Challenging Lethal Policing in California

On February 9 in Vallejo, California, 20-year-old Willie “Willie Bo” McCoy was asleep in his car at a Taco Bell drive-thru, doors locked, car still in drive, allegedly with a handgun in his lap. He woke surrounded by police cars and officers shouting. The police reported seeing McCoy make a sudden movement downward and unleashed a flurry of gunshots, killing him on the spot. Although there is no report of the young man threatening anyone at the restaurant or pointing a weapon at police, a spokesman said the six officers acted out of “fear for their own safety.”

What began as a check on someone sleeping in a drive-thru ended in what McCoy’s family has called the execution, and “a cruel death by firing squad.” They’ve asked why police made no “attempt at a peaceful solution.”

The death of Willie McCoy serves as a tragic backdrop to an ongoing debate over the rules governing California law enforcement’s use of deadly force. That debate sparked again in March 2018 with the killing of another young African American man in Sacramento, Calif. Stephon Clark was shot eight times, mostly in the back, in his grandmother’s backyard. Officers fired 20 rounds at the 22-year-old after mistaking Clark’s cell phone for a gun and claimed to open fire out of fear for their lives. Once again, people asked why deadly force was immediately employed without recourse to other options.

The brutal shooting of Clark sparked public outrage and protests across the state, calling for justice and a halt to the disturbing pattern of police violence against young men of color. As reported by the ACLU of California, the state's law enforcement killed at least 172 people in 2017 — a rate 37 percent higher per capita than the national average. Further, nearly two-thirds of those subject to police use of force were Black or Latino, and over 90 percent of victims were men. American police are the deadliest in the industrialized world, killing approximately 1,147 people in 2017, with Black civilian fatalities three times the rate of white counterparts. In contrast, Canada reported approximately 25 fatal police shootings per year, police in England and Wales combined to kill a total of 55 people over the last 24 years, and Iceland recently counted its first fatal police shooting ever.

Since the Civil War, American policing has labored to systematically criminalize and control African Americans and other populations of color, as well as infiltrate and break the American anti-capitalist left.

Considerable differences exist among the rules governing the use of deadly force in the US and other “developed” countries. In 2015, Amnesty International published a scathing report that found none of the 50 states or Washington, D.C. are in compliance with international law and standards regarding the use of deadly force. Further, nine states and Washington, D.C. have no specific regulations on the use of deadly force, while thirteen states aren't compliant with Constitutional law that determines the use of deadly force by law enforcement.

Generally, international law and standards on the use of lethal force by law enforcement are based on the protections articulated by the Universal Declaration of Human Rights: security of person, equal protection under the law, and freedom from discrimination. According to the report, “international law enforcement standards require that force of any kind may be used only when there are no other means available that are likely to achieve the legitimate objective.” The US has an obligation to “respect, protect and fulfill” these rights, having ratified the International Covenant on Civil and Political Rights and the International Convention to End All Forms of Racial Discrimination.

Following massive public protests in reaction to the killing of Stephon Clark, California had an opportunity to comply with international law and standards on the use of lethal force with the introduction of Assembly Bill 931 in the summer of 2018. Sponsored by community organizations and civil libertarian groups, AB 931 would change the legal standard for the use of deadly force that notably dates back to 1872, only seven years after passage of the Thirteenth Amendment. This existing law only requires that another “reasonable” officer placed in the same situation would use deadly force to stop a perceived imminent threat to themselves or the public. AB 931 would require officers to prove that deadly force was “necessary”or that all other possible options were fully exhausted. The bill also insisted on the use of de-escalation tactics and provided protection against the killing of civilians struggling with mental illness, trauma, and/or extreme psychological stress (including those attempting “suicide by cop”).

In response, law enforcement agencies and advocates argued that the new standard—and the threat of criminal liability for officers who break it—would threaten public safety and the safety of officers by causing them to hesitate or second guess actions in critical situations. Their political pressure at the State Capital and in public media resulted in the partial weakening and tabling of the bill.

