Documents Discovered in Gente Organizada v. Pomona PD
Since the historic passage of AB 392, which sets a higher standard for deadly use of force by officers in California, police special interest groups have spread a misinformation campaign to undermine the new law.
This timeline walks through damning communications and training materials uncovered by our litigation efforts in Gente Organizada v. Pomona Police Department.
Following the police shooting and killing of 22-year-old Stephon Clark in Sacramento in March 2018, California assemblymembers call for changes to the state’s law authorizing police use of deadly force, to ensure it is used “only when necessary.” Assemblymembers Shirley Weber and Kevin McCarty introduce a bill to change legal standards for police use of deadly force, AB 931. The bill has several main features, including:
Police special interests launch a vehement campaign against the bill. The Peace Officers Research Association of California (PORAC), a law enforcement lobbying group, runs radio ads against AB 931 and sends calls to action to the taxpayer-funded official e-mail accounts of police officers across the state, urging them to contact their elected officials to oppose the bill.
Private companies that sell police policies and training to police departments in California — like Lexipol — use their platforms to distribute articles advocating against AB 931. Bruce Praet, Lexipol’s cofounder and an attorney who defends police officers and departments accused of breaking the law, publishes an article through Lexipol that calls AB 931 “ill-conceived and dangerous” and states that it is “incumbent on law enforcement, from chief executives down to line officers” to “actively campaign for its defeat.” The article argues that adopting a “necessary” standard for the use of deadly force would unsettle legal precedent holding that officers using force “need not select the least intrusive or even most reasonable action” — and that change would result in “large verdicts against law enforcement officers and their agencies.”
In Pomona, police department leadership circulate an article by Force Science Institute (FSI), a discredited private police training vendor, which argues against AB 931 because it would enact a “necessary” standard higher than the existing reasonableness standard. The article notes that AB 931 is “vigorously opposed by law enforcement organizations such as the California Peace Officers Association, PORAC, and the policy-advisory firm Lexipol” and states that FSI joins those police organizations in “strongly oppos[ing] deviating from the reasonableness standard of Graham v. Connor” as the bill requires. A Pomona PD captain calls for the article to be distributed for staff training through the police department’s official training center. See e-mail.
AB 931 is pulled from senate appropriations and referred to the rules committee, a nearly unprecedented move that will allow legislators to avoid taking a vote on the bill. Senate President Pro Tem Toni Atkins issues a public statement saying: “AB 931 has sparked one of the most urgently important debates of this legislative session. California’s current use-of-force standard is outdated and unconstitutional. It must be modified.” She also states that that though there was not time to resolve all concerns about the bill, she is “committed to this work from now until we return for the next legislative session to get this right and have a bill before the legislature in January that will make California a model for the rest of the country."
The next legislative session, Assemblymembers Weber and McCarty introduce AB 392, a bill substantially similar to AB 931. Like AB 931, the bill primarily seeks to raise the standard for police use of deadly force from “reasonable” to “necessary.” As introduced, the bill:
Adds a “necessary” standard for use of deadly force, stating that 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 … (A) To defend against a threat of imminent death or serious bodily injury to the officer or to another person [or] (B) To prevent the escape of a fleeing suspect” under certain circumstances.
Makes substantial amendments to the affirmative defense of justifiable homicide by a public officer, to create an exception for when the “criminally negligent conduct of the officer” kills a person, or when “the necessity for the use of deadly force was created by the peace officer’s criminal negligence.”
Defines “necessary” to mean that “given the totality of the circumstances, an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force.
Police special interests aggressively campaign against AB 392. Again, PORAC sends calls to action and talking points to the taxpayer-funded official e-mail accounts of police officers across the state. See key documents:
Hundreds of families who have lost loved ones to police violence, community-based organizations, and supporters of the Let Us Live Coalition submit letters of support and travel to Sacramento multiple times to participate in legislative hearings and actions in support of AB 392. Supporters make over 1,200 constituent calls to ask their elected representatives to vote in favor of AB 392.
