It's hard for me to tell (IANAL) but it seems to be an improvement over the current state of play in two ways:

(1) popo can't use deadly force on person who is only a threat to themselves

(2) can't use deadly force on fleeing persons who aren't reasonably suspected of committing/ed felony involving serious bodily injury/death.

Both of these seem like improvements.

I'll wait until others have commented, but .... seems like I need to call my tribunes and ask them to get onboard with this.

I like it a lot. This line particularly:

This bill would make a homicide committed by a peace officer justifiable only if the use of deadly force by a peace officer was necessary given the totality of the circumstances, as specified, but would exclude those situations in which the gross negligence of the officer contributes to creating the necessity.

Even Richard Daley would agree with this proposal. "The police are not here to create disorder, they're here to preserve disorder."

There's a lot to like here, particularly the line excerpted in comment 2 about "gross negligence," which is really, really important.

There also seems like some pretty poor drafting in many parts (eg, does a reasonable use of deadly force not made in connection with an arrest constitute justifiable homicide?).

And, on my first reading, the definition of "necessary" seems way problematic, in that it requires not only a determination that the use of force was reasonably necessary to prevent death or serious injury to the officer or another (which of course must be the standard), but that a "reasonable" officer (ie a jury after the fact) would conclude that no alternative method other than using deadly force existed at all, applying a "totality of the circumstances" test that imcludes everything leading up to the incident. That's a pretty extreme standard and would seem to me to make almost all police uses of deadly force prosecutable, since the circumstances in which there was some conceivable alternative at some point in time to shooting at some point in time have got to exist in almost all cases. At that level I really would worry seriously about over-deterrence of officers -- as a police officer with this law (as I think I read it, could be wrong) you'd be best off not getting into any situation in which you might have to use deadly force to protect yourself (or others) at all, because there will almost certainly be a triable criminal or civil case as to whether at some point there was some alternative to the need for the use of force that you possibly could have taken.

I hope it gets fixed (or that my reading is wrong) and the better parts, especially the gross negligence standard, become law.

You should send your comments to the bill's sponsors, RH - you've already written them out, so just would be a question of cleaning up the register of the language register. I mean this perfectly sincerely, btw.

OK! But I will identify myself as "Robert Halford, Concerned Metal God"

I guess it's now Albuquerque where the metal gods take part in civic life?

We are more hardcore than we might appear.

7: Huh, I didn't know that about him. My mom was a big supporter of his during the campaign.

"would seem to me to make almost all police uses of deadly force prosecutable"

You say that like it's a bad thing.

For sure we don't practice these in the US, but The Peelian Principles for policing might be relevant.

Saw posted yesterday a photo (from a passing car) of a cop at what appeared to be a standard traffic stop. His right hand was on the handle of his gun. I know there's a hundred reasons that could be not totally insane, but nothing about the setup* indicated that the cop should be a flinch away from letting bullets fly.

Sometimes I think police academy is just class after class of watching '70s movies about urban crime on a loop.

*it was daylight, there was no backup or other indicator that the driver was a suspected felon or whatever. Just an ordinary traffic stop where the cop was ready to kill the citizen at a moment's notice

Maybe there's a hidden downside to encouraging everybody to carry around concealed weapons at all times?

4: Happy you're providing feedback, but looking back over it, I'm not getting it. You're referring to this section:

"Necessary" means that, given the totality of the circumstances, a reasonable peace officer would conclude that there was no reasonable alternative to the use of deadly force that would prevent imminent death or serious bodily injury to the peace officer or to a third party. Reasonable alternatives include, but are not limited to, deescalation, tactics set forth in the officer's training or in policy, and other reasonable means of apprehending the subject or reducing the exposure to the threat.

So it's not, say, police are liable for not constructing a Rube Goldberg device with a handy nearby pile of car parts to divert the suspect's attention and knock him out. Nor is it they are liable for not going in the backyard at all following a call. It's the kinds of alternatives police would consider based on their own training and other obligations.

What kind of scenario are you thinking this would open up for inappropriate prosecution?

Also, can we tell if the onus would be on the prosecution to prove there were reasonable alternatives? That seems like a potential check to hypothesizing running wild. (Or a potential amendment.)

