A Look Inside AB 490 and Limitations on the Use of Force

DAVID E. MASTAGNI
Partner
Mastagni Holstedt, APC

On September 30, 2021, Governor Newsom signed into law AB 490 (Gipson), which “prohibit[s] a law enforcement agency from authorizing techniques or transport methods that involve a substantial risk of positional asphyxia, as defined.”1 This law is an expansion of AB 1196 (Gipson), signed into law in 2020 in response to the death of George Floyd, which prohibits a law enforcement agency from authorizing the use of the carotid restraint and chokeholds. As stated by the California Public Defenders Association in support of AB 490, “[t]he recent news coverage of excessive force incidents by law enforcement officers involving this type of restraint including the death of George Floyd demonstrates the urgent need for this legislation.”

AB 490, codified in Government Code section 7286.5, defines “positional asphyxia” as: “Situating a person in a manner that compresses their airway and reduces the ability to sustain adequate breathing. This includes, without limitation, the use of any physical restraint that causes a person’s respiratory airway to be compressed or impairs the person’s breathing or respiratory capacity, including any action in which pressure or body weight is unreasonably applied against a restrained person’s neck, torso, or back,2 or positioning a restrained person without reasonable monitoring for signs of asphyxia.”

As identified by the California State Sheriffs’ Association, the language of the new law is overly broad and fails to give clear guidance to peace officers regarding permissible uses of force when attempting to effectuate an arrest or detention. In its official opposition to the bill, the Sheriffs’ Association stated: “The bill’s inclusion of ‘any technique in which pressure or body weight is unreasonably applied against a restrained person’s neck, torso, or back’ as violative of the measure is overly broad. Further, reasonableness will be difficult to judge from situation to situation.”

An obvious problem with AB 490 is the overbroad prohibition on the use of force to the majority of the body — the torso and back. Pressure applied to any part of the torso or back does not cause asphyxia. For example, while pressure to the center (thoracic) area of the back may be problematic, pressure to a subject’s shoulder blades would not result in impaired breathing. Additional training, supported by scientific and medical evidence, is necessary to provide sufficient notice to peace officers regarding the application of certain detention techniques.

It does appear, however, that AB 490 is limited to the use of unreasonable pressure or body weight against restrained persons. If a subject has not yet been restrained and an officer is still in the process of effecting an arrest or preventing escape, the use of force restrictions in AB 490 do not appear to apply. If a subject has been restrained, officers must avoid unreasonable pressure and reasonably monitor them for signs of impaired breathing.

“Reasonableness,” the standard for law enforcement use of force, remains the standard under AB 490. It is also important to note, based on the legislative intent articulated in the Legislative Counsel’s Digest, only techniques and transport methods to restrained persons that involve a substantial risk of asphyxia are prohibited. Thus, techniques that carry a minimal or moderate risk of asphyxia should be permissible under AB 490. Officers will clearly require new POST-approved, evidence-based training in order to know what techniques involve minimal, moderate or substantial risks of both compression and positional asphyxia.

The law prohibits the agency from authorizing any of these techniques but does not specifically bar the officer from using any of these techniques. As such, we are likely to begin seeing a clash between agency policy allowing an officer to use reasonable force for self-defense and the use of “authorized techniques.” Officers are permitted, when in self-defense of serious bodily injury or death and authorized techniques are not feasible, to utilize untrained and unauthorized techniques.

The issue of positional asphyxia and compression of a subject’s airway has been dealt with, and trained on, for years by many police agencies. For example, agencies already train on the “restorative position” and monitoring detained subjects to address any airway issues. Most significantly, there is no legitimate use-of-force training or technique that would justify what was done to George Floyd during his arrest.

Some agencies have started to change their use-of-force training to reflect this new law or what they believe the new law is trying to prohibit. One of the first agencies to change its arrest and control techniques was the New York City Police Department. New York City passed an arrest and control law similar to AB 490. Unfortunately, the successes and failures of these “new” techniques are still unknown.

It is inevitable that the California Legislature will pass more laws impacting officers and their ability to use force to effect arrest and prevent escape. For AB 490 to be successful, officers will require new training regarding appropriate techniques of arrest control that will avoid causing a substantial risk of asphyxia. Will these laws create better policing? Or more second-guessing and distrust? The challenge is balancing these new laws against public safety and the safety of officers who put their lives on the line every day to keep us safe.

About the Author
David E. Mastagni is a partner with Mastagni Holstedt, APC, who focuses on labor and employment law representation. He frequently lectures on POBR, FFBOR, critical incidents and employee rights. David attained the highest Peer Review Rating of AV Preeminent by Martindale-Hubble and was named to Super Lawyers.