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AB-66 Police: use of force.(2019-2020)

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Date Published: 08/25/2020 01:20 PM
AB66:v90#DOCUMENT

Amended  IN  Senate  August 25, 2020
Amended  IN  Senate  August 20, 2020
Amended  IN  Senate  July 21, 2020
Amended  IN  Senate  June 25, 2020
Amended  IN  Senate  June 17, 2020
Amended  IN  Assembly  January 07, 2020
Amended  IN  Assembly  April 30, 2019
Amended  IN  Assembly  April 22, 2019
Amended  IN  Assembly  March 04, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 66

Introduced by Assembly Members Gonzalez, Kalra, and Cristina Garcia
(Principal coauthor: Assembly Member Carrillo)
(Coauthors: Assembly Members Chiu, McCarty, Robert Rivas, Santiago, Ting, and Weber)
(Coauthors: Senators Durazo, Lena Gonzalez, and Wiener)

December 03, 2018

An act to amend Sections 7286 and 12525.2 of the Government Code, and to add Section 832.14 to the Penal Code, relating to police use of force.


LEGISLATIVE COUNSEL'S DIGEST


AB 66, as amended, Gonzalez. Police: use of force.
Existing law authorizes a peace officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance. Existing law requires law enforcement agencies to maintain a policy on the use of force, as specified. Existing law requires the Commission on Peace Officer Standards and Training to implement courses of instruction for the regular and periodic training of law enforcement officers in the use of force.
This bill would prohibit the use of kinetic energy projectiles or chemical agents, as defined, by any law enforcement agency to disperse any assembly, protest, demonstration, or other gathering of persons, except in compliance with specified standards set by the bill, and would prohibit their use solely due to a violation of an imposed curfew, verbal threat, or noncompliance with a law enforcement directive. The bill would prohibit the use of chloroacetophenone tear gas or 2-chlorobenzalmalononitrile gas by law enforcement agencies to disperse any assembly, protest, demonstration, or other gathering of persons. The bill would include in the standards for the use of kinetic energy projectiles and chemical agents to disperse gatherings the requirement that, among other things, those weapons only be fired at a specific target who presents a clear and imminent threat to themselves, the officers, or other persons. The bill would make these provisions inapplicable within a state prison facility.
Existing law requires specified law enforcement agencies, by no later than January 1, 2021, to maintain a policy on the use of force that meets specified requirements.
This bill would require those agencies, by no later than January 1, 2022, to include in those policies specified guidelines relating to deployment at assemblies, protests, demonstrations, and similar gatherings of people.
Existing law requires each law enforcement agency to annually report specified use of force incidents to the Department of Justice and requires the Department of Justice to annually publish a summary of those incidents, as specified.
The bill would also require each law enforcement agency, beginning on January 1, 2023, to report any incident in which a kinetic energy projectile or chemical agent is used against a person resulting in a reported injury. The bill would require those agencies, commencing on March 31, 2024, to annually publish a report on their use of kinetic energy projectiles and chemical agents. The bill would require a city in which federal law enforcement is operating to request that the federal law enforcement agency refrain from the use of kinetic energy projectiles or chemical agents to disperse any assembly, protest, demonstration, or other gathering, except as specified in the standards. By imposing new duties on law enforcement agencies and cities, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares the following:
(a) Beginning the week of May 25, 2020, there have been numerous reports of peaceful protestors, along with countless other bystanders and reporters, maimed by rubber bullets and other projectiles by law enforcement.
(b) Kinetic energy projectiles, such as rubber or plastic bullets, beanbag rounds, and foam rounds, and chemical agents, including pepper balls, pepper spray, and tear gas, have been increasingly used as crowd control weapons or less lethal weapons to respond to protests and are designed to incapacitate individuals by inflicting pain or sublethal injury.
(c) A 2017 British Medical Journal study found that 3 percent of people hit by rubber bullets died of their injuries and 15 percent were permanently injured.
(d) Researchers and medical professionals have called for an end to the use of rubber bullets on peaceful protestors because of their potential to cause serious injury, disability, or death.
(e) The 1925 Geneva Protocol categorized tear gas as a chemical warfare agent and banned its use in war. The Chemical Weapons Convention outlawed the use of tear gas in 1997, but still made it legal for law enforcement to use.
(f) Health experts have warned that the use of tear gas could help with the spread of COVID-19 because it irritates the lungs and makes persons cough.
(g) While most police departments have their own policies on their use of force and less lethal weapons, there are no statewide or national standards.
(h) It is the intent of this act to establish clear minimum standards for policies and reporting procedures regarding California law enforcement agencies’ use of less lethal kinetic energy projectiles and chemical agents.

SEC. 2.

