1 FORCE TO BE RECK­ONED WITH

North & South - - In This Issue - MARK SCOTT IS A NORTH & SOUTH CON­TRIBUT­ING WRITER. IL­LUS­TRA­TIONS BY HEN­RI­ETTA HAR­RIS.

Mark Scott in­ves­ti­gates an ex­tra­or­di­nary case in Napier that high­lights con­cerns over the fire­power of our sup­pos­edly un­armed po­lice force.

Since the in­tro­duc­tion of Tasers in 2010 – touted as a non-lethal al­ter­na­tive to guns – firearm use by our sup­pos­edly un­armed po­lice has, in fact, in­creased. Mark Scott in­ves­ti­gates an ex­tra­or­di­nary case in Napier that high­lights con­cerns over the fire­power of the force.

THE NIGHT

He’d just bashed his 76-yearold fa­ther with a home­made cosh, swal­lowed a po­ten­tially lethal mix of painkillers and now at mid­night was parked in his car over­look­ing one of Napier’s wild shin­gle beaches, wait­ing for the end.

Greg Mc­peake had often told his daugh­ter, Bianca, this was how he’d do it – that one day he would set­tle an un­named child­hood score with his fa­ther and then kill him­self. She didn’t take him se­ri­ously, thought he was just be­ing Dad. Just jok­ing.

If that sounds an odd kind of nor­mal, Bianca knew her fa­ther had long been a se­ri­ously trou­bled man. She was used to hu­mour­ing him, talk­ing him through his moods. Be­ing there for him. He’d been there for her, too, from the be­gin­ning, as a dot­ing dad. They still saw each other most days. An early morn­ing text from him, one of his last, cap­tures some­thing of their en­dur­ing close­ness:

“Happy birth­day, 20 years to­day. U an adult. Time has gone quick. My what­now girl, love you heaps. Can’t wait to see you. Luv Dad.”

And then there were the let­ters she wrote to him af­ter he died in that car park; let­ters burst­ing to tell him about the plans she had to marry her girl­friend, Adelle Knightly, an­other of her dad’s favourite peo­ple:

It’s been 5 months dad. And it feels like the long­est 5 months ever.

I have so much to tell you and share with you. I’m get­ting mar­ried dad. How crazy is that? But I know that you ap­prove! And even tho you won’t be here to walk me down the aisle you’ll still be there in spirit.

For­ever and al­ways my heart will be yours daddy. I love you.

Greg Mc­peake’s men­tal ill­ness was not the only prob­lem. He was also se­ri­ously un­well phys­i­cally. At au­topsy, he weighed a mon­strous 179kg and, with a painfully un­sta­ble heart con­di­tion, was barely mo­bile. Just days be­fore he drove from Taranaki to his pen­sioner par­ents’ house in Hast­ings on that ugly night two years ago, he’d had a mi­nor heart at­tack, and was so en­fee­bled by ill­ness that the frail cou­ple man­aged to wrest the club from him and send him pack­ing. This was a point not ex­plored when, 20 months af­ter Mc­peake’s death in the West­shore car park, some of the po­lice of­fi­cers in­volved were charged with us­ing ex­ces­sive force.

In all, there were six po­lice of­fi­cers at the scene, armed with a Glock pis­tol, a Bush­mas­ter semi-au­to­matic as­sault ri­fle, ba­tons, two Taser pis­tols, three can­is­ters of pep­per spray and two po­lice dogs. Of the six, four were on trial for as­sault with weapons – the use of Tasers and po­lice dogs.

In the early hours of March 13, 2015, the 53-year-old was alone in the dark­ness at the Napier beach, his huge bulk wedged be­hind the steer­ing wheel of his com­pact, two- door Honda SUV. He didn’t know it, but he was be­ing watched. Around mid­night, a po­lice pa­trol among those search­ing for Mc­peake had spot­ted the car and was qui­etly wait­ing for re­in­force­ments.

The po­lice were right to be cau­tious. Al­though Mc­peake had no rel­e­vant po­lice record, his daugh­ter had told po­lice who con­tacted her af­ter the as­sault that he’d spo­ken of a cross­bow. Bianca hoped that, fore­warned, the of­fi­cers would take ex­tra care. In­deed, stan­dard po­lice pro­ce­dure when deal­ing with a lethal dis­tance weapon like a cross­bow is to con­tain a site and then await the Armed Of­fend­ers Squad. But that didn’t hap­pen.

The pa­trol of­fi­cer, un­seen, pre­pared road spikes but not across the only exit from the car park. In­stead, one spike strip was set on a path lead­ing to an­other part of the park. Later, a sec­ond strip was laid out on the street, but mys­ti­fy­ingly 100m north of the car park exit, leav­ing the through road south to Napier cen­tral en­tirely unim­peded. At the trial, the cru­cial and puz­zling fail­ure to block the only exit barely sur­faced in Crown ev­i­dence.

In any event, dur­ing about 10 min­utes of po­lice loud­hailer com­mands, Mc­peake didn’t drive off. But nor did he exit the ve­hi­cle as in­structed. To drown out the sound of the loud­hailer, he turned up the car ra­dio to full dis­torted vol­ume, puffed on his angina spray to ease his dis­abling pain and rolled him­self an­other cig­a­rette. He sat there, look­ing out to sea, maybe hop­ing it would all go away. Maybe hop­ing he could die in his kind of peace.

