DAVID E. MASTAGNI
Mastagni Holstedt, APC
For the first time since Assembly Bill 392 amended Penal Code Section 835a in 2019, an appellate opinion has interpreted the new use-of-deadly-force standards in California. The Third District Court of Appeal in Koussaya v. City of Stockton (2020) 54 Cal. App. 5th 909, applied the new law in the context of a civil suit regarding the tactics and use of deadly force by Stockton Police Department officers during a Bank of the West robbery. Finding the officers’ actions reasonable, the court provided guidance for determining the necessity of force and the consideration of pre-shooting conduct.
The plaintiff, Koussaya, was one of the hostages taken by armed bank robbers and used as a human shield to facilitate their escape. A high-speed chase with law enforcement ensued where the robbers fired AK-47 assault rifles at officers from the back of their SUV. Fearing a shootout when the pursuit terminated, Koussaya decided her best chance at survival was to throw herself from the moving vehicle. Having sustained serious injuries during her escape, she sued the City of Stockton and the individual officers who initiated the pursuit.
The Court of Appeal ultimately held the officers’ tactics and use of deadly force in shooting at the getaway vehicle was reasonable as a matter of law, and thus dismissed claims for assault and battery, intentional infliction of emotional distress and general negligence. Applying the new use-of-force standards enacted in 2019, the court concluded a reasonable officer would have been more than justified in believing that robbers had the present ability, opportunity and apparent intent to immediately cause death or serious bodily injury to the pursuing officers, as well as any innocent bystanders who happened to be in the line of fire, if immediate action was not taken. They explained that the officers were not required to retreat or desist from their efforts to apprehend the robbers on account of their violent resistance, and that Koussaya’s injuries were not caused by the officers’ operation of their patrol vehicles, but rather by her decision to jump from a moving vehicle.
In reaching this conclusion, the court provided guidance regarding an officer’s discretion in addressing a situation, the determination of reasonableness and the proper consideration of pre-shooting conduct.
First, the court clarified the analysis for determining the necessity of deadly force. AB 392 amended Section 835a(c)(1) to state, “a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons: (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person. (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.”
The court explained that the use of deadly force will be considered reasonable when an officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. As long as the officer’s conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that the officer choose the “most reasonable” action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect. “Law enforcement personnel have a degree of discretion as to how they choose to address a particular situation.”
Second, the court rejected the argument that the existence of an applicable general order establishes the standard of care for using deadly force. But, the court clarified, “such orders ‘may well be extremely useful to the trier of fact’ in determining whether a particular use of deadly force, or officer conduct leading up to that use of force, violated the more ‘amorphous’ standard of reasonableness,” citing Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575. Notably, Senate Bill 230, which mandated minimum general orders standards for use of force, states “policies and training may be considered as a factor in the totality of circumstances in determining whether the officer acted reasonably but shall not be considered as imposing a legal duty on the officer to act in accordance with such policies and training.”
Third, the court considered the relevance of pre-shooting conduct. AB 392 states, “‘totality of the circumstances’ means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.” This new definition of totality of the circumstances is similar to the California Supreme Court ruling in Hayes v. County of San Diego that negligence liability may arise from tactical conduct and decisions by officers preceding the use of deadly force. The court then harmonized AB 392’s adherence to Graham with this expanded definition of totality of the circumstances.
The court rejected the plaintiff’s claims based on the officers’ pre-shooting pursuit tactics. The court noted that the officers “had every right to pursue the robbers in an attempt to apprehend them for several violent felonies, including armed robbery, kidnapping, assault with a deadly weapon, and attempted murder.” An officer is “not required to retreat or desist from his efforts to apprehend them on account of their violent resistance.” Further, the plaintiff’s injuries were not even caused by the proximity of the pursuit vehicles, but rather by her decision to jump from a moving vehicle.
The court held that “although an officer’s pre-shooting conduct must be considered as part of the totality of circumstances surrounding the use of force, the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” This evaluation must provide “deference to the split-second decisions of an officer and recognizes that, unlike private citizens, officers may use deadly force … They are charged with acting affirmatively and using force as part of their duties.”
In conclusion, the court applied a common-sense application of AB 392’s amendments to the law in analyzing the claims against officers for their actions. This important ruling should help dispel the misinformation about AB 392. As the court explained, these legal standards must be applied in real-world contexts: “We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes “reasonable” action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. Placing the burden of proof on the plaintiff to establish that an officer's use of force was unreasonable gives the police appropriate maneuvering room in which to make such judgments free from the need to justify every action in a court of law.”
About the Author
David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC. His labor and employment law practice includes administrative hearings, trial court and class actions and appellate litigation in California and the federal courts of the Ninth Circuit. Mastagni is an experienced panel attorney for the Peace Officers Research Association of California (PORAC) Legal Defense Fund and frequently lectures on police reforms, constitutional rights, collective bargaining and police discipline. He provided legal analysis and advice on behalf of law enforcement stakeholders during legislative negotiations and hearings over AB 392, SB 230 and SB 1421.