‘Inconsistent, convoluted.’ Sacramento deadly force policy doesn’t comply with law, ACLU says
A year after Gov. Gavin Newsom signed the “Stephon Clark Law” in response to his killing by police, the city of Sacramento continues to struggle with rewriting its own rules over the use of force by its officers.
Civil liberties groups, the California Attorney General and police oversight officials all say the Sacramento Police Department hasn’t fully complied with the law signed by Newsom last year governing police use-of-force tactics.
Significantly, they said training procedures for the department contain outdated language about when deadly force should be considered “necessary” instead of “reasonable.” That wording change mandated by the new law plays a critical part of the decision-making process for police officers in the field.
Sacramento’s current policy creates confusion about when exactly a police officer can kill someone, said Marshal Arnwine, an ACLU associate who specializes in police practices.
“We believe the policy is inconsistent, convoluted and not compliant with the state law,” Arnwine said. “The only way we are going to have accountability when these killings occur is for them to be reviewed based on clear and meaningful language and not have ambiguous language like Sac PD currently has.”
The complaint about outdated language comes less than a month after Attorney General Xavier Becerra issued his second review of the Sacramento Police Department and its training policies, recommending a new slew of reforms for the department.
Those include prohibiting the use of Tasers on fleeing suspects, training dogs to “find and bark” instead of “find and bite,” and making de-escalation an “affirmative duty” and a key part of use-of-force training.
On Aug. 19, 2019, Newsom signed Assembly Bill 392, which requires the use of force only “when necessary in defense of human life.” Known to some as the “Stephon Clark Law,” the legislation is named after the 22-year-old unarmed Black man fatally shot by Sacramento police in his grandmother’s backyard in 2018.
The legislation was considered a compromise with police groups, and does not include regulations on de-escalating violence or allow officers to be held criminally liable in cases of criminal negligence. And unlike Tennessee and Delaware, the California law does not require police officers to exhaust all other alternatives before shooting.
City Attorney Susana Alcala Wood in a statement last week said the city is compliant with AB 392. She told the same thing to the Sacramento Community Police Review Commission in December.
“With the Stephon Clark shooting the council has been very involved in making sure Sacramento not only led the way in reforms ... but was very much aligned with what state law put in place,” Alcala Wood told the commission in December. “I can 100% assure you today that this use-of-force policy was and is in compliance with state law.”
But the ACLU says it has reason to be suspicious about why police departments still haven’t fully complied with the law. On Friday, the ACLU filed a lawsuit against the Pomona Police Department for refusing to accept the new law, and spreading the myth that “nothing has changed,” an ACLU news release alleged.
The Pomona department is a paid subscriber to Lexipol, a private police consulting company that issues ready-made policy documents to police departments, the ACLU release said. A Lexipol video sent to subscribers stated that the new law does not restrict officers to using deadly force when necessary and that the law “is the exact same thing we’ve had for the last 50 years.”
Sacramento Police Department is also a paid subscriber to Lexipol. It paid $144,395 to the company last year. The department defended its subscription to the service.
“The Sacramento Police Department is committed to ensuring that our policies follow best practices,” Briggs said. “This includes subscribing to Lexipol to ensure that we are in line with current procedures.”
Lexipol stands by its statement that the new law upholds the “reasonableness” standard rather than creating a whole new standard of “necessary.”
“As we would for any state or federal law, our guidance to agencies with regard to AB 392 has been to ensure their policies align with the law, and we have provided them with resources to help them work with their respective legal counsel to do just that,” Lexipol said in a statement.
A year after Newsom signed the use-of-force legislation, and after months of protests about police violence in the wake of the police killing of George Floyd, Sacramento’s lack of progress has enraged Stevante Clark, Stephon’s older brother. A year ago, he stood next to Newsom, holding up a photo of his slain sibling as the governor signed the bill into law.
Now he says the city is not in compliance, which he calls a “disrespect to the legacy of Stephon Clark.”
“It’s a disgrace,” Stevante Clark said. “The city that killed my brother does not implement the law that came due to their failures.”
