BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1347 (Leno) 7
As Amended April 5, 2010
Hearing date: April 20, 2010
Penal Code
SM:mc
PEACE OFFICERS: ELECTRONIC CONTROL WEAPONS
HISTORY
Source: Author
Prior Legislation:AB 322 (Silva) - 2009, vetoed
AB 2973 (Soto) - Chap. 556, Stats. 2008
SB 860 (Correa) - 2008, failed passage in Senate
Public Safety
SB 1336 (Cedillo) - 2006, failed passage in
Senate Public Safety
AB 157 (Levine) - 2005, not heard Assembly Public
Safety
AB 1237 (Leno) - 2005, failed passage on Assembly
floor
AB 1710 (Wyland) - 2005, failed passage in
Assembly Public Safety
AB 1908 (Bowler) - 1995, held in Senate
Appropriations suspense file
Support: American Civil Liberties Union; California Communities
United Institute;
California Public Defenders Association
Opposition:
Association for Los Angeles Deputy Sheriffs; Riverside Sheriffs'
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Association;
California Police Chiefs Association; Peace Officers Research
Association of California; California Association of Highway
Patrolmen
KEY ISSUES
SHOULD SPECIFIED FINDINGS AND DECLARATIONS REGARDING USE OF
ELECTRONIC CONTROL DEVICES BY POLICE BE ADOPTED?
SHOULD THE RULING IN BRYAN V. MCPHERSON , 590 F.3D 767, 780 (9TH CIR.
2009), BE CODIFIED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) make specified findings and
declarations; and (2) codify the ruling in Bryan v. McPherson,
590 F.3d 767, 780 (9th Cir. 2009), as specified.
Existing law provides that a peace officer or a custodial
officer, as defined, may if authorized by and under the terms
and conditions as are specified by his or her employing agency
purchase, possess, or transport any less lethal weapon or
ammunition therefor, for official use in the discharge of his or
her duties. (Penal Code 12600.)
Existing law defines "less lethal weapon" as any device that is
designed to or that has been converted to expel or propel less
lethal ammunition by any action, mechanism, or process for the
purpose of incapacitating, immobilizing, or stunning a human
being through the infliction of any less than lethal impairment
of physical condition, function, or senses, including physical
pain or discomfort. It is not necessary that a weapon leave any
lasting or permanent incapacitation, discomfort, pain, or other
injury or disability in order to qualify as a less lethal
weapon. (Penal Code 12601(a).)
Existing law defines "less lethal ammunition" as any ammunition
that (1) is designed to be used in any less lethal weapon or any
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other kind of weapon (including, but not limited to, firearms,
pistols, revolvers, shotguns, rifles, and spring, compressed
air, and compressed gas weapons); and (2) when used in the less
lethal weapon or other weapon is designed to immobilize or
incapacitate or stun a human being through the infliction of any
less than lethal impairment of physical condition, function, or
senses, including physical pain or discomfort. (Penal Code
12601(c).)
Existing federal case law holds that use of a "Taser," or
similar device, by a peace officer constitutes an intermediate
significant use of force and thus must be justified by "a strong
government interest [that] compels the employment of such
force." (Bryan v. McPherson, 590 F.3d 767, 780 (9th Cir. 2009.)
This bill would make the following findings and declarations:
The use of electronic control weapons by law enforcement
officers can be an effective law enforcement tool to subdue
persons who pose an imminent threat of serious physical
harm to the officer or to others.
It is important that law enforcement officers and
agencies recognize the risks of serious injury and even
death that can result from electronic control weapons use.
Uniform minimum statewide standards regarding the use of
electronic control weapons by law enforcement officers will
address public concern regarding when officers may
appropriately use this type of force and will protect law
enforcement officers against unjustified allegations of
excessive force.
Law enforcement agencies are encouraged to establish use
of force policies for use of electronic control weapons
that are consistent with this section, and with best
practices policies and training procedures recommended by
numerous national and international bodies such as the
Maryland Attorney General and the Police Executive Research
Forum.
Prior to implementing an electronic control weapons
program, law enforcement agencies are encouraged to involve
medical and mental health experts to help ensure that
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policies and practices are consistent with best practices
for minimizing the need to use electronic weapons or other
force and assist with understanding, identifying, and
responding to mental health and medical issues related to
electronic control weapons.
