Applying tests to assess if Taser use is reasonable

Sections 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) authorise police to use as much force as is reasonably necessary to make an arrest or perform other functions under the Act. The courts have interpreted the word ‘reasonable’ as involving both a subjective and objective element – see Case studies 1 and 2 in Chapter 3 (pages 59 and 62). It is our view that TRPs should consider whether it was reasonably necessary for a police officer to use a Taser after reviewing both the subjective and objective evidence available to them.

The criteria for use in the Taser SOPs do not make it explicit that officers must have reasonable grounds to believe that it is necessary to use a Taser to respond to a situation. This omission risks police using a Taser in a manner that is inconsistent with the requirements for reasonable force under LEPRA.

It is equally important that the internal review process assesses whether there were reasonable grounds for the officer to believe that it was appropriate to use the Taser, and to independently assess whether the use of Taser is reasonably necessary in terms of the criteria for use in the Taser SOPs. Weight should be given to the officer’s perceptions of the levels of threat, as this informs the subjective test of whether force was reasonable in the circumstances. The written records of the incident (the COPS record and Sitrep) contain the views of the officers about the level of threat they perceived at the time, and their justification for using the Taser in light of that threat. Importantly, these records may describe what happened before and after the Taser was armed, or what was happening that is not captured by the Taser Cam. The objective part of the test should be informed by reviewing the Taser Cam footage and Taser dataport download information, and considering the number of officers attending the incident and any independent accounts of the incident.

We observed cases in the sample period in which the objective evidence about the use of the Taser was inconsistent with the account recorded by police in COPS. This raised questions about whether the use of the Taser was

reasonably necessary. These inconsistencies were not always made the subject of further inquiry by the TRP. We acknowledge that written records of an event may be inconsistent with the Taser Cam footage for a range of reasons. For example:

• an officer’s experience of an intense or heated exchange may not be captured by the footage on the Taser Cam, or conversely, events unfold quickly and the officer does not accurately remember all the details of an incident

• an officer may be mistaken about the level of threat posed to police or to others

• an officer’s memory of an incident may be less accurate if the COPS record and Sitrep are prepared some hours after an event and they have, in the intervening period, undertaken a range of other activities.

However, we expect that if the combination of the Sitrep, COPS record and Taser Cam footage does not clarify what happened during an incident and permit the TRP to assess whether the Taser use was justified, the TRP would seek further information or refer the matter to the relevant CMT for investigation.

One of the concerns from our review was that it appears TRPs do not always place sufficient weight on the objective evidence – the Taser Cam footage – and may put undue weight on the subjective perspective of the officers, as described in the COPS record and Sitrep. The TEC advised during consultations that the role of the TRP is to provide an objective element when reviewing Taser deployments.

The TRP consider all elements that may have impacted on the officers (sic) decision, however they provide an assessment independent of the officer perceptions. The standard applied is the standard at law, being ‘reasonable force’.8

Although the NSWPF indicated that the TRPs’ reviewing officers already use an objective standard in assessing use against the Taser SOPs, in practice it is not clear in all cases that the review process applies such a standard. In some cases, we found a significant discrepancy between the Taser Cam footage and the written records of the event – the records refer to actions or behaviour occurring while the Taser was armed that clearly do not appear on the Taser Cam footage.

Case study 24 is an example of a matter where we consider there was a significant inconsistency between the written records and the objective evidence available in the Taser Cam footage. However, the TRP did not refer this matter for investigation or seek further information.

Case study 24 – Inconsistencies between Taser Cam and COPS record

Police attended residential premises in the early hours of the morning after reports of people fighting. The Sitrep states that police went upstairs and ‘were confronted by three aggressive males and two females who began to approach police and yell abuse. Fearing further violent confrontation, Taser [number] was used to cover the males. The Taser had an immediate effect with all parties becoming compliant.’ The COPS record makes a similar statement. No arrests were made.

The Taser Cam footage shows the Taser was armed before police went up the stairs and saw the people. It did not show anyone approaching police, yelling abuse at police or any violent confrontation between the people on the premises and the police. The person standing at the top of the staircase was not facing police and was watching the argument between the male and the female. He did not appear aggressive. The male and the female were arguing, but not violently, with each other. They did not approach or yell abuse at police. The two people in the bathroom stayed there for the entire length of the footage, and did not appear aggressive or seem to say anything.

Police assessment of the Taser use

The PSM considered the use appropriate as police feared violent confrontation. The TRP found the use of the Taser was effective and in accordance with the Taser SOPs.

Our assessment of the Taser use

In our view, there was nothing in the Taser Cam footage that showed any of the people acting in an aggressive or threatening way toward police.