Min­utes later, six of­fi­cers ad­vanced on the car, smash­ing al­most ev­ery win­dow. Through the shat­tered glass, they fired three can­is­ters of a new, pow­er­ful pep­per spray into the car. Law En­force­ment Saber Red Cross­fire is an Amer­i­can su­per-strength pep­per spray that was then be­ing tri­alled in Hawke’s Bay. It is six times stronger than or­di­nary pep­per spray and, ac­cord­ing to its mak­ers, on the Scov­ille (spicy heat) scale is some 67 times more blind­ingly sting­ing than if you wiped your eyes with Tabasco pep­per sauce.

Con­sta­ble Alexan­der Simis­ter, one of the ac­cused, said in a po­lice in­ter­view (the com­ment was read out in court) that he was sur­prised Mc­peake didn’t try to wipe this burn­ing spray from his eyes, some­thing he re­garded as un­usual. This was an­other crit­i­cal mo­ment of ev­i­dence that went un­ex­plored by the Crown dur­ing al­most two weeks of trial.

The of­fi­cers present knew Mc­peake had been drink­ing and was sui­ci­dal. Had they fac­tored this in to their ap­proach, they might have re­alised they were pos­si­bly deal­ing with a med­i­cal emer­gency – both psy­chi­atric and phys­i­cal.

In­stead, his un­usual lack of re­sponse was deemed to be de­fi­ance and there was no pause in the at­tack. Al­though he was un­armed and no cross­bow was vis­i­ble – nor in­deed present – the pas­sen­ger door was opened and a dog was fed into the car. A se­nior dog han­dler or­dered his dog to at­tack Mc­peake, whose face was cov­ered in Saber Red pep­per spray (now stan­dard is­sue through­out New Zealand). The dog, newly trained and pos­si­bly con­fused by the chaos and af­fected by the spray, was with­drawn when it failed to achieve a full-mouth bite. Simis­ter then fired his Taser pis­tol twice.

From the other side of the car, Mc­peake was sub­jected to a sim­i­lar com­bi­na­tion: Saber Red spray and two Taser pis­tol dis­charges.

In all, Mc­peake was shocked by Taser pis­tols four times, not for any gra­tu­itous rea­son but be­cause the pis­tols failed to prop­erly de­liver a sin­gle five- sec­ond dis­abling shock. Tasers work by send­ing a cur­rent be­tween two

prongs that takes the path of least re­sis­tance. In Mc­peake’s case, the cur­rent mostly tracked through his deep layer of more con­duc­tive body fat, rather than reach­ing and dis­abling his mus­cle tis­sue, al­low­ing him to brush the prongs aside.

But shocks of even short du­ra­tion are not a triv­ial event. Be­tween 2002 and 2003, Amnesty International re­ported the ex­pe­ri­ences of po­lice and firearms con­sul­tants who were ex­posed, like Mc­peake, to less than the usual five-sec­ond dis­charge: “Bjorn­stad, who was jolted for 1.5 sec­onds as part of his train­ing, said the shock was like a fin­ger in a light socket many times over”; “It’s like get­ting punched 100 times in a row”; “It’s the most pro­found pain I have ever felt.”

Re­sort­ing to an es­ca­lat­ing use of force was rea­son­able, the jury heard time and again, be­cause re­spon­si­ble, ex­pe­ri­enced of­fi­cers de­cided a full-scale as­sault was the only way to stop this sick, sui­ci­dal man driv­ing off, po­ten­tially armed with a cross­bow, and risk­ing the lives of oth­ers. It was not pointed out that while fear of Mc­peake es­cap­ing was given as the rea­son for the of­fi­cers be­ing so hasty with their weaponry, they’d ne­glected to block the only exit from the car park.

Across from the car park, a neigh­bour was wo­ken by her two dogs bark­ing. In the Napier Dis­trict Court, she de­scribed go­ing to her bal­cony where she heard loud shout­ing, then an “al­most hys­ter­i­cal fe­male voice” fol­lowed by “a male scream… hor­ri­ble…” At the sound of the two po­lice dogs, her own dogs fell silent.

That “male scream” was likely Mc­peake’s as he was shocked a fourth and fi­nal time, af­ter at­tempt­ing to sur­ren­der. On a video recorded by the Taser pis­tol, there he was, through a mask of pep­per spray, agree­ing to step out of the car (an at­tempt to sur­ren­der that was barely ad­dressed in court). The dy­ing man – suf­fer­ing from three can­is­ters of su­per-strength pep­per spray, a dog at­tack, four Taser pis­tol dis­charges and co­pi­ous bleed­ing from bro­ken-glass lac­er­a­tions – was then at­tacked by two po­lice dogs, set on him si­mul­ta­ne­ously from the pas­sen­ger side and at the driver’s door.

The last two dog at­tacks, launched with­out the re­quired warn­ings, oc­curred af­ter the keys had al­ready been taken from the car. Both se­nior dog han­dlers claimed they hadn’t heard two other po­lice of­fi­cers shout­ing the warn­ing: “Keys out! Keys out!” Nor had they seen the keys be­ing taken from the ig­ni­tion and held aloft. One of­fi­cer also ex­plained he hadn’t been aware an­other dog was al­ready at­tack­ing Mc­peake when he also set his dog on the im­mo­bile tar­get.

