Thursday, August 17, 2006



More casual use of pepper spray

One of the worries around the police and tasers is the casual attitude they have already displayed to the use of pepper spray. Rather than being used only to subdue aggressive and violent suspects where the safety of police officers is in danger, it is also being used to punish those who are simply uncooperative or who verbally object to arrest. A Court of Appeal case from a few weeks ago provides further evidence of this. In The Queen v Ropiha [2006] NZCA 199, a man appealed his conviction for drug posession on the basis of an unreasonable search. He was arrested after a vehicle stop, and taken to the police station, where police attempted to perform a strip search. While he removed most of his clothes, he refused to strip down completely, instead sitting in a corner "in a stance which indicated... that he was not going to co-operate and he was not going to listen... any further". So they pepper sprayed him. In the ensuing struggle, he was found to be concealing drugs and a pipe between his buttocks.

The Court found that the search was lawful, and that the police were justified in using force given his refusal. However, they expressed significant concerns about the use of pepper spray:

Our only reservation is in relation to the use of pepper spray in a pre-emptive way rather than using it to subdue a suspect or arrested person after he has displayed physical aggression or at least threatened it. The difficulty for us is the absence of any evidence as to police practice or procedures in relation to the use of pepper spray and the circumstances in which it may be justified. If it had been intended to pursue this issue, it ought to have been properly raised in a s 344A application prior to trial so that the police had the opportunity to deal with the issue and to adduce evidence in relation to it. We can only deal with the evidence before us on this point. Given the warnings which were given, the appellant was well aware of the likely consequences of his continued refusal to co-operate and we are not persuaded on the materials before us that the use of the pepper spray was unreasonable in the circumstances. We are not however to be taken to be expressing the view that the use of pepper spray in circumstances such as this is generally acceptable.

There are two issues here. Firstly, this is more evidence that the police see pepper spray as a weapon of first, rather than last, resort - and lends weight to the Greens' call for an inquiry into how it is being used. Secondly, if the police are allowed to use tasers, then you have to wonder how long it will be before we start hearing similar stories of their tasering uncooperative prisoners in their custody, instead of "merely" pepper spraying them...

9 comments:

The use of spray, or electrocution, or threat of or actual use of violence to obtain information is...

Torture.

Posted by MERC : 8/17/2006 03:38:00 PM

sorry merc - torture has to involve severe pain or suffering.

Posted by Graeme Edgeler : 8/17/2006 04:09:00 PM

You up for the Tazer test then?

Posted by MERC : 8/17/2006 04:21:00 PM

And the other option is to wrestle with an unco-operative suspect that had illegal drugs on him in a confined space.

This may have ended up with more negative consequences than being pepper sprayed.

The police probably made a judgement call as the best course of action to take - if the offender believes it's the wrong choice then he can go through the legal process for compensation.

Posted by Anonymous : 8/17/2006 04:41:00 PM

Anon: actually, they can't; because of the Prisoners' and Victims' Claims Act 2005, prisoners are highly unlikely to receive compensation for wrongs done by the crown, to the extent that it is not worth bothering with. The net effect is to remove another check on the abuse of power by police and corrections officers, and give them a free hand to abuse those in their custody.

Posted by Idiot/Savant : 8/17/2006 04:50:00 PM

I/S - the Prisoners and Victims Claims Act does not apply to actions against the police for abuses of this sort.

Hence the Act was not used against Barry Brown, the former paedophile who received $25,000 earlier this for breach of his privacy rights when police published his name and residence in a pamphlet to his neighbours.

Posted by Graeme Edgeler : 8/17/2006 08:42:00 PM

Graeme: You're right; in order to be a specified claim and be covered by the Act, a breach of rights must affect them as a person under control or supervision - which does not include people in the custody of the police (I presume Barry Brown was no longer on parole or under supervision?)

So, how long till the "hang 'em high" brigade notice this little "loophole" and try to plug it...?

Posted by Idiot/Savant : 8/17/2006 10:55:00 PM

Barry Brown had just been released on parole (which was why the super-diligent cop thought he ought to break police protocol).

There's a lengthy series on the case, and the application of the Prisoners' and Victims' Claims Act to it here if you're after more information:

http://www.sirhumphreys.com/node/5806
http://www.sirhumphreys.com/node/5810
http://www.sirhumphreys.com/node/6117

This 'loophole' was known at the time the act passed. Absolutely no-one wanted the act to cover police abuse. The Act, despite all the bluster from both/all sides actually does surprisingly little.

Posted by Graeme Edgeler : 8/17/2006 11:32:00 PM

Wouldn't a "hang 'em high" brigade need a loophole?

Posted by Lerc : 8/17/2006 11:33:00 PM