In April 2011, a Mr Blair Taylor was arrested following a burglary in Invercargill (read the 3 News article here). There were six police officers involved in the arrest, in which Mr Taylor was drunk and uncooperative. According to the Independent Police Conduct Authority (the IPCA), the arrest went as follows:
The incident involving Mr Taylor followed a Police callout to a burglary in Tay Street, Invercargill at 10:23pm on Saturday 2 April 2011. A Police dog handler arrived at the scene and saw Mr Taylor inside the property.
The officer warned Mr Taylor that the dog would be released if he did not come outside. A few minutes later Mr Taylor was seen leaving the address by a second officer and was subsequently arrested. Having received information that Mr Taylor had exited the premises, the dog handler and his dog ran onto Tay Street towards Mr Taylor who was being held by the other officer.
The dog then barked, jumped and lunged at Mr Taylor who failed to comply with the officers’ instruction to get onto the ground. While this was happening a third officer ran and tackled Mr Taylor from behind in an unsuccessful attempt to get him onto the ground.
The dog was then deployed and gripped onto Mr Taylor’s upper right arm. Over the next 50 seconds the dog was allowed to maintain a bite hold on Mr Taylor, during which time Mr Taylor was dragged one to two metres to the footpath where he was secured, handcuffed and searched and a small ornament was found. He was then taken to hospital where he underwent surgery for his dog bite injuries.
However, the IPCA has now found that the actions of several of the Police officers involved in the arrest did not comply with the law or Police policies:
“In the circumstances, the Authority is unable to reach a clear conclusion that the initial deployment of the Police dog was unjustified. However, the Authority found that the dog handler should have warned other Police staff of his belief that Mr Taylor was in the possession of a knife and he was negligent in not doing so.
“The Authority also found that there were sufficient staff present to subdue and restrain Mr Taylor and that the evidence does not support the dog handler’s view that officers were at risk. The continued use of a Police dog for about 50 seconds was therefore unnecessary and an excessive use of force. The failure to remove the dog caused Mr Taylor unnecessary harm.”
Police are protected from criminal responsibility in most arrest situations by s 39 of the Crimes Act, which states that:
Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him or her of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner … [emphasis added]
What that means, in plain English, is that Police can legally use force during an arrest, as long as the force is necessary to overcome any resistance to the arrest. However, that necessary force is not lawful if the arrest could reasonably have been made in a less violent manner. If the force used was not necessary, or the arrest could reasonably have been made in a less violent manner, then the force used will be considered a Crimes Act assault.
So the IPCA have found that the use of the Police dog for 50 seconds was an unlawful use of force. That means there’s no s 39 protection. An assault has occurred (probably an assault with a weapon, given the use of the dog).
But will Police lay charges against their own? On Radio NZ’s Checkpoint programme yesterday evening, Police confirmed that although they accepted the IPCAs findings, they would not be prosecuting any of the officers involved. Instead, as per the 3 News article, they will “reflect on what occurred”. Hardly a situation where Police are holding themselves to account… One may very well infer that a separate law exists for Police, and that’s highly unfortunate.