With the two dogs with­drawn, af­ter one be­came en­tan­gled in the Taser wires and with the other re­act­ing to pep­per spray, Mc­peake was sim­ply pulled from the ve­hi­cle and thrown to the ground, then pinned by sev­eral po­lice of­fi­cers.

In the days fol­low­ing the in­ci­dent, I talked to an­other neigh­bour liv­ing op­po­site the car park who had been wo­ken

THE DY­ING MAN – SUF­FER­ING FROM THREE CAN­IS­TERS OF SU­PER­STRENGTH PEP­PER SPRAY, A DOG AT­TACK, FOUR TASER PIS­TOL DIS­CHARGES AND BLEED­ING FROM BRO­KEN-GLASS LAC­ER­A­TIONS – WAS THEN AT­TACKED BY TWO PO­LICE DOGS, SI­MUL­TA­NE­OUSLY.

by the noise. An elderly, salt-of-the-earth Kiwi, he didn’t wish to be iden­ti­fied, but told me what he’d wit­nessed: “None of that had to hap­pen,” he said. “There were that many cops there, they could have turned the car up­side down and shaken him out.”

With Mc­peake on the ground, man­han­dled away from the car, there was now no fear of a weapon and no ac­cess to the car; a po­lice dog was in a dom­i­nat­ing po­si­tion and it was plainly ob­vi­ous Mc­peake was obese and barely able to move. Or breathe.

It was then Se­nior Con­sta­ble An­drew Knox, de­scribed in court by col­leagues as “be­ing al­most too nice to be in the po­lice force”, told a ju­nior of­fi­cer, Con­sta­ble Rochelle Bryant, to pre­pare her Taser in cattle-prod mode, ready to shock him again if nec­es­sary. It was an in­struc­tion, given Mc­peake’s ob­vi­ous help­less po­si­tion, that sug­gests just how re­liant on Tasers po­lice have be­come.

There was no need for the cattle prod. There was no need be­cause there was no pulse. No breath, just foam and bile laced with pep­per spray. Mc­peake’s move­ments as he sprawled on the ground weren’t re­sis­tance – they were a death rat­tle.

He was shocked once more, but this time in an ef­fort to save his life. A de­fib­ril­la­tor was fetched from the pa­trol car as part of des­per­ate at­tempts at re­sus­ci­ta­tion. He died, hand­cuffed, as he lay on the ground. (The court would later be told the ac­tions of the of­fi­cers did not cause his death.) But the fact of his death, cer­ti­fied at 2.10am, al­most dis­ap­peared with­out trace in the me­dia. Shortly af­ter, I noted a brief news re­port that a man had died while re­sist­ing ar­rest and had not re­sponded to po­lice re­sus­ci­ta­tion ef­forts.

Most New Zealan­ders would as­sume the cir­cum­stances of Mc­peake’s death were a world away from the re­al­ity of trig­ger­happy Amer­i­can polic­ing, as re­vealed by videos. So how was it that an un­armed man, prob­a­bly un­der­go­ing a heart at­tack, died while be­ing sub­ject to such a rapid es­ca­la­tion of po­lice ac­tion? I de­cided to fol­low the case.

My own un­der­stand­ing of the is­sues comes from more than 30 years of in­ves­ti­ga­tions into po­lice con­duct and cul­ture, which back in the 1980s was rife with bash­ings, usu­ally lit­tle more than rugby- grade biffo. But, 10 years ago, dur­ing a 60 Min­utes series ex­am­in­ing po­lice pur­suits, dog pol­icy, use of force and the in­tro­duc­tion of the Taser pis­tol, I saw con­cern­ing trends.

Then, I paid par­tic­u­lar at­ten­tion to com­par­a­tive use-of-force sta­tis­tics and found the New Zealand po­lice used pep­per spray at a rate four times greater than their Aus­tralian coun­ter­parts; our then-sup­pos­edly un­armed po­lice force shot peo­ple at a slightly greater rate than the Aus­tralians; po­lice dogs were bit­ing so many peo­ple that the en­tire squad could have been in­ves­ti­gated, ac­cord­ing to international cri­te­ria, and more mostly young peo­ple were be­ing killed in po­lice pur­suits than in any com­pa­ra­ble ju­ris­dic­tion. Now, I dis­cover, it has just about all got worse.

The Napier case was an ideal op­por­tu­nity to check progress in re­gards to use of weapons. None of my usual sym­pa­thetic po­lice sources, also con­cerned about the di­rec­tion of New Zealand polic­ing, knew any­thing about the Mc­peake case.

Even­tu­ally, I learned through his daugh­ter, Bianca Mc­peake, that four po­lice of­fi­cers in­volved were to be charged with as­sault. The Napier court could not pro­vide any de­tails of the up­com­ing hear­ing. Ev­ery­thing in re­la­tion to the trial had been sup­pressed, it seemed, in­clud­ing the ex­is­tence of the trial it­self.

For al­most two years, I kept in touch with Bianca, fol­low­ing her story of re­silience as she re­built her life; her de­ter­mi­na­tion to hon­our her fa­ther with her own suc­cess. Barely 21, she worked mul­ti­ple jobs and turned a pas­sion for photography into a thriv­ing photo-por­trait busi­ness, with a stu­dio she re­fur­bished her­self. Ev­ery so often, I’d re­ceive from her heart­felt mes­sages she wrote to her de­parted fa­ther.