In order to ensure that public concerns are understood
and addressed, law enforcement agencies are encouraged to
involve community stakeholders before deciding whether to
implement an electronic control weapons program.
It is the intent of the Legislature in enacting this
measure to codify the holding of the Ninth Circuit Court of
Appeal in Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009).
This bill would define "electronic control weapon" as any device
used or intended to be used as an offensive or defensive weapon
that is capable of temporarily immobilizing a person by the
infliction of an electrical charge.
This bill provides, with respect to the use of an electronic
control weapon by a peace officer:
Such use constitutes an intermediate, significant level
of force and may be authorized by the officer's employing
agency only in circumstances where that use is objectively
reasonable and compatible with the Fourth Amendment and
Section 13 of Article 1 of the California Constitution.
Reasonableness, for purposes of this section, shall be
determined based on the totality of the circumstances, with
the most important factor being whether the suspect poses
an immediate serious physical threat to the officer or
others.
Law enforcement agencies shall not authorize the use of
electronic control weapons for the purpose of obtaining
compliance absent a threat of imminent physical harm to the
officer or others.
Additional factors that shall be considered in
determining reasonableness include, but are not limited to,
the following:
o The severity of the offense for which the
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suspect is being arrested or detained.
o The nature and degree of any resistance by the
suspect.
o To what degree the officer warned the suspect
that an electronic control weapon would be used.
o Whether the officer considered the use of any
less intrusive means of effecting the detention or
arrest.
o Whether the suspect appeared to be mentally
ill or emotionally disturbed and whether the officer
recognized this as a mitigating factor against the use
of this type of force.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
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contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
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mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1.Need for This Bill
The author states:
In response to inconsistent use of force policies
statewide, a growing number of excessive force
allegations and mounting public concern, SB 1347 will
raise awareness of the standards governing peace
officers' use of tasers and stun guns recently
established by the US Court of Appeal. These
standards balance the value of these weapons in saving
lives and preventing injury to officers with the risks
the devices pose to the public.
Adding the Court's ruling regarding police use of
electronic control weapons to the Penal Code will help
reduce officers' liability by increasing awareness of
the applicable legal standards and will address public
concern regarding when officers may appropriately use
this type of force.
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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2. Factors Justifying Taser Use by Police: The Holding in Bryan
v. McPherson
In December 2009, the Ninth Circuit Court of Appeal issued a
ruling that sets significant new guidelines for determining when
use of a "Taser" by police is justified. This ruling is now
binding law in California. The Court held that use of a Taser
by a peace officer constitutes an "intermediate significant use
of force" and thus must be justified by "a strong government
interest [that] compels the employment of such force."
We [] reject any contention that, because the taser
results only in the "temporary" infliction of pain, it
constitutes a non-intrusive level of force. The pain
is intense, is felt throughout the body, and is
administered by effectively commandeering the victim's
muscles and nerves. Beyond the experience of pain,
tasers result in "immobilization, disorientation, loss
of balance, and weakness," even after the electrical
current has ended. Moreover, tasering a person may
result in serious injuries when intense pain and loss
of muscle control cause a sudden and uncontrolled
fall.
The X26 thus intrudes upon the victim's physiological
functions and physical integrity in a way that other
non-lethal uses of force do not. While pepper spray
causes an intense pain and acts upon the target's
physiology, the effects of the X26 are not limited to
the target's eyes or respiratory system. Unlike the
police "nonchakus" we evaluated in Forrester v. City
of San Diego, [citation omitted], the pain delivered
by the X26 is far more intense and is not localized,
external, gradual, or within the victim's control. In
light of these facts, we agree with the Fourth and
Eighth Circuit's characterization of a taser shot as a
"painful and frightening blow." We therefore conclude
that tasers like the X26 constitute an "intermediate
or medium, though not insignificant, quantum of
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force."
We recognize the important role controlled electric
devices like the Taser X26 can play in law
enforcement. The ability to defuse a dangerous
situation from a distance can obviate the need for
more severe, or even deadly, force and thus can help
protect police officers, bystanders, and suspects
alike. We hold only that the X26 and similar devices
constitute an intermediate, significant level of force
that must be justified by "'a strong government
interest [that] compels the employment of such
force.'" (Bryan v. McPherson, 590 F.3d 767, 775 (9th
Cir. 2009), citations omitted.)
