Was it legal to taser a 95-year old woman?

WHAT HAPPENED?

On 17 May 2023, Police were called to the aged care home in relation to a resident welding a weapon. As reported, the resident had walked into the kitchen, seized a knife and the facility deemed it appropriate for the police to be called. After arriving on the scene, an officer decided to draw their taser, take aim and discharge the prongs.

In any situation, where police are faced with an individual holding a deadly weapon, you could reasonably expect the taser to be utilised.

However, the situation becomes concerning when you consider the following factors:

1. The 95-year-old woman was suffering from dementia
2. She only weighed 43 kilograms
3. She required a walking frame to move
4. The weapon was a steak knife
5. The police have admitted that she was approaching police “slowly”

What was the result of tasing the aged care resident? The woman fell back, her head met the floor resulting in serious injuries. As expected, she has not been discharged and is still receiving treatment in hospital.

WHAT ARE THE RULES REGULATING TASER USE?

Anyone can access the procedures for police issued tasers, see here: Use of Conducted Electrical Weapons (Taser).  The document notes the procedures were designed to ‘ensure only proper use, but to minimise any opportunities for or risks of misuse.’

To start, officers must assess the situation and consider all tactical options and available before drawing the taser. Force should only be used where de-escalation or negotiation have not been successful, or where there is no reasonable opportunity to attempt these techniques.

This use of force must be reasonable to be justifiable under the law. The officers must quickly assess the situation including:

1. Age
2. Gender
3. Size
4. Fitness
5. Imminent Danger
6. Mental State
7. Disability
8. Drugs/Alcohol
9. Injury or Exhaustion
10. Ground Position

On 17 May 2023, there were only four scenarios in which an officer could have discharged their taser:

1. Protect human life
2. Protect officer or others where violent confrontation or violent resistance is occurring/imminent
3. Protect an officer in danger of being overpowered, protect themselves or another person from risk of actual bodily harm
4. Protection from animals

RESTRICTED USE

It is likely the officer will rely on the knife as the justification for drawing their taser. However, not every threatening situation allows for taser use, the rules note the following ‘Restricted Use’ scenarios:

1. Likelihood of significant secondary injuries (concussive brain injury)
2. Passive non-complaint subjects who are exhibiting non-threatening behaviour
   1. Refusing to move or offering little or no physical resistance
   2. Refusing to comply with police instructions
   3. Acting as a dead weight
3. Near explosive materials, flammable liquids or gasses
4. To rouse an unconscious, impaired or intoxicated subject
5. As a crowd control measure
6. Subject is holding a firearm
7. Against a mental health patient to make them comply or submit to medication/treatment

SHOULD NOT USE

There are further special ‘Should Not Use’ situations:

1. Elderly or disabled subject
2. Subject of particularly small body mass
3. Handcuffed subject
4. A child
5. Reasonably suspected pregnant subject
6. A fleeing subject
7. Against a driver or operator of machinery, where there is an ‘out of control’ risk
8. Using the taser for longer than five seconds

The only defence to drawing a taser in the ‘Should Not Use’ category is where there are ‘exceptional circumstances’. This is defined as when a reasonable person would believe that prompt and unusual action is necessary to prevent actual bodily harm to self or others.

INVESTIGATION

There will be an investigation into the aged care incident and whether it was reasonable to discharge the taser. The investigation will most likely include an analysis of the Restricted Use and Should Not Use scenarios, whether it was ‘necessary’ to discharge their taser and whether any other use of force options were available.

It’s expected that police body worn and taser gun videos will provide a somewhat objective view of the situation. This investigation will be reviewed by the Law Enforcement Conduct Commission (LECC). Regardless of the outcome, community outrage is expected.

UNDERREPORTING

If an incident occurs in the community, such as an arrest, a police officer is required to return to the station and record any ‘responses to resistance’. This information is recorded on the Computerised Operational Policing System (COPS database). Officers are required to note whether taser guns were used in the following modes:

1. Draw and cover
2. Probes discharged
3. Drive stun

Additionally, taser use is to be reported on the Taser Incident Management System (TIMS).

However, the LECC has recently reported there are ‘high rates of under-reporting of tactical options’ on the COPS database. For example, the data from TIMS recorded 16 taser incidents however the COPS database only noted 12 incidents. The LECC concluded there may be ‘reporting fatigue’ which results in incorrect reporting by officers. You can read the report here: link

This finding of reporting fatigue is concerning for several reasons and has the flow on effect of diminishing society’s ability to hold police officers to account.

Practically, when a person is charged with Assault Police or Resist/Hinder Police, criminal defence lawyers often subpoena the police to obtain the relevant COPS records. However, without proper reporting by police officers there is increasing concern regarding the accuracy of these records.

At Morrisons we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice or representation, you can book an appointment with one of our expert criminal lawyers.