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April 2003 This research project was commissioned by the Independent Complaints Directorate (ICD), and funded by Department for International Development (DFIDSA). It set out to examine the use of force or violence by members of the South African Police Service in Gauteng Province, South Africa. The project aimed to identify trends and patterns in the use of force by members of the SAPS, to analyse these and to make recommendations regarding remedial steps and preventative strategies. The project is primarily based on an analysis of selected files in the SAPS in all seven policing areas of Gauteng. Event and modus operandi analysis was undertaken. Problems with disciplinary procedures and stress management were also ascertained. To enhance the analysis, the information collected from the files was coded on a template. The latter enabled a statistical analysis to be applied to the research information collected. In addition, the researchers undertook a series of focus group interviews with various SAPS units across Gauteng. The interview information from the focus group interviews was thematically analysed. Moreover, the research results have been further contextualised with reference to a number of international studies. The report has been divided into five different sections: international perspectives on the use of force and the South African legal position (Section 49); an overview of information emanating from the files perused; the statistical analysis of the coded information collected from the files; the analysis of the focus group interviews; and the concluding section with recommendations. The overview section, based on the perusal of selected cases of use of force, deals with a number of issues. Among these are: lack of information; delays in finalisation of cases; Director of Public Prosecution's decisions on whether to prosecute or not; linkages between internal disciplinary processes and criminal court; case dismissals; suspensions; discharge from service; shooting incident reports; ready use of firearms; inquests; complaints and warning signs. Among the more general conclusions emanating from the statistical analysis of the coded information are the following:
Common assault (32%) was the most frequently listed transgression in the
The
focus group interviews supported a number of the results from the statistical
analysis. The interviews also raised additional issues and factors surrounding
the use of force.
From the all of the above, a number of recommendations were also made. These recommendations were divided into four categories: human rights; monitoring and public scrutiny; shooting incident and other procedures; modifying behaviour and training. The main recommendations deal broadly with the following aspects:
RECOMMENDATIONS The recommendations are divided into a number of categories, namely:
The recommendations below are further supported and directed by the information from a number of other studies, in particular the American experience. This information is contained in the annexures. Human rights
In line with and fulfilling its obligations in terms of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, the South African government and the South African Police Service should, at the very least, ensure and see to it that:
The above are guiding principles on which to base additional preventative strategies in the matter of combating and eventually eliminating use of force abuses and gross misconduct within the SAPS.
These
principles should be further reinforced by specific training in human rights especially
pertaining to policing. Of specific relevance here is Article 2 of the UN Code
of Conduct for Law Enforcement Officials, which states that "in the performance
of their duty, law enforcement officials shall respect and protect human dignity
and maintain and uphold the human rights of all persons." The authorities should also ensure that the United Nations standards are fully incorporated into the training, procedures and practices of all law enforcement officials Monitoring and public scrutiny
Moreover, there is an urgent need for political and government leaders to make public declarations that they will not tolerate excessive use of force (torture, unnecessary use of a firearm, violence against suspects, harsh or other ill-treatment by public officials, especially police members). In support of these public statements the relevant authorities need to demonstrate their commitment and take vigorous measures to make such declarations credible and make clear that the culture of impunity must end. The public must see that those who transgress the internationally accepted standards and norms within the framework of the UN Basic Principles on the use of force and firearms are suitably sanctioned or punished not only in court but within the internal disciplinary procedures of the SAPS. Furthermore, the findings and sentences emanating from these processes should be made public. This can be tied into a public awareness campaign dealing with improving the public image of the police (e.g. the regular public release of results of all cases).
