For nearly 12 anxious months, Sacramento waited and wondered whether District Attorney Anne Marie Schubert would press charges against the two city police officers who shot and killed Stephon Clark.
In reality, legal experts say there was little suspense involved.
Schubert’s announcement Saturday that she determined the officers acted legally came as no surprise to experts on deadly force issues. State law and a pair of U.S. Supreme Court decisions gave Schubert little room to decide otherwise.
California law gives police officers broad discretion to use deadly force against suspected criminals when the officers appear to believe they were in danger, those experts say, even if after the fact it turns out not to have been the case.
In a 61-page report, the DA said the officers the night of March 18, 2018, feared for their lives and “acted lawfully under the circumstances” when they responded to reports of someone breaking windows, spotted Clark and chased him into a darkened Meadowview backyard.
According to her report, one officer said he saw Clark with his arms extended toward the officers at chest level in what looked like a shooting position. The officer, Terrance Mercadel, said he saw a metal glint. He shouted “gun,” according to the DA. The other officer, Jared Robinet, said he also saw light reflecting off a metallic object in Clark’s hands.
Enhanced version’s of Mercadel’s body camera appear to show Clark appearing to raise his hands to his chest level. The object in Clark’s hands turned out to be a cell phone.
The DA said the officers had ordered Clark to stop and show his hands. Instead, she said, he advanced toward them in a shooting stance.
“The law of self-defense is well established and clear,” the DA wrote in her report. “Deadly force may be used when an officer or citizen honestly and reasonably believes they are in imminent danger of death or great bodily injury.”
The shooting led to mass protests about the shooting, community calls for criminal charges against the officers, and unsuccessful attempts in the state Legislature to amend the law to place more restrictions on when officers are allowed to use deadly force.
But, legal experts say, given the circumstances, the officers likely acted legally.
It is highly unlikely that the DA could assemble a convincing case against the two officers, said Michael Vitiello, a McGeorge School of Law professor. “You look at cases nationwide, what it takes to get an officer convicted, it takes pretty extreme evidence.”
Under current law, former Sacramento County Sheriff John McGinness said officers can’t be second-guessed if they thought they were facing a gun.
McGinness pointed out what he called telling dialogue between the two officers seconds after the shooting: The are recorded on their body-camera microphones checking with each other to determine if either had been shot.
One officer asks the other, “You all right? You hit?” The other says, “Yeah, I’m good.”
The second officer then asks: “You all right, dude?” The first says, “Yeah, I’m all right. I don’t think I’m hit or anything.”
McGinness said the comment buttresses the argument that the officers feared for their safety — and did what any law enforcement officer would do under the circumstances.
“They thought he had fired. You can’t make that up. That was spontaneous,” McGinness said. “That speaks volumes.
“Would another officer in similar circumstances react in the same fashion?” McGinness said. If the answer is “yes,” then the officers can’t be prosecuted, he said.
A year later, the Clark shooting has sparked two competing bills in the Legislature to regulate police conduct. AB 392 would permit the use of deadly force only when officers believe it’s necessary and there’s no viable alternative. This “necessary standard” would reduce the number of shootings without weakening public safety, said co-author Assemblywoman Shirley Weber, D-San Diego.
The decision not to prosecute in the Clark case “will further highlight the need for change,” said Assemblyman Kevin McCarty, D-Sacramento, a co-author of AB 392.
At a City Hall press conference Saturday, Mayor Darrell Steinberg, the former president of the state Senate, said he plans to lobby the Legislature in support of AB 392. “That’s a long overdue debate at the Statehouse,” he said.
A second bill, SB 230, sponsored by the Peace Officers Research Association of California, seeks to solidify the current standard that officers must be judged on what a “reasonable” officer would have done in that circumstance.
For now, when district attorneys examine the legality of police shootings, they generally rely on the California penal code and a pair of landmark U.S. Supreme Court decisions.
The language in the penal code, enacted in 1872 and not updated since, allows officers to use “reasonable force” to deal with a suspect who’s fleeing or resisting arrest. The Supreme Court decisions — particularly a 1989 case involving a North Carolina man injured while in police custody — say officers’ actions must be judged according to what any “reasonable officer on the scene” would have done.
Schubert’s report points to the 1989 decision and adds, “It cannot be said that Officers Mercadal and Robinet were unreasonable in their beliefs that Clark had a gun and was about to shoot them.”
Prosecutions aren’t unheard of. In 2010 a former BART police officer, Johannes Mehserle, was sentenced to two years in prison after being found guilty of involuntary manslaughter in the killing of Oscar Grant, the case that was the subject of the movie “Fruitvale Station.”
In that case, Mehserle testified that he thought he had reached for his Taser instead of his gun.
For the most part, critics say officers are simply being given too much leeway by district attorneys reluctant to antagonize law enforcement agencies out of fear of disrupting their day-to-day working relationship.
Prosecutions of police officers in California have been few and far between. Schubert has declined to prosecute 33 cases since becoming DA in 2014, including the controversial 2016 killing of Joseph Mann, a mentally ill black man who was holding a knife.
Schubert came under intense scrutiny last spring after receiving $13,000 in campaign donations from two law enforcement officers’ unions in the days following Clark’s death. Her campaign manager, Dave Gilliard, said at the time that Schubert was “proud to accept donations from the law enforcement community. She works with them every day.”
McCarty, the assemblyman from Sacramento, said relationships between DA’s and law enforcement creates a “perceived if not actual ... conflict of interest” that makes it difficult for DA’s to conduct a proper investigation into police shootings. He said one possible remedy is to take the matter out of the DA’s hands and let the state investigate, as is the case in Connecticut, Wisconsin and several other states.
California’s attorney general, Xavier Becerra, is also reviewing Schubert’s findings in the Clark shooting.
In January, Becerra urged the Sacramento Police Department to adopt 49 changes to its use-of-force policy, with an emphasis on deescalating confrontations before they turn deadly. Among other things, the attorney general wants stricter guidelines on when it’s OK to chase a fleeing suspect.
“The mere act of running may not constitute a sufficient basis for initiating a foot pursuit,” Becerra wrote.
In her announcement Saturday, Schubert said her investigation “does not address any police policy and ... whether or not there were other police tactics that could have been used.” She said “these are very valid questions” but weren’t part of her review.
Weber and McCarty said more changes are needed. McCarty said cities such as San Francisco and Seattle have adopted policies that discourage the use of force, and “public safety has not been harmed.”
Under AB 392, a police shooting would be justified when “there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person.”
Weber said she doesn’t want to see more cops prosecuted. Instead, she wants to alter the rules of engagement so officers defuse confrontations instead of escalating them.
“We want to change the policing culture,” she said. “We hope this will drive down the number of shootings.”
Police officials succeeded in thwarting similar legislation by McCarty and Weber last year, and they’re out to defeat AB 392.
“Her bill is trying to criminalize what officers do on a regular basis,” said Brian Marvel, a San Diego police officer and president of the Peace Officers Research Association of California. “Everyone knows Stephon Clark was holding a cell phone, but the officers who engaged him didn’t know that (at the time of the shooting).”
Although AB 392 specifically rules out judging officers based on “the benefit of hindsight,” Marvel said Weber’s bill would effectively subject cops to second guessing.
SB 230, sponsored by law enforcement, leans heavily on the Supreme Court decisions and their “reasonable officer” standard. The bill also would impose rules on police departments for training their officers on use of force.
At her press conference, Schubert said she would support “everything we can to improve outcomes .... Today is not the time for me to talk about legislation.”