The Police Officer or the Police?

datePosted on 06:00, January 26th, 2009 by Anita

Idiot/Savant puts forward the case that the Police Officer who shot and killed Halatau Naitoko should be charged:

Look at the precedents: hunters kill their mates in tragic accidents fairly frequently. They are usually made to stand trial for careless use of a firearm, or in cases where there is clear negligence, manslaughter. Some are discharged, some are convicted, some end up on home detention, some (in very serious cases) end up in jail. We do this, despite the tragic circumstances, because we as a society have decided that people who play with guns need to exercise the utmost care and responsibility when doing so.

To take a different set of analogies, however, sometimes when someone kills with a vehicle they are charged, sometimes it is the employer that is charged when it is clear that it was the practices of the employer that was at fault. Perhaps this is a case where the Police should be charged with having work practices that led to a death.

When there is a bad outcome of a Police action it is sometimes the fault of the Police, sometimes of the individual officer, sometimes both, but by focussing on the individual Officer we allow the Police off the hook. It seems to me that there are times when the Police plays on that focus on the individual to move the spotlight away from their poor culture or organisational practices.

Having just skimmed the Health and Safety and Employment Act and the Crown Organisations (Criminal Liability) Act it appears that the Police could be prosecuted (although I may have become very confused by the nature of “person”s). If so, then if the death was caused by a Police practice there is an opportunity to hold the Police to account without needing to prosecute the individual Officer for their employer’s mistake.

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35 Responses to “The Police Officer or the Police?”

  1. reid on January 26th, 2009 at 07:23

    The way the Herald describes it today, the fatal shot occurred because the young man was in the line of fire. The shot missed the real target and travelled past it, hitting and killing him.

    This raises the question of what are the AOS rules of engagement in this situation – an armed offender allegedly proven to be willing to use his weapon, with lots of people around the immediate area?

    I’m not sure there is an easy answer here, but if it happened the way the Herald describes, then whether or not the AOS member was careless depends on why the shot missed the target, which was moving moments before, as the Herald describes it.

    While the Police often charge members of the public like hunters, such people aren’t required as part of their job to exercise instant life-or-death decisions in the heat of the moment, the way the AOS is. Hunters etc have the luxury of time, before taking the decision to shoot.

    If the AOS had decided not to shoot because of the danger of hitting someone in the line of fire and the driver of the truck which the offender was trying to hijack and whom the offender was aiming at, at the time the shots were fired, had been shot and killed by the offender, would the AOS then be held responsible for failing to prevent that homicide?

  2. Edward Sargisson on January 26th, 2009 at 07:27

    However, this is a case to be very, very careful about what pain you cause the Police organisation or individual.

    You want officers to shoot at the right time and shoot accurately enough. If, in the future, a similar situation arises you want that officer to shoot at the right time and not be held back by worrying about going through criminal proceedings. Similarly, you want that officer to hold back from shooting when the risk outweights the benefit.

    From what I see in the media the fugitive was pointing his gun at people. The question is, was the risk to innocent bystanders too high? Merely because a bystander was unfortunately hit and killed does not, by itself, mean the risk was too high.

    If the police hadn’t started shooting at that time what is the most likely thing that might have happened? Would the police be chasing this guy all of NZ while he ran out of fuel and then stole car after car?

    At what point is this a tragic accident and at what point is this dangerous negligence?

    *That* question is very hard to judge.

    I would expect the Police Complaints Authority (or whatever their name is now) to investigate and then, only if there appears to be an issue, to progress to criminal charges.

  3. Carrier on January 26th, 2009 at 07:50

    It’s far too soon for this kind of speculation or comment. Let the various investigations determine the facts first, before analysis commences.

  4. Psycho Milt on January 26th, 2009 at 08:03

    I/S’ hunter analogy is crap. The cops aren’t some private paramilitary organisation out playing with guns – because “we as a society” have required of them by law that they go out and confront armed offenders and stop them. I/S’ prescription seems to be that we require them to protect us, but if they fuck up we’ll treat them as “people who play with guns.” Beneath contempt.