The institution of a far stricter regime of monitoring and public scrutiny (oversight) (see Annexure 3 for detail on the system in place for the New York City Police Department) of police activities than is currently the case should also be an important component of any preventative strategy regarding the use of force. The role of the ICD in investigating use of force cases needs to be further strengthened and formally supported. Investigations of police criminality or excessive use of force, shootings (lethal or 'deadly' use of force) should not be solely under the authority of the police themselves. Alternatively, such investigations should be monitored and reviewed by the ICD. As a minimum, the ICD should have the authority to control and direct the investigation. They should also have unrestricted access to police stations. Furthermore, in principle every serious case should be the responsibility and prerogative of being investigated independently by the ICD. An additional role for the ICD could be the extension of their support for the launching of civil cases by victims of police violence and use of excessive force. The launching of civil cases being supported by the ICD is based on the premise that the aberrant behaviour (excessive use of force) by police members must be eliminated. Therefore, a civil action by a victim will serve precisely as a form of sanction and consequence of their unlawful actions. Shooting incident and other procedures
Shooting incidents where an injury or death occurs need to be investigated (as opposed to merely filling out a shooting incident report by the duty officer) in more detail by specialist investigators (if possible within 48 hours of the shooting incident occurring). This recommendation points to some needed reform in the shooting incident investigations. The system as employed by the New York Police Department (NYPD) has a number of guidelines that would be well worth incorporating (See Annexure 4 for details). Among the specific recommendations in this regard are:
In terms of immediate sanctions it is suggested that every police officer involved in a shooting be temporarily relieved of his or her gun and placed on desk or charge office duty while the investigation is underway. In addition, in line with the new draft regulations (November 2000) the investigation must endeavour to be completed within a period of 30 days and the case finalised within the stipulated 90-day period.
It is strongly recommended that an automatic post-incident (shooting) review hearing by the commanding officer, duty officer and negative discipline officer be instituted in order to determine whether a firearm has been used in a responsible, regulated and restrained manner. This should be irrespective of whether a victim has been shot, injured or a killed or remained unharmed. This does not refer to right, incorrect or wrong actions but to the fact that negative discipline officers need to know all the details of the whole incident. Such a procedure not only protects the member individually but also the image of the SAPS as a whole. It demonstrates that management are serious about dealing with use of force incidents across the board as well as enhancing the public profile of policing. Such post-shooting inquiries and investigations should be standard practice in terms of evaluating the responsible use of a firearm. Irrespective of outcome, the mere fact that the firing of a firearm had occurred warrants further examination to determine whether the firearm usage was done in a responsible manner and according to standing order regulations. (This is the process in most major policing departments in the USA, i.e. if an American police officer fires a shot irrespective of hitting a person, a further post-shooting investigation is carried out besides the on-the-scene shooting incident report. See Annexure 4). The decision to rule any shooting incident as justified or not should at the very least be done in conjunction with a commanding officer and the disciplinary hearing or inquiry itself. Members have learnt to say the 'right' things in the shooting incident reports to the Officer on Duty about verbal warnings, warning shots and aiming for legs of a suspect or the wheels of a vehicle. Accordingly, the actions (shooting) of a police official are routinely justified by the Officer on Duty, irrespective of the circumstances, as being part of police work and in the line of duty. Such review hearings should also be extended to those instances of use of force such as assaults and other forms of violence where firearms were not used. Such post-incident review hearings play an important role in formulating remedial steps to deal with less serious misconduct and to assist in changing and influencing attitudinal changes in members themselves. Too often starting patterns for more serious misconduct behaviour are overlooked. Such post-incident review hearings can timeously identify these. A starting point for such remedial steps is the inculcation of the principle that while police officers are often faced with difficult situations no matter the extreme and provocative nature of the actions of suspects, their guiding principle should be the exercise of restraint and control. Here specialised training will be of great assistance. Gradations of force Formal guidelines for the applying of degrees of force in any situation should be developed and copies disseminated to every operational member in the service. The NYPD guidelines are of interest here and can easily be applied to the South African situation. In particular these guidelines insist that there are clear steps in any situation for the escalation of force with firearm use definitely being the final and last resort. The NYPD guidelines also discourage the shooting of warning shots. Instead they maintain that if a gun is drawn the officer's clear intention would then be to shoot to stop or kill a suspect and thereby protecting the officer's own life and that of any nearby bystanders. Accordingly if such a situation has been reached it means that the threat is of such a nature that firing of a gun is definitely warranted (see Annexures 4 & 5). Finally in terms of the use of force, both the UN Code of Conduct and Basic Principles provide, among other things, that force should be used only as a last resort when non-violent measures have failed or would be clearly inappropriate, and that in all cases the amount of force must be proportionate