Cases in San Diego and San Leandro will test the stricter standards on when officers can shoot to kill. Training of officers on the new law is inconsistent.
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UPDATE: In January 2022, former San Diego County Sheriff’s Deputy Aaron Russell pleaded guilty to voluntary manslaughter for fatally shooting Nicholas Bils. Russell was sentenced to one year in jail and placed on probation for three years.
On opposite ends of California, two women who have never met are united by grief and purpose.
This month, Kathleen Bils laid a memorial stone in a flower bed on the San Diego street where a sheriff’s deputy shot her son one year earlier. Some 500 miles north, at a marina on the eastern edge of San Francisco Bay, Addie Kitchen recently held a memorial in the city where a police officer killed her grandson.
“I want people to understand that our children are important to us and that we want justice,” said Kitchen, a retired prison guard. “We want the officers to be held accountable.”
That process is now under way in courts in San Diego and Alameda counties. In both cases, officers who fired the fatal shots are facing criminal charges as a result of a closely watched and contested state law that took effect on Jan. 1, 2020.
Passed in 2019 — a year before the killing of George Floyd sparked nationwide protests over racism and police violence — California’s law further limits when police can use deadly force, saying it’s allowed “only when necessary in defense of human life.” Previously, an officer could be justified in shooting someone if doing so was deemed “reasonable” — a standard that many civil rights advocates believed was vague and allowed police to kill with impunity.
So they championed the new law as a way to reduce police shootings and hold officers accountable when they unnecessarily take a life. Law enforcement groups put their weight behind companion legislation that was supposed to improve how officers are trained.
Nearly a year-and-a-half since the laws took effect, the two criminal cases — a San Diego sheriff’s deputy charged with second-degree murder and a San Leandro police officer charged with manslaughter — are the most concrete signs that one of the nation’s strictest use-of-force laws is having an impact.
Prosecutors in both cases cited the law in their decisions to file charges. How judges and juries apply it in these cases could shape its power in the years to come.
But beyond these two cases, the available evidence so far suggests that the new law has not been as transformative as supporters hoped when they pushed the so-called Act to Save Lives through the Legislature. Nor has the training law led to widespread, state-certified instruction for officers on the new standard for using deadly force.
CalMatters analyzed data on deadly police shootings, officers charged with crimes for on-duty deaths, and use-of-force training of officers since the law took effect. The analysis found:
- The number of fatal police shootings in California rose: from 135 in 2019 to 148 in 2020, according to data tracked by the Washington Post.
- Five officers in California have been criminally charged for on-duty deaths, though two of them (in San Francisco and Contra Costa counties) are being prosecuted for shootings that happened before the new law took effect; in another case, the Stanislaus County district attorney won’t say if her decision is based on the new law. In the 15 years before 2020, only six California officers were criminally charged for killing on the job, according to data compiled by a criminal justice professor at Bowling Green State University in Ohio.
- The training of officers on the new law is highly inconsistent across the state, with some agencies enrolling them in a two-hour state-certified course, others creating their own training and some departments just handing officers a memo and a 14-minute video. Only 12% of law enforcement officers in California have completed the state-certified training course, according to data from the Commission on Peace Officers Standards and Training.
“It will take a while to have the effect that I think should happen,” said Shirley Weber, California’s secretary of state who, as an Assembly member, wrote the law.
Experts interviewed by CalMatters say it’s too soon to accurately assess the impact of California’s new policing law, which is being implemented amid a swirl of other forces that could influence its effectiveness. Even under normal circumstances, it can take several years to measure the impact of any policy shift, and 2020 was far from normal with both a once-in-a-century pandemic and a nationwide reckoning over race.
“I don’t think the value of the statute can be determined by one or two cases,” said Philip Stinson, the Bowling Green State University professor who tracks police prosecutions nationwide. “If any officer is convicted as a result of that statute, I think there’ll be appellate challenges. It’s just too early to draw any conclusions.”
Amid the COVID-19 pandemic, California saw a dramatic 30% spike in homicides during 2020, according to the Public Policy Institute of California. Meanwhile, the nation went into upheaval over police killings after a Minneapolis officer kneeled on George Floyd’s neck until he stopped breathing. On April 20, Derek Chauvin was convicted of murder and manslaughter.
That kind of public pressure has led more prosecutors to file charges against police, said Michael Rains, a Bay Area criminal defense attorney who represents law enforcement officers accused of wrongdoing.
“The charging decisions, yes, have increased since the new law took effect. But the new law is not the cause of the charges,” Rains said. “It is the political climate.”