No, my reading was right. You have to have a jury find not only that the use of force was reasonably necessary, but make an affirmative finding that no reasonable alternatives exist. That's a substantially higher standard than civilian self-defense and I think would pretty easily over-deter. Every time you pull the trigger, you need to worry about a civil suit in which the other side can argue that some possible alternative existed that you failed to exclude (and ina "totality of the circumstances" sense). Either thay would be interpreted by the courts to not mean what it says, or officers would simply massively avoid situations in which use of force might be necessary. It's a badly-drafted law.

"Just think, next time I shoot someone, I could be arrested. "

An example would help, but fine.

Let's hope they take your advice seriously and/or have people advising them in similar directions (the police lobby came out swinging and started planting tendention even before the text was available).

Eg, cop gets report of person with gun in house threatening to shoot people. Goes into house, immediately sees guy pull gun, shoots. Under this scenario the dead perp's family can then sue arguing that even if the gun was pulled there was some kind of possible talking-it-out measure that could have possibly worked and if the jury makes the (after the fact) determination that some possible alternative was necessary the cop will be held liable, even if it was reasonable (under the heat of the moment circumstances) to not engage in the alternative method. That's a standard that in that situation wouldn't apply to a civilian in the same circumstance, and would open essentially any police use of force to criminal and civil liability.

That's a substantially higher standard than civilian self-defense

I don't think it is, at least not where civilian self-defense incorporates the duty to retreat, which it often does. The police officer isn't obliged to retreat, but he's obliged to take reasonable steps other than the use of deadly force. It might lead to overdeterrence, but I would be very much willing to experiment with how much social good the deadly force that got deterred would have done.

Under this scenario the dead perp's family can then sue arguing that even if the gun was pulled there was some kind of possible talking-it-out measure that could have possibly worked and if the jury makes the (after the fact) determination that some possible alternative was necessary the cop will be held liable, even if it was reasonable (under the heat of the moment circumstances) to not engage in the alternative method.

Huh? If expecting the cop to talk it out wouldn't have been reasonable, as you specify in your last sentence, why do you think the cop would have been liable?

To put it another way, as I read the statute, the cop has to at some point make an unreasonable decision that leads to the use of deadly force to be found liable. Where's the unreasonable decision in your hypo?

First, the duty to retreat shouldn't possibly apply to police officers, even by analogy, since the entire point of a police force is that they don't retreat. Second, the duty doesn't apply to civilians in California. Third, the duty to retreat isn't a duty to take possible alternative measures -- it is simply a duty to, if reasonably possible, run away instead of using countervailing violence. The draft standard opens up liability for failure to consider a wide range of alternative measures, meaning that almost any use of force would be (at least arguably) subject to liability.

20 - because talking it out could also be found to be a "reasonable" alternative, even in a scenario in which use of force was also "reasonable." It's the difference between a negligence standard and a standard that requires an affirmative showing that no reasonable alternative courses of conduct to the action existed -- I think you'll see the difference pretty quickly if you think about civil liability.

After some very quick googling, the CA Jury Instruction on justifiable homicide: https://www.justia.com/criminal/docs/calcrim/500/505.html

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to (himself/herself/ [or] someone else). Defendant's belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified.

This doesn't speak in terms of reasonable alternatives, but I think it's clear that where there's a reasonable alternative to the use of deadly force, a civilian is required to use that alternative, because the existence of the alternative makes the deadly force no longer 'necessary'. I don't think the suggested police standard is higher than that.

"You have to have a jury find not only that the use of force was reasonably necessary, but make an affirmative finding that no reasonable alternatives exist. That's a substantially higher standard than civilian self-defense"

I would be surprised if it were, actually. Because if the use of force was reasonably necessary, doesn't that imply that no reasonable alternatives existed? That's what "necessary" means, in common language.

because talking it out could also be found to be a "reasonable" alternative, even in a scenario in which use of force was also "reasonable."

I don't see this. That is, the structure of the statute is a statement that where there is a reasonable alternative, the use of deadly force is by definition unreasonable. And I am absolutely fine with that. Deadly force should be reserved for situations where there is no reasonable alternative.

Pwned.

I was pwned, I mean.

24: Isn't the default civilian alternative retreat, which is necessarily unavailable to police officers?

For Halford: what's an example here? What's a scenario where the use of deadly force is reasonably necessary, but where there was also a reasonable alternative course of action?