Cases like the shooting of Willie McCoy and victories by critical criminal justice reformers—including the recent decision by Los Angeles County to halt plans for new jail facilities and instead invest in mental health treatment—have resulted in significant legislative progress on this issue. The California Act to Save Lives (AB 392) was introduced on February 6 of this year and aims to fundamentally change the legal standard for justifying the use of deadly force from “reasonable” to “necessary,” arguably making California the first state in the US to conform to international human rights standard. The new bill—backed by a similar coalition of social justice advocates including the ACLU of California, the Anti Police-Terror Project, Black Lives Matter California, and Silicon Valley De-Bug—also retains the possibility of criminal liability for officers who violate the new proposed use of force standards. Unlike AB 931, this bill provides more flexibility for officers to “invoke the self-defense law” in the face of imminent threats if de-escalation and non-lethal methods fail.

Despite this seeming attempt to appease some critics, State Senator Anna Caballero (D-Salinas) introduced a competing bill the very next day. SB 230 is backed by law enforcement agencies and advocates and instead of changing the legal standard for the use of deadly force, SB 230 changes the training standard. The bill also requests additional funds for law enforcement agencies to implement new programs. “In emergency situations, peace officers rely on their training and education, which is the focus of SB 230,” Caballero told The North Star. “By setting clear guidelines in policy and standardizing training on de-escalation tactics, dealing with individuals suffering from mental illness, rendering medical aid, and all the other critical topics encompassed in SB 230, we actually provide law enforcement tools that will result in better outcomes during potentially deadly encounters.”

Leading advocates of AB 392, such as Professor Melina Abdullah, an organizer for Black Lives Matter Los Angeles and chair of pan-African studies at Cal State Los Angeles, claim that SB 230 is a disingenuous ruse. She asserts, “There is funding available for training, so if they wanted to eliminate killing people at the hands of police. There’s nothing stopping them from building de-escalation tactics and engaging in ways that preserve life.”

Abdullah’s critique is supported in part by the work of scholars like Princeton Professor Keeanga-Yamahtta Taylor, who wrote that strategies like the diversification of police forces or improved professional training “have not had the effect of mitigating the tensions between police and Black communities…. The explosion of the incarceration of Black men, women, and children took place after the years-long effort to ‘professionalize’ and diversify the police” following urban rebellions in the late 1960s. Advocates of SB 230 and AB 392 remain at odds when it comes to police accountability. Caballero and supporters of her bill offer a familiar argument, that AB 392 is “punitive” and a danger to public safety in potentially causing officers to hesitate or delay their response in critical situations. In contrast, organizers like Professor Abdullah insist that an effective bill must “place criminal liability on police” and that AB 392 enables district attorneys to designate unnecessary use of force as a criminal act and prosecute police.

Although AB 392 would provide a legal pathway for holding law enforcement officers criminally accountable for unnecessary use of force, advocates like Silicon Valley De-Bug's Raj Jayadev cautioned that 392 will “need people to make sure that the DAs that are supposed to enforce that law are held accountable to it.”

Whether California conforms with international law and standards on the lethal use of force may come down to the ability of communities to successfully mobilize behind models like AB 392, preserve its integrity through the legislative process, and pressure district attorneys to follow through and enforce the new standards. Sustained, organized grassroots resistance like that following the murder of Stephon Clark will be required to stop the systematic brutality against Black, Latinx, Native, trans, undocumented and poor people that centrally define the broad array of American law enforcement agencies since their inception.

The international standards are perhaps most compelling in that they invite us to re-envision our criminal justice system entirely. Would a policing institution that centrally valued and protected life resemble police as we’ve known them—particularly given their roots in slavery, colonization, segregation, and strike-breaking? What other kinds of civil institutions could reduce gun violence or sexual assault according to the preservation of life and other fundamental human dignities?

In the final analysis, a central issue for international standards and legislation like AB 392 is whether law enforcement agencies exist to maximize the preservation of life or continue as a coercive force overwhelmingly in the service of power. To the families of those killed by police, backing AB 392 and advocacy organizations, legislation is needed to provide accountability and a meaningful step to save the lives of other community members. To Jayadev, “that’s the litmus test. Had the new law been in place, would Willie McCoy still be alive?”

About the Author

William Armaline is the founding Director of the Human Rights Program and an Associate Professor in the Department of Sociology and Interdisciplinary Social Sciences at San José State University. As an interdisciplinary scholar and public intellectual, Armaline’s interests, applied work, and scholarly publications address social problems as they relate to political economy, environmental sustainability, racism and anti-racist action, critical pedagogy and transformative education, inequality and youth, mass incarceration, and drug policy reform.