Analysis: Unlawful Arrest and Unlawful Use of Force of by Police – Part 1:  Dealing with the Police

This is Part 1 of our 2 Part series discussing the recent CCC report attacking WA Police for ‘oppressive’ tasering of a motorist in Fremantle. There is a video of the incident, released by the CCC, circulating online that adds some context to this article. Part 2 will deal with the Dangers of Resisting Arrest and will be published on Sunday 25 March 2018. 

Whilst the majority of police do the right thing (and probably more so than lawyers do) this kind of illegal use of a taser by police as a compliance tool happens fairly regularly in WA. Unfortunately, most of the time the police get away with it because there is not enough evidence.

Often, the victims are vulnerable people whose word is unlikely to be believed over the denials several police officers. The blue uniform police officer carries with it assumptions of credibility and trustworthiness that the rest of us have to earn. Unfortunately, there are occasions where a minority of police take advantage of this. In this day and age where safety and security are said to be more important than individual freedoms and rights: it is important to remember that often quoted line of Lord Acton: absolute power corrupts absolutely. We all have to be mindful of the power and trust we place in the hands of the authorities. There will be occasions, such as this one, where that power is abused. As citizens, we cannot ignore these allegations and justify our indifference by saying “those people must’ve been doing something wrong” and therefore somehow deserved it.

That being said, when you believe the police are in the wrong and you are in the right: you nevertheless have to be very careful.

Yes, it is not illegal to film the police as long as you are not obstructing them in the course of their lawful duty.

Yes, it is not illegal to flash your headlights at the police or anyone else as long as you are not obstructing the police in the course of their lawful duty.*

Yes, the law allows you to defend yourself against unlawful assault which includes unlawful arrest or unlawful use of a taser.

Yes, the police in this video appear to have acted improperly.

My advice in this type of scenario is that even if the police are wrong: you are usually better off being compliant and polite. Here’s a few rules for dealing with the police:

1. Stay Calm and Don’t Escalate the Situation.

This is probably the single most important piece of advice I have for dealing with the police in any situation, whether it be in Western Australia or anywhere. In any situation, the Police are trained to look out for their own safety above anything else. It’s the old “safety first” moniker that applies in just about every workplace.

The police are trained to identify potential threats and to move to contain them. If you raise your voice, swear, make demands, threaten consequences: this is probably going to be perceived by the police as aggressive behaviour. As soon as the police view you as a potential threat: they will stop listening to you as “threat response” becomes a number one priority for them and any opportunity you had of reasoning with the police disappears.

Don’t allow “threat response” to enter the equation. Stay calm. Speak slowly, deliberately and without raising your voice.

If you’re not under arrest or being arrested: keep your distance from the police, especially if they have their backs turned. If you feel the police are not listening to you: do not tap them on the shoulder or make any other form of physical contact to get their attention. Be conscious of your physical stance. If you realise the police have gone into “threat response” mode: raise your hands with your palms facing towards them and calmly say “I am not a threat to you, I am not trying to interfere” and back off a couple of paces at the same time. This might sound silly, but sometimes it helps to state the obvious.

Tell other people you’re with to remain calm. If the police can see that you are making an effort to diffuse the situation: not only are they more likely to listen to you, they may also seek you out as an intermediary.

Do not threaten consequences even if the police are doing something wrong. The police are not going to change their minds because you threaten to make a complaint or demand to speak to the supervisor. Instead, pay careful attention to what the police are doing wrong and make a record of it as soon as possible.

In the video released by the CCC, one of the occupants of the vehicle can be heard baiting the police about not being able to afford a vehicle like the one the occupant was travelling in. This kind of behaviour is only going to inflame the situation further.

2. Don’t Give Lectures About the Law

The police don’t like to be told by “ordinary citizens” that they don’t know the law. And they don’t like smart arses. This usually only irritates them and does not achieve anything. For a start, Police get a fair bit of legal training at the academy and also on the job. So unless you have a law degree: they’re more qualified than you are. Nobody likes a bush lawyer.

Whenever I encounter the police in my private life: I don’t volunteer the fact that I am a criminal lawyer because I don’t want to give the impression that I’m being a smart arse or that I’m somehow threatening them with consequences. When I’m off duty I try to aim for the “co-operative, polite yet knowledgeable citizen” look as opposed to “don’t-mess-with-me-I’m-a-hot-shot-lawyer”.

Had the occupants of the car in this video taken this approach, they might have got a verbal warning not to flash their lights.

I love modified cars and have owned a few over the years. Over time I’ve found that being polite and respectful often means a difference between a defect notice and a friendly verbal warning.

3. Don’t Tell the Police what to do.

The police are not going to change their mind and act differently just because you tell them they are doing something wrong. In fact, they’ll probably do the opposite of what you want or think is right. That’s just how they’re trained. The police are trained to maintain control over situations they are involved in. Their training tells them that if they start taking orders from ordinary citizens: they are losing control. In this video, the occupants of the car appear to have been doing a lot of this. It didn’t assist their cause.

My advice is instead of barking orders at the police: ask questions instead. Don’t shout “That’s illegal, you can’t do that!”. Stay calm and ask “Are you allowed to do that? Is that legal?”. This won’t work in every situation with every police officer, but you’ll find it often results in a positive response.

At the end of the day, most police have a genuine desire to help the people in their community. If you make a reasonable request in a reasonable way: the police are more likely to assist you in some form.

4. Be Careful Filming the Police

Police generally don’t like being filmed. Whilst it is not illegal in Western Australia to film the police, it can be counter-productive and will often inflame the situation further (see rule #1), so don’t have the camera rolling the second a police officer starts talking to you.

That being said, the conduct of the police in this case would never have come to light but for the person who was filming it. There’s a fine line between when it is and isn’t sensible to film the police. Filming a police officer because he has pulled you over and asked to see your driver’s licence is completely different to filming a police officer because you believe he has just unlawfully assaulted your friend.

The other thing you have to bear in mind is that if you start filming and inadvertently record yourself or one of your friends doing something illegal: the police can seize this footage and use it is evidence against you.

You have to use your common sense and best judgement when it comes to filming the police. In this case, the person who recorded the video did the right thing.

*Flashing your headlights to warn other motorists of the existence of the speed camera is something we advise against as this has been held to constitute obstruction of police.

Opinion Disclaimer: The views and opinions expressed in this article are those of the author(s) and do not necessarily constitute legal advice. The views and opinions may not reflect the official policy or position of any agency of the Western Australian government or any other authority. Any advice is advice of a general nature only and does take into account your individual circumstances.  Examples of analysis performed within this article are only examples and should not subjected to real-world testing. For advice that is relevant to your individual circumstances: please make an appointment with one of our experienced criminal lawyers by calling Paxman & Paxman on 1300 274 692.