It was the police killing of another unarmed Black man that sparked the political momentum leading to California’s new law. In 2018, Sacramento police shot Stephon Clark in his grandparents’ backyard after mistaking the cell phone he was holding for a gun. Over the next year, Clark’s family and friends joined with hundreds of Californians to demonstrate at the Capitol and implore legislators to change the law.
Police groups lobbied against early versions of the bill, saying it would put officers in danger, but eventually reached a compromise with civil rights advocates. That caused Black Lives Matter to drop support for the bill and law enforcement groups to drop opposition. In the end, most civil rights advocates said the new law made important strides even though it wasn’t as far-reaching as they initially hoped. One of the law’s most significant changes allows prosecutors to consider officers’ actions leading up to a shooting when deciding whether deadly force is justified.
But if changes in the law are not communicated to officers on the street, then a new law doesn’t make much difference, said Seth Stoughton, a former cop who is now a professor at the University of South Carolina law school.
“What I would be most attuned to,” he said, “is the potential for it to turn into a paper tiger: A law that exists on the books but really has no impact on changing or improving practices.”
One thing that hasn’t changed is the chain of sorrow and anger that links families whose loved ones were killed by police. Clark’s brother attended the memorial for Kitchen’s grandson. And Clark’s family reached out to Bils after her son was killed.
Mother wants her son’s death to ‘mean something’
Nicholas Bils was a 36-year-old San Diego man who loved his pets and the outdoors.
“Nicky was very interested in the environment — trees, plants, growing things. Take his shirt off and go barefoot every chance he had,” recalls his mother Kathleen.
A lifelong mental illness made Bils prone to running away, she said. It started when he was a toddler. When he was overwhelmed or frustrated, he would jet off, sometimes to the door, sometimes farther. Her son ran from schools. He ran from home. And he ran from the police — multiple times.
“The best thing to do would be just to sit and wait for Nicky to get it together. And then he would come back when he had processed in whatever way he had to,” his mother said. “Once he got old enough and had to go live in the world, then it became an issue because the world is not going to wait for Nicky to get it together and come back.”
Bils was playing with his dog in Old Town San Diego state park last May 1, when a park ranger stopped him for having his dog off-leash and for being in the state park, which was closed because of the pandemic. Bils ran off.
The ranger and a backup officer eventually caught up with Bils, tased him and arrested him for resisting an officer and assault with a deadly weapon. The ranger testified in court that Bils held a golf club with both hands and made it “appear like he was going to strike.”
As they arrived at the county jail downtown, court records say, Bils slipped one hand out of the handcuffs, opened the patrol car door and ran down the street — unarmed.
One officer chased him and later testified that he didn’t perceive Bils as a threat. Another officer on the scene testified that he “wanted to catch up to him and tackle him,” but “saw no need for any type of other force.”
But a fourth officer, San Diego County Deputy Sheriff Aaron Russell, pulled his gun and fired, according to surveillance footage and testimony from a preliminary court hearing. Russell shot Bils at least four times, prosecutors allege.
Nicholas collapsed underneath a tree and later died at a hospital. There were no large protests and no long waits for a decision from the district attorney. Two months after the shooting, Russell was arraigned for murder. His trial is set to begin on Oct. 4; if convicted, Russell faces 15 years to life in prison for killing Bils.
Under the new law, deadly force is justified only when an officer is defending against an imminent threat of death or serious injury. In a less-publicized provision, the law also specifically limits the use of deadly force against people who are fleeing from police, saying it’s only allowed if the person will cause death or serious bodily injury to another person if they’re not apprehended.
San Diego County District Attorney Summer Stephan cited California’s new law limiting when police can shoot in announcing her decision to file charges against Russell, a point she reiterated in a recent interview with CalMatters.
“The law made different areas much more specific, and much more clear…that taking life using deadly force is something that needs to be avoided at every turn,” Stephan said. “And if you have to use it to take a life, it needs to really be necessary and the person has to be in a position of inflicting harm… in an imminent manner.”
Since Stephan filed charges, Bils’ mother has dedicated her time to getting justice for her son. She has filed a civil lawsuit against the sheriff’s department to improve the department’s policies and training.
“His death is going to mean something,” Kathleen Bils said. “The fact that Nicky was white is a big point. Because this isn’t about race. This is about police behavior.”
Russell has resigned from the sheriff’s department and pleaded not guilty to the second-degree murder charge. His attorney, Richard Pinckard, declined an interview for this article. During the preliminary hearing, Pinckard argued that while fleeing, Bils briefly turned toward Russell, causing him to perceive an imminent threat.