  5. Anita on January 26th, 2009 at 08:25

    Edward Sargisson writes,

    I would expect the Police Complaints Authority (or whatever their name is now) to investigate and then, only if there appears to be an issue, to progress to criminal charges.

    1) The IPCA only has the power to investigate the conduct of individuals. It cannot investigate whether there is a problem with Police practice.

    2) If the potential issue is under the Health and Safety and Employment Act then I’m pretty sure the investigating authority is the Department of Labor

  6. Anita on January 26th, 2009 at 08:37

    reid writes,

    If the AOS had decided not to shoot because of the danger of hitting someone in the line of fire and the driver of the truck which the offender was trying to hijack and whom the offender was aiming at, at the time the shots were fired, had been shot and killed by the offender, would the AOS then be held responsible for failing to prevent that homicide?

    In this thread there was a brief discussion about the culpability for non-action, I think we reached a consensus for which I shall quote Rich:

    I simply believe (and this is really a personal view) that failure to prevent anothers misdeed is less culpable than performing a misdeed oneself.

    its never black and white though – there is a difference between the decision to turn out the AOS and the decision to fire, and each step along the way.

  7. Anita on January 26th, 2009 at 08:41

    Psycho Milt writes,

    I/S’ hunter analogy is crap. The cops aren’t some private paramilitary organisation out playing with guns – because “we as a society” have required of them by law that they go out and confront armed offenders and stop them. I/S’ prescription seems to be that we require them to protect us, but if they fuck up we’ll treat them as “people who play with guns.” Beneath contempt.

    This is pretty much at the threshold of unacceptable tone. I know this is an emotive issue but we should be able to discuss it without swearing and insults. Please keep it civil everyone – today is not a great day for me to have to do much moderation.

  8. Psycho Milt on January 26th, 2009 at 09:00

    I know this is an emotive issue but we should be able to discuss it without swearing and insults.

    Well, is there some sense in which his analogy isn’t crap? There’s a logical hole in it you could drive a bus through.

    Read the comments policy. You’re not going to continue to trade in obscenities here. Clean up your act or you will have your posting privileges revoked (Roger Nome).

  9. Rich on January 26th, 2009 at 09:05

    I don’t think you can really discuss whether to charge the individuals on the ground or indeed their commander until all the facts are known.

    On the face of it, the fact that they fired five shots and didn’t hit the suspect would suggest that they didn’t have an acceptable shot and fired anyway. Maybe they are trained to do this. The cop who shot the bystander also didn’t ensure his field of fire was clear – that may again be the result of incorrect training and procedures.

    I’m not sure if the NZ police have a published firearms manual like this one.

    I think there should definitely be a review of procedures, probably involving an outside expert. That would have to wait (at leats for publication) until after any prosecution, though.

  10. higherstandard on January 26th, 2009 at 09:18

    “When there is a bad outcome of a Police action it is sometimes the fault of the Police, sometimes of the individual officer, sometimes both, but by focussing on the individual Officer.”

    You seem to have forgotten the reason, in this case, that the police were there is the first place. If it was not for the offender none of this would have happened.

  11. Rich on January 26th, 2009 at 10:55

    The miscreant was acting only for himself.

    The police are agents of the state and as such, in a nominally democratic society, we all share reponsibility for their actions.

  12. adamsmith1922 on January 26th, 2009 at 11:07

    Until such time as more facts are known I think we should avoid seeking to pre-judge the issue and especially trying and condemning the policeman concerned.

    It is quite conceivable that the tragedy came about through some systemic failings in police procedure rather than the action of a single officer.

    Part of my concern is whether there is actually anyone of the 4 inquiries now underway that is focussed on the real issues and/or appropriately resourced.

    I would prefer to see at least some involvement of officers from another jurisdiction.

    I find blanket condemnations such as that of Idiot/Savant quite unhelpful.

  13. Anita on January 26th, 2009 at 11:48

    Psycho Milt writes,

    Well, is there some sense in which his analogy isn’t crap? There’s a logical hole in it you could drive a bus through.