Pomona PD officers receive PORAC’s calls to take action to oppose AB 392 through their official department e-mails. See e-mail.
PORAC convenes regional meetings of local police and police associations to organize opposition against AB 392. Pomona PD officers receive coordinating e-mails for these meetings both through their official police department e-mail accounts and through the Pomona Police Officers Association.
The chief of the Pomona PD uses department resources to send Assemblymember Freddy Rodriguez a letter opposing AB 392, as urged by the Pomona Police Officers Association. See letter.
AB 392 is amended. The amendments do the following:
In light of these amendments and pressure from the legislature, many law enforcement lobbying organizations change their positions on the bill from “oppose” to “neutral.”
As amended, AB 392 still creates a new standard for police use of deadly force, separate from the standard for non-deadly force. While police may use non-deadly force when it is “objectively reasonable,” the bill still limits the use of deadly force to “only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary.”
AB 392 passes both houses of the legislature. The assembly analysis of the final version of the bill summarizes its purpose and effect: “Limits the use of deadly force by a peace officer to those situations where it is necessary to defend against a threat of imminent serious bodily injury or death to the officer or to another person, or necessary 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.”
Ventura County Sheriff’s Department opposes the bill, observing that the bill still “creates a new review standard”; arguing that the existing “reasonableness standard works”; and opposing how the bill establishes “an evaluation based on necessity.”
The senate analysis of the final version of the bill states: “This bill revises the standards for use of deadly force by peace officers [...]. Unlike existing California statutory law, the provisions of this bill would exceed the standards articulated and set forth by the U.S. Supreme Court in Graham [v. Connor] and [Tennessee v.] Garner.”
Governor Gavin Newsom signs AB 392 into law in a large, public signing ceremony and issues a written statement on the signing, which states: "AB 392 modernizes standards for use of deadly force by officers. Specifically, this bill updates the existing deadly force standards to provide that deadly force may only be used when necessary. AB 392 also requires officers to use other techniques to address threats instead of using deadly force when safe to do so [...]. The provisions in AB 392 will be reflected in both law enforcement agency policy and officer training statewide, and will further ensure that all officers in California are trained to a higher legal standard [...]. The bottom line is that deadly force should only be used when absolutely necessary.”
Having failed to defeat the core of AB 392 (the new “necessary” standard) through the legislative process, police special interest groups now switch tactics: they start to proclaim the bill does not do what the governor, legislature, and plain text of the law say -— that it did not change the standard for police use of deadly force from the existing “reasonable” standard to “only when necessary” at all. On the same day the governor approves AB 392, PORAC sends an e-mail to police officers across the state, including Pomona PD officers, proclaiming: “The news media will get most of it wrong. Please re-assure your members that the bill still retains the ‘reasonableness’ standard set forth in the Supreme Court’s 1989 Graham v. Connor ruling.” See e-mail.
PORAC circulates a second message on AB 392, with the subject line: “Message from President Marvel on AB 392.” Many Pomona police officers, including the chief of Pomona PD, receive this message. The message proclaims that AB 392 did not change the standard to evaluate the use of deadly force from “reasonable” to “necessary,” and that the prior attempt to change the standard to “necessary” was not in the final version of the bill. The message states: “AB 392 will not significantly impact the way law enforcement performs their daily jobs as the bill still retains the ‘reasonableness’ standard set forth in the Supreme Court’s Graham v. Connor ruling.” See e-mail.
PORAC re-circulates its August 22 message to Pomona PD officers and other law enforcement across the state, with the revised subject line “Reminder: Message from President Marvel on AB 392.” See e-mail.
Both the August 22 and 25 PORAC e-mails link to a “legal analysis” of AB 392 written by Bruce Praet. The “analysis,” which is addressed to Lexipol clients, asserts that AB 392 has “little effect” on how officers perform their jobs. It states: “[T]he good news is that we’ve managed to fully retain the ‘reasonableness’ standard so artfully established by the U.S. Supreme Court back in 1989 in Graham v. Connor.” It also suggests that AB 392 did nothing to change when police can kill people running way, asserting that the bill sets forth the “fleeing felon rule” “mirroring the original Tennessee v. Garner standard.” It assures Lexipol clients that Lexipol policies will be compliant with the new law. See memo.
