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McClain Shooting Could be Test Case for State Law That Redefined When Police Can Use Force

AB392 says force can only be used when necessary

Published on Wednesday, August 26, 2020 | 12:04 pm
 

A civil rights attorney told Pasadena Now on Wednesday that the fatal shooting of Anthony McClain by a Pasadena police officer could be a test case for a new law that amended the state’s use-of-force law.

Under Assembly Bill 392, police officers can use lethal force only as a “necessary” response to a threat — not merely as an “objectively reasonable,” which is what state law allowed for since 1872, 22 years after California became a state.

“This could absolutely be a test case for AB392,” Civil Rights Attorney DeWitt Lacy told Pasadena Now. “Is it necessary force? We will see how the court responds. The application of the law is sometimes different than the written words.”

A police officer shot the 32-year-old McClain one time in the upper torso shortly after 8 p.m. on Aug. 15 after he fled from officers during a traffic stop. Police say he removed a gun from his waistband and later discarded it, but not before shifting his body toward them, which police say put the officer in fear of his life.

That officer did not turn on his body-worn camera before the incident, but he later activated it after McClain had been shot.

A gun was found at the scene and police are awaiting the results of DNA tests on the weapon.

The shooting comes in the middle of nationwide discussions regarding how police officers treat Black men.

On Monday, the City Council unanimously approved the creation of a police oversight commission and the appointment of an independent police auditor or IPA.

The council has been debating the idea of more accountability since protests swept the nation following the death of George Floyd at the hands of police in Minnesota.

According to Lacy, who has represented several families in officer-involved-shooting cases, police must have a reasonable belief that McClain posed a great risk beyond possession of the weapon to make force necessary.

Lacy works for the Oakland-based law offices of John L. Burris.

Lacy spent five years fighting Modesto Police, who refused to release bodycam video from two officers involved in the 2014 shooting of an unarmed man. They claimed the videos needed to be kept secret because the shooting was part of an “open investigation.” The video was finally released in January.

Under the terms of the AB392, police can resort to deadly force if “the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person,” states the text of the law, “or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended.”

Robert Weisberg, a law professor and faculty co-director of the Criminal Justice Center at Stanford University, told USA Today the full ramifications of the legislation won’t be clear until cases go through the courts.

“It’s going to depend almost entirely on how the law’s interpreted — first by prosecutors, then by judges, then by juries,’’ he said. “It certainly, by its terms, moves the law in the direction of making it more feasible to prosecute officers for homicide.’’

The bill was introduced shortly after two Sacramento police officers fatally shot Stephon Clark in March 2018. Police identified Clark as a suspect after responding to 911 calls. After chasing Clark into the backyard of his grandmother’s home, officers mistook Clark’s cellphone for a gun and shot him eight times.

The Sacramento District Attorney’s office declined to charge the officers, claiming the two officers genuinely feared that Clark had a gun, and therefore the shooting was justified and the officers “acted lawfully.”

Clark’s death prompted outrage and calls for reform in the state’s rules on police use of deadly force.

“This is a time for healing, progress, and looking forward,” Gov. Gavin Newsom said as he signed AB392. 

“The bill goes to the heart of some of our most sacred principles, in which force should be exercised judiciously, with respect for human life and dignity. The bottom line is that deadly force should only be used when absolutely necessary,” said Newsom.

Black Lives Matter pulled its support of the legislation, saying, “AB392 does not provide the kind of substantive change that we imagined when the process began.”

In the McClain case, Lacy said the police officers were within their rights to stop and ask questions and cite the driver, who he said was cooperative. 

McClain, he said, did flee from a lawful detainment and could have been arrested for obstruction and delaying an officer in the performance of their duty. McClain was also subject to search at any point because he was on parole and could have been arrested for possessing a gun.

“There is no implication that this individual made any threats to law enforcement,” Lacy said. “There isn’t any real reason to believe beyond the fact of possession that he posed any risk.”

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