No. It is possible (indeed likely) to both have a reasonable alternative available and for it to be reasonable under the circumstances to use force. Obviously, the existence of an alternative can be used to argue that conduct was unreasonable. But that is very different than a standard that requires an affirmative showing of an absence of any reasonable alternative. It's like requiring a driver who causes an accident by suddenly braking to show not only that braking was reasonable under the circumstances, but no possible reasonable alternative to braking (like swerving to the left) existed at the time.

And from a liablity standpoint, that's a much much harder burden to meet.

"Pwned"... I said, to no one there.
And no one heard at all, not even the chair.

Retreat isn't absolutely unavailable to police officers, it depends on the circumstances. Like, ages ago, 90s? There was a police killing of a mentally ill Orthodox guy, Gideon something? in Brooklyn. He had a hammer that he was waving around, but he wasn't actively attacking anyone.

Retreating, in the sense of clearing the immediate area of other people and hanging out at a distance until he put the hammer down, might very possibly have been a viable alternative. Might not have been, depending, but there's nothing about it that would necessarily have been inconsistent with good policing.

It is possible (indeed likely) to both have a reasonable alternative available and for it to be reasonable under the circumstances to use force.

I really can't see how. Say I'm the police officer: a reasonable alternative action is one that I'm aware of as an option at the time, or could reasonably have been expected to be aware of at the time. If such an alternative exists, how is it still reasonable for me to use force? An example would really be helpful here.

29 - a cop comes under fire. One reasonable choice, in the heat of the moment, is to fire back. Another reasonable choice, in the moment, is to duck and find cover behind a dumpster and to try and talk it out. Both are permitted choices under the training manual and procedures; the officer has to choose in a split second between the two. The officer opts to fire back.

Under current law (and the ordinary civilian law of self-defense) firing back is absolutely not subject to liability. Under this law as drafted, it would be, and the officer could be subject to both civil and criminal liability.

That sounds like an actual problem.

. It's like requiring a driver who causes an accident by suddenly braking to show not only that braking was reasonable under the circumstances, but no possible reasonable alternative to braking (like swerving to the left) existed at the time.

This is a weak example, because as someone just mentioned here a week or two ago, driver's ed trains you to do an emergency stop, rather than an emergency swerve -- it's hard to imagine a court finding that a swerve was a reasonably safe alternative to stopping. And I think the weakness of the example speaks to the face that a situation where two things are both true (1) it is reasonably necessary to kill a human being and (2) there was a reasonable alternative course of action is going to be very unlikely.

And seriously? What's the bad effect you're expecting from the police being over-deterred?

34: Thanks. Could you think of anything less extreme? Something in one your famous traffic stops, say.

Doesn't that conflict with the no-duty-of-retreat thing though?

I think I recall my driver's ed teacher telling us to drive into the ditch to avoid accidents. This works better in Nebraska than some other places.

I hear Florida ditches usually have alligators in them.

34: Okay, first, a situation where someone is actively firing a weapon at people is a situation where allowing the person to keep firing is not reasonable. I can't see calling 'ducking behind a dumpster and trying to negotiate' a reasonable alternative there, unless for some reason it seemed likely to be more effective in bringing the gunfire to an end. As a police officer in that situation, I wouldn't be worried about liability under this statute at all.

Anyway, I think a police officer ought to be able to return fire when shot at even if they can seek cover. I don't think it's reasonable to expect not shooting back and I don't think officers shooting back after being shot at is causing problems.

41: The reasonableness of attempting negotiation depends entirely on the situation. If this is happening at midnight in a self-storage district it could be totally reasonable.

They have whole districts for that?

I thought Americans had whole districts for that.

Just really big complexes.

I wanted to say warehouse district, but some warehouses are open all night.

Here's the relevant text.

(d) (1) Notwithstanding any other law, a peace officer may use deadly force only when such force is necessary to prevent imminent and serious bodily injury or death to the officer or to a third party.

(2) A peace officer shall not use deadly force against an individual based on the danger that individual poses to himself or herself, if the individual does not pose an imminent threat of serious bodily injury or death to officers or to other members of the public.

(3) A peace officer may use deadly force against persons fleeing from arrest or imprisonment only when the officer has probable cause to believe that the person has committed, or intends to commit, a felony involving serious bodily injury or death, and there is an imminent risk of serious bodily injury or death to the officer or to another person if the subject is not immediately apprehended.