    Yes there is, his point is that we have a well tried and tested way of dealing with accidental gun deaths, and there is no reason this accidental gun death should be treated any differently. My only difference of opinion is that we have a well tried and tested way of dealing with workplace equipment deaths as well, and that recognises that the employer is sometimes culpable.

    The point I would like to make out of all of this is that while we shouldn’t judge anyone before the facts are in, and while we must presume innocence, we must also make sure that justice is done.

    The Police have a track record of covering up and failing to properly investigate incidents of their own. Unless we believe they have turned a leaf and that there is no need for public oversight (I don’t believe either) then we need to make sure that all the appropriate authorities are making all the appropriate investigations.

    Is this accidental gun death being investigated in the same way as any other? Is this workplace accident being investigated in the same way as any other?

  14. Anita on January 26th, 2009 at 11:51

    Psycho Milt writes,

    The cops aren’t some private paramilitary organisation out playing with guns – because “we as a society” have required of them by law that they go out and confront armed offenders and stop them.

    We as a society require farmers to produce food, yet they are still throughly investigated and, if necessary, prosecuted if their farming practices kill or harm.

    We as a society require people to provide/remove water/electricity/sewage/rubbish, yet they are still throughly investigated and, if necessary, prosecuted if their work practices kill or harm.

    The Police are not unique in being needed and having work practices that can harm or kill.

    They are unique in that they investigate themselves, and have a history of having done so appallingly in some cases.

  15. Psycho Milt on January 26th, 2009 at 12:24

    We as a society require people to provide/remove water/electricity/sewage/rubbish, yet they are still throughly investigated and, if necessary, prosecuted if their work practices kill or harm.

    Just as these AOS officers are being investigated, and if necessary, will be prosecuted. That doesn’t alter the fact that their situation is not analogous to that of careless hunters. Unlike hunters, we place a legal obligation on these individuals to put themselves in harm’s way in our service and we provide a legal authorisation for them to use deadly force if circumstances require it. As a society, we just don’t get to arm these people for our protection, require them to go out and face threats on our behalf, authorise them to kill in our name, and then suddenly pretend they’re just “people playing with guns” when something goes wrong. Investigating them is something that should happen and is – but declaring they should be charged because some careless hunters have been is simply a crap analogy.

    Re how good a job the cops do at investigating themselves, how about if we await the results?

  16. Carrier on January 26th, 2009 at 14:32

    Well articulated in your last comment, Psycho Milt. I would have thought that it was self-evident that the operational environment of AOS officers is not analogous to the workplaces of farmers, other normal workplaces, or the environment of those engaged in recreational shooting. But the point’s worth considering at the appropriate time.

    I remain very disappointed that this subject is being aired so widely, and in some quarters emotively, before facts are established through various enquiries that are required. Inherent dangers attached to premature analysis can only be exacerbated by any prejudicial comments made on former, unrelated investigations involving the NZ Police.

  17. Anita on January 26th, 2009 at 15:02

    Carrier writes,

    Inherent dangers attached to premature analysis can only be exacerbated by any prejudicial comments made on former, unrelated investigations involving the NZ Police.

    1) The Police has a history of poorly investigating actions of its own, shouldn’t that be open for discussion so that we can ensure it doesn’t happen this time?

    2) The IPCA is unable to investigate the Police procedures that were used in this case, shouldn’t that be open for discussion so that we ensure that someone is investigating this.

    3) In the past it has taken a lot of public discussion and effort for there to be full and appropriate investigations into incidents involving the Police (think Louise Nicholas and Steven Wallace). Isn’t it reasonable to remember that and act on it now?

    4) The Police, as with any agency that investigates its own, must be particularly open to public scrutiny and debate; that is one of the checks and balances. Isn’t it reasonable that in this case we discuss what investigations and actions are and could be taken?

  18. Anita on January 26th, 2009 at 15:04

    Psycho Milt writes,

    Re how good a job the cops do at investigating themselves, how about if we await the results?

