Law professors across the U.S. influence and shape more than just the next generation of lawyers; they influence and shape the laws and policies of the nation as well. In our first Capital Contributions post, we’re highlighting Professor Seth W. Stoughton of the University Of South Carolina School Of Law and his contribution to a bill currently working its way through the California Legislature, AB 931.
Professor Stoughton is a former police officer turned Assistant Professor. His specialization is in the regulation of police. His scholarship has been published in various law review journals as well as media outlets such as The New York Times and TIME Magazine.
Recently, Professor Stoughton wrote a letter offering conditional support of California Assembly Bill 931, which changes the use of force policy used by police officers in California. As we’ve discussed previously on CAP·impact, AB 931 would change when it is acceptable to use deadly force from when it is reasonable, to when it is necessary.
In his letter, Stoughton notes some areas of improvement for the legislation. Those include the bill’s lack of an explicit definition for “reasonable alternatives,” as in reasonable alternatives to the use of deadly force, and an explicit definition for “imminent,” as in an imminent threat. He also takes issue with language in the bill about “whether the officer’s conduct was consistent with applicable training and policy.”
Stoughton offers definitions for reasonable alternatives and imminent in his letter. He understands reasonable alternatives as “only when it does not unjustifiably increase the danger to officers or bystanders; thus, an alternative that makes the situation any less safe for officers or bystanders should not generally be considered reasonable.” An imminent threat, by Prof. Stoughton’s understanding “exists only when the officer reasonable perceives that the subject has the capability, opportunity, and intent to cause death or great bodily harm.” He goes on further in his full letter to Asm. Weber to define capability, opportunity, and intent.
Stoughton expresses concern over the use of the factor “whether the officer’s conduct was consistent with applicable training and policy” into evaluating the validity of the use deadly force by an officer. His issue with this language is that it “could create a perverse incentive for police agencies to adopt lax policies, which officers are less likely to violate, as a way to insulate officers from liability. Meanwhile, officers at agencies with stricter policies may be exposed to greater criminal liability.” This “fatal flaw” undermines the intent of the bill.
Stoughton’s letter to Asm. Weber – dated June 11 – notes that there are already proposed amendments that address his concerns about training and policy by removing the provisions with those references. Amendments to AB 931, published on June 12, show the addition of an explicit definition for “reasonable alternatives.” As of now, there is no explicit definition for “imminent” in the bill.
AB 931 is still working its way through the California Legislature, and was recently passed out of the Senate Committee on Public Safety on a 5-2 party line vote. With another committee vote and a floor vote to go, it is currently unclear what the final impact of Stoughton’s input on the legislation will be. It is clear now, however, that his input has led substantive changes to the proposed law.