AB 48 – Restricts Law Enforcement Use Of Less-Lethal Munitions To Disperse Protests; Increases Frequency Of Mandatory Use-Of-Force Reporting

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Nov 03, 2021

Assembly Bill 48 enacts restrictions on the types of force law enforcement can use in response to protests. As a general rule, the bill prohibits the use of “kinetic energy projectiles” (such as rubber or plastic bullets, or “beanbag” rounds) and “chemical agents” (such as tear gas, pepper balls, and pepper spray) to disperse any assembly, protest, or demonstration, except in compliance with several requirements.

Specifically, in order for law enforcement to lawfully use these tools to disperse a protest, AB 48 requires that all of the following requirements are met:

  1. They must only be deployed by a peace officer that has received POST-approved training on their proper use for crowd control.
  2. The use must be objectively reasonable to defend against a threat to life or serious bodily injury to an individual, or to bring an objectively dangerous and unlawful situation safely and effectively under control.
  3. De-escalation techniques and other alternatives to use of force must have been attempted, when reasonable, and must have failed if attempted.
  4. Repeated, audible announcements must have been made announcing the intent to use kinetic energy projectiles or chemical agents and the type to be used, when it is objectively reasonable to do so. These announcements must be made from various locations if necessary, and be delivered in multiple languages when appropriate.
  5. Persons must be given an objectively reasonable opportunity to disperse and leave the scene.
  6. Law enforcement must have made an objectively reasonable effort to identify persons who are, or who are not, engaged in violent acts, with kinetic energy projectiles or chemical agents targeted towards those individuals who are engaged in violent acts. Projectiles must not be aimed indiscriminately into a crowd or group.
  7. These munitions must only be deployed with a frequency, intensity, and manner that is proportional to the threat and objectively reasonable.
  8. Officers must minimize the possible incidental impact their use of force may have on bystanders, medical personnel, journalists, or other unintended targets.
  9. Medical assistance must be promptly provided or procured for injured persons, when it is reasonable and safe to do so.
  10. Kinetic energy projectiles must not be aimed at the head, neck, or vital organs.
  11. Kinetic energy projectiles and chemical agents must not be used solely due to a violation of curfew, verbal threat, or noncompliance with a law enforcement directive.
  12. Only a commanding officer at the scene may authorize the use of tear gas.

In addition, AB 48 requires all law enforcement agencies to publish a summary of any incident where a peace officer employed by that agency uses a kinetic energy projectile or chemical agent for crowd control. These summaries must be published on the agency’s website within 60 days, or 90 days if the agency has “just cause” for the delay. The summary must include only the following, to the extent known at the time of the report:

  1. A description of the assembly, protest, demonstration, or incident, including the approximate crowd size and number of officers involved;
  2. The type of kinetic energy projectile or chemical agent deployed;
  3. The number of rounds or quantity of chemical agent used;
  4. The number of documented injuries as a result of the deployment;
  5. The justification for the deployment, including any de-escalation tactics or protocols or other measures taken at the time to avoid the necessity of deploying the kinetic energy projectile or chemical agent.

AB 48 also amends an existing law requiring law enforcement agencies to make annual reports to the California Department of Justice regarding officer-involved shootings and incidents where use of force by or against a peace officer results in serious bodily injury or death. Under AB 48, law enforcement agencies are required to make these reports on a monthly basis instead.

(AB 48 adds Section 13652 to the Penal Code, and amends Section 12525.2 of the Government Code.)

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