I think someone firing a gun at a police officer unmistakably qualifies under the first prong of (d)(3), probable cause. And in any real world public location, I think the plausibility of the presence of other members of the public renders such a person an imminent risk of injury or death to police officers and other persons generally if the shooter isn't apprehended. That's not an unreasonable prediction, that's an armed shooter who has just attempted to kill someone -- there's no reason to expect him to stop.

At that point, deadly force is allowed if necessary to apprehend the shooter, and retreat behind a dumpster, while it might be a reasonable alternative to protect the life of the police officer, isn't a reasonable way to apprehend the shooter, and wouldn't be required.

When you've actually got a person who has committed attempted murder with a cop watching, this does not seem to me to constrain the cop's responsive actions meaningfully at all, unless and until the shooter acts in such a way (disarming, lying down, whatever) that a reasonable police officer could safely apprehend them.

Card Alpha, which is the rules of engagement card that the army uses as standard, says (from memory)
You may fire ONLY in response to a clear and immediate threat to your life or to the lives of others under your protection.
You must issue a warning of the form "ARMY, STOP OR I FIRE" before opening fire, unless to do so would increase the threat to life.
You may fire only aimed shots and may fire no more shots than necessary.
You must cease firing as soon as the threat to life no longer exists.

That's basically 48 above.

48 - as drafted, the definition of "necessary" is that in 14, so regardless of (d)(3), the officer would have to show a complete absence of reasonable alternatives to use of force, even while being fired upon. This is something that could easily be fixed by redrafting!

50: Is that for general use, or while operating in support of civil authority?

"ARMY, STOP OR I FIRE"

What if they aren't named "Army"?

What makes the 'retreat behind the dumpster' alternative unreasonable is that it is not an effective way of apprehending the shooter, and allowing an armed man who is currently shooting people to go free poses an imminent risk of danger to the public. That renders the use of deadly force 'necessary', as defined in the proposed statute, even where taking a defensive position and attempting to negotiate would have been possible.

If the shooter were trapped, and the cop could safely keep the shooter trapped indefinitely (this seems like a very unlikely fact pattern, but if those were the facts that the cop was aware of)? I'm fine with calling the use of deadly force unreasonable under those circumstances.

I think you should still get at least one shot back. Like a duel.

The statute and many of the comments here seem based on speculation. Certainly, there have been enough cases where police have used deadly force or threatened to do so by drawing their weapon that such rules can be based on empirical evidence. Police often seem to want to resolve situations quickly (we hear all the time about split-second decisions), when in reality I expect that most situations police engage in were ongoing on their arrival, and their presence too often seems to lead to deaths that seem preventable. Can we be specific about which situations are appropriate for the discharge of a weapon? When is it more complicated than "a suspect has discharged a weapon" or "a suspect is holding a hostage at gunpoint"? I'm sure there are situations, but knowing what they are would certainly help to create better law.

Can we be specific about which situations are appropriate for the discharge of a weapon?

More specific than the type of language in the proposed statute -- imminent danger of death or serious injury? I really don't think we can be more specific than that.

I think we can be more specific and we won't know one way or another without reviewing the evidence.

What kind of thing were you thinking of? And how were you expecting police officers to deal with situations not specifically described?

I mean, you can push back at hypotheticals but it isn't super interesting and doesn't solve the issue of the problem of requiring exclusion of all reasonable alternatives to use of force as opposed to just requiring that the use of force be reasonable, in situations that are by definition highly fact specific and variable. We could make up hypotheticals all day. Eg cops get reports of a mentally ill man in a crowd waving a knife. Cops approach, man isn't next to anyone but close enough at a stretch to stab someone. Cop issues a warning, warning is ignored, cop shoots. Assume this is a reasonable use of force under the relevant guidelines. Cop could also have, conceivably, issued another warning and tried to talk knife-waver down. Under statute as drafted, the police shooting is now criminal homicide. Have at it!

The broader, actually-important point is that this standard would get applied to highly fact specific situations after the fact by juries. So you are creating a standard where cops are (at a minimum) deeply uncertain about what constitutes a legitimate use of force. Some uncertainty is fine, of course, and necessary for any civil or criminal law rule. But here you are creating a situation in which almost any use of force can be argued to be non-justified because of the presence of an alternative (of course, you can litigste back any hypothetical, but that only happens in the real world in actual litigation). So if I am a cop under the rule imposed by this poorly drafted statute I have an overwhelming incentive to play it safe and just watch Netflix movies on my phone in the squad car, because any situation in which either I or other people are at risk of death not only risks my own life but risks having me having civil or criminal liability for taking action. The risk of overdeterrence of officer action isn't the only thing in the world of policing and we've way overcorrected for it in terms of current law, but that doesn't mean it's not a problem.

