Using Tasers in draw and cover mode and the question of a lower threshold

7.7.1 Our review of compliance with the criteria for use

During our investigation, we undertook detailed reviews of 416 draw and cover incidents to assess compliance with the criteria for use set out in section 4 of the Taser SOPs. We found 53 draw and cover incidents where the use of the Taser appeared to be in breach of these criteria.23

Our assessment was based on the understanding that the criteria in the Taser SOPs apply to use of the Taser in any of the three stages described in Chapter 3 – draw and cover, probes discharged or drive-stun.

In Case study 8, police stopped a man after a report of an intruder in the grounds of a school. The NSWPF considered the use of the Taser in draw and cover mode was appropriate. We disagreed.

Case study 8 – Draw and cover on a compliant person

Police responded to a call at about 3:30am indicating that an intruder was in the grounds of Sydney Grammar School. The man had been observed by the night keeper to be rummaging in bags of clothes destined for charity in the main quadrangle. The COPS record states that three police approached the man, who was putting clothing items into a bag, and directed him to get down onto the ground. The man did not immediately comply and only did so after being informed a Taser had been trained on him.

The Taser Cam footage showed the man walking toward police, while police say ‘get on the ground, or you’re going to get Tasered’. The man appeared non-threatening and both hands are visible. He looked a little stunned and confused. He immediately crouched on the ground with his hands out, and at least two officers continued to direct him to ‘lie down on the ground’. He did not offer any resistance to police and spoke calmly in response to the officer’s questions, asking why he was being arrested.

The COPS record indicates that once the man was on the ground he was informed that he was under arrest for trespassing and was cautioned. The man was later searched by police and found to be in possession of three mobile phones which they suspected to be stolen and a number of syringes they suspected were for injecting heroin. The man told police he believed the school was a church and went there to sleep as he had nowhere to go.

Police assessment of the Taser use

The TRP considered the Taser use was appropriate and complied with the Taser SOPs. They did not seek any further information about why the officers felt there was a need to draw the Taser.

Our assessment of the Taser use

Our independent expert considered this case to be a breach of the criteria for use as the man was cooperative and compliant.

We acknowledge that the Taser Cam does not capture the initial interaction between the officers and the man, but neither the Taser Cam footage nor the Sitrep or COPS record indicates that violent confrontation or resistance was occurring or imminent. They also do not suggest the three officers were in any danger of being overpowered or injured. The man’s hands were visible, he was not holding a weapon, and at all times he appeared calm and compliant.

In Case study 9, a Taser was drawn to cover a man in a police cell. We were again not satisfied that the use of the Taser was justified under the criteria for use.

Case study 9 – Draw and cover on prisoner in police cell

A man was arrested by police in relation to a domestic violence incident. At the end of a recorded interview, the man pushed past police to escape the cell complex and then struggled with police in a staff area of the police station while trying to escape from custody. The man carried an officer with him over the front counter of the station before police managed to subdue him and put him in a cell.

A few hours later police were monitoring the man in the cell via CCTV and noticed he appeared to be lying on the floor hiding himself under two mattresses and was not clearly visible on CCTV. The COPS record states that officers deemed it unsafe for the man to be concealed and that – due to the physical strength and violent behaviour displayed previously – a Taser was required to enter the cell to prevent the possibility of another escape and further injury to police. The Taser Cam footage showed the man to be calm and he complied immediately with the request to give up one of the mattresses. The man explained he was under the mattresses to shade himself from the light so he could sleep.

Our assessment of the Taser use

We acknowledge that the man had made an earlier attempt to escape from custody and engaged in a violent struggle with police. Although this is relevant information for police to consider when dealing with a person in custody, in our view it should not dictate the level of force employed by officers some time later – in this case several hours later. This information should be balanced against the behaviour and circumstances of the person at the time police asked for the mattress.

By this stage, the man appeared calm and was in the police cell in a secure area of the station. There was no violent confrontation occurring at the time the Taser was used, nor were there reasonable grounds to suspect that violent confrontation or resistance was imminent. At most, it was possible that the man could respond violently to police requests to give up the mattress – but, given the objective evidence, we are concerned the officer might not have reasonable grounds to consider it ‘likely’ that probes would need to be discharged. We were also not satisfied that there were exigent circumstances. Although it was prudent forofficers to be careful, the circumstances did not necessitate being armed. Our independent expert did not consider this case met the criteria for use, and noted the man was compliant and cooperative.

