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The attorney general’s decision Tuesday not to charge Sacramento officers in the fatal shooting last year of an unarmed black man added fuel to angry protests that extended into a third day over what Stephon Clark’s family, friends and supporters believe was his unnecessary killing.
And it stoked a simmering debate in the state Capitol over whether state lawmakers should change California’s laws for when officers can use deadly force — even though it was far from clear whether that would have made a difference in the Clark case.
“I do think that the status quo is not going to work,” Attorney General Xavier Becerra told reporters Tuesday when asked about possible legislative changes after detailing the findings of his office’s independent investigation into the shooting.
Becerra’s decision, which he said was based on evidence the officers believed they were under attack, echoed the conclusion announced Saturday by Sacramento County District Attorney Anne Marie Schubert.
But it did little to quell public outcry. Clark’s death — and the decision not to charge the officers — has become the latest flashpoint in a series of killings by officers — particularly of unarmed black men — that has stoked debate over police use of force and fueled unrest in the streets of Sacramento.
In the Bay Area last week, San Mateo County District Attorney Steve Wagstaffe declined to charge deputy sheriffs who repeatedly used Tasers to shock Chinedu Okobi, who was struggling with mental illness, during a confrontation over jaywalking in Millbrae that ended in his death.
In the state capital, lawmakers are debating a bill by Assemblywoman Shirley Weber, D-San Diego, that would change the circumstances under which an officer could lawfully use deadly force.
“The Attorney General’s report illustrates the deficiencies and lethality of the current legal standard for the use of force,” Weber said in a statement to this news organization Tuesday.
“The policy I’m putting forward changes the standard to authorize force only when there is an imminent threat of death or serious bodily injury,” Weber said. “This is a policy with an outcome we should all embrace — communities, police and elected officials alike.”
Police, fearing new laws that would force them to second-guess themselves in critical life-and-death situations, are supporting a rival bill by state Sen. Anna Caballero, D-Salinas, that focuses on increasing training around use of force without increasing criminal liability for cops.
San Jose Police Officers’ Association President Paul Kelly said in a recent statement that police around the state “believe more can be done to improve outcomes between police officers and the residents we serve.”
Becerra said Tuesday he avoided weighing in on the various bills while his investigation into the Clark shooting was underway, but would review them and is open to changes.
“I haven’t gone through those bills, but we will have those conversations because I think everyone agrees one shooting, one death more, is too many,” Becerra said. “I’ll make sure my voice is included.”
Weber’s bill would require officers to exhaust other alternatives before turning to potentially lethal tactics, and establish that deadly force be “necessary” rather than “reasonable.”
“The policy I’m putting forward changes the standard to authorize force only when there is an imminent threat of death or serious bodily injury,” Weber said.
It is based, she added, on “best practices” recommended by policing experts and implemented in a number of cities, most notably Seattle, where a federal monitor concluded that shift reduced unnecessary deaths of civilians without additional risk to the lives of officers.
It’s unclear however that such a change would have made a difference in either Okobi’s or Clark’s case. Wagstaffe noted in clearing the officers who arrested Okobi that they avoided deadly force and sought to subdue him with Tasers, batons and bare hands while checking on his health.
In Clark’s case, Becerra cited four factors that he said showed officers acted lawfully in shooting the 22-year-old father. Clark had committed several “unlawful acts” — breaking car windows and a neighbor’s sliding glass door — for which officers were summoned. He did not respond to officers’ commands that he stop and show his hands.
He was approaching the police rather than running away, closing to within about 16 feet of them. And both officers’ statements and video evidence showed Clark had something in his hand that flashed brightly just before police opened fire, leading several officers to shout that he had a gun.
The object in Clark’s hand turned out to be his white and pink iPhone.
Clark’s family has filed a lawsuit against the city and the two officers seeking $20 million in damages, alleging deadly force was “excessive” under the circumstances and that the officers didn’t warn him before shooting in his grandparents’ backyard.
But Becerra said under the circumstances, the officers’ actions were reasonable.
“They shouted instructions — ‘Show your hands! Show your hands!’ — they said ‘gun,’ so their perception is someone who’s advancing has something in his hand they perceived as a gun, and they see a flash,” Becerra said. “That’s what they’re perceiving.”
Seth Stoughton, a law professor at the University of South Carolina who studies police use of force, said he did not think the more stringent standard for using deadly force in Weber’s bill would have made a difference in the decision not to charge the officers who killed Clark.
Although it turned out Clark was unarmed, Stoughton said, the fact that officers believed he had a gun meant there were no reasonable uses of force available to them other than deadly force.
In her decision last week, Sacramento’s DA Schubert too said the officers who fired acted lawfully and couldn’t be charged because they “had an honest and reasonable belief that they were in imminent danger of death or great bodily injury.”
But her decision has spurred days of demonstrations in the state capital. Protesters marched on the city police headquarters, and closed a popular mall Sunday. The following night, demonstrators marched through East Sacramento in a confrontation with police in riot gear in which several cars were vandalized and more than 80 people were arrested or detained, including a reporter from the Sacramento Bee covering the protest.
Additional demonstrations were planned Tuesday at the police headquarters and City Hall in advance of Tuesday’s City Council meeting.
If Weber’s bill passes, Stoughton said, police would still have broad legal latitude to use deadly force when encountering what they perceive to be a deadly threat. Prosecutions of officers would likely remain rare, he said, and officers in the United States are almost never criminally charged for fatal shootings.
But the law would update California’s nearly 150-year-old standard for when police can use deadly force, which Stoughton said is “woefully outdated” and among the most permissive of any state in the country.
Weber’s bill would not be an unprecedented step toward limiting when police can use deadly force, Stoughton added. Laws in Tennessee and Delaware use similar and even more restrictive language — officers in those states can only use deadly force if other options have been “exhausted,” he said.
“I do not think we will see a sudden explosion in the number of officers who are prosecuted for deadly force incidents” if Weber’s bill passes, he said “The goal is to reduce unnecessary and avoidable shootings.”
