Saturday, 19 September 2015

What sort of police service do we want?

On September 8th 2015, a 25 year-old man was shot by the New Zealand police in circumstances that strongly suggest he was in the grip of a personal crisis. Had he wanted to kill people he could easily have done so but nothing in what eye-witnesses have said initially, suggests he intended to harm anyone. On the contrary, some witnesses reported that he seemed to be on the point of putting his gun down. 

We don't yet know the details of what happened but the end result was that Pera Smiler became the 3rd person to be fatally shot by the New Zealand police in the space of just 4 months, and the 7th to be shot in the past 5 years.

By the time the coroner's inquest, the police internal enquiry and the Independent Police Complaints Authority (IPCA) report are completed, the public will have moved on and chances are the only people who will remember much about the case will be his whanau and friends, and people who take an interest in the criminal justice system.

The lunatic fringe of the Right, as exemplified by their self-appointed mouthpiece, Cameron Slater, quickly took up its usual position of expressing uncritical support for the Police in advance of any formal investigation. Slater railed against what he sees as a ‘soft on crime’ bias in the media as exemplified by a couple of stories that presented the dead man as a human being. He called Smiler  an ‘idiot’ and a ‘scumbag’ and mocked the family’s grief with a spiteful truculence that is as typical of him as it is at odds with his professed Christian beliefs.

This vitriolic and populist posturing has a clear ideological agenda and there are other, seemingly more reasonable, voices that also uncritically support the police in advance of any investigations.

Whilst police command is usually circumspect about what it says in the immediate aftermath of a major firearms incident, Greg O’Connor, the president of the Police Association, is always on the news immediately - even before the body of the dead person has been removed from the scene - claiming that it was a justified shooting and calling for all police to be armed, and for an increase in police numbers, powers and resources. 

O’Connor can't be faulted for defending his members and for seeking to protect and improve their pay and conditions but, when he pre-empts due process and seeks to influence public opinion about critically important political issues like arming all police officers and the use of lethal force, he is well out of line.  The fact he continues to do so strongly implies that those who manage and oversee the police are happy for him to try to influence the public in this way.

When a police officer dies or is injured as a result of a criminal act, the same calls are made, but much more stridently. The intention is to fuel the moral panic that spreads from claims that there is a steady increase in lawlessness in general and violent crime in particular, and that, as criminals these days are more likely to carry guns, unless all police officers routinely carry guns, both they and the public will be at a higher risk of death and injury.

In light of the uses to which this moral panic is put, it’s important to be as clear as possible just how much at risk the public and the police actually are, and what sort of people the police shoot in their defence of the public.

How violent is New Zealand?

Many people believe that the homicide rate is an indicator of the general levels of violence and that the murder rate is continually increasing in NZ. However, police statistics show that, whilst there was a significant increase between 1985 and 1992 (inflated by multiple murders) the murder rate has been steadily dropping. 

“Before the 1970s about 10 murders a year were reported to the police. Numbers of reported murders rose in the 1970s and 1980s, with an average of 65 a year between 1985 and 1992. Reported murders have been stable since 2000, averaging 54 a year.”  (1)

About 40% of all homicides are domestic. Violent crime in general tends to increase in times of high social stress and among sectors of the population most vulnerable to that stress. Who is most likely to commit a homicide, who gets charged and with what, whether a case gets to court and a verdict of guilty is found, what sentence is handed down, how the case is presented in the media - are all influenced by complex factors of ethnicity, socio-economic status, age, gender etc. 

Understanding and formulating the best response to these complex factors is not helped by simplistic and sensationalist explanations from media and the law and order brigade.

How well equipped are police officers?