Anyhow, the problem I see is so easy to fix as a drafting matter -- just retain the ordinary rule about an officer's duty to use only force reasonably necessary to protect violent harm to self or others, retain the newly drafted language about an immediately violent situation created by the officer's own gross negligence not being a basis for justification, and keep the language about requiring the person to be a danger to those others than themselves, and you're good to go with actually pretty reasonable police reform.

56, 68 - I feel you, but that's just not how the criminal law works. We don't want (and can't really craft) a 500 page statute about specific hypothetical situations that would or would not constitute justifiable police homicide.

Even if there was a 500 page statute about police homicide, Ohio would take about three months to find something new.

Just to say, police shot a mentally ill black man wielding a knife here in 2016. I would prefer they were overdeterred.

I had to exclude 2018 from my search, or I would never have made it through all the search returns on the most recent shooting of an unarmed black man to get back to the one before.

Eg cops get reports of a mentally ill man in a crowd waving a knife. Cops approach, man isn't next to anyone but close enough at a stretch to stab someone. Cop issues a warning, warning is ignored, cop shoots. Assume this is a reasonable use of force under the relevant guidelines. Cop could also have, conceivably, issued another warning and tried to talk knife-waver down. Under statute as drafted, the police shooting is now criminal homicide. Have at it!

Well, yes. This seems like exactly the sort of shooting that the law would be intended to deter, and not unclear at all. That is, moving people at risk further away from the knife-waver and sitting tight/negotiating/de-escalating until something happens that makes it either possible to defuse the situation or necessary to use deadly force seems unambiguously better than shooting the mentally ill person, and not confusing at all for the police.

But I'm not really getting your drafting fix. I might be absolutely fine with whatever language you were thinking of as preferable.

What? Assume, as in my hypothetical, that the lerson has ignored a warning and is close enough to easily stab someone, and appears capable of doing so.

My other thought is that armed police shouldn't be responding to that at all. I'd prefer we had a different type of professional respond to calls about a mentally ill person. Someone specialized for that, who never considers violence as a response.

Like, to the guy with a knife?

This story literally just happened, exactly as you're describing it, and they shot the woman and I am very clear they shouldn't have. Let me go look it up.

56-59 and 61-62: Doesn't the military already do this? My impression was that military rules of engagement were much clearer and detailed that rules for cops. But I don't really know.

Halford, since you're procrastinating anyway, could you write up your proposed redraft for us? Just cut & paste, strikethrough, bold up the changes? Then we can argue about other stuff, plus your state can copy it for the bill.

That's it, it was the qualified immunity suit the SC just decided: https://www.washingtonpost.com/news/morning-mix/wp/2018/04/03/ariz-woman-survives-police-shooting-but-supreme-court-says-the-officer-is-immune-from-her-lawsuit/?utm_term=.37e9b7c6a0ef . I couldn't remember.

She had a knife, she had been hacking at a tree weirdly enough to make people call the cops as a welfare check, and she was standing near enough to another woman to have stabbed her.

69: Right. He was erratically staggering, swiping at the air, not focused on people. Why not clear the area, offer him water from a distance and wait him out?

In that case, the woman didn't seem threatening at all. Hype up the threat level a little, so she's waving the knife but not right about to stab someone (at which point you do what you have to)? Don't you think the non-crazy thing for the police to do is to encourage bystanders to move away from the knife-waver rather than shooting her?

68: I know that people with mental illness are, if treated, less likely to be violent than the general population, but that strikes me as risky. Maybe the LSW classes don't cover how to stop a murder-suicide with the power of calming words and promises of therapy.

68, 76: Yeah, I think part of what I like about this sort of reform is that it's a way to rehabilitate the police as a non-terrifying option to call into play. There are situations where I would like to be able to have people trained to use violence around, if I could trust them to only use it reasonably.

I mean, if a collection of responders had literally no way to commit violence, they could still figure out ways to keep others out of danger and contain the sick person. It isn't impossible, just slow. Park cars in a circle around him, get out the other door and wait. Wait for family to arrive. Offer sedated food. See if showing a television show distracts them. There are options.

