BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1347|
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THIRD READING
Bill No: SB 1347
Author: Leno (D)
Amended: 4/5/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 4/20/10
AYES: Leno, Cedillo, Hancock, Steinberg
NOES: Cogdill, Huff
NO VOTE RECORDED: Wright
SUBJECT : Peace officers: electronic control weapons
SOURCE : Author
DIGEST : This bill makes specified findings and
declarations, and codifies the ruling in Bryan v.
McPherson , 590 F.3d 767, 780 (9th Cir. 2009), relative to
the use of electronic control weapons, as specified.
ANALYSIS : 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/her
employing agency purchase, possess, or transport any less
lethal weapon or ammunition therefor, for official use in
the discharge of his/her duties. (Section 12600 of the
Penal Code [PEN])
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
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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.
(PEN Section 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 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. (PEN
Section 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 makes the following findings and declarations:
1. 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.
2. 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.
3. 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
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law enforcement officers against unjustified allegations
of excessive force.
4. 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.
5. Prior to implementing an electronic control weapons
program, law enforcement agencies are encouraged to
involve medical and mental health experts to help ensure
that 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.
6. 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.
7. It is the intent of the Legislature in enacting this
bill to codify the holding of the Ninth Circuit Court of
Appeals in Bryan v. McPherson , 590 F.3d 767 (9th Cir.
2009).
This bill defines "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:
1. 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
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Constitution.
2. 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.
3. 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.
4. Additional factors that shall be considered in
determining reasonableness include, but are not limited
to, the following:
A. The severity of the offense for which the suspect
is being arrested or detained.
B. The nature and degree of any resistance by the
suspect.
C. To what degree the officer warned the suspect that
an electronic control weapon would be used.
D. Whether the officer considered the use of any less
intrusive means of effecting the detention or arrest.
E. 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.
Comments
Factors Justifying Taser Use by Police: The Holding in
Bryan v. McPherson
In December 2009, the Ninth Circuit Court of Appeals 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
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"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 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.)
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/21/10)
American Civil Liberties Union
Asian Law Caucus
California Communities United Institute
California Public Defenders Association
OPPOSITION : (Verified 4/20/10)
Association for Los Angeles Deputy Sheriffs
California Association of Highway Patrolmen
California Police Chiefs Association
Peace Officers Research Association of California
Riverside Sheriffs' Association
ARGUMENTS IN SUPPORT : 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 Appeals. 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."
ARGUMENTS IN OPPOSITION : The California Police Chiefs
Association states:
This bill would codify the case of Bryan v. McPherson .
Codification of court cases must be approached with
extreme caution, particularly when there have been two
more recent 9th Circuit cases which have created a
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conflict within the 9th Circuit itself with the Bryan
case. These conflicts are sufficiently significant that
some legal scholars have suggested that the 9th Circuit
itself may rehear all three cases en banc and/or the
Supreme Court will agree to hear these issues.
Senate Bill 1347 enumerates factors justifying use of a
taser that are virtually the same as the factors that
would justify the use of deadly force. The unintended
consequence of this overlap in factors may be the
increased use of deadly force if there are confusing and
conflicting standards.
Further, there are provisions of Senate Bill 1347 that
require additional clarification. For example, Section
12610(c) provides for a threat of 'imminent' physical
harm to the officer, while subdivision (d) of the bill
requires an 'immediate' serious risk of physical threat
to the officer. There is a significant difference in
these two standards, and, if 'immediate serious risk' is
the intended standard, then the requirement in
subdivision (d) would clearly justify the use of deadly
force. We believe this standard would be confusing and
conflicting to officers who may have a split decision to
act or risk death or physical harm.
Additionally, one criterion in determining 'reasonable'
is whether the officer gives a 'warning' before using
force. However, there are cases where it is better not
to give a warning before using force. For example, in a
hostage situation, a 'warning' may only serve to escalate
the risk of harm to the hostage and, in these cases, it
may be better to not give any warning whatsoever.
"Finally, we believe that the proper use of tasers is
best taught through officer training. Practical
application of this technology in the field is a better
subject for POST training than by legislation proscribing
standards of official conduct."
RJG:mw 4/21/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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