 Section 7286 of the Government Code is amended to read:

7286.
 (a) For the purposes of this section:
(1) “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury. Deadly force includes, but is not limited to, the discharge of a firearm.
(2) “Feasible” means 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.
(3) “Law enforcement agency” means any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the Department of the California Highway Patrol, the Department of Fish and Wildlife, and the Department of Justice.
(b) Each law enforcement agency shall, by no later than January 1, 2021, maintain a policy that provides a minimum standard on the use of force. Each agency’s policy shall include all of the following:
(1) A requirement that officers utilize deescalation techniques, crisis intervention tactics, and other alternatives to force when feasible.
(2) A requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance.
(3) A requirement that officers report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances based upon the totality of information actually known to the officer.
(4) Clear and specific guidelines regarding situations in which officers may or may not draw a firearm or point a firearm at a person.
(5) A requirement that officers consider their surroundings and potential risks to bystanders, to the extent reasonable under the circumstances, before discharging a firearm.
(6) Procedures for disclosing public records in accordance with Section 832.7.
(7) Procedures for the filing, investigation, and reporting of citizen complaints regarding use of force incidents.
(8) A requirement that an officer intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.
(9) Comprehensive and specific guidelines regarding approved methods and devices available for the application of force.
(10) An explicitly stated requirement that officers carry out duties, including use of force, in a manner that is fair and unbiased.
(11) Comprehensive and specific guidelines for the application of deadly force.
(12) Comprehensive and detailed requirements for prompt internal reporting and notification regarding a use of force incident, including reporting use of force incidents to the Department of Justice in compliance with Section 12525.2.
(13) The role of supervisors in the review of use of force applications.
(14) A requirement that officers promptly provide, if properly trained, or otherwise promptly procure medical assistance for persons injured in a use of force incident, when reasonable and safe to do so.
(15) Training standards and requirements relating to demonstrated knowledge and understanding of the law enforcement agency’s use of force policy by officers, investigators, and supervisors.
(16) Training and guidelines regarding vulnerable populations, including, but not limited to, children, elderly persons, people who are pregnant, and people with physical, mental, and developmental disabilities.
(17) Comprehensive and specific guidelines under which the discharge of a firearm at or from a moving vehicle may or may not be permitted.
(18) Factors for evaluating and reviewing all use of force incidents.
(19) Minimum training and course titles required to meet the objectives in the use of force policy.
(20) A requirement for the regular review and updating of the policy to reflect developing practices and procedures.
(c) Each law enforcement agency shall, by no later than January 1, 2022, include guidelines on deployments to protests, demonstrations, assemblies, and similar gatherings of people, in the policy required by subdivision (b). These guidelines shall, without limitation, include both of the following:
(1) A protocol for the effective deployment, rotation, and removal of officers assigned to a skirmish line to minimize the potential of officers becoming stressed, fatigued, frustrated, or visibly agitated.
(2) A policy that encourages officers to speak to individuals with respect and discourages the use of harsh or offensive language.
(d) Each law enforcement agency shall make their use of force policy adopted pursuant to this section accessible to the public.
(e) This section does not supersede the collective bargaining procedures established pursuant to the Myers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of Division 4), the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4), or the Higher Education Employer-Employee Relations Act (Chapter 12 (commencing with Section 3560) of Division 4).

SEC. 3.

 Section 12525.2 of the Government Code is amended to read:

12525.2.
 (a) Beginning January 1, 2017, each law enforcement agency shall annually furnish to the Department of Justice, in a manner defined and prescribed by the Attorney General, a report of all instances when a peace officer employed by that agency is involved in any of the following:
(1) An incident involving the shooting of a civilian by a peace officer.
(2) An incident involving the shooting of a peace officer by a civilian.
(3) An incident in which the use of force by a peace officer against a civilian results in serious bodily injury or death.
(4) An incident in which use of force by a civilian against a peace officer results in serious bodily injury or death.
(5) Commencing on January 1, 2023, an incident in which a peace officer uses a kinetic energy projectile or chemical agent, as those terms are defined in Section 832.14 of the Penal Code, resulting in a reported injury to any person. Each law enforcement agency shall also annually, commencing on March 31, 2024, publish a summary of incidents described in this paragraph.
(b) For each incident reported under paragraphs (1) to (4), inclusive, of subdivision (a), the information reported to the Department of Justice shall include, but not be limited to, all of the following:
(1) The gender, race, and age of each individual who was shot, injured, or killed.
(2) The date, time, and location of the incident.
(3) Whether the civilian was armed, and, if so, the type of weapon.
(4) The type of force used against the officer, the civilian, or both, including the types of weapons used.
(5) The number of officers involved in the incident.
(6) The number of civilians involved in the incident.
(7) A brief description regarding the circumstances surrounding the incident, which may include the nature of injuries to officers and civilians and perceptions on behavior or mental disorders.