Armed offenders in NZ mostly use sawn-off shotguns and rifles – the sort that can be purchased fairly easily from sporting equipment outlets and gun warehouses.  Of the 31 people shot by NZ police since 1941, 13 were carrying rifles of some sort, most commonly .22s; 4 were carrying shot guns, and 3 had air guns, two of which were pistols.  (2)

Ranged against armed offenders are the Armed Offenders’ Squad (AOS) and the Special Tactics Group, (STG) plus other officers who can access a range of ballistic weapons and Tasers from lock boxes in patrol cars.  As of July 2014, 5700 district staff have received or are to receive training in the M4 rifle, Glock Pistol and Taser as Level One responders and the remainder, as Level Two responders, are or will be trained in the use of the Glock pistol.  (3)

The AOS comprises officers who serve on a part-time basis and who are paid an additional allowance for those duties.  It was formed in the mid 1960s in response to the deaths of 4 police officers in two separate shootings.  Since the 1980s it has grown to around 320 officers in 17 squads.  They are issued with a Glock 17 semi-automatic pistol which carries 17 rounds of ammunition, Bushmaster carbine with multiple accessories, pump action shotgun, grenade launcher, CS gas, sniper rifle, ballistic and tactical vests, shields, holsters and have a host of vehicular, communication, surveillance and aviation services available to them.

When kitted out, the AOS and the full-time Special Tactics Group are indistinguishable from any other darkly clad, masked, heavily armoured and heavily armed para-military wing of any police force anywhere in the world. 

How much at risk are police officers?

Since 1890, a total of 29 sworn police officers have died on duty as a result of a criminal act - an average of 1 every 4.3 years.   22 died as a result of gunshot wounds. Of the remainder, 1 was struck by a stolen car, 5 were beaten to death, and 1 died from a head injury sustained when he fell while attempting to subdue a mentally ill woman.

Since 1851, 21 members of the Police Service (20 of whom were sworn officers) have died as a result of accidents whilst on duty. (4)

Combining all police deaths from 1890, the rate is 1 death every 2.6 years.

The highest concentration of police deaths as result of a criminal act was in the 30 years between 1940 and 1970 when a total of 12 officers died, 4 of them were shot by one man.  Over the past 25 years there was 1 death every 5 years on average. Three officers died in the 2000s and there have been no police deaths as a result of a criminal act since May 2009 and 1 accidental death of a police employee who died in the collapse of the CTV building.

In 2009, in the 5 areas of employment which accounted for 67% of the workplace fatalities notified to WorkSafe NZ, a total of 54 people died at work: 18 in construction, 10 in agriculture, 12 in arts and recreation, 10 in manufacturing, and 4 in forestry.

In 2010, the death toll for agricultural workers almost doubled while arts and recreation, construction and manufacturing dropped to 7, 6 and 1 respectively but the overall annual total was greater due to the 29 miners who died at Pike River.  

Taking another comparison, there are around 7000 people employed in forestry. Between 2008 and 2014, 32 forestry workers died at work, which is around 1 death for every 218 people employed.

There are around 11,000 people employed in the police service (of whom 8400 are sworn officers). Between 2008 and 2014, 3 sworn officers and 1 other employee of the NZ Police died at work, which is around 1 death for every 2750 people employed.

As measured by deaths on duty, whether caused by a criminal act and/or as a result of accident, policing is not nearly as dangerous an occupation as forestry, or farming, or fishing, or construction – or even arts and recreation.

It must also be acknowledged that workers in other sectors are not exempt from the risk of dying at work as a result of a criminal act both the sort that cost the lives of two WINZ workers in 2014, and the less obvious criminal acts of employers who expose their employees to unnecessary risks.

(I use the term ‘less obvious’ because deaths caused by an unsafe workplace, even when judged to be the fault of the owner or manager and even when multiple deaths occur, are granted a number of dispensations - both judicially and popularly.)

In making these comparisons I am not seeking to diminish the tragedy of police deaths on duty, or to undermine the efforts that are made to reduce them.  However, given the political use to which police deaths at work are often put, it’s necessary to scrutinise the claims that policing is a highly dangerous occupation because of increasing lawlessness and if all police officers carry guns, both they and the public will be better protected.

The fact there have been no police deaths due to a criminal act in the 6+ years since May 2009 may be claimed as evidence of the effectiveness of the deterrence factor of permanently armed police squads and other police officers having limited access to guns.