65. Proper cops do it like this.

On my way to get lunch, I saw a cop pull over somebody for making a left turn on red, from one very busy two-way street to another. The only reason he didn't die was because it was a street with an all-way walk sign so he just drove around the pedestrians. I wanted go laugh at the driver, but I though that might make the police officer mad.

78 sounds like it would work great in a country without universal access to guns. I don't see how you solve that problem without the option of violence in a place where there are so many guns. It is not possible to clear enough space to keep other safe from somebody armed with a rifle. And you can't get close enough to communicate in many cases.

Also, "offer sedated food"? The fuck? They're people with mental illness, not squirrels. There are so many things that can go wrong with that and if you did it, it would only work the first time.

Better than:

1. Shout "Stop!"
2. Shoot them.

I would be very surprised if administering sedated food didn't have a higher death rate than current policing practices. There's a reason that when they sedate people, they do it in a hospital with a specialist.

There are situations where I would like to be able to have people trained to use violence around, if I could trust them to only use it reasonably.

What are those situations? I listed a couple that occurred to me. It seems that one might at least describe them in order to create a statute that does its best to address those and exclude others. Falling back on "crazy person does something crazy" doesn't seem instructive. This does happen, but it's exceedingly rare.

I'm not actually attached to that, so I don't mean to defend it. But surely there must be something mild, to make them drowsy. I mean, shit. Benadryl. I don't mean, like, tranq them so they drop while running. If speed isn't a priority, there are more options.

(Now you're going to show me statistics that Benadryl kills more people than the police. I don't mean to defend any of those options to the death. But I am sure there are many, many non-violent options.)

85: This really seems like a waste of time -- if your question was meant to be specifically directed at me, I'm not going to start listing hypos for you.

I have no idea how many people Benadryl kills, but I'm thinking of TASERs and the like. Anything that is supposedly safer than lethal violence is more likely to be used than lethal violence. Which, if it isn't as safe as people think, can easily make things worse.

I was thinking no violence at all.

I don't see how that is possible in all cases, because there are so many guns around. Obviously, most murders don't happen with the police are right there, but there are enough people who keep killing until they are killed that I don't think you can ignore it.

Oh. Are they clearly mentally ill people, acting bizarrely in the street? Because that's the case I was talking about.

To 75. I ... dunno. There are so many potential factors in the hypothetical that it's hard to say. That is exactly why these situations are so hard in the real world. Maybe it would be helpful to think about three scenarios.

You can come up with tweaks on the hypothetical where, even under current law, the shooting would be obviously unreasonable (crowd is at a considerable distance, person playing with knife seems just befuddled, everyone else can obviously be moved away easily and the knife-wielder contained). Call that scenario (1). You can come up with tweaks (the knife wielder is easily close enough to another person in the crowd to get a stab in very quickly, he is shouting things that seem like threats to a specific person, knife is being held in an aggressive and threatening matter, cops know he has a violent criminal record, guy seems very capable of lunging) that make it much closer to a 50/50 call for moving people away vs. taking immediate action, by shooting or otherwise, so that both courses of conduct would be possibly reasonable. Call that scenario 2. You can come up with tweaks that make it obviously absolutely and exclusively reasonable to shoot (guy is shouting threats at specific person in crowd, waving knife right at that person and lunging towards that person at speed shouting "I will kill you right now".)

Under current law, at least in theory, scenario (1) is nonjustifiable homicide. Although it doesn't often get prosecuted that's not because of any problem in definition in the law, and that kind of thing is certainly already the subject of civil litigation and internal discipline. The proposed law as drafted would make scenario (2) clearly a crime when it is clearly not a crime right now (which was the only point I was trying to make, maybe ineptly, by raising the hypo at all). The law as drafted also would make it more uncertain for the police to act in scenario (3), because a prosecutor or civil lawyer for the victim could argue that the facts on the ground were more like scenario (2), creating at least risks for acting in scenario (3).

Not to be a dick, but I'm just gonna ignore Megan's stuff, because fantasyland just isn't very interesting to argue about. Of course you can argue about appropriate de-escalation but I certainly don't want to live in a world in which the only available state response to a potentially violent guy waving a knife around in a crowd is to send in the exclusively non-violent talk-team to try to distract them with a television program. Let's try to talk about the real world and pretend we're real people.