    They have a track record of doing it poorly. Are you suggesting we sit back and ask no questions? If no-one had questioned in the past the previous cases would not have been uncovered and nothing would have been done to address either those individual cases or the root cause of the Police’s poor internal investigations.

  19. Lew on January 26th, 2009 at 15:50

    This case brings to light the same issue Lynn Prentice raised in relation to the SIG paying Rob Gilchrist to spy on activists: there’s no independent (ie, not internal or ministerial) body with the statutory authority to review police operational decisions, doctrine or judgement. Case in point: what if the AOS tactical manual grants officers the individual authority to fire into a field containing non-targets? I’d be surprised, but what if it did? How would one go about having such doctrine vetted and changed?

    Such things are currently on my mind at present, since I’m researching the Urewera Terror raids. There seems to be precious little oversight of police decision-making, and on current form the police force’s own internal check-and-balance systems don’t appear to be preventing apparently misguided or unfounded ideas from being taken through to operational fruition.

    I must say that while I’m generally supportive of the NZ police, two things concern me in relation to the three cases I’ve mentioned:
    1. Operational command’s first instinct is to clam up and refuse to admit any liability, misjudgement or even potential wrongdoing, and generally the establishment seems to drag its heels in response to even the fairly weak investigative tools the public has, treating any criticism as an attack on its existence, rather than an opportunity for improvement.
    2. The Police Association, ably voiced by the rather frightening Greg O’Connor, reflexively seems to take a highly aggressive and borderline authoritarian line founded on the assumption that we should be damned grateful for the boys in blue no matter what they do.

    While I’m no great hater of the police, these two aspects of their institutional culture worry me greatly.

    L

  20. Anita on January 26th, 2009 at 17:11

    Lew,

    I’ll add a

    3. The Police do not either understand impact of power dynamics or know how to deal appropriately with it. This is evident in
    a) Police interactions with – amongst others – women, the mentally ill, and immigrant communities.
    b) Their struggle to deal with crimes in which power differential is significant (eg domestic violence).
    c) Their belief that the public will feel reassured by them secretly investigating themselves and then deciding which limited pieces to show us.

    Finally, Anna started a great thread about some of this and which discusses the Greg O’Connor phenomenon.

  21. Carrier on January 26th, 2009 at 17:18

    Let the investigations establish first what they deem to be the facts. Then the investigative processes themselves and their outcomes in the Naitoko case can be interrogated appropriately.

    You seem to want to portray my views as shielding Police actions from proper scrutiny, Anita. That is not a fair representation. I am simply perturbed by the heated atmosphere being created by comments implying Police prejudice in this matter. I prefer to consider the Police / AOS officers not guilty of any impropriety until there is evidence to the contrary.

  22. Anita on January 26th, 2009 at 17:35

    Carrier writes,

    I am simply perturbed by the heated atmosphere being created by comments implying Police prejudice in this matter.

    Overt prejudice, failed processes, bad organisational culture or incompetence? I don’t know which. But the Police have a history of failing to adequately investigate their own.

    I prefer to consider the Police / AOS officers not guilty of any impropriety until there is evidence to the contrary.

    The Police Officer who fired the shot – innocent until proven guilty

    The Police as a whole’s actions in this incident (via their procedures) – innocent until proven guilt.

    The Police as an investigator into their own actions – guilty beyond all reasonable doubt a number of times in the past.

    The IPCA’s investigation into this incident – flawed before it starts because they are only able to investigate the individual’s actions.

  23. Lew on January 26th, 2009 at 18:18

    Wow. Greg O’Connor on the radio saying `it’s war out there’.

    No, Greg, it’s not.

    And I have to say, he’s arguing the counterfactual – `who knows what the offender might have gone on to do if police hadn’t taken the action they took’ – and that’s pretty rich when someone’s already dead. As far as he’s concerned, a civilian getting shot is an acceptable cost for stopping an armed offender, and that’s a big call given that he speaks as the elected representative of NZ’s police force.

