The Independent Police Conduct Authority (IPCA) has today ruled that a police officer in Whakatane acted unlawfully when he used a taser twice on a suspect, a Mr Mark Smillie, who had tried to flee from police in a car.
After resisting arrest, Mr Smillie was pepper sprayed, which failed to subdue him. He was then struck with a police baton and pushed against a fence. Again, this wasn’t enough to allow the handcuffs to be slapped on. The officer then released the taser for 13 seconds, still couldn’t handcuff Smillie, and tasered him again.
The IPCA found that the officer had not acted in self-defence on the first occasion, despite the officer’s claim to the contrary, and that using the taser twice amounted to excessive use of force and was unlawful. Sir David Carruthers, chair of the IPCA, stated that “given there were other options open to the officer short of using the taser, the authority considers Mr Smillie’s arrest could have been effected less forcefully after waiting for the arrival of other police officers”.
I’ve previously quoted s 39 of the Crimes Act, which protects police from criminal responsibility in most arrest situations:
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 …
Police can use force during any arrest, but that force must be 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.
In this particular case, given that the arrest could “have been effected less forcefully [by] waiting for the arrival of other police officers”, the conduct of the officer therefore constituted a Crimes Act assault. Unsurprisingly though, the officer will not be charged. Instead, he’s already been given extra training in the use of tasers, and that’s apparently enough. Yet another instance of police failing to hold themselves to account, despite the IPCA recommending that disciplinary action be taken against the officer.
I wasn’t a fan of tasers when they were first rolled out, although I’ll accept that for the most part they’ve been a positive and effective tool for police. However, this is just the sort of case that I’d predicted would occur – a trigger-happy officer discharging a taser, rather than having to think about how to de-escalate a situation. Why de-escalate when you can hit someone with 50,000 volts without a second thought? And the Police Association keeps insisting that all police should be armed? Yikes.