Russell was a 23-year-old rookie at the time of the shooting. And he never took the state’s Commission on Peace Officer Standards and Training’s two-hour course on the new deadly force law, according to his training profile that CalMatters obtained from the commission.
David Leonhardi, president of the Deputy Sheriff’s Association of San Diego County, says Russell’s lack of training isn’t unique.
“The reality is, most of our deputy sheriffs haven’t been trained on it, and neither have most of the cops throughout the state of California,” Leonhardi said. “So we have this law on the books that quite honestly, the training hasn’t caught up with everybody yet.”
Rocky rollout for police training
Because the change in the law was not properly communicated to many police officers, its initial impact was weakened, said Peter Bibring, a senior attorney and director of police practices with the American Civil Liberties Union, a primary backer of the new law. A federation of police unions and a private company that sells policy manuals and online training programs to law enforcement agencies “both told officers that the new law did nothing, that it did not change the previous law,” Bibring said.
The ACLU sued the Pomona Police Department for adopting what it considers misleading policies and training that conflicted with the new law, created by a private company called Lexipol. The ACLU’s suit also blames the police union group, called the Peace Officer Research Association of California, for waging “a misinformation campaign” to undermine the new law. It says the officers’ group “began telling police throughout the state that (the new law) does not limit their legal authorization to use deadly force.”
A Lexipol spokesperson, in an email to CalMatters, said the company has given its member agencies “comprehensive updates to bring all related policies into alignment.”
While a spokesperson for the state police union declined to comment about the lawsuit, president Brian Marvel said in an emailed statement: “While these laws only took effect in January 2020 and will take years to fully implement, we believe they provide a foundation that could help inform the basis for change nationwide.”
The rocky rollout meant that many officers didn’t get good information about what they’re supposed to do differently, said Bibring: “There was such a crucial moment lost, when the initial policy and training in so many departments just failed to conform to the law.”
Even some parts of the training law that police groups supported has not yet had much impact.
While many agencies have updated their use-of-force training as the new law requires, only 12% of California officers have completed the two-hour, state-certified course on the new deadly force law, according to the state’s data. The law required the training commission to create the course, but didn’t make it mandatory that officers take it, which explains the low numbers, said John Lowden, its bureau chief of strategic communications and research.
“We were shocked by the numbers,” Lowden said after compiling the data for CalMatters. “If you have someone who mandates, ‘I want all my officers or employees to receive this training,’ then, surely, everyone in that agency will complete the training.”
Lowden said getting more officers to take non-required courses often boils down to money and time.
While some agencies require their officers to take the state course, others including the California Highway Patrol, Los Angeles Police Department and the San Diego County Sheriff’s Department created their own training for the new law.
The San Diego Sheriff’s department-wide training included a two-page document labeled legal affairs update and the state commission’s “General Public Video” on the new law. In December 2019, Russell completed both in 41 minutes and 16 seconds, according to documents obtained by CalMatters.
A spokesperson for the San Diego Sheriff’s Department said in an email that deputies will take the state use-of-force training, which is now mandatory and separate from its course updating officers on the new law, in the “upcoming continued professional training cycle and future cycles.”
As for state police, 4% of officers from the California Department of Justice and only two of 6,778 Highway Patrol officers have taken the state course on the new law since 2019, according to the POST data.
CHP’s own agency-wide training was done online: Officers watched the state’s video with additional “CHP specific content” and took a test, having to score 100% to pass, a spokesperson said. Nearly all officers have completed that in-house training, a spokesperson said.
A state Justice Department spokesperson said the department has incorporated the new law’s requirements into its firearms and defensive tactics training. “Officers at the department are strongly encouraged to also complete POST’s training” on the new law, the spokesperson said. The state training commission logged 10 department officers taking the class since 2019.
Some agencies have made the classes a priority. More than 85% of officers in the San Bernardino County Sheriff’s Department, San Jose Police Department and the Contra Costa Sheriff’s Office have completed the state course, as have nearly 100% of officers from the Bay Area Rapid Transit Police Department and El Segundo Police Departments, according to the data.
BART hosted several classes for its officers, going through scenarios and the new law’s language. “This is a change in the law that can take away an officer’s freedom,” said Ed Alvarez, BART’s chief of police. “We had to make sure…they understood exactly what the changes were.”
Other agencies, including the San Leandro Police Department, reported having no officers take the state course.
‘We weren’t expecting anything’
As he neared his 33rd birthday in the spring of 2020, Steven Taylor was living on the streets and struggling with mental illness and addiction.