We note that police had information that this incident was related to an earlier incident that evening – where police attended a large brawl at a party held at a showground and directed those in attendance to disperse. Although this might have given the officers cause for additional caution, it does not address the issue of the clear inconsistencies in the records.

When we presented this case study to the NSWPF in October 2011, the TEC advised that the officer’s use of the Taser was justified under criterion 4.3 (risk of being overpowered or to protect themselves or others from injury) and 5.3 (of Taser SOPs version 1.17 - you can draw a Taser if you consider you are likely to be justified in using it), stating that:

It is noted that this matter is a draw cover only. Police were called to the vicinity on a number of occasions for drunken and brawling behaviour involving up to 50 people. About 3.50am police were called to the subject premises following several reports of people fighting. Upon entering the premises police drew and armed the Taser. The Tasercam vision shows occupants of the premises in conflict. It is 11 seconds in duration. Once police have assessed the threat, the Taser is holstered.9

Notwithstanding that the ‘likely’ threshold found in version 1.17 was not in force at that time (so the police officer drawing the Taser would not have had this threshold in his mind), we believe that the officer did not appear to have reasonable grounds for using the Taser – under either the likely threshold or the criteria for use. There was no indication that violent confrontation or resistance was occurring or imminent, nor was the officer in danger of being overpowered or anyone at risk of being injured.

Case study 15 in Chapter 7 (see page 132) is another case that involved a significant inconsistency between the police records and the Taser Cam footage. The COPS record states that while the Taser was armed, the young man

involved was ‘screaming and yelling incoherently. The young person turned [and] faced police and continued to yell and swing his arm around’. The Taser Cam footage shows no evidence of this occurring, and instead shows the young man immediately complied with the officer’s directions to get on the ground. The footage does not provide any evidence that the young man was ‘highly combative’ as indicated in the COPS record. The TRP did not address this inconsistency at all, even though it was highly relevant to an assessment of whether the officer was justified in drawing the Taser.

We are concerned in both these cases that the TRP may have, without question, accepted the officer’s subjective views – even where those views appear to be significantly inconsistent with the objective evidence. In our view, the TRP should have made further inquiries.

In Case study 25, the Taser use was the subject of a complaint investigation by the NSWPF under Part 8A of the

Police Act 1990 (the Police Act). We are concerned that the NSWPF did not record findings that the use of the Taser involved a breach of the Taser SOPs when the investigator found evidence to suggest that the use of a Taser was not reasonably necessary.

The Taser Cam footage for this case study has been released with this report and can be viewed on the Ombudsman’s website.

Case study 25 – The objective test for reasonable force

The man involved was a heavily intoxicated French tourist who was woken by police as he slept on the footpath in the early hours of a Sunday morning. Once the man was awake, he stood up unassisted and said that he could make his own way home. However, when the officers asked the man repeatedly to state his address and produce identification, he allegedly became abusive, spat at them and walked away. When told to stop, the man allegedly fled. The officers caught up with the man and then grabbed and tackled him. A struggle allegedly ensued. When the man was on the ground, one officer (the backup officer) stood behind the man and put his forearm around the man’s neck in a chokehold while the other officer (the deploying officer) discharged the Taser in probe mode. The man was then handcuffed and taken to the police station.

The man was charged with and convicted of the offences of resisting police and offensive behaviour. He was fined $300 for resisting police and received a non-conviction order for offensive behaviour.

Police assessment of the Taser use

After reviewing the incident, the TRP raised several concerns about:

• the decision to arrest the man

• the appropriateness of the level of force used, given that the man was obviously intoxicated and having difficulty following instructions

• the possibility that the Taser was merely used as a compliance tool

• the safety of the backup officer standing behind the man while the Taser was discharged

• the use of the chokehold.

As a result, the TRP referred the matter to the LAC as an internal complaint.

During the complaint investigation, the officers stated that they decided to wake the man as they were concerned for his welfare. They claimed that when the man was awake and became abusive towards them, they remained concerned for his welfare and continued to explain that they merely wanted to help him return home. However, as the man continued to be abusive, they decided to place him under arrest for offensive behaviour. The deploying officer claimed that he decided to use the Taser because they were confronted with a violent situation and there was an imminent risk of injury to police. The backup officer asserted that he was overpowered by the man when the man held onto his legs and pinned him against the wall, causing him to fall off balance. This account was clearly contradicted by the Taser Cam footage – it shows the man appearing heavily intoxicated and being lifted by the backup officer from behind.