to the threat encountered and designed to minimise damage and injury. Verbal warning If a firearm is drawn for whatever reason it should be a standing requirement that a verbal warning be given unless the situation is of such a life threatening nature that this is not possible or feasible. Warning shots Warning shots should not be a requisite at all since if warning shots are fired the assumption is that a suspect is making an attempt to flee and hence could not possibly be seen as a threat to life of the officer or any bystanders. Under no circumstances can the shooting of an unarmed person running away be justified. State Prosecutor should provide reasons for declining to prosecute The Office of the National Director for Public Prosecutions (NDPP) should be approached with the request that as a matter of course brief reasons for either declining to prosecute or to prosecute be provided in cases of police use of force or other criminal offences for which a member has been charged. Internal disciplinary hearings Internal disciplinary hearings should take place and be finalised as quickly as possible and independently of any criminal judicial process since the SAPS cannot afford to be seen to delay in any way in dealing with issues of use of force or misconduct. The SAPS internal processes must not wait for the courts to deal with any charges especially in the light of current backlogs and delays in the court system. Modifying behaviour
Furthermore, lines of responsibility should be extended upwards. In other words, commanding officers of members guilty of perpetrating abuses should have these taken into account when performance evaluations occur or when they (commanding officers) are reviewed for promotion. Management is ultimately responsible for abuses and misconduct that occurs since the problem should be better managed and dealt with at the management structures' level. Moreover, such responsibility should include, but not be limited to, adversely affecting promotion prospects of line managers themselves or even involve their removal from their positions of authority and management.
There were a number of cases in which police officers refused to testify against their colleagues or even make a statement to the investigating officer. Most preferred to wait for advice from a legal representative or their union representative before making any statements. The lack of co-operation from members appears to have contributed to a sense of impunity in some members (a feeling that such behaviour is part of the police culture and in any case they have been getting away with it for many years). This behaviour can broadly be placed under the so-called 'code of silence' that is evident among police officials worldwide. Efforts will have to be made by police management to break down this culture within the service and put in place mechanisms whereby members will feel free, as a matter of principle, to report flagrant abuse of the use of force by any colleagues. Police management, in this regard, should try to aim to create an enabling environment whereby members are not placed in a position where they feel 'it is wrong' to report fellow officer's indiscretions. Allied to this is the need to inculcate respect for the principles of adhering to all the regulations and having 'zero tolerance' for any deviations by anyone from the letter of the law and the responsibilities and obligations of the regulations. These efforts tie into a recommendation for more transparency in terms of the provision of information regarding the investigation of cases of use of force coupled to the publication of regular statistics on police shootings and deaths in custody in order to ensure public accountability and confidence in the process. Furthermore, the outcome of criminal, disciplinary and administrative investigations into alleged police ill treatment, disputed killings and deaths in custody should be made public promptly after completion of an investigation, unless doing so would jeopardise any ongoing criminal proceedings. Such information (transparency) requirements should also be extended to the State Prosecutor's offices by obligating them to provide information on the reasons for not seeking or recommending criminal charges.
Although the researchers were not always able to get a good idea or clear picture of a police member's home situation, there was some indication that in a number of cases, there existed an obvious need for greater ongoing attention being given by commanders to members' home life situation and emotional state of member. Commanders need to recognise signs of stress other than only those related to the work situation. For both experiencing traumatic incidents and as a check on the emotional stability in terms of personal circumstances, it is recommended that more regular debriefing and interviews with their commanders, than is currently the case, should be instituted. In order to implement this on a systematic basis it is recommended that all commanders receive some form of basic debriefing technique and counselling training since they are the first line of contact and observation. If unacceptable levels of stress are detected at the commanding officer level such members to be immediately referred for further counselling and advice to the helping professions' services in the SAPS. Furthermore, a corollary to this support would be a drastic improvement of the capacity, specialised training and staffing of the helping professions' services within the SAPS. Accordingly it is strongly recommended that superiors debrief or interview on a regular basis, and where necessary members be referred for counselling (promotion or being placed back on active duty can be made dependent upon a course of counselling being successfully completed). Problems need to be addressed so that a more efficient and effective service is the result. Too many commanders appear to hide behind the excuse of overwork, other stress factors, no time or lack of resources, 'can't do it when they are off shift duty' etc. Therefore, regular debriefings should be included in station commander's managerial duties and accountabilities. In addition, the international literature suggests that for the in-depth debriefing and counselling that psychologists with either a policing background or experience of policing activities are best suited for such a service to members. This view was also strongly supported in the focus group interviews.