PORAC’s misinformation infiltrates the training of police departments across the state:
Praet’s “legal analysis” also shapes how police departments train their officers on AB 392:
In Pomona, the same deputy chief that previously suggested that the Department’s Training Division distribute Force Science Institute materials opposing AB 931 instructs Pomona PD’s Training Division to now circulate the PORAC e-mail on AB 392 to all sworn officers. See e-mail.
A Pomona PD lieutenant in charge of training passes on the instruction to “push out” the PORAC e-mail to all sworn officers. See e-mail.
Pomona PD uses its official training bureau e-mail account to send PORAC’s message to roughly 150 sworn officers, with instructions to “Please read the below information on AB 392-Use of Deadly Force.” The training division labels the e-mail “High” importance. The e-mail instructs supervisors to review the PORAC e-mail with their personnel and to log that training in their monthly reports. See e-mail.
Pomona PD officers review the PORAC e-mail in their briefing trainings. In response to the Pomona PD training division circulating the PORAC e-mail, an officer remarks, “Nothing has changed.” See e-mail.
Meanwhile, the state agency tasked with overseeing police training in California, the Commission on Peace Officer Standards and Training (POST) avoids providing clear guidance on the new law as it puts together training materials on AB 392. See e-mail.
Behind closed doors, POST officials complain about how the media portrays the law as changing the standard for use of force, and note they are communicating to others that AB 392’s standard is “already in practice.” See communication.
POST begins to create a training video to provide a legal update to officers about AB 392. Reviewing drafts of the video, POST officials call for removal of portions featuring the governor’s statements at signing about the purpose and effect of AB 392, arguing that the “tone could be very polarizing to our audience” and “taint” officers’ belief “in what the actual new law says.” POST officials also remove legal analysis indicating that the new law establishes that deadly force must be used only as a last resort, cutting off discussion of the new “necessary” standard. See e-mail.
Before POST releases any training materials on AB 392, Lexipol presents a webinar on the new law titled The “Act to Save Lives”: What Law Enforcement Need to Know About CA AB 392. See screenshot of the webinar.
Police departments across California receive promotional materials inviting officers to attend this webinar. See e-mail.
The presenter of the Lexipol webinar on AB 392 is Bruce Praet. In the webinar, he states: “The big question is, and I know everybody has been hearing in the media, oh my god, the legislature says we can only use force when necessary. Is that true? Simple answer: No. What is the new standard? The new standard is the exact same thing we’ve had for the last 50 years and that is Graham v. Connor objective reasonableness standard.”
The webinar slides include the following text:
Police departments across the state begin to use this Lexipol webinar to train officers on AB 392:
Pomona PD leadership receive and circulate the link to the Lexipol webinar on AB 392, and Pomona PD’s head of training views the webinar. See e-mail. POST also circulates the webinar. See e-mail.
POST releases a short informational video about AB 392. It also releases a training outline on AB 392 that confusingly states: “Objective reasonableness remains the standard for evaluating the use of force.”
POST Executive Director Manny Alvarez sends an e-mail addressed to his "friends" at each of the major police lobbying organizations in California: PORAC, the California Peace Officers Association, the California State Sheriffs Association, and the California Police Chiefs Association (CPCA). The e-mail provides the lobbying organizations with a link to the AB 392 video and notifies the police lobbyists that in the next week POST plans to roll out an AB 392 training course. See e-mail.
A lobbyist representing PORAC and CPCA reaches out to POST, demanding a meeting with Manny Alvarez to discuss the content of POST’s video on AB 392. PORAC and CPCA lobbyists assert that contrary to what the video says, AB 392 did nothing to change when deadly force can be used against fleeing persons, and the standard is the same as set forth by the Supreme Court in its 1985 decision, Tennessee v. Garner.