91: I don't know that "clearly mentally ill" is that easy determine under those circumstances or that acting bizarrely in the street is common compared to other circumstances (i.e. acting bizarrely at home and having a family member call 911 because they are frightened).

93: That's at least a little bit being a dick.

Anyhow, I'd have a few tweaks to the law, but most importantly I'd change the definition in 14 to read:

"Necessary" means that, given the totality of the circumstances, a reasonable peace officer would conclude that the use of deadly force was reasonably necessary to prevent imminent death or serious bodily injury to the peace officer or to a third party. In determining whether a use of force was "necessary" the trier of fact should, if applicable, consider such issues as available means of deescalation, tactics set forth in the officer's training or in policy, and other reasonable means of apprehending the subject or reducing the exposure to the threat.

Instead of

"Necessary" means that, given the totality of the circumstances, a reasonable peace officer would conclude that there was no reasonable alternative to the use of deadly force that would prevent imminent death or serious bodily injury to the peace officer or to a third party. Reasonable alternatives include, but are not limited to, deescalation, tactics set forth in the officer's training or in policy, and other reasonable means of apprehending the subject or reducing the exposure to the threat.

Cops need giant hooks like they used to use to get bad vaudeville players off stage, and that are used by cops in China now for just these situations.

Giant hooks and huge pillows. Cops are under-equipped.

. Maybe a few less MRAPs and a few more polearms.

Those would work great for Giant Shuffleboard.

Giant shuffleboard and taking down knife-wielding psychos. Dude is acting crazy with a knife, get medieval on his ass. Literally.

96: I don't think I'd mind that change at all. I'm not sure it'd make much of a difference as applied, but I could easily be wrong about that. Maybe I'd want 'should, if applicable' be strengthened to 'must'?

93: But somehow, it doesn't feel ridiculous that we send fatally armed police to address blatantly mentally ill people acting erratically. Well, shooting a few of them is the cost for the way things have to be in this hard cold world where men understand that violence is necessary. They shouldn't be mentally ill if they don't want to be at risk of cops killing them.

I blame the Second Amendment. Police will keep shooting people for the fun of it as long as it's reasonable to fear that every black person everyone they see has a gun of their own, and about 80 percent of Americans are fine with that.

Stupid broken tag.

OT: Because in a crisis, the correlations of evils with each other goes to one, Giuliani is now representing Trump.

I don't have the expertise to evaluate Halford's arguments about how the bill should be amended, but judging by the legislative history it looks like this thing is very close to becoming law so if anyone wants to change it they'd better act quick.

Can they give us an hour? We're busy.

107: Sooner is better for any input, but I'm not sure how soon it will be taken up. New bills have to get out of their first committee this month, but this is a gut-and-amend of another bill that passed its house of origin last year so it may skirt that requirement. If it has no fiscal impact it may not have to pass until fall.

(More likely, as with a lot of new-concept bills, it will fail this year and have to be revived.)

Huh, interesting. Sounds like your process works pretty differently from ours.

That's what happens when a state has people.

107, 109 -- I'm not an expert on CA Legislature process (Minivet prob knows more), though it does come up for me sometimes, but I'm pretty sure that the legislative history shown on the website is just wrong. The bill was just introduced and can't be out of committee yet, and there's no chance at all that it will have no opposition whatsoever.

It would make sense if it were amended to be a complete replacement of a different bill on a different subject that had already advanced pretty far. I'm surprised that that would be allowed, but again, clearly a very different process than I'm used to.

Today was the last day of my job, so I'll hopefully be less obsessed with legislative procedure from now on.

I was wondering why this police bill had all this crossed-out stuff about suicide prevention.

Halford's covered the exact concerns the police have with this bill.

That's a pretty extreme standard and would seem to me to make almost all police uses of deadly force prosecutable

Good luck getting that language changed because it's a feature, not a bug. Having all deadly uses of force be prosecutable is the goal.

I knew I had the knife thing in my head from somewhere. This incident which looks like a basically or totally OK use of force to me, took place at my local mall where I'm at reasonably often w/kids. The bill as drafted would make the cops arguably criminally or civilly liable here, I think.

Better version of a story on the same incident.

If you look to prior versions you'll see until this week it was something completely milquetoast setting up a suicide prevention awareness campaign.