The LAC complaint investigator concluded that neither the deployment of the Taser probes nor the application of a chokehold was an unreasonable use of force. He also found that the use of the Taser complied with the Taser SOPs. However, he had some concerns about the safety of firing a Taser while the backup officer was holding the man, and recommended that both officers undergo remediation training on the Taser SOPs to rectify hazardous practices. He also recommended that the deploying officer be reminded of the safety aspects of using a Taser and the criteria for Taser use. The deploying officer was retrained accordingly.

At our request, the complaint was reviewed by the region’s PSM – a member of the TRP experienced in reviewing Taser incidents. The reviewing officer supported the findings of the original investigation and made the following comments:

… the only evidence available is that of the subject officer’s and the Taser video once activated. Accepting the officer’s versions of the violence displayed by [the man] prior to the activation of the Taser, I believe they have justified their use of force.

However, I believe the problem is with regards to how a concern for [the man’s] welfare quickly led to his arrest. I believe his intoxication and native language, combined with the junior rank of the officers may have resulted in a confrontation that could have been avoided had the officers shown a little more discretion and greater use of communication skills.

I also believe that the police may have made some poor decisions regarding physical control of

[the man] leading to the need for the use of force. Certainly police are trained to maintain a safe distance from persons when initially dealing with them. Had better communication been used, I believe the use of physical force may have been unnecessary.

The reviewing officer recommended that the subject officers receive advice and guidance on tactical options and dealing with intoxicated persons, particularly those from a non-English speaking background. The Region Commander agreed with the reviewing officer’s comments, and the subject officers were given advice and guidance on communication and weaponless control techniques.

This case illustrates our concern that TRPs are not giving sufficient weight to the objective test of whether the use of a Taser is reasonably necessary, as required by ss. 230–231 of LEPRA. The comments of the PSM clearly indicate concerns that the use of the Taser could and should have been avoided by better use of communication skills. In our view, it is incongruent that the NSWPF nonetheless found the use of Taser was justified under the Taser SOPs.

Recommendation

23. That the NSWPF amend the TRP SOPs to require TRPs to:

•

assess both the subjective and objective elements in reaching a determination about

whether the use of a Taser is reasonably necessary

•

identify and explain any significant inconsistencies between officers’ accounts and

Taser Cam footage relating to a decision to use a Taser, and if one is preferred over the

other provide the reasons why.

This issue about the TRP process also raises the question of whether the Taser SOPs and associated training are explicit in terms of the requirements of LEPRA and the lawful requirement to use only as much force as ‘reasonably necessary’. It is essential that police officers have a clear understanding that the criteria for use in the Taser SOPs are subject to the LEPRA provisions. It is also important that Taser operators understand that if the question of use of force is examined by a TRP or by a court, that both a subjective and objective test will be applied in determining whether the use of force (Taser use) was reasonable – see Case studies 1 and 2 in Chapter 3 (pages 59 and 62).

Recommendation

24. That the NSWPF incorporate into the Taser SOPs a statement that the use of a Taser

must be a use of force which is reasonably necessary to make an arrest or perform

other functions under LEPRA. In addition, the Taser training should cover the two tests

(subjective and objective) to be considered by a TRP or court when reviewing Taser use.

8.6 Improving TRP reviews of multiple use incidents

The Taser SOPs emphasise that multiple use of Tasers ‘should be avoided where practicable and must be justified in all the circumstances’. In Chapter 7 we recommended amendments to the Taser SOPs to ensure that the NSWPF is able to hold police accountable for multiple uses of Tasers by requiring them to justify each use in their records. In this section, we discuss the need to improve the TRP SOPs to ensure that multiple use incidents are reviewed effectively by TRPs.

One of our primary concerns from our review of multiple use incidents is that the TRPs did not always identify multiple use as an issue in the internal review – or explain how they were satisfied that the multiple use was reasonable and in accordance with the Taser SOPs. In particular:

• it was not clear in the internal review documentation whether the TRPs applied any additional scrutiny to cases where a Taser was used multiple times

• the TRPs did not always record views on each use separately – if there had been multiple uses of the Taser

• in some cases, the COPS Event created by the officer who used the Taser was incorrect in recording the number of Taser cycles and this error was not identified by the TRP.

In 52 of the 63 cases involving multiple discharge of the Taser (in probe and/or drive-stun mode), the TRP recorded that the use of the Taser was justified and in accordance with the SOPs. Remedial action was taken after the review of nine cases – including the decertification and retraining of two officers and reminders to seven officers. There was no explicit record of a breach of the criteria for use for the nine incidents resulting in remedial action.

Our review of incidents in the sample period identified 17 multiple use incidents that in our view involved a breach of the criteria for use. In nine of these matters, the TRPs made no explicit mention of the multiple cycles of the Taser in their review records.