“Ev­ery­one thinks you were such a dis­ap­point­ment, but you were al­ways my hero.

“I was such a daddy’s girl when I was young… Ev­ery­thing I do now is to make you and Mum proud and to prove to ev­ery­one that no mat­ter what they think, you did do some­thing right in life be­cause I wouldn’t be the person I am to­day with­out you xx.”

Fi­nally, late last year, Bianca and her fi­ancée, Adelle Knightly, were by them­selves in the pub­lic gallery of the Napier court, oth­er­wise filled by sup­port­ers of the four po­lice of­fi­cers. The at­mos­phere in the court was warm, col­le­gial. The four of­fi­cers shifted from the wit­ness box to take their place among the lawyers and, as a suc­ces­sion of lo­cal po­lice of­fi­cers gave ev­i­dence favourable to their col­leagues, there were small grins and dis­creet thumbs-up.

Bianca was there for her dad. One last time. To see jus­tice done.

THE TRIAL

All four Napier po­lice of­fi­cers were ac­quit­ted. This is not un­usual. My own re­search through me­dia re­ports over the past decade shows that New Zealand ju­ries, like their US coun­ter­parts, very sel­dom con­vict po­lice of­fi­cers charged with il­le­gal vi­o­lence.

There are un­der-the-radar cases like Nel­son of­fi­cer Garry Dunn, ac­quit­ted by jury in 2011 on charges of pep­per spray­ing and driv­ing his pa­trol car into a young cy­clist, who fled af­ter be­ing stopped for not wear­ing a hel­met. In Ro­torua, Con­sta­ble David Mear was ac­quit­ted in 2012, de­spite one col­league re­port­ing him strik­ing a man with a heavy torch and putting his face on the ground, which re­sulted in a frac­tured eye socket. Then there were the two Manukau ju­ries who, de­spite ev­i­dence from two po­lice-of­fi­cer wit­nesses, in 2009 and 2010 failed to con­vict Con­sta­ble Clin­ton Lyall Hill on an as­sault charge.

One more pub­lic case, which re­port­edly in­volved al­leged at­tempts by two sergeants to dis­cour­age wit­nesses, was the 2011 ac­quit­tal of Auck­land Sergeant Martin Folan on six charges of bash­ing un­re­sist­ing prison­ers. The al­leged as­saults were se­ri­ous. One vic­tim lost a tes­ti­cle af­ter a wit­nessed knee strike, but a charge re­lat­ing to the in­jury was with­drawn when it was ruled the vic­tim may have also been kicked in the balls in an ear­lier fra­cas, but some­how failed to re­mem­ber it.

Six po­lice of­fi­cers were brave enough to give ev­i­dence in that trial, in the face of con­sid­er­able op­po­si­tion from within the blue wall of si­lence. The jury reached a ver­dict of not guilty, de­spite hear­ing tes­ti­mony from those of­fi­cers, who were later con­grat­u­lated by the In­de­pen­dent Po­lice Con­duct Author­ity (IPCA) for their “prin­ci­ples and courage”.

And then there was the 2008 ac­quit­tal of four Whakatane po­lice of­fi­cers, Sergeants Keith Par­sons and Erle Busby, and Con­sta­bles Bruce Laing and John Mills. A CCTV recorded, over a pe­riod of 20 min­utes, a pris­oner who’d suf­fered a psy­chotic episode be­ing pep­per­sprayed 65 times and beaten with ba­tons while locked in a tiny cell.

Fol­low­ing the ver­dict in that case, de­fence coun­sel Su­san Hughes QC de­clared ac­quit­tal had been the only pos­si­ble out­come. That was also her po­si­tion in the Napier court, where Hughes – po­lice union- sup­plied and part-funded – de­fended Se­nior Con­sta­ble Knox at the jury trial. She was joined by three other highly ef­fec­tive de­fence coun­sel: Jonathan Krebs, Doug Rish­worth and Rachael Adams, who pas­sion­ately as­serted their clients were sim­ply de­cent, brave po­lice of­fi­cers do­ing their duty, their hon­est best to keep the cit­i­zens of Napier safe – of­fi­cers who were now be­ing judged un­fairly and in hind­sight by arm­chair ex­perts.

It was a mantra of great force and clar­ity. Many times, the jury was told how un­fair it was to judge the ac­tions of those brav­ing mor­tal dan­ger.

And what a pa­rade of dan­gers was placed be­fore the court. The se­nior dog han­dler, the only one of the four of­fi­cers on trial granted per­ma­nent name sup­pres­sion, spoke dur­ing a po­lice in­ter­view of how much he feared the cross­bow. “I think they are one of the worst weapons avail­able. Their pen­e­tra­tion is ridicu­lous. They’re just a re­ally dan­ger­ous weapon, their pen­e­tra­tion. They have in­cred­i­ble pen­e­tra­tion, more so than what a bul­let does.”