If this is true, then the current arrangements have been a success, so why are Mr O'Connor and the law and order brigade still calling for the general arming of police officers and increases in police powers and resources?  

Also, why don’t we hear calls for tighter controls on the sort of weapons that are most commonly used by criminals in NZ - i.e. the sorts of rifles, shotguns and replica air guns that can be purchased very easily in sporting goods stores and gun warehouses?

 Who is at most risk of being shot by the police?

On the other side of the ledger are the people who are killed by the police.  In addition to those who are shot, there are deaths in police custody and the greater number of deaths as a result of police pursuits, but I am concerned here only with those who die as a result of being shot.

Of the total of 31 (5) fatal police shootings since 1941, two-thirds have been in the past 25 years.  The 7 people shot by police officers in the first half of this decade exceeds the total for the whole of the preceding decade, and is one short of the worst decade on record – the 1990s.

If this rate continues, NZ is on track for the highest number of deaths by police bullet of any decade in our history.

In light of the arguments put forward for arming all police and increasing their powers and resources, we could expect the list of those who have been fatally shot to be made up mainly of highly dangerous and violent career criminals or terrorists. 

Analysis of the circumstances reveals a far more complex and worrying picture.
  • Twenty (possibly 22) were carrying guns (11 had a rifle, 4 had a shotgun, 3 had an air gun and 2 had an unknown type of gun.  Not all had threatened police or member of the public with the gun and/or discharged their weapon. 
  • Seven were armed with other weapons, only 1 of which (a crossbow) could have harmed anyone from a distance. The other weapons included knives, golf club, softball bat, hammer, axe and an exercise bar.
  • Two (possibly 3) were unarmed, one of whom was an innocent by-stander. (6)
  • Four had killed someone. Of these, 2 were mass murderers and 1 shot his wife (possibly by accident). Police strongly believed the 4th had shot a police officer and that is stated as proven fact although the case never went to trial.
  • Three others had injured someone - 1 stabbed his daughter, 1 stabbed his wife and a police officer, and 1 injured two people with a knife in a home invasion.
  • One was the first woman to be shot by the NZ police. She was a drug addict and had threatened members of the public and the police with an air rifle.
  • One was shot during an armed bank robbery; 1 after refusing to drop an air pistol when stopped after failing to pay for petrol and some small goods; 1 after a burglary/home invasion in which a gun and a vehicle were stolen and two people were injured; and 1 after a petty burglary of a golf club premises.
  • One was a severely disabled man in a wheelchair who was found at inquest to have committed suicide by giving the police no choice but to shoot him after he had shot and injured 2 people. 
  • Six had been diagnosed with a mental illness and several others were exhibiting highly agitated behaviour prior to being shot due to some sort of personal crisis and/or intoxication.
  • Two were shot after damaging property.
  • Four had held people hostage – none of whom were physically harmed.
  • Four of the incidents arose from a combination of domestic and mental health issues.
The ethnic / nationality profile, as far as I have been able to establish it, is: 
  • 13 Maori (of whom 6 have been shot in the past 5 years); 
  • 13 white; 
  • 2 Pacific Islanders (of whom one was an innocent by-stander);
  • 1 Iraqi migrant;
  • 1 Slovakian tourist.
The disproportionate rate of Maori deaths reflects the incarceration rate of Maori. Both should be a matter of urgent concern to the police, to the state and to the public and the fact that they are not is shameful.

Who should police the police?

The issues around the use of lethal force by the police are as complex as they are critically important to us all. When there is an obvious ethnic and socio-economic bias in who gets shot and when a significant number of these people are mentally ill, those issues become even more important.  

Members of the public are not permitted to kill another person unless defending themselves and even then they may face a homicide charge.  We no longer have a death penalty, so the state does not have the right to take life except when it sends its armed forces into action - and even then there are limits on what armed personnel may and may not do. 

The police, as a key part of the coercive apparatus of the state, also have the right to use lethal force and also within strictly defined boundaries. Police officers who use lethal force or cause death in other ways may face homicide charges if their actions were found to be unjustified.

