Most would agree that Police perform a difficult and often unenviable job requiring rapid responses to volatile and dangerous situations which call for split-second decisions to be made in the ‘agony of the moment’.
However, in a civil society governed by the rule of law, the extraordinary powers with which Police officers are imbued must be adhered to strictly in accordance with law. No amount of political or social pressure can operate to displace the letter of the law delimiting Police power.
Recent media reports of excessive force and what has been described in extreme cases as Police brutality bring into sharp focus two critical questions: (1) what are the confines of the power for Police to use force; and (2) what happens when those split-second decisions miscarry or when those entrusted to exercise good judgment and discretion abuse their power and exceed their authority.
Many police powers, including commonly used arrest powers, search powers and mental health detention powers, are accompanied by an allied authority to use force in aid of the exercise of that power. Further, like any other person, Police offices are permitted to defend themselves from harm or threatened harm with force that is reasonably necessary.
Almost every power to use force conferred upon police authorises only as much force as is objectively reasonable and necessary in the circumstances. No police manual or training guide can override this fundamental principle.
Whenever force is used by police, it is important to consider whether that force was reasonably necessary in the circumstances. If it was not, the use of force can constitute an assault or battery. In civil law, an assault or battery by police can entitle a person to compensatory damages. At criminal law, the use of excessive force by police can result in a dismissal of charges such as assault police or resist police.
It is important to recognise that ‘force’ does not require physical force or violence. A threat of violence also constitutes ‘force’ and requires legal authorisation. Examples of force include:
- Handcuffs
- Pepper or OC spray
- Taser or the threat of taser
- Firearms or the threat of firearms
- ‘Hands-on’ force such as check drills or leg sweeps
Determining whether the amount of force used in a particular set of circumstances was reasonably necessary can be a complicated question the answer to which depends on a careful analysis of the surrounding facts. A person does not need to be ‘bashed’ or ‘beaten’ to bring an action against police for excessive force. The question is always: was the force used by police, whatever that force was, reasonably necessary in the circumstances?
Hugo Law Group’s civil and criminal law experts regularly advise on these matters and can take steps on your behalf to investigate police use of force and enforce your rights. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