Pen­e­tra­tion. The court never learned why all avail­able anti-pen­e­tra­tion bal­lis­tic pro­tec­tion was not worn and why un­pro­tected po­lice of­fi­cers crowded around the ve­hi­cle in the line of po­ten­tial fire. Po­lice ex­perts com­mented that had there been a real fear of a cross­bow, no po­lice of­fi­cer would have been any­where near the car.

And then, added to the dog han­dler’s fear of pen­e­tra­tion, was his fear of the fistic prow­ess of the trag­i­cally obese Mc­peake, wedged be­hind the steer­ing wheel. At in­ter­view, he said he was wor­ried Mc­peake would some­how be able to reach across from the driver’s side and de­liver a knock­out punch while he was at­tempt­ing to open the pas­sen­ger door. “Had he struck me in the head, he would have knocked me un­con­scious, and if I fell into the ve­hi­cle and he had got hold of me, it would have been very dif­fi­cult for any­one to do any­thing about it.”

Luck­ily, he was able to set his dog on Mc­peake.

And so, the jury heard, on that moon­less night the fear­some strug­gle raged on. Mc­peake was re­peat­edly ob­served lung­ing for the ig­ni­tion to drive off but oddly never reach­ing it. He was re­peat­edly seen reach­ing with ninja stealth

for a weapon that was never there. As de­scribed by Con­sta­ble Bryant, his eyes dis­played “rage and anger”.

Then the Taser cam­era footage was shown. As the im­ages screened, they in­deli­bly made the case for body cam­eras as stan­dard equip­ment for po­lice.

It was not the first time Taser- cam footage has dis­proved po­lice ver­bal ev­i­dence. In a 2011 Ti­maru case, the prior vi­o­lent hurl­ing of a shower door at po­lice was cited as part of the jus­ti­fi­ca­tion for Taser­ing a man af­ter he “lashed out” at of­fi­cers when he pushed past them. A se­ri­ous as­sault charge could have seen him jailed, but the Taser video record­ing showed that the in­ci­dent with the shower door never hap­pened. ( An in­ter­nal review found the of­fi­cers did not breach the New Zealand Po­lice Code of Con­duct, but an IPCA re­port later crit­i­cised the two con­sta­bles for not fol­low­ing “good polic­ing prac­tice”.)

Po­lice have been puz­zlingly slow to learn about the power of video ev­i­dence. It’s not the only case where Taser cam­eras have shown that lev­els of vi­o­lence did not oc­cur as claimed (see Sober­ing Roll Call, page 39). And as with video­taped in­ter­views, a clear record also gives pro­tec­tion for of­fi­cers against false com­plaints. The in­tro­duc­tion of body cam­eras is favoured by new po­lice as­so­ci­a­tion pres­i­dent Chris Cahill.

In the Napier court­room, the ex­pected im­ages of a cross­bow-wield­ing ninja with a long-range, knock-out punch shape-shifted into a sad blob of a man in ex­tremis. It was from this fac­tual vis­ual record that I’ve de­scribed the car park scene. As these im­ages were screened, Bianca watched from her place in the gallery. Her sup­port­ive po­lice li­ai­son team had ear­lier ar­ranged a pri­vate view­ing so she could wit­ness for the first time the ghastly last mo­ments of her fa­ther’s life.

There was an aw­ful clar­ity to the im­ages pro­jected from sev­eral screens around the court­room of this bleed­ing man fee­bly swat­ting away at electric­shock barbs, fend­ing off po­lice dogs, and tug­ging at his door. The eyes of the dy­ing man were per­haps bulging not with rage, but with the strug­gle to breathe.

Per­fectly au­di­ble was Mc­peake agree­ing to sur­ren­der to a Taser-wield­ing Con­sta­ble Bryant and her shouted de­mands that he step out of the car – only to be shocked as he moved to com­ply. Dur­ing the trial, Ra­dio NZ re­ported, it also emerged that Bryant was only four months out of po­lice col­lege and had never fired a Taser be­fore or even seen one be­ing used.

She said she thought Mc­peake was reach­ing for a weapon ( known as a “waist­band move” and often cited by Amer­i­can po­lice to de­fend hair-trig­ger shoot­ings). Since there was no weapon, per­haps he was sim­ply shift­ing his weight so he could exit the ve­hi­cle.

De­fence coun­sel ar­gued elo­quently that the seven min­utes of vis­ual ev­i­dence from both cam­eras were but a tiny snap­shot of the to­tal­ity of the event. And there was lit­tle Crown re­but­tal of match­ing clar­ity or force. Since the charges of as­sault by dog and Taser pis­tol re­ferred only to the mo­ments per­fectly caught by the cam­eras, force­ful re­but­tal surely wouldn’t have been dif­fi­cult? The cam­eras showed none of the vi­o­lence re­ported at the point where the ac­cused claimed vi­o­lence left them no choice but to use Taser pis­tols and dogs.

Both po­lice ex­perts for the Crown, In­spec­tors Todd Southall, na­tional co- or­di­na­tor po­lice dogs, and Bryan Buck, man­ager of the Can­ter­bury AOS, pointed out, in a round­about, ex­pert way, there was no ev­i­dence of as­saultive be­hav­iour from Mc­peake in the pe­riod be­fore Tasers and dogs were de­ployed.

