Use of Force

Representative Ro Khanna (D-CA-17) introduced HR 4359, known as the Police Exercising Absolute Care with Everyone Act of 2019 or the PEACE Act, to the House of Representatives last month. The legislation is aimed at existing use of force standards, federal law enforcement and attempts to build on Senate Bill 230 and Assembly Bill 392 passed in California earlier this year. If the act passes, it will alter the use of force standard from reasonable to necessary in all exercises of force. The bill is intended to encourage states to adopt similar regulations in spite of Supreme Court rulings upholding Graham vs. Connor.

The PEACE Act would prohibit federal law enforcement from using force until after they have issued a warning requesting the person to surrender and giving notice that force will be used if they attempt to resist or flee. Law enforcement is already required to issue a warning when feasible, according to Amador County Undersheriff Gary Redman. Additionally, federal officers would only be able to use lethal force if it is deemed necessary as a last resort, does not create a substantial risk to a third party and all other reasonable options have been exhausted. While deadly force is already considered a last resort, the second provision has raised concerns by many in law enforcement.

Redman expressed concern that requiring there be no substantial risk to a third party could create a post-incident, hindsight problem. He went on to question if officers would be required to exhaust de-escalation techniques before using force on someone confronting them with a firearm. HR 4359 will also require the attorney general to provide guidance to federal law enforcement on the types of less lethal and lethal force prohibited under the act, to be established within four months of the bill being passed.

As part of the guidance stipulation, the attorney general would have to include how federal law enforcement can assess whether the use of force is appropriate and necessary and how to use the least amount of force while interacting with vulnerable populations – pregnant women, children under 21, elderly, people with mental, behavioral or physical disabilities, people “experiencing perceptual or cognitive impairments due to use of alcohol, narcotics, hallucinogenic, or other drugs.”

The bill also lists people with serious medical conditions and anyone with limited English proficiency and requires the attorney general to work with communities, organizations, law enforcement and “impacted persons,” including “victims of police use of force.” HR 4359 could have unintended consequences, as well, making it difficult to recruit in a career already difficult to find candidates. However, Redman stated he doesn’t believe it will cause many existing law enforcement officers to leave if the measure passes federally or on the state level.

“I don’t see a mass exodus per say, but recruitment yes,” said Redman. “It’s already difficult to get people to apply, let alone pass a background check.”