    L

  24. BLiP on January 26th, 2009 at 18:20

    Until all the facts are laid out in the clear light of day, we can only speak in general terms. Yet, because the police are investigating the police, its seems unlikely to me we will ever really know all the facts. Consider the incident in Waitara where Senior Constable Keith Abbott shot dead a person breaking windows. The investigation of that case is still going on eight years later.

    http://www.ipca.govt.nz/Site/news/Media-Release-05-07-08.aspx

    But, yeah, as a general rule, the police must be held accountable and, further, the level of accountability of the police should be set at a higher standard than for the rest of us. But (if I may have my cake and eat it too) I don’t want the consequences of a police error to be so stringent that, in the heat of the moment, an officer hesitates to “take the shot”.

    So far as this latest incident is concerned, what I most object to is the blame-the-victim mentality encapsulated in the “wrong place at the wrong time” phrase. Its actually the gunmen who were in the wrong place at the wrong time, not Halatau Naitoko.

  25. Rich on January 26th, 2009 at 18:23

    I read I/S’s original article and would point out the following:
    - somebody is normally charged when, after investigation, there is evidence that suggests they have committed a crime (plus other things, but that’s the basic rule).
    - if they dispute that evidence, the trial jury is tasked to decide between the different accounts of defence and prosecution
    - if there isn’t adequate evidence a crime has been committed, nobody gets prosecuted

    In this case, it mostly boils down to justification. (A hunter who accidently shoots somebody has no defence of justification – missing out on a feed isn’t an excuse for firing when unsafe).

    If the cop who fired the shot believed reasonably that failure to do so would have lead to the gunman shooting someone, that might outweigh the fact that he didn’t have a safe shot. If that was clearly the case, then there shouldn’t be a prosecution *of the individual police officer*.

    The enquiry into this should be carried out be a properly independent body and the evidence made public.

    The culpability of the force as a whole (not to mention the government that is supposed to supervise them) is another matter. That covers a whole bunch of things other than the decision to shoot: training, communication, procedures, weapons. That needs a separate and independent inquiry.

  26. Lew on January 26th, 2009 at 18:35

    I should contextualise my last comment: I approve of police taking violent action to prevent greater harm. But what’s fundamentally clear here is that the officer fired shots at a target where an innocent bystander was in the field of fire, and that invalidates the claim that the officer’s actions were undeniably justified. Because of the clear risk to innocents, whether they were justified is a matter of judgement, not an unassailable fact.

    And the hyperbole of `this is war’ doesn’t help him sound calm or reasonable, either.

    L

  27. Psycho Milt on January 26th, 2009 at 19:14

    They have a track record of doing it poorly. Are you suggesting we sit back and ask no questions?

    Well, yes I am – for the moment. Until someone actually carries out an investigation, the results can’t really be open to question, surely?

  28. Oliver on January 26th, 2009 at 19:27

    Keith Abbot didn’t shoot a guy breaking windows. He shot a guy charging him with baseball bat and a golf club who chose to charge someone pointing a pistol at him.

  29. Anita on January 26th, 2009 at 21:37

    Psycho Milt,

    Well, yes I am – for the moment. Until someone actually carries out an investigation, the results can’t really be open to question, surely?

    At the moment we can reasonably question
    1) Whether the right investigation(s) are being done
    2) Whether the right people/organisations are doing them
    3) Whether they will be adequately transparent.

  30. MacDoctor on January 27th, 2009 at 00:05

    Lew:

    1. Operational command’s first instinct is to clam up and refuse to admit any liability, misjudgement or even potential wrongdoing,

    Which, in this case is the correct thing to do, seeing as they did not even know from which gun the fatal shot came. Speculation is always unhelpful. So is Greg O’Conner’s unlovely ravings.

    Anita:

    Yes there is, his point is that we have a well tried and tested way of dealing with accidental gun deaths, and there is no reason this accidental gun death should be treated any differently.

    On the contrary, Anita, there is a great deal of evidence that a punitive, adversarial style of investigation is extremely detrimental to normal workplace functioning. Most of the research I am aware of is done into doctors being sued, with some New Zealand work into the effects of the HDC. However, I am fairly sure that the same negative effects would be observable in the police.