But even with­out ben­e­fit of the Taser footage, Inspector Buck – us­ing old­school po­lice time­line de­duc­tion – pointed to se­quence in­con­sis­ten­cies be­tween the of­fi­cers’ dif­fer­ent ver­sions. Vi­o­lent strug­gles with Mc­peake were wit­nessed but not cor­rob­o­rated by ev­i­dence from the po­lice of­fi­cers sup­pos­edly en­gaged in them.

In one way, this fail­ure to match sto­ries was re­as­sur­ing. The tac­tic of a po­lice team meet­ing to­gether to phys­i­cally act out an event ac­cord­ing to an agreed nar­ra­tive ob­vi­ously didn’t hap­pen in this case.

Cer­tainly, both ex­perts didn’t pull any punches in tes­ti­fy­ing that po­lice at the scene had no jus­ti­fi­ca­tion for their use of force. Southall was clear the use of the dogs was out­side ac­cepted prac­tice, par­tic­u­larly once the keys had been re­moved: “…a warn­ing must be given and there was no sign of a warn­ing from ei­ther dog han­dler. The [of­fender] must be given some op­tion to sur­ren­der. There’s no way a dog could pull out a 179kg person… All they’re do­ing is bit­ing the person.”

Buck pointed out that proper con­tain­ment is vi­tal. “In a case where this person, the sole oc­cu­pant of a car [was] parked in front of a beach… time is your friend… You can ne­go­ti­ate with this person for as long as it takes. Mc­peake was to­tally pas­sive, up to the time when po­lice raised the level of ag­gres­sion by as­sault­ing the ve­hi­cle.”

But the two in­spec­tors’ knowl­edge and ex­pe­ri­ence was no match for the de­fence’s fire­power in the court­room. Coun­sel Jonathan Krebs crossed swords with Inspector Southall. The po­lice ex­pert was at­tempt­ing to ex­plain that in the ab­sence of any vis­i­ble cross­bow or weapon of any kind – and with the sub­ject barely able to move – there was lit­tle threat.

“When you look at the size of Mr Mc­peake, the con­di­tion he was in... It would be dif­fi­cult for him to adopt rapid move­ments from that ve­hi­cle, like reach­ing be­hind...”

Krebs in­ter­rupted with a per­fect Ruth Ren­dell flour­ish: “Come on, inspector! He could eas­ily have fired that cross­bow out of the car at some­body stand­ing at a dis­tance be­tween me and you now, couldn’t he?”

Southall an­swered: “If he had the cross­bow, if it was there. My point is that the staff were putting their hands in the ve­hi­cle to take the keys out. So all I’m say­ing is, was it ac­tu­ally that great a threat?”

Crown coun­sel Ben Van­derkolk also seemed some­what out­gunned by the highly ef­fec­tive de­fence team. Take this ver­ba­tim com­ment on the lack of re­flex by Mc­peake to Saber Red pep­per spray in his eyes: “Be­cause of his size, mem­bers of the jury, it may well be that where he was and per­haps be­cause of the drugs and al­co­hol that he’d taken – that you will hear about in the course of this trial – Mr Mc­peake ap­peared some­what re­sis­tant to the pep­per spray.”

A cir­cuitous thread of thought for any jury to fol­low, but parsed on pa­per, it seems Van­derkolk was se­ri­ously sug­gest­ing that obe­sity re­duces the ef­fect of pep­per spray, thus partly ex­plain­ing Mc­peake’s re­sis­tance. As re­ported in Sci­en­tific Amer­i­can and other jour­nals, mor­bid obe­sity, with its as­so­ci­ated health is­sues, doesn’t di­min­ish the ef­fect of pep­per spray, but in­creases the risk of harm from it.

At the out­set, the Crown also em­pha­sised it ac­cepted a post-mortem opin­ion that there was no causal link with the Taser­ing to Mc­peake’s death by heart fail­ure. Nor did it dis­pute the de­fence claim that far from the po­lice caus­ing his death, he was al­ready dy­ing when they ar­rived. The post-mortem ex­am­i­na­tion found he had a cock­tail of drugs in his sys­tem. The use of angina spray also sug­gested he was un­der­go­ing some kind of car­diac event.

But that raised a series of ques­tions al­to­gether unasked: at the first sign of atyp­i­cal non-re­spon­sive be­hav­iour (the fail­ure of re­flex) to Saber Red from some­one who was a known sui­cide risk, was there a duty of care? Was it time to take stock, as po­lice ex­pert wit­nesses sug­gested? Had Mc­peake been rushed to hospi­tal, was there a chance he may have sur­vived? There are straight­for­ward pro­ce­dures to treat over­dose. Cer­tainly Taser and po­lice dog bites would not have helped his chances of sur­vival.

And then there was the mat­ter of the road spikes. Van­derkolk bus­ied him­self estab­lish­ing just what, in gen­eral, road spikes are. What length; which way, if any, spikes are an­gled. Are they gen­er­ally de­ployed slanted in the di­rec­tion of ex­pected ap­proach by the flee­ing felon? Or are they not? It was even­tu­ally es­tab­lished that spikes stand ver­ti­cally.

I was stab­bing at my note­book. Would these, by any chance, be the same spikes that were never set across the only exit, a fact some­what ger­mane to the en­tire trial?