“Even though he was homeless, he would still come to the house, and I would make sure that he could come in and take a shower,” said his grandmother Addie Kitchen, who lives in Fairfield. “If I went shopping, I always bought stuff that I knew that he could take with him to eat. He’d bring his clothes to the house, I’d wash them.”
During those visits, Kitchen said, she also pleaded with Taylor to get treatment: “I begged him every time I talked to him: ‘I want to help you, but I can’t help you if you don’t help yourself. I can’t take you to a facility and check you in. You have to do that.’”
Kitchen said she doesn’t know why her grandson entered a San Leandro Walmart on an April afternoon last year, or “where his head was that day.”
According to Alameda County District Attorney Nancy O’Malley, Taylor grabbed a baseball bat and a tent and tried to leave the store without paying. San Leandro Police Officer Jason Fletcher confronted Taylor and unsuccessfully tried to grab the bat from him, the district attorney says. Then Fletcher tased Taylor, who stumbled forward with the bat pointing at the ground, according to the prosecutor’s account. Fletcher then shot him in the chest.
O’Malley charged Fletcher with voluntary manslaughter, saying his decision to shoot violated California’s new standard for the use of deadly force and the law’s requirement that officers try to de-escalate conflicts.
“At the time of the shooting it was not reasonable to conclude that Mr. Steven Taylor posed an imminent threat of death or great bodily injury to Officer Fletcher, or anyone else in the store,” O’Malley said in announcing the charges in September.
Fletcher pleaded not guilty and his case is scheduled for a preliminary hearing in June. In an interview with CalMatters, Fletcher’s attorney said the shooting was justified because Taylor posed a threat “of at least serious bodily injury” after the officer had tried other means to subdue him. Fletcher asked Taylor to drop the bat, attorney Michael Rains said, and then fired two cycles from his taser.
Instead of falling to the floor, Taylor looked at Fletcher with “a sense of rage on his face,” Rains said. “He’s convinced he’s about to get his brains beat out with a metal baseball bat so he fires a single round, and that round ultimately kills Mr. Taylor.”
In Rains’ view, O’Malley’s prosecution is pure politics, driven by national media attention on white police officers killing Black Americans. Fletcher is white, and Taylor is Black.
“Why did the DA charge the case? It’s not because of the new use-of-force law,” Rains said. “The DA charged the case because this case is occurring in a time in the aftermath of George Floyd.”
Following Floyd’s death, protestors repeatedly demonstrated outside the Oakland courthouse where O’Malley works. In a decade as district attorney, she had never prosecuted an officer for killing in the line of duty. So Kitchen was shocked when O’Malley told her she was pressing charges against Fletcher.
“We weren’t expecting anything from her. We figured it was going to be a hard fight to get her to do anything,” Kitchen said. “And so when she actually called me and told me, I couldn’t believe it.”
Kitchen credits California’s new law for O’Malley’s decision to charge Fletcher. But she isn’t convinced that it’s enough to make the sweeping changes she’d like to see.
“A lot of work has to be done when it comes to law enforcement — their training, how they do their job, who’s supervising them,” Kitchen said. “There’s just so much that needs to be done, and (the new law) will help, but it’s not the answer.”
‘You have to be in this race for the long haul’
Lawmakers in Sacramento are still tackling the issue. This year, they’re considering several police reform bills, including proposals that would create a system to decertify officers for misconduct and set tougher requirements to become an officer. And the state has a new attorney general who said one of his top priorities is establishing a new unit to investigate police shootings of unarmed civilians.
Days before Rob Bonta was sworn in as California’s top law enforcement officer, he attended the memorial for Taylor, where he talked to Kitchen.
“I just explained to him… ‘We know that you can’t solve all of the problems, we understand that. But we want you to listen to us. Just listen. And maybe we might be able to turn some things around,’” Kitchen said.
Joining her at the memorial were families who have been pushing for changes in policing for more than a decade. Wanda Johnson started in 2009, after her son Oscar Grant was killed by Bay Area Rapid Transit officer Johannes Mehserle, who was found guilty of involuntary manslaughter and was the only California officer arrested for an on-duty death between 2005 and 2015.
“I tell other mothers that you have to be in this race for the long haul,” Johnson said in an interview. “Because it’s not given to the swift nor to the strong, but it’s about an enduring process.”
Force of Law, our new narrative podcast series, will follow the heated debate in the state Capitol this year over legislation that would give California the nation’s toughest statewide standard for justifying deadly force.