A system of regular review of personnel behaviour and performance should be instituted at station level. This should be a standard management requirement of commanders and that written assessments be noted in the personal files of members for evaluation purposes when promotions are due. Part of this system to be a form of 'red-flagging' of areas of behavioural concern, for instance excessive alcohol use or abuse; incidents of domestic violence (a check to be made whether the register requirements of the Domestic Violence Act are being adhered to in the cases of members themselves); expression of inappropriate anger or aggression in work situations; and frequent absenteeism. Such behaviour review to include a review of past patterns of possible misconduct so that all incidents can be included in the assessments (See Annexure 9).
It is therefore further proposed that an electronic information database be established into which all relevant information of reported cases of misconduct by police personnel can be entered. Such an electronic database (using a template for the different categories) will serve as a valuable tool for analytical purposes and in making crosschecks for repeat offenders, comparative and similar patterns of behaviour, success rate and impact of preventative and interventionist programmes. This electronic database will also assist in the drawing up of offender profiles, while also guiding the choices in terms of remedial steps that need to be taken. In essence this electronic database can serve as an early-warning system by red-flagging possible areas of concern for each individual under a station commander's command. In addition, this can assist the Special Shooting Investigation Team's investigations by providing a record of an officer's past shooting incidents. Moreover, the electronic database can be used in the analysis of all these cases so that trends in misconduct, patterns of escalation, histories and types of misconduct can be identified. An ancillary objective would be for the development of a generic training module dealing with all the aspects linked to the use of force which can be presented to SAPS managers (train-the-trainers approach) so that this training can be fast tracked throughout the service and have the desired multiplier effect.
All complaints of ill treatment or violence, whether made to the police or the ICD, should be expeditiously and diligently investigated. In particular, the outcome should not be dependent only on proof in the individual case; patterns of abuse should be similarly investigated. Unless the allegation is manifestly ill founded, those involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. Where a specific allegation or a pattern of acts of excessive use of force or ill treatment is demonstrated and proven, the personnel involved should be discharged from the SAPS.
It is absolutely imperative that any suspect, when being arrested, be informed of their rights (as is the practice in the USA with the so-called Miranda Rights obligations). No police officer should at any time dissuade a person in detention from obtaining legal advice. A list of suspect's and detainee's rights should be displayed prominently at all police stations as well as being available for perusal as an information sheet.
A complete and full record of any person arrested or who comes and lays a charge should be made by police officials. Incomplete records do not protect either the victim or the police officer (from false charges or revenge complaints). To this end a concerted effort is needed to ensure that CCTV cameras be installed in such vulnerable areas as holding cells and charge offices, not only to protect all members of the public but also police officials (from being falsely accused of misconduct or use of force).
This need can be accommodated within current public awareness campaigns dealing with complaints against the police. Like the recommendation regarding suspect's rights, the guidelines for victims and members of the public to lay complaints, the procedures to follow and requirements to fulfil, should be displayed prominently at all police stations as well as being available for perusal as an information sheet.
Special attention needs to be given to the monitoring as well as random inspections of police stations in order to prevent abuse of not only suspects but also complainants in the police station service centres and holding cells. A public awareness campaign for people to be made aware exactly what they can expect in terms of treatment and service delivery, as well as procedures and channels to follow when laying complaints against members of the police. Greater use of the Witness Protection Programme Because
of fears of intimidation and threats of violence from police officials accused
of ill-treating members of the public, greater use of the witness protection programme
should be made. This will go a long way towards breaking down the culture of impunity
as well as obtaining the needed convictions of those guilty of perpetrating such
acts. Training
Basic and refresher training for police and others involved in law enforcement should include courses not only on human and constitutional rights, but also scientific techniques and other best practices for the professional discharge of their functions.