The spikes were crit­i­cal for a mix of rea­sons. The law is plain. Po­lice are al­lowed to use only the least amount of force nec­es­sary to con­tain dan­ger. Ex­ces­sive force, with rea­son­able al­lowance for cir­cum­stances, is crim­i­nal. Block­ing the exit was the least vi­o­lent means of con­tain­ing the threat of Mc­peake driv­ing off.

In the event, in­di­vid­ual of­fi­cers were able to claim, with­out chal­lenge, they had to at­tack the car ur­gently be­cause road spikes would not be 100 per cent ef­fec­tive in pre­vent­ing Mc­peake ram­pag­ing with a cross­bow through the streets of Napier. For­get­ting the fact there were no spikes at all at the exit, that claim posed an ob­vi­ous unasked ques­tion: why not then sim­ply block the only exit with a po­lice car?

In an at­tempted joc­u­lar mo­ment with an un­a­mused de­fence coun­sel, I sug­gested that we two, as un­trained passersby, would have done a bet­ter job: we’d have blocked the exit with a car and, with gen­uine fears of a cross­bow, called the Armed Of­fend­ers Squad. That is not just a mat­ter of ba­sic po­lice train­ing, as the ex­perts at­tested, but mere com­mon sense. ( One of the of­fi­cers told the court he’d con­sid­ered call­ing the AOS, but “did not be­lieve

they had enough in­for­ma­tion to do so”.)

And so Van­derkolk, cut­ting a fine fig­ure cen­tre-stage, drifted from the gen­eral prop­er­ties of the road spike to the prop­er­ties of the col­lapsi­ble po­lice ba­ton, which was never at is­sue (the use of ba­tons and pep­per spray were not sub­ject to pros­e­cu­tion.) He ex­am­ined, with Pop­u­lar Me­chan­ics de­tail, the work­ings of a Taser pis­tol, invit­ing jury mem­bers to han­dle the prongs. At one point, he asked a puz­zled Judge Phillip Cooper to re­buke the press bench when a jour­nal­ist dropped a pen.

Par­tic­u­larly mem­o­rable was Van­derkolk’s sug­ges­tion that Con­sta­ble Bryant fired her Taser be­cause she was a young wo­man. Her de­fence coun­sel, Rachael Adams, didn’t mince words. “She was not a fright­ened lit­tle girl, as in­sult­ingly and dis­parag­ingly put by the Crown.” The judge, in his sum­ming-up, tellingly sug­gested the jury may want to con­sider Van­derkolk’s ob­ser­va­tion.

I had my own dif­fi­culty with Van­derkolk. I in­tro­duced my­self to ex­plain I’d learned a jury mem­ber’s brother was once a po­lice­man, pros­e­cuted by the po­lice, and thus might have sym­pa­thy for po­lice of­fi­cers be­ing pros­e­cuted. I got an im­pa­tient walk- off. No ver­bal re­ply, lit­er­ally a chin in the air and a swish of cape. No pos­si­ble in­ter­est in grant­ing a North & South writer the slight­est mo­ment of at­ten­tion. The judge was in­ter­ested, though. He called a halt to the trial.

Luck­ily, there was no cause for con­cern. Fol­low­ing an in­ves­ti­ga­tion, held in cam­era, the judge re­leased a ju­di­cial minute not­ing that, at jury em­pan­el­ment, he had given “very ex­plicit di­rec­tion that [if ] any­one be­ing called had a rel­a­tive who was a mem­ber of the po­lice, [they] should ad­vise me”.

The judge recorded that the ju­ror did not feel it nec­es­sary to men­tion his brother was once a po­lice of­fi­cer be­cause he had left the force a long time ago and had had other jobs since. The minute also recorded the ju­ror was con­fi­dent his po­lice con­nec­tion would not im­pact on his abil­ity to be fair and im­par­tial. The judge found there was no need to dis­charge the ju­ror, who im­pressed “as a person who would act con­sci­en­tiously, fairly and im­par­tially”.

Mean­while, the po­lice union-funded de­fence team elicited glow­ing per­sonal tes­ti­mo­ni­als for each de­fen­dant from

lo­cal col­leagues, in one case, from Glenn Baker, whose com­mand role as act­ing sergeant at the car park re­mains un­der scru­tiny as part of an in­ter­nal in­ves­ti­ga­tion. Baker told the court that events at the car park “played out as they had to”, and he hadn’t changed his opin­ion of the de­fen­dants’ worth.

An ef­fec­tive move by the de­fence was to ask the out­side po­lice ex­perts, af­ter their crit­i­cal tes­ti­mony, to re­cite for each de­fen­dant a litany of favourable em­ploy­ment per­for­mance core- com­pe­tency ap­praisals.

Choos­ing the ex­perts to read out the tes­ti­mo­ni­als – that cer­tainly spoke of gen­uine ex­pe­ri­ence, wis­dom, courage and adapt­abil­ity – was lay­ing the ground for a mas­ter­ful court­room king- hit. Af­ter recit­ing these glow­ing ac­counts, the ex­perts were then, in ef­fect, asked to agree that their own ex­pert judg­ment should take sec­ond place to that of the ac­cused. Weren’t the peo­ple best equipped to make as­sess­ments at the scene these of­fi­cers of known ex­cel­lent judg­ment, tem­per­a­ment, ex­pe­ri­ence and ex­per­tise who were ac­tu­ally there?

