceived lack of a real threat to the police has made this one different.

Stephon Clark may be California’s Ferguson, igniting a wave of protests that have rocked the state capital and captured the attention of legislators – who until now have been unwilling to act except in timid, tentative steps.

Will the Police Accountability and Community Protection Act, introduced by Assemblymember Shirley Weber, be different from previous reform attempts in California?  It is hard to know for sure.

But the legislation itself could be a game changer, as it changes the rules of engagement completely.

The legislation provides, “Authorizing police officers to use deadly force only when it is necessary to prevent imminent and serious bodily injury or death – that is, if, given the totality of the circumstances, there was no reasonable alternative to using deadly force, including warnings, verbal persuasion, or other nonlethal methods of resolution or de-escalation.”

Moreover it clarifies the law with respect to officer involved shootings, establishing “that a homicide by a peace officer is not justified if the officer’s gross negligence contributed to making the force ‘necessary.'”

Whereas, under existing law the ability to articulate “in fear for my life,” even if implausible, has been  considered the standard for defense by peace officers.  Right now the legal standard is one that arises out of the 1985 Tennessee v. Garner case,  of “objective reasonableness,” where an officer’s use of force “must be judged from the perspective of a reasonable officer on the scene.”

Basically, if an officer believes that someone could cause injury or death, or if he can articulate a fear for his own life, the officer is permitted to lawfully shoot and take a life.

We saw this at play last summer in the acquittal of Officer Jeronimo Yanez in the death of Philando Castile.

He would testify, “I thought I was gonna die.”  The jury got to see dashcam footage that depicted a polite and compliant passenger.  But there was enough uncertainty, of not being able to see inside the vehicle and feel the officer’s fear, that the jury had enough to acquit him.

This proposed law raises the standard in two ways.  The first is that the officer cannot through negligence contribute to the situation that makes the use of force necessary.  This will be interesting to track.  But it basically is on par with self-defense – you are not allowed to provoke the situation that requires the use of self-defense under that law.

In many of the police shootings, we have seen a number of mistakes by the officers that have contributed to the problem.

The other provision of this legislation is that it would make deadly force be the last resort.  Too often there are probably alternatives to the use of deadly force, including at times the option to simply retreat rather than engage the subject.

That is really a question about the Clark shooting – the suspect is perhaps engaged in misdemeanor conduct, so is there really a need to continue pursuit at this point?

A secondary bill, SB 1421, once again attempts to fix public access to police records, opening them to the public.

The public under this bill would have the right to know about:

Serious use-of-force investigations, including investigations into police shootings.

Sustained complaints against officers for sexual assault or other serious job-related dishonesty, such as perjury, falsifying police reports, and planting or destroying evidence.

This has been a vexing problem for a long time in California.  Under the 2006 Copley Press ruling by the California Supreme Court, it was held that records about sustained misconduct charges are confidential and thus cannot be disclosed to the public.

According to the ACLU that means “Copley Press has effectively shut off all avenues for the public to learn about misconduct involving individual police officers, such as excessive force and dishonesty; officer-involved shootings; patterns of misconduct and leniency; previous discipline for misconduct by another agency; and even the identity of officers in misconduct cases.”

The legislature has attempted to undo Copley before, in 2007, but after law enforcement showed up to committee hearings in large numbers, the Democratic majority shelved the legislation.

Dean Johansson, running for Yolo County District Attorney, was among the first to support the legislation.

“It is urgent that we change our state laws to bring greater transparency and accountability to law enforcement. It’s the right thing to do and we owe it to the families of Stephon Clark, Michael Barrera, Luis Gutierrez and so many others to enact these long overdue reforms,” said Mr. Johansson.

Peter Bibring, Police Practices Director with the ACLU of California, issued the following statement:

“Today, California legislators heard and responded to the community’s call for action by introducing landmark legislation to change state law governing the deadly use of force by police, and to require the disclosure of information about law enforcement agencies’ investigations into police use of force and confirmed misconduct.

“For years, communities throughout the country have experienced policing in America that is unjust, racially discriminatory, and unnecessarily violent. The killing of Michael Brown in Ferguson, and so many others since, have laid bare this truth: our country’s laws protect the police, not the people. Last month, we relived that nightmare again when footage of Stephon Clark’s senseless killing by Sacramento police officers was made public.

“While our hearts are broken by tragedies such as these, our resolve to fight for change will never be. Now, more than ever, we must change state laws to ensure that police are held accountable to us – the people they are meant to serve and protect.

“We call on the rest of the Legislature and Governor Brown to support the Police Accountability and Community Protection Act (Weber) and SB 1421 (Skinner), to protect the people of Californian and hold officers accountable for their actions.”

The key question is, once law enforcement pushes back on this issue, will the legislature crack or is the Stephon Clark case truly the rare game changer?

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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