7.7.2 NSWPF response to our concerns about compliance

We presented our concerns about the 53 draw and cover incidents that in our view involved breaches to the criteria for use to the NSWPF in October 2011. They advised us that Taser SOPs version 1.17 provide a lower threshold for use of Tasers in draw and cover mode under section 5.3 (a section on ‘methods of use’) which states:

Do not draw your TASER, point, or aim it unless you consider you are likely to be justified in using it … (emphasis added)

The NSWPF advised us that:

On this basis, officers may draw the Taser if they perceive they are likely to utilise the device in either probes discharged or drive-stun mode. This allows officers to manage an operational risk on the basis of ‘likelihood’.

Officers must not use the Taser in either probe or drive-stun modes unless one or more of the criteria for use are met.24

The TEC advised that the amended threshold for drawing a Taser is consistent with tactical options training for other weapons. Officers are trained to draw weapons in order to be ready and prepared to respond quickly and effectively to imminent threats and confrontation.

It should be noted that section 5.3 was not included in the Taser SOPs during the sample period and did not apply during the time of the incidents that we reviewed. The NSWPF reviewed a number of cases that we identified as involving a breach of the criteria for use and found the use to be reasonable and consistent with the new threshold for use.

Under the new threshold, officers may now use the Taser in draw and cover mode as a pre-emptive measure – even if there is no occurring or imminent violence – if there is a likelihood or probability that:

• officers may later need to protect human life (criterion 4.1)

• violent confrontation or resistance may later occur or become imminent (criterion 4.2)

• officers may later need to protect themselves from being overpowered or protect themselves or others from injury (criterion 4.3)

• officers may later need protection from animals (criterion 4.4). The NSWPF distinguish between the word ‘imminent’ and ‘likely’ as follows:

‘Imminent’ is taken to mean ‘likely to occur at any moment’ and differs principally from the term ‘likely’ in that it is time bound, i.e. ‘occur at any moment’. At the imminent stage the officer may discharge the Taser.

‘Likely’ could also mean ‘probably’, but is not time bound. On this basis the officer can draw the Taser to prepare for the threat and possibly prevent it from occurring. It should be noted that approximately 70% of Taser usage relates to draw cover only indicating the value of the devise

[sic] in defusing potentially violent situations.25

The TEC provided comments about a number of the 53 incidents that we had identified as involving a breach of the criteria for use – including Case studies 7 and 8 – and advised that the use was consistent with section 5.3. This was however retrospectively, because section 5.3 or the ‘likely’ threshold did not exist for those incidents in the sample period.

In our view, even if section 5.3 existed at the time, the officer in Case study 7 did not have grounds to believe that it was ‘likely’ that he might be justified in discharging the Taser as the man at no time acted in a manner that was threatening or posed any danger to police.

The TEC advised that the use of a Taser in Case study 9 was justified under section 5.3 of the Taser SOPs and ‘exigent circumstances existed that required prompt and unusual action to prevent physical injury to self and others’.26

It is not reasonable for police to greet every unknown situation with a Taser armed. Police weapons training should prepare police to respond quickly if an unknown situation does become violent – but using Tasers in the absence of any information or behaviour that suggests violence is likely or occurring is, and should be seen to be, unreasonable. The NSWPF response to our findings raised an important question about whether the threshold for using a Taser in draw and cover mode as set out in the Taser SOPs is appropriate.

7.7.3 The case against a lower threshold for draw and cover mode

An increased risk that Tasers are used for compliance only

Mission creep has been defined as the tendency for police to, over time, use Tasers in situations for which they were not intended. The following elements are associated with mission creep:

• the use of Tasers to gain compliance of uncooperative or passively noncompliant subjects in circumstances where the discharge of the Taser is not justified

• the use of Tasers earlier in interactions with people, with the Taser becoming the weapon of first choice for resolving situations

• a reduction in the use of communication and negotiation skills to de-escalate and control situations

• an increased use of Tasers as a compliance only tool in draw and cover mode.

In our 2008 report, we recommended that the Taser SOPs prescribe against using a Taser except where it could be justified under the criteria for use, and advise police that unauthorised use may be the subject of management action. We also recommended that they specify that a Taser may not be used on individuals who are compliant and non-threatening.

Initially, the NSWPF did not include these prohibitions in the Taser SOPs. However after further concerns expressed in the Ombudsman’s Annual Report of 2009–10,27 _{the Minister for Police agreed to include prohibitions.}28 _{These are now}

in section 6.10 under the heading ‘Methods of Use – Other Considerations’ of the current Taser SOPs (version 1.18):

6.10.1 TASER must not be used on compliant subjects exhibiting non-threatening behaviour. 6.10.2 TASER must not be used on passive noncompliant subjects.29

Our review of the 556 Taser incidents included an assessment of whether police were using Tasers for compliance only. The incidents we reviewed occurred at a time when the prohibitions on use against compliant or passively noncompliant subjects were not in the Taser SOPs – they were included and first took effect in version 1.17 released on 4 December 2010. However, the NSWPF have advised that Taser training at that time included information advising police against use for compliance only.30

Of the cases in the sample period we found 41 incidents where, in our assessment, the Taser was used in draw and cover mode for compliance only. These cases included instances where the initial decision to draw the Taser was appropriate but the officer subsequently used the Taser to gain compliance with directions when, in our view, it should have been disarmed.