Soon af­ter, the jury re­tired. Their de­lib­er­a­tions took just a few min­utes longer than lunch, be­fore they re­turned and ac­quit­ted all four of­fi­cers.

Al­though the of­fi­cers were found not guilty, they and the act­ing sergeant still face in­ves­ti­ga­tion and pos­si­ble dis­ci­plinary ac­tion, through a Code of Con­duct em­ploy­ment process over­seen by the IPCA.

Fol­low­ing the ac­quit­tals, one coun­sel, Su­san Hughes QC, told me that, from her ex­pe­ri­ence, these four of­fi­cers would never have been pros­e­cuted at all were it not for Greg Mc­peake’s death. It must be ac­knowl­edged, of course, that it was the po­lice that put the case be­fore the courts.

The ques­tion re­mains: was this also a ver­dict on whether our po­lice – now with a Taser on ev­ery front­line hip and ac­cess to as­sault ri­fles and 17-shot Glock pis­tols in al­most ev­ery front­line pa­trol car – can aban­don decades of es­tab­lished care­ful po­lice prac­tice, barely mind­ful of le­gal con­se­quence?

One po­lice ex­pert stated there was no need to go in “guns blaz­ing” that night. A fig­ure of speech, per­haps, but what if Mc­peake had at­tempted to drive off through an exit left wide open? Would the trig­ger-fin­gers have moved from Taser to Glock?

Po­lice were asked for com­ment in De­cem­ber and writ­ten ques­tions were sub­mit­ted un­der the Of­fi­cial In­for­ma­tion Act. The po­lice de­clined to be in­ter­viewed un­til the OIA re­quests had been pro­cessed. No re­sponse was re­ceived by press-time.

How­ever, the so- called “weapons ef­fect” is well doc­u­mented. Psy­chol­ogy pro­fes­sor Brad Bush­man of Ohio State Uni­ver­sity in the US says there’s a large body of re­search that shows weapons af­fect be­hav­iour: the pres­ence of a gun or Taser makes both the po­lice of­fi­cers car­ry­ing them, and the peo­ple around them, more ag­gres­sive.

In con­trast to an in­creas­ingly mil­i­tarised US po­lice force, the UK’S largely un­armed of­fi­cers are taught to back away from any sit­u­a­tion that might oth­er­wise es­ca­late – to not feel they have to “win” ev­ery con­fronta­tion. The sta­tis­tics speak for them­selves. In the 12 months to March 2016, British po­lice dis­charged their firearms on just seven oc­ca­sions – ac­tu­ally the high­est count since 2009.

At the time of writ­ing, sketchy re­ports came from Kaitaia of an­other po­lice stand-off in­volv­ing a driver who locked him­self in his van af­ter be­ing stopped for a traf­fic of­fence. The driver be­came in­creas­ingly ag­i­tated, even­tu­ally bran­dish­ing a ta­iaha club in a dis­play of de­fi­ance. Po­lice didn’t check- list the force options avail­able to them; there was no pep­per spray, no Taser, no gun­fire or car chase.

In­stead, hav­ing con­firmed the man’s iden­tity, seen his state of mind and noted the pres­ence of chil­dren, the po­lice with­drew and al­lowed him on his way – to be dealt with later at a time safer for ev­ery­one.

There is a softly, softly hall­mark of po­lice best prac­tice that, when only the author­ity of the of­fi­cer is at stake, there is a “re­spon­si­bil­ity to rea­son­ably and safely re­treat”. With an un­armed po­lice force, the re­treat oc­curs nat­u­rally. But once po­lice are armed with Taser or gun, there can be a trig­ger-fin­ger ten­dency to de­mand com­pli­ance, very often from of­fend­ers too ag­i­tated to sen­si­bly re­spond. Draw­ing a line in the sand by pis­tol or Taser is es­ca­la­tion polic­ing. It is dan­ger­ous to cit­i­zens and dan­ger­ous to po­lice of­fi­cers. In Kaitaia that day, they got it ex­actly right.

An il­lus­trated ren­der­ing of an early pho­to­graph of Greg Mc­peake and his daugh­ter, Bianca. She re­mained close to her fa­ther – “Ev­ery­one thinks you were such a dis­ap­point­ment, but you were al­ways my hero” – de­spite his men­tal health prob­lems.

Bianca with her fa­ther’s ashes. She told the court her fa­ther was es­tranged from his par­ents. “My dad re­ally couldn’t get past the up­bring­ing he was given.” She ac­cepted he had to be ar­rested af­ter at­tack­ing his fa­ther, Ray Mc­peake, but claims po­lice used ex­ces­sive force.

The fail­ure of courts to con­vict po­lice of­fi­cers ac­cused of us­ing ex­ces­sive force often comes un­der the spot­light in the United States. The April 2015 shoot­ing of Walter Scott in North Charleston, South Carolina (pic­tured above) fol­lowed a traf­fic stop for a non-func­tion­ing brake light. Scott, an un­armed black man, was fa­tally shot by po­lice of­fi­cer Michael Slager, who was charged with mur­der af­ter a video sur­faced that showed him shoot­ing Scott from be­hind, con­tra­dict­ing his own re­port. In De­cem­ber last year, a state judge de­clared a mis­trial, due to a hung jury. A re­trial is sched­uled for March.

A Taser pis­tol in ac­tion.

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