DOJ report highlights issues
A California Department of Justice report Becerra released earlier this month included a host of recommended reforms for the Sacramento Police Department, including using the new wording mandated under AB 392.
The Sacramento policy still “does not sufficiently incorporate the concept of ‘necessity’ in its provisions governing the use of deadly force as the Legislature intended,” according to the report released July 8.
Sacramento police revised its use-of-force policy in September 2019, adding required intervention techniques when dealing with people who appear to be mentally ill, and other changes. And the department again amended the policy on June 8, removing the “carotid” neck restraint as an acceptable use-of-force, after Newsom signaled his support for a statewide ban on the technique.
Mayor Darrell Steinberg said the council will discuss the DOJ recommendations in the “very near future.”
“Our City Attorney has reviewed the language in our Police Department’s use-of-force policy to ensure that it complies with AB 392. The Department of Justice is now recommending even clearer language,” Steinberg said in a statement.
“We will bring the DOJ recommendations together with the department’s response back to the City Council in the very near future. We want to make sure that our internal and external policies are consistent and fully minimize the risk of danger, injury or death to both the public and our officers.”
The police department is currently revising its use-of-force policy to add clarifying language, but it does not have a timeline for when those revisions will be complete, police spokeswoman Sgt. Sabrina Briggs said.
It took the police department a year and a half to present a response to the council on the first set of DOJ recommendations.
Police Commission Chairman Mario Guerrero said it’s important the changes are made soon, pointing out it’s been nearly a year since the signing of AB 392.
“I think the community and commission are impatient and a lot of it is warranted,” Guerrero said.
Earlier this month, when police officials presented to the council the first set of DOJ recommendations from 2019, they said the department had implemented more than 60 of the recommended changes, leaving only a handful. Police commission member Kiran Savage-Sangwan said she questions whether all the items the police marked as “complete” are indeed fully completed, however.
Does it matter if Sac PD complies?
The state law, which went into effect Jan. 1, means it now must be used when district attorneys decide whether to charge officers. When the San Diego County District Attorney’s Office announced criminal charges against a former Sheriff’s deputy last month, the news release mentioned the new law.
But when it comes to how officers are trained and how they are disciplined, the local use-of-force policy comes into play, Alcala Wood told the police commission in December.
Guerrero said there are several significant pieces of language in the new law missing from the Sacramento police policy, including expanded language defining “imminent threat” and explaining when “retreat” can be used as a de-escalation tactic.
During a presentation July 21, Deputy Chief Kathy Lester told the council that the department will be adding the language on both topics to the policy.
One of the changes would make clear that an “imminent threat” is “not merely a fear of future threat,” which is notable, Guerrero said.
“It is so important because it is reinforcing the idea that just because a police officer is ‘afraid for their lives,’ they can no longer use their weapon,” Guerrero said. “Because if that’s the standard, you can drive a truck through it.”
In addition to getting in compliance with the new law, the commission has been recommending since 2018 that the city go further than that. They recommended Sacramento adopt language like San Francisco’s that ensures deadly force can only be used as a last resort. They also recommended semester-long “ethnic studies” courses for officers where they can learn about structural racism.
“AB 392 aside, why don’t they want to ensure our policies are as strong as they can be in making sure that no one is unnecessarily killed in the city of Sacramento?” Savage-Sangwan said. “I want to believe we have a city that wants to do everything we can to make sure no one is killed unnecessarily in the city of Sacramento, but we are clearly not doing that.”
The city attorney provided a memo on the topic of AB 392 to the commission earlier this month, Savage-Sangwan said. At their meeting July 29, she asked if the members could release it to the public. A representative from the city attorney’s office said no, due to attorney-client privilege. The commission is asking the council to make the memo public, and also asking the city attorney’s office to give another public presentation on the topic to the commission at a future meeting.
“I think this is urgent if the city is out of compliance with the state law on use-of-force,” Savage-Sangwan said. “I think we should find an alternative way to get that information to the public because I think the public deserves that information.”