It's not dubbed a fiscal bill anymore, so never mind about the April deadline. Last day for policy committees to report out non-fiscal bills introduced in their own house is May 11. If it skirts that deadline by being a gut-and-amend, the applicable deadline is July 6, the last day for policy committees to report out any bills, but probably time is needed for both houses' policy committees to take a crack.

Honestly, I think that just adopting the LAPD Use of Force policy into a modified statute and making that state law for justified police homicide would be a better move. Nb that this includes the proviso that "The reasonableness of an officer's use of deadly force includes consideration of the officer's tactical conduct and decisions leading up to the use of deadly force." Which is probably a better way of getting at the Tamir Rice point than the gross negligence standard.

Watching the video in 118 actually makes me a little mad at the drafters of this thing. No I do not want to make that kind of conduct by police criminally or civilly prosecutable.

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120.last: What a strange reaction to have. The video in 118 doesn't show the shooting -- it doesn't tell you anything about it that a print article wouldn't have done.

But assuming that's a fair presentation of what witnesses say, I don't understand why you think police would have been liable. The story describes them trying to de-escalate the situation for an extended period, and only shooting when the man with the knife actually attacked a bystander.

122.2 -- it seems reasonable to me, too, if the witnesses are describing it accurately, but are you sure that there was "no reasonable alternative" to using force, even in that situation? What if they had simply herded bystanders outside? Positioned an officer in a different part of the mall? Called earlier for backup with a beanbag gun? I'm making this up, and those could be bad arguments, but it seems to me that they would be exactly the kinds of arguments that an aggressive prosecutor or (more realistically) a good civil plaintiff's lawyer could use if the law stays as drafted, and in a world in which the law stays as drafted, the plaintiff only has to show that *one* alternative was a "reasonable", and the plaintiff wins the case, or at least survives summary judgment.

122.1 - will concede reaction as strange!

They needed those long containment sticks the Asian cops were practicing with. If the only tool you have is a hammer...

They needed those long containment sticks the Asian cops were practicing with. If the only tool you have is a hammer...

I really want our police to get those long containment sticks because I think the resulting YouTube videos will be tremendously entertaining.

I really want our police to get those long containment sticks because I think the resulting YouTube videos will be tremendously entertaining

I don't suppose they'd include as much giggling as this one.

Damn italic tags.

The thing is, though, your strong feeling, that I share, that it would be an injustice to punish the police is because based on what you know, there wasn't any reasonable alternative to shooting the guy. If investigation of the facts showed that there was a reasonable alternative, my feeling would change. I explicitly don't want the police shooting anyone where they have a reasonable alternative.

You seem to be worried about the case where a prosecution or a civil case will make it appear that there was a reasonable alternative to the shooting, but it isn't true. And... okay? Injustices are going to happen under any standard, and I can't see why this one is worse along that axis than any other.

I explicitly don't want the police shooting anyone where they have a reasonable alternative.

Exactly. The only time you want it not to be wrong to shoot is when it would be wrong not to shoot.

Kind of on topic: Pennsylvania legal codes use the term "paramour" more often than I would have thought.

Legal note: Maryland has a crime called "rogue and vagabond". It seems to mean "committing a crime in public" and is tacked on to charges of breaking into a car or pickpocketing. It's not the same as vagrancy (i.e. loitering or being homeless) - I don't think people are ever charged with JUST rogue and vagabond.

I hesitate to ask the context of why you're doing legal research on the topic.

Probably planning on a career switch to pickpocketing.

Maryland has a crime called "rogue and vagabond"

The law is very definite that multiclass player characters are not allowed. You might say they're completely... bard.

That's just awful in a the older sense of the term.

I searched reddit for this phrase and found someone reportedly being charged with it alone (but dismissed before trial).

Potential federal prosecution of Pantaleo (killer of Garner)!!!

124 pwned by 97 and 98 and 125 pwned by 99 and 101

I don't think referencing a past comment counts as pwning.

What? 124 was definitely pwned by 97-99 and 101. Maybe added value for "containment sticks," if that is their real name.

It's not pwnage if you are clearly referring to what somebody posted earlier. 124/5 mentioned "those long containment sticks the Asian cops were practicing with." I can't speak for anyone else, but to me that sounds like describing the picture in 99 as a way referring to it.

Ah, perhaps I misread.

Who's the pwnage referee this week?

The lurker who supports me in email.

Meanwhile, in Thailand, https://i.imgur.com/HOhS048.gifv

146. Yes, exactly. Good police work.