While the Court found that the question of whether the use of a
Taser was justified in any particular case must be determined by
looking at all of the circumstances, it identified several
factors to be considered:
The most important factor is whether the suspect posed an
"immediate threat to the safety of the officers or others."
"A simple statement by an officer that he fears for his safety
or the safety of others is not enough; there must be objective
factors to justify such a concern." (Id. at 775.)
The severity of the suspect's purported offense.
In Mr. Bryan's case, he had been stopped by police for not
wearing his seat belt and the Court stated, "Traffic violations
generally will not support the use of a significant level of
force." (Id. at 777.) The Court also found that, although the
arresting officer believed Bryan had committed the misdemeanor
of willfully failing or refusing to comply with an order of a
peace officer (Veh. Code 2800(a)), this, in light of the
circumstances indicating Bryan's lack of dangerousness, did not
justify the use of the Taser. (Bryan, 590 F.3d 767 at 778.)
Whether the suspect appears mentally ill.
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The Court held that if the officer believes the suspect may be
mentally ill, there is less reason to use force, not more:
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A mentally ill individual is in need of a doctor, not
a jail cell, and in the usual case --where such an
individual is neither a threat to himself nor to
anyone else--the government's interest in deploying
force to detain him is not as substantial as its
interest in deploying that force to apprehend a
dangerous criminal. Moreover, the purpose of
detaining a mentally ill individual is not to punish
him, but to help him. The government has an important
interest in providing assistance to a person in need
of psychiatric care; thus, the use of force that may
be justified by that interest necessarily differs both
in degree and in kind from the use of force that would
be justified against a person who has committed a
crime or who poses a threat to the community. (Id. at
778.)
Resistance by the suspect.
The Court discussed different types of resistance, which some
courts have referred to as active versus passive, and observed
that "'Resistance,' [], should not be understood as a binary
state, with resistance being either completely passive or
active. Rather, it runs the gamut from the purely passive
protestor who simply refuses to stand, to the individual who is
physically assaulting the officer." (Id. at 778-779.)
Rejecting any "blanket labels" the Court concluded, "Even purely
passive resistance can support the use of some force, but the
level of force an individual's resistance will support is
dependent on the factual circumstances underlying that
resistance." (Id. at 779.)
Any warning given to the suspect that the force would be used
if he didn't comply.
Citing previous cases which have found that police officers
normally provide such warnings where feasible, and that an
officer's "safety interest" "increases when such a warning is
given and the suspect refuses to comply, the Court found that,
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where it was feasible to give a warning, failure to do so
"militates against" the use of a Taser being found reasonable.
(Id. at 779-780.)
The officer did not consider less intrusive means of effecting
the arrest.
The Court held, "We do not challenge the settled principle that
police officers need not employ the "least intrusive" degree of
force possible. We merely recognize the equally settled
principle that officers must consider less intrusive methods of
effecting the arrest and that the presence of feasible
alternatives is a factor to include in our analysis. (Id. at
780.)
3. The Effect of This Bill
This bill would codify the holding in Bryan v. McPherson,
placing its ruling within the California Penal Code. As
mentioned above, the ruling of the Ninth Circuit Court of Appeal
in Ryan, is currently binding law in California and spelling out
this ruling in the California Penal Code would not change
that.<2>
One effect of the bill would be to make the ruling more visible
to law enforcement officers and those providing them their
training. Because the ruling is current law in California, when
officers in California use a Taser on a suspect, the
reasonableness of their actions will be determined according to
the criteria set forth in Bryan. An officer who uses a Taser in
circumstances that, under the ruling in Bryan, would be deemed
unreasonable, would be subject to civil liability. Codifying
the ruling might, by increasing the general awareness of its
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<2> Another recent 9th Circuit case distinguished its holding
from the decision in Bryan based on a different set of facts in
that case, which involved a domestic violence dispute, but
nonetheless cited Bryan with approval. (Mattos v. Agarano, 590
F.3d 1082, 1090 (9th Cir. 2010).)
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requirements, help officers and their employers avoid such
liability by conforming their practices to those requirements.
SHOULD THE RULING IN BRYAN V. MCPHERSON BE CODIFIED?
COULD THIS HELP OFFICERS AND THEIR EMPLOYERS AVOID POTENTIAL
LIABILITY?
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