San Jose lawmakers go through police paces as use-of-force bill looms

Robert Salonga| San Jose Mercury News| Link to Article

AB 931 serves as backdrop for education session that critics call political intervention

SAN JOSE — During a traffic stop on a suburban street, Assemblyman Evan Low turned to face the suspect, who was a modest distance away and reaching for something in his truck cab. Moments later, the man appeared with a shotgun and began pointing it menacingly.

Low was holding a can of pepper spray. Both unloaded their weapons, and the screen shut down.

Take two: Low had his pistol drawn. He trained it on the backpedaling suspect, and opened fire before the man could get to the cab. The screen shut down again.

In the San Jose Police Department’s force-option simulator — which runs officers through potentially violent scenarios akin to an immersive video game — Low had both under- and overreacted.

It appeared that SJPD’s touted invitation to school legislators about its use-of-force training, in the backdrop of AB 931, a landmark police reform bill making its way through the state Capitol, had made its mark.

“Even when I knew what was going to happen, I shot too soon,” Low said in evaluating his simulator experience. “There was confusion, and the basic human factor. It’s not black and white.”

AB 931 reached a crucial touchstone Thursday when it was transferred to the state Senate’s rules committee. It will now have to be passed by both chambers of the Legislature by the end of the month to get to Gov. Jerry Brown’s desk for the current legislative session.

Under the bill, police officers in California who use deadly force would have to prove it was necessary and that they had exhausted all reasonable non-lethal alternatives and de-escalation techniques. It would also increase officers’ exposure to criminal prosecution in instances where they are shown to have exercised gross negligence.

Low, whose brother is an SJPD officer, was joined by other South Bay legislators that included a group of former San Jose city council members like state Sen. Jim Beall and Assemblymembers Kansen Chu and Ash Kalra, and current member Lan Diep. State Sen. Jerry Hill, from San Mateo, and Assemblyman Marc Berman, from Palo Alto, also attended the three-hour visit that began with classroom instruction on SJPD’s use-of-force policies.

Beall said learning more detail about the department’s force policies was valuable since they already incorporate some of the aims of the proposed legislation, like evaluating the entirety of a deadly police encounter, including the conduct leading up to when force is used.

“Anytime you pass a law like this, you have to train the officers,” Beall said. “SJPD is more advanced than most police departments, and has a high quality of training. But that’s not true in other parts of the state.”

Chief Eddie Garcia lauded the elected officials for making the time to learn about the issue from a law-enforcement perspective.

“This is such a major issue, and we’re a stakeholder,” he said. “We’re taking down the shroud of secrecy with our training. It’s education. Whether it does or doesn’t pass, we want to ensure we’re part of the conversation. We want to move forward.”

But what Garcia calls education is viewed differently by advocates of AB 931, who were concerned about a police department using city time and resources to perform what they consider to be political advocacy.

“Chiefs of police do not belong in the business of lobbying,” said Eddie Carmona, political director for PICO California, a statewide network of faith-based social-justice organizations.

Garcia disputed the notion that they were trying to influence the legislators, none of whom disclosed how they might vote if AB 931 were to be presented to their chambers for a vote. Nora Frimann, assistant city attorney for San Jose, said she did not see Friday’s event as lobbying or an improper use of resources, noting that similar training is periodically offered to other city staff and residents through programs such as citizen academies.

“They’re not lobbying here,” Frimann said. “They’re using city resources to make sure people are learning about training, as they’ve done for other groups.”

Carmona said that explanation is not convincing, arguing that the timing of the session, during a key legislative stretch for AB 931, the involvement of influential elected officials, and the absence of other community stakeholders, all combine to make the event inherently political.

“It’s not something they should be doing,” he said. “They have a lobbying arm that has been fully active on this issue. That’s what the (police) associations are for. They have plenty of dollars for this.”

Police groups like the California Police Chiefs Association, which is headed by Morgan Hill police Chief David Swing, view AB 931 as a bill that would unfairly invoke hindsight evaluations of police shootings in place of the current benchmark of what a reasonable officer would do in a similar encounter.

Robert Aguirre, a volunteer leader for People Acting in Community Together, a San Jose-based group that is part of the PICO Network, said Friday’s event is emblematic of the powerful forces working to quash AB 931.

“Our fight to keep this bill alive is much more difficult,” he said. “We need to work very hard to keep this alive.”

PACT member Evan Deocariza added that even as SJPD and other local agencies — leaders from police in Campbell, Los Gatos, Morgan Hill, Mountain View, Palo Alto, Santa Clara, San Jose State University, Sunnyvale, and the Sheriff’s Office attended Friday — tend to be more progressive in their use-of-force practices, bill advocates are looking more broadly.

“This is about setting a statewide standard, so that when residents go out of the city, they’ll be protected by these standards,” Deocariza said. “Not everyone else is doing what SJPD is.”

Beall agreed with the sentiment, including advocates’ contention that the state statute governing use of force in California is current to 1872, and has to be updated to match contemporary case law.

“One of the issues here is consistency,” he said.

Garcia maintains he just wants to ensure that police expertise factors into the deliberations in Sacramento.

“This is important not only for our officers,” he said, “but for the community as well.”