Culpability is determined by the findings of the coroner into cause of death, the findings of the internal police enquiry, which is conducted by officers from another district, and the findings of the IPCA which is supposed to act as a balance to any bias and shortcomings in the police enquiry. 

In all 27 formally concluded cases where there was use of lethal force  - even when the person was a bystander or unarmed, or armed with a weapon that could be only used at close quarters, even when the person had not killed or threatened to kill, or was clearly disturbed – both the internal police and the IPCA enquiries have found the police officers involved were justified in using lethal force.

Even in a case in which the IPCA found the police involved had broken protocols in multiple ways, even where there was evidence that the officer concerned was not in control, and where testimonial and forensic evidence proved he had a misperception of the situation at the time he fired - the IPCA report concluded that the lethal force was justified and the fault lay with the 19 year-old who had pointed a gun at police.

And of course to some degree that is true but we expect some young people – especially young men - to do daft and sometimes dangerous things, just as we expect there will be people who threaten to do things that they are incapable of doing or have no intention of doing. 

We also have the right to expect armed police officers to exercise a far, far higher level of restraint and good judgment than an intoxicated and /or emotionally distressed or mentally ill person is capable of.

Those people who want to see all police officers in NZ routinely carrying guns, should read the IPCA report into the shooting of Adam Morehu who was pepper sprayed, tasered 3 times, shot twice in the back and then, because officers thought he was resisting arrest, was punched and hit on the head four times with torches as he lay dying. This was after a catalogue of police errors that would be comical if the outcome had not been so tragic.

Can we really say that those officers were capable of making rational and humane decisions?  How about an officer who fails to follow procedure in several critical ways and fires off a volley of 14 shots?  Or an officer who fires a number of shots at the torso of a man carrying a hammer or a golf club when he could retreat to his car and wait for back up, or use pepper spray, or shoot to warn or to disable?  

Witnesses to a shooting often vary greatly in their recollections of events because of the effects of adrenaline on their brains. Police officers who are in the grip of an adrenaline rush are also likely to have a partial and distorted recall of events and their responses to those events as they unfolded may also be have been affected. Adrenaline causes bio-chemical changes in the body that can speed up physical reaction times or have the opposite effect, and they can make it hard or even impossible for a person to make a rational analysis of how best to react in a fast moving and volatile situation.

I do not underestimate the dangers and difficulties facing police officers when they confront an armed person. There is the risk to their own lives plus the intense pressure of the knowledge that, if they do not shoot and the person kills someone, they will have to carry the guilt of that, plus face possible disciplinary action and public criticism.  If they do shoot to kill and there was no justification for it, they will have to live with the fact of having ended a life unnecessarily and possibly face criminal charges and/or civil action.

In an ideal world, police officers who have access to a gun and the right to use it would have full control over any personal prejudices that might affect their decision making; they would have a powerful sense of what it means to take a life; they would have the ability to make sound judgments under extreme pressure, which includes having the independence of mind to refuse to obey a bad order; they would only shoot when absolutely unavoidable, and they would always prefer to shoot to disable than to kill.

We have a right to know how well our police match up to this ideal – and my feeling at the moment is that some, perhaps too many of them, don’t. 

  1.  Encyclopedia of NZ.  
  2. At the time of writing this I do not know the sort of gun used by 2 offenders
  3. Library of Congress :
  4. Wikipedia entry. Of the 19 sworn police officers listed as having have died accidentally whilst on duty since 1851: 8 drowned, 2 of whom were trying to save someone; 4 died in aviation accidents; 3 were killed by trains; 2 died in car accidents; 1 fell and hit his head in the police station; 1 died in a snow storm. An officer died in an explosion when fighting a fire as a volunteer firefighter and an employee of the NZ police died in the CTV building collapse.  There are others who died on duty from causes such as heart failure when chasing a criminal and infection, which are not included.
  5. Waata Momo was shot by armed police and airforce personnel in Weedons in 1941. His death is often not included in data on police shootings- and only reference I can find to him is in somewhat sketchy contemporary newspaper reports.
  6. I have not been able to establish if Daniel Houpapa was armed when shot outside a police station in 1976.