AB 392 is the California law, signed by Governor Gavin Newsom on August 19, 2019 and effective January 1, 2020, that changed the legal standard for police use of deadly force from “reasonable” to “necessary.” It rewrote Penal Code Sections 196 and 835a so that officers may use lethal force only when it is necessary to defend human life, and so that reviewers must weigh the entire encounter rather than just the instant the trigger was pulled.
From “Reasonable” to “Necessary”
Before AB 392, Penal Code Section 196 carried language from 1872 authorizing officers to kill when “necessarily committed in overcoming actual resistance” or in arresting a fleeing felon.1California Legislative Information. California Code Penal Code – Homicide Justifiable When Committed By Public Officers Courts filled in that broad language with the federal “objectively reasonable” test, which focused on the officer’s split-second perception of a threat and set aside tactical choices that may have led to the confrontation. Criminal prosecution of officers for on-duty shootings was extraordinarily rare under that framework.
AB 392 replaced the operative word. Section 835a now says officers may use deadly force “only when necessary in defense of human life,” and that they “shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”2California Legislative Information. California Penal Code 835a “Reasonable” asked whether the officer’s belief was understandable. “Necessary” asks whether deadly force was the only viable way to protect life.
Section 196 was rewritten to match. A peace officer’s killing is now justifiable only “when the homicide results from a peace officer’s use of force that is in compliance with Section 835a.”3California Legislative Information. California Penal Code 196 The old list of justifications is gone.
When Deadly Force Is Legally Justified
Section 835a sets out exactly two situations in which an officer may use deadly force. The officer must reasonably believe, based on everything known at the time, that deadly force is necessary for one of these purposes:
- To defend against an imminent threat of death or serious bodily injury to the officer or another person.
- To stop a fleeing person who committed a felony that threatened or caused death or serious bodily injury, and only if the officer reasonably believes that person will kill or seriously injure someone else unless caught immediately.
When feasible, the officer must identify themselves as a peace officer and warn that deadly force may be used before firing.2California Legislative Information. California Penal Code 835a The fleeing-suspect prong tracks the U.S. Supreme Court’s holding in Tennessee v. Garner, which rejected blanket authority to shoot any fleeing felon.4Justia. Tennessee v. Garner, 471 U.S. 1 (1985) California adds the necessity requirement on top of that federal floor.
What “Imminent” Means
The statute defines an imminent threat as one where a reasonable officer in the same situation would believe the person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury. Fear of future harm does not qualify, no matter how strong the fear or how likely the harm. The threat must be one that has to be confronted right now.2California Legislative Information. California Penal Code 835a
What “Totality of the Circumstances” Covers
Section 835a defines “totality of the circumstances” as all facts known to the officer at the time, including the conduct of both the officer and the subject leading up to the use of deadly force.2California Legislative Information. California Penal Code 835a This is the practical heart of the law. The legal lens no longer zooms in on the second the officer fired; it pulls back to capture the whole encounter.
If an officer’s own tactics created the confrontation, that factors into the analysis. An officer who rushed toward a person in crisis, cut off escape, or skipped available de-escalation steps may not be able to show the eventual shooting was necessary even if, at the final instant, the threat appeared real.
How This Differs from the Federal Standard
Federal courts evaluate police force under Graham v. Connor, which asks whether an officer’s actions were “objectively reasonable” given the severity of the crime, the immediate threat, and whether the suspect was resisting or fleeing. The Supreme Court directed that reasonableness be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and account for “split-second judgments” in tense situations.5U.S. Reports. Graham v. Connor, 490 U.S. 386 (1989)
AB 392 acknowledges the reality of split-second decisions but layers extra requirements on top of that federal baseline. The federal standard treats pre-shooting conduct as largely off-limits; California’s law explicitly brings it in. The federal test asks whether force was reasonable; California asks whether it was necessary and whether alternatives were feasible. An officer’s conduct can satisfy the Fourth Amendment and still violate California law. State prosecutors use the state standard when deciding whether to file criminal charges, and California departments use it in internal investigations.
The federal track also stays open for families suing under 42 U.S.C. Section 1983.6Office of the Law Revision Counsel. 42 U.S. Code 1983 – Civil Action for Deprivation of Rights Those cases are still judged under Graham, and officers can still raise qualified immunity, which protects them unless the right violated was “clearly established” by prior case law. A California prosecutor can conclude a shooting violated the necessity standard and file criminal charges, while a federal judge grants qualified immunity in the family’s parallel civil rights case. The two tracks run independently.
The Policy Side: SB 230
AB 392 changed the legal standard. Senate Bill 230, passed in the same session, told departments what to do about it. SB 230 created Government Code Section 7286, which required every California law enforcement agency to adopt a use-of-force policy meeting minimum standards by January 1, 2021.7California Legislative Information. California Government Code 7286 It covers city police, county sheriffs, transit and school district officers, the California Highway Patrol, and campus departments.
At a minimum, each policy must require officers to use de-escalation, crisis intervention, and alternatives to force when feasible; keep force proportional to the seriousness of the suspected offense or the level of resistance; report to a superior when another officer appears to use excessive force; and protect reporting officers from retaliation such as demotion, denial of promotions or training, or intimidation.7California Legislative Information. California Government Code 7286
What AB 392 Does Not Do
AB 392 does not create a private right of action. Individuals cannot sue an officer in state court for violating Section 835a the way they can under federal Section 1983. The statute sets the criminal standard for justifiable homicide and guides departmental policy, but it does not independently authorize civil lawsuits. Families pursuing civil claims in state court typically rely on theories like negligence, wrongful death, or the Bane Act (Civil Code Section 52.1), where the AB 392 standard may inform the analysis without being the direct basis for the claim.
The law also does not strip officers of all legal protections. Section 835a still evaluates the officer’s decision “from the perspective of a reasonable officer in the same situation” and still acknowledges that officers sometimes face rapid, uncertain situations requiring fast decisions.2California Legislative Information. California Penal Code 835a What changed is the scope of what counts: the reasonable-officer lens now takes in the full sequence of events, not just the final moment.