As POST leadership schedule an in-person meeting with police association lobbyists to discuss the video, a POST staff member expresses concern, stating that an officer’s decision to pull the trigger should be based on the facts at hand, the law, and department policy — “not what the intent of a labor organization or other special interest group was.” He states: “POST did the right thing by presenting an analysis of the law. Anything else would be a tremendous disservice to the men and women who have to make split second life or death decisions, and trust POST to provide them with an accurate analysis of the law.” See e-mail.
Nevertheless, after meeting with PORAC and CPCA lobbyists, POST caves to the police associations’ demands to remove a portion of the video discussing in detail the ways that AB 392 limited the use of deadly force against fleeing persons. See documents: A, B, C.
POST depublishes the video, which was already being used by police departments across the state, causing mass confusion. POST sends a proposed revised video on AB 392 to the lobbyists before publicly releasing it, seeking the police associations’ feedback and “final approval” first.
After PORAC President Brian Marvel responds “We are good with the video,” POST releases the revised video on AB 392. See e-mail.
Police officers across the state receive emails from PORAC promoting its podcast discussing AB 392. The podcast asserts that the bill “basically codified Graham v. Connor.” It acknowledges that “the big discussion has been necessary vs. reasonable,” but asserts that “if you read the bill [...] you’ll notice the standard is the same.” The podcast mentions that PORAC sent Praet’s written analysis of the bill to its membership and describes it as “wonderful.” The podcast states that PORAC is “working collaboratively with POST” to get out more information about the bill.
Lexipol pushes out an “updated” use of force policy to the law enforcement agencies that use its policies, which include 95% of all California law enforcement agencies. Lexipol’s use of force policy conflicts with AB 392 in several ways. It removes AB 392’s requirement to use alternatives to deadly force whenever feasible. And it entirely omits the “necessary” standard from the section addressing deadly force. See policy.
PORAC re-circulates the Lexipol webinar on AB 392 to officers across the state. PORAC’s email promoting the webinar reiterates that AB 392 brings California’s legal standard for when force can be used “in line with the Supreme Court standard already employed by most law enforcement agencies and departments.” See e-mail.
PORAC President Brian Marvel personally emails law enforcement officials a link to the Lexipol webinar, stating: “Great video by Lexipol. Bill Praet does a fantastic job analyzing AB 392.” Marvel’s email promoting the webinar is shared with the El Segundo Police Department and with the Torrance Police Department’s training coordinator. See e-mail.
Pomona PD, a Lexipol policy subscriber, adopts the “updated” use of force policy provided to it by the company. The “necessary” standard remains absent from the department’s policy on deadly force for nearly a year after AB 392 takes effect.
Pomona PD instructs its officers to view the version of POST’s video on AB 392 that omits the legal analysis of how AB 392 limited use of deadly force against fleeing persons, according to PORAC’s demands, and excludes the Governor’s statements about the bill and legal analysis connecting the “necessary” standard to the concept of “last resort” that POST removed from an earlier version.
AB 392 takes effect.
Pomona PD does not update its use of force training to reflect any change in law. The department continues to train officers using materials last updated in 2009, that quote California’s statute governing police use of force as it read before AB 392 revised it.
As Pomona PD’s deputy chief later testifies under oath, the department does not train officers that the “necessary” standard enacted by AB 392 is different from the pre-existing “reasonableness” standard in Graham. See excerpt.
Pomona PD Officer Chad Jensen shoots and kills Pomona resident Anthony Pacheco.
Pomona police and California Highway Patrol officers shoot and kill Nick Costales.
Pomona police shoot and kill Matthew Blake Dixon in Chino.
Recently-retired Pomona Police Sergeant Patrick O’Malley posts on his social media: “My boys killed another one tonight. Another notch in the belt.”
Community activists across the state press their city officials to implement AB 392, against PORAC and Lexipol’s resistance. For example:
Pomona community organizations Gente Organizada and Police Oversight Starts Today file suit against Pomona PD, asserting that the department’s reliance on fallacious PORAC and Lexipol materials on AB 392 to train its officers and determine its policy wastes public resources.