    Doctors put through these processes became excessively defensive and substantially less willing to “go the extra mile” for their patients. This does not sound like anything I would like to happen to cops.

    I think the discussion here has overlooked the fact that this was not a lone cop, taking down a bad guy with possibly excessive force. This was a complex and dangerous police operation with a bad outcome. Multiple shots were fired, including many from a gunman hyped on methamphetamine. There does not appear to be any question that deadly force was warranted in this situation.

    A call for a manslaughter charge against the AOS officer in this case would seem to me to be not only premature, but highly excessive.

  31. Lew on January 27th, 2009 at 09:06

    MD:

    Which, in this case is the correct thing to do, seeing as they did not even know from which gun the fatal shot came.

    Yes, absolutely – in the initial case. However in previous incidents the silence has continued well beyond the point at which the facts had been established.

    I agree with your analogy of medical professional liability to police professional liability – however I’d argue that the police are perhaps a little bit over-precious, and that the `excessive defensiveness’ is now already a well-established part of police culture – the idea that investigation or criticism is an attack on the force, rather than a chance to get to the bottom of a nasty situation and restore confidence of the police.

    There does not appear to be any question that deadly force was warranted in this situation.

    Yes, a shot was required. The assertion is that that particular shot was clearly and undeniably required, and I think the presence of a bystander in the field of fire immediately calls that assertion into question – unless the police tactical manual gives officers the discretion to fire into a field containing both targets and bystanders, in which case we have a bigger problem.

    L

  32. Anita on January 27th, 2009 at 09:11

    MacDoctor writes,

    On the contrary, Anita, there is a great deal of evidence that a punitive, adversarial style of investigation is extremely detrimental to normal workplace functioning. Most of the research I am aware of is done into doctors being sued, with some New Zealand work into the effects of the HDC. However, I am fairly sure that the same negative effects would be observable in the police.

    Fair call, we should review the way we investigate all incidents of workplace harm or death so that we do not create a counterproductive culture.

    However, the Police should be investigated in the same way as every other employer. Which means right now they should be being investigated in just the same way any other organisation that caused (through the actions of a staff member) the death of someone.

  33. MacDoctor on January 27th, 2009 at 09:30

    Lew:

    The assertion is that that particular shot was clearly and undeniably required, and I think the presence of a bystander in the field of fire immediately calls that assertion into question

    My understanding is that the poor guy who was killed was in the back of the van and not visible. I guess this will come out in the inquiry.

    I agree that police procedures need to be put under a microscope here to make sure that they were not the cause of the tragedy (procedure review is always good policy after an error). My objection is solely that the poor guy who fired the shot should not be subject to legal proceedings unless the police inquiry establishes that he may have acted illegally (unlikely, in my opinion)

    Anita:

    However, the Police should be investigated in the same way as every other employer. Which means right now they should be being investigated in just the same way any other organisation that caused (through the actions of a staff member) the death of someone.

    Are you really suggesting that we allow OSH to investigate this case? I think they would be hopelessly inadequate to assess this incident.

  34. joeh on July 17th, 2009 at 01:10

    My understanding is that the poor guy who was killed was in the back of the van and not visible. I guess this will come out in the inquiry.

    If there is a van on the motorway then someone had to be driving it visable or not any shooting should not have been undertaken by the police unless they are 100% sure the shooter can and will hit his target, when the public is in imminent danger of being shot. My feeling is that the Police wanted to shoot as the correct proceduer should have been to ram McDonalds car when bringing Mcdonalds car to a halt, before McDonald could exit the stolen car. Then shooting him would not have been necessary, as McDonald would have been knocked sensless in the stolen car.

  35. joeh on July 17th, 2009 at 01:21

    Because the shooting resulted in an innocent man’s death due to poor police procedure and action, the shooter’s of Halatau Naitoko need to come before the courts to explain there decision making process before and when shooting. The public require this and the Naitoko Family deserve it. It is time for the Police as a force to admit mistakes were made and give New Zealanders a reason to have real convidence in the force and not blind faith.

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