We are concerned that the decision by the NSWPF to adopt a lower threshold for using a Taser in draw and cover mode may increase the risk that police will use them for compliance only and lead to a greater risk of mission creep.

Using a Taser to gain compliance with directions

Officers are trained to issue clear instructions to a person in the process of apprehending them – for example, ‘put your hands behind your back’ – so that they can make an arrest in a manner that ensures officer safety. However, our review found evidence of police using a Taser to gain compliance with directions in circumstances where the discharge of a Taser would not be justified. Case study 6 is an example of this (see page 118).

One of the available guidelines for NSW police officers is a document prepared by the Central Metropolitan Region called Taser Tips & Tricks, which was adapted for the NSWPF Taser website in May 2011. This document contains a repeated instruction:

TASER IS NOT A COMPLIANCE TOOL.31

It also states:

OPERATORS AND POLICE GENERALLY—REMEMBER YOUR COMMUNICATION SKILLS (not just “Do as I say or you’ll be tasered” – which suggests you are using it as a compliance tool).32

Both the Taser accreditation and reaccreditation training course also emphasise that the Taser must not be used to threaten, punish or for retaliation purposes.33

We were concerned that, in a number of the incidents we reviewed, police appeared to give instructions accompanied by a threat of using the Taser for noncompliance. The following are some examples of what officers said:

• Lie down on the ground. If you fail to comply I’m going to Taser you. • Get on your stomach or you’ll get another dose.

• We’ve got a Taser on you ok? So you need to comply.

• You make any sudden moves, I’ll take it as a threat and I will Taser you, do you understand? • If you move, I will Taser you, if you move I will Taser you, I will Taser you.

• Behave yourself and you won’t get another zap, do you understand me?

• Be reminded that I’ve got a Taser on you ok so any bad moves and you’re going to wear it.

• If you don’t get on the ground I’ll Taser you … I’ve given you a reasonable direction to drop to your knees.

We acknowledge that the NSWPF wants officers to avoid using Tasers as threats to gain compliance, but we are concerned that this type of communication is not always identified or considered during the review process and made the subject of any feedback to officers. This may be because the distinction between appropriate instructions and using the threat of Taser to gain compliance is not entirely clear – either to officers or to those reviewing Taser use. Taser use will almost always be accompanied by instructions from the officer about the subject person’s behaviour. For example if the person is carrying a weapon, the Taser user may instruct them to drop the weapon. To an extent, this is an instruction that seeks compliance and is reasonable in such circumstances. However the Taser SOPs and the Taser Tips & Tricks document do not assist in making the distinction between appropriate instructions and making inappropriate threats to gain compliance. We have been unable to identify any incidents where TRPs gave clear feedback about this issue.

When we raised our concerns with the NSWPF about the use of Tasers as a compliance-only tool, they responded:

The NSWPF concurs with the Ombudsman’s view that when Tasers are produced, warnings to

[the person the Taser is aimed at] will seek to secure a behavioural result, so to that extent Taser use is intended to promote compliance. The problem arises when Tasers are produced without the criteria for use being met ([section] 4 of the SOPs) and/or the action required of the [the subject person] is unreasonable in the circumstances and/or the warning issued by officers is inappropriately couched.

While it is generally desirable for officers to issue some form of warning (the alternative of firing the Taser without warning would be to risk prematurely using undue force), it is essential that the warning is suitable. This is an area that will be considered in the upcoming review of the SOPs.34

They also made the following comments about what is expected of officers when giving instructions to a person while using a Taser, and how appropriate instructions can be distinguished from threats to gain compliance:

In the TEC’s view, when Taser use is justified according to the Taser SOPs criteria for use, the expectation is that officers give clear directions to POIs [the person the Taser is aimed at] to assist them take and maintain control of a situation. This is also the emphasis of Taser training. Ideally, the instructions should be measured, reasonable and indicate the consequences to the

[the subject person] should they not be followed. In practice, issuing instructions with Tasers drawn could always be interpreted as a threat.

In judging whether officers’ instructions are appropriate, allowance must always be made for the dangerous, emotion charged environments in which Tasers are usually deployed.35

Using Tasers to move people on

We identified incidents during the sample period of officers using Tasers while giving directions to people to move away or leave an area. We acknowledge that violent confrontation often occurs in response to police directions to move-on, particularly when the person being moved on is intoxicated. However, we identified five cases where officers continued aiming a Taser at people as they moved away – when there was no threat of imminent violent