There is an obvious need for clear and concise explanations and definitions of the whole Section 49. It is suggested that workshops be formulated dealing with all aspects, in particular the practical applications by means of case studies and interactive role-playing, and that these be presented countrywide at area level. These training workshops should be used to re-asses what comprises a 'life threatening situation'; use of 'appropriate' levels of force etc. by drawing on the practical experiences of officers at ground level. There is still a good deal of confusion and lack of clarity concerning the use and meaning of such terms as 'use of necessary force' versus the gratuitous use of violence and what is meant by 'excessive and unnecessary'. In addition, there is the need to emphasise in the training of any officer the following: Firstly, that at the scene of a police incident police officers have an obligation and a legislated responsibility to ensure that the law and regulations are complied with. Secondly, to observe and to actively intervene if necessary if the use of force by other police members against a suspect becomes excessive. (This is an obligation and responsibility not only in the law, as excessive use of force is a criminal offence, but also in the current SAPS Code of Conduct).
A pattern that consistently emerged from this study was poor people management skills, a lack of conflict mediation skills or the implementation of anger management techniques. It is recommended that specific courses for the training in these particular skills be implemented. Moreover, that such courses be supplemented with a range of other life skill training and stress management techniques (e.g. lectures on the meaning and content of 'appropriate professional behaviour'). Such training is in fact crucial since the spin-offs in other areas will be significant particularly by way of reducing stress levels while simultaneously ensuring more effective policing occurs. Members proficient in these skills automatically enhance overall efficient service provision. It is therefore essential that police management recognise the need for a more holistic and all encompassing approach to training police officers in terms of overall personnel development (See Annexure 9 for detail on the importance of implementing the correct stress management programmes and counselling).
It is strongly recommended that operational police officials be given specialised situational training using available programmes (See Annexure 6). Such simulation training, although the initial outlay is costly, can save on the costs of such training items as bullets and firearms. Simulation training in particular can help to inculcate split-second decision making and critical assessment of life-threatening situations etc. (See Annexure 8 on street survival tactics and training).
There was an evident need for an emphasis in basic training for police members to be more intensively trained not only in the handling, firing but also methods of retention of a firearm, and approaching a crime scene with a firearm, and arresting a suspect.
It is imperative to ensure that police members are thoroughly conversant with techniques and strategies by means of frequent refresher courses for such policing activities as arrest procedures, handling and detention, subduing a suspect using only 'minimum force', approach to a crime scene, apprehending of a fleeing suspect without firing a firearm.
Training also to be provided in non-lethal hand and restraining holds (e.g. pressure points techniques) so that injuries during arrests and detention do not occur. In addition the police management should seriously consider the standard issuing of pepper spray and the steel 'concertina' batons which can be more easily carried on the person than the current tonfa baton (this should still to be issued to officers but to be part of their equipment stored in a vehicle)
Equipment other than a firearm which can be used in arrest situations or where a suspect needs to be restrained or even domestic violence situations e.g. concertina steel baton, pepper spray.
An awareness and training programme on the regulations pertaining to disciplinary procedures and section 49 for all commanding officers, duty officers, investigating officers, presiding officers at internal inquiries and negative discipline officers should be implemented. This in order to ensure the strict adherence to the regulatory requirements regarding the correct procedures to follow in the disciplinary regulations.
Properly trained and well-controlled police dogs are undoubtedly a valuable crime prevention tool, especially when used responsibly and judiciously. Such proper use of police dogs, especially in arrest situations, obviate the necessity of police officers having to resort to the use of firearms when making an arrest or attempting to subdue a violent or dangerous suspect. However, in the cases of dog use in the sample of files it was more often than not found that these incidents were a case of the police officer 'setting the dog' on the suspect. A logical conclusion is that police dog handlers ought to exercise stricter control over the actions of their dogs or alternatively the training of the dogs themselves be changed to reduce the uncontrolled aggression of dogs 'set upon' suspects. Accordingly, it is recommended that attention be given to providing more intense training to police dog handlers but also that the numbers of dogs in training be increased substantially. Emphasis in the person training to be on the correct and proper use of dogs, while the dogs themselves be trained to refrain from savaging a suspect once caught. Issued by Independent Complaints Directorate (ICD) Steve
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