(8)

(c) For incidents involving kinetic energy projectiles or chemical agents, all of the following additional information: reported under paragraph (5) of subdivision (a), the information reported to the Department of Justice shall include all of the following:

(A)

(1) The type of kinetic energy projectile or chemical agent deployed.

(B)

(2) The number of rounds fired or quantity of a chemical agent dispersed, as applicable.

(C)

(3) The justification for using a kinetic energy projectile or chemical agent.

(D)

(4) Whether any person was injured as a result of the kinetic energy projectile or chemical agent deployment.

(c)

(d) Each year, the Department of Justice shall include a summary of information contained in the reports received pursuant to subdivision (a) through the department’s OpenJustice Web portal pursuant to Section 13010 of the Penal Code. This information shall be classified according to the reporting law enforcement jurisdiction. In cases involving a peace officer who is injured or killed, the report shall list the officer’s employing jurisdiction and the jurisdiction where the injury or death occurred, if they are not the same. This subdivision does not authorize the release to the public of the badge number or other unique identifying information of the peace officer involved.

(d)

(e) For purposes of this section, “serious bodily injury” means a bodily injury that involves a substantial risk of death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

SEC. 4.

 Section 832.14 is added to the Penal Code, to read:

832.14.
 (a) It is the intent of the Legislature that peace officers be accountable at all times to uphold their oaths, and are held to the highest standards of conduct, pursuant to Section 3 of Article XX of the California Constitution and existing law, to support and defend the Constitution of the United States of America and the Constitution of the State of California, including the rights of the people to safely and freely speak and assemble.
(b) Except as otherwise provided in subdivision (d), kinetic energy projectiles or chemical agents shall not be used by any law enforcement agency to disperse any assembly, protest, demonstration, or other gathering of people.
(c) Chloroacetophenone tear gas, commonly known as CN tear gas, or 2-chlorobenzalmalononitrile gas, commonly known as CS gas, shall not be used by any law enforcement
agency to disperse any assembly, protest, demonstration, or other gathering of people.
(d) Kinetic energy projectiles or chemical agents shall only be deployed to disperse an assembly, protest, demonstration, or other gathering of people in accordance with all of the following requirements:
(1) The use is objectively reasonable to defend against injury to any individual, including any peace officer.
(2) Deescalation techniques or other alternatives to force have been attempted, when objectively reasonable, and have failed.
(3) If objectively reasonable to do so, repeated audible announcements are made announcing the intent to use kinetic energy projectiles or chemical agents.
(4) Persons are given an objectively reasonable opportunity to disperse and leave the scene.
(5) An objectively reasonable effort has been made to identify persons engaged in violent acts and those who are not, and kinetic energy projectiles or chemical agents are targeted toward those individuals engaged in violent acts. Projectiles shall not be aimed indiscriminately into a crowd or group of persons.
(6) The increased risk of hitting an unintended target due to unexpected movement of members of the crowd is considered.
(7) An objectively reasonable effort has been made to extract individuals in distress.
(8) Kinetic energy projectiles or chemical agents are used only with the frequency, intensity, and in a manner that is proportional to the threat and objectively reasonable.
(9) Medical assistance is promptly procured or provided for injured persons.
(10) Peace officers who deploy these weapons have received training on their proper use that is approved by the Commission on Peace Officer Standards and Training.
(11) Projectiles are aimed at or below a person’s navel area and shall not be aimed at the head or neck, or at any person who is running away.
(e) Kinetic energy projectiles or chemical agents shall not be used by any law enforcement agency solely due to a violation of an imposed curfew, verbal threat, or noncompliance with a law enforcement directive.
(f) If a federal law enforcement agency is operating in the jurisdiction of any city, that city shall request that federal law enforcement agency refrain from the use of kinetic energy projectiles or chemical agents to disperse any assembly, protest, demonstration, or other gathering of people, unless that use is consistent with subdivision (d).
(g) Nothing in this section prevents a law enforcement agency from adopting more stringent policies.
(h) This section does not apply within any correctional facility of the Department of Corrections and Rehabilitation.
(i) For the purposes of this section, the following terms have the following meanings:
(1) “Kinetic energy projectiles” means any type of device designed as less lethal, to be launched from any device as a projectile that may cause bodily injury through the transfer of kinetic energy and blunt force trauma. For purposes of this section, the term includes, but is not limited to, items commonly referred to as rubber bullets, plastic bullets, beanbag rounds, and foam tipped plastic rounds.
(2) “Chemical agents” means any chemical which can rapidly produce sensory irritation or disabling physical effects in humans, which disappear within a short time following termination of exposure. For purposes of this section, the term includes, but is not limited to, items commonly referred to as pepper balls, pepper spray or oleoresin capsicum.

SEC. 5.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.