Bruce Praet e-mails the Pomona chief of police about the lawsuit, stating, “Although it would probably be a conflict for me to defend the lawsuit directly, I would like to offer as much ‘behind the scene’ support as possible.” See the e-mail.
Meanwhile, Lexipol publishes a position paper and website about its use of force policy, which argue: “A common concept in police reform efforts is the need to require officers to exhaust all alternatives before resorting to deadly force. In practice, this is an unrealistic expectation that fails to account for the split-second decisions officers may have to make and rapidly evolving incidents. There is no general law that every alternative must be exhausted before using deadly force. Instead, courts have settled on the finding by the Supreme Court in Graham v Connor (1989)—that the force used by an officer should be 'objectively reasonable' given the totality of the circumstances known to the officer. Lexipol applies the same Graham reasonableness standard to all uses of force, including deadly force.”
POST publishes Use of Force Standards and Guidelines that law enforcement agencies are required to incorporate into their agency’s use of force policy. The guidelines make clear that deadly force is justified only when necessary, and that officers evaluating whether deadly force is necessary must use alternatives whenever feasible.
The guidelines also require agencies to train their officers on the “heightened scrutiny of use of deadly force under AB 392.”
Lexipol circulates a document, written by Bruce Praet, that addresses questions about its use of force policy. The document asserts without explanation that “underlying legislation” — AB 392 and SB 230 -— “provide potentially conflicting terms” and explains that its policy can still be read to apply the same “overall reasonableness standard for any level of force” as “provided by Graham v. Connor.”
The same document claims that the legality of carotid restraints “will likely require judicial interpretation” and that such chokehold-type restraints may still be authorized as an “improvised method” under Lexipol’s use of force policy, even though legislation passed in 2020 after the killing of George Floyd clearly prohibits the practice.
Pomona PD’s internal affairs department presents a training on this use of force policy to officers. The training slide that purports to instruct officers on “DEADLY FORCE APPLICATIONS” does not instruct officers on the “necessary” standard. Making matters worse, the slide titled “ASSEMBLY BILL 392” also does not instruct officers the “necessary” standard; it does not reference a change to the deadly force standard at all. In fact, it repeats the falsehood that the AB 392 standard is merely “[d]erived from the standard in Graham v. Conner[sic] (federal standard).” See the training.
POST awards Bruce Praet a “Lifetime Achievement Award” to recognize him as a “distinguished leader in the training of law enforcement officers for California.”
A year after AB 392 took effect, Lexipol — and therefore Pomona PD — finally adds the word “necessary” to its policy on use of deadly force.
Months after adopting Lexipol’s boilerplate use of force policy and training all officers on it, Pomona PD reaches out to its regional POST representative to ask where the Use of Force Standards and Guidelines that set out minimum requirements for agency policies can be found, so Pomona PD can finally begin to assess whether its use of force policy is compliant.
In an article asking if AB 392 is “making a difference,” CalMatters reports that training of officers on the new law is highly inconsistent across the state. The article also notes that only 12% of officers in California have completed POST-certified training on AB 392.
Nearly two years after AB 392 takes effect, over a year after publishing California’s Use of Force Standards and Guidelines, and many months after the judicial council releases amended jury instructions confirming the change to a “necessary” standard for deadly force, POST finally releases a training outline that clearly acknowledges AB 392 caused a “significant change in [the] use of force threshold.”
The training resource recognizes that the two separate subsections of the law addressing police officer use of force for non-deadly and deadly force provide for a clear distinction between objectively reasonable and deadly force standards, and states: “While objectively reasonable force may be utilized to ‘prevent escape or to overcome resistance’ to effect a lawful arrest, as soon as the circumstances reach a threshold for deadly force the standard increases to ‘necessary.’”
The parties reach a settlement in Gente Organizada et al. v. Pomona Police Department, et al. The settlement provides that:
