SUBMISSION on SECTION 49 [Bill 39 0f 2010] Portfolio committee Section 49 hearings, 24 August 2011 SUBMISSION on SECTION 49 [Bill 39 0f 2010] Presentation to the Portfolio Committee on Justice and Constitutional Development David Bruce, Independent Researcher, 24 August 2011 8/29/11

Introduction There is a need for an amendment - difficulties in interpreting the current Section 49 for purposes of training police officials (lack of clarity in legislation); The Bill is a step forward – much clearer. But – the amendment expands police powers to use lethal force – is likely to aggravate problem of high levels of killings and other use of lethal force by police. Our submission: improve clarity of legislation substantially whilst not expanding police powers to use lethal force. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Current situation Killings by police reported by ICD in last two years are highest since the ICD was established. Substantial number of killings involve innocent bystanders (48 in last two years according to ICD statistics). Ongoing problem of killings of police Current statistics do not indicate that these are increasing. But are continuing at a high level. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Minimum force – containment and de-escalation tactics 44 Police safety Consistent experience in US – greatest improvements in police safety have been achieved by police departments which have focused on minimising the reliance on the use of force (the minimum use of force) Reductions in killings by police and killings of police can be achieved & can support sustaining and improving police effectiveness. Implies: need for professional use of force by police – emphasis on protecting life (including police safety) and on minimising the use of force Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Professional use of force Steps to be taken by SAPS and Metro PDs Improve information on circumstances of killings of police. Establish systems for monitoring the use of force. Develop use of force policies which provide guidance to their members on the use of force. Improve police tactics Review and upgrade training and other support to members to ensure professional use of force. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Protection of life principle Deadly force should only be used against a person who is likely to cause death or serious bodily harm to the police officer or another person in the immediate situation (use of deadly force for defence) or in the future (use of deadly force for arrest). It justifies the taking of human life only where this is necessary to protect people against death or serious injury. Can also be called ‘dangerousness ‘ principle. Current Section 49 embodies this principle but not clearly drafted. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Support for Protection of Life principle Best conforms to principles of proportionality and necessity. The key principle in international legal instruments Some police departments in the US use this principle in their deadly force policies Also consistent with emphasis in paragraph 54(f) of the Constitutional Court’s judgment in the Walters case – Bill places reliance on paragraph 54(h) but ignores 54(f). Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Assessing dangerousness The fact that a person is reasonably believed to have committed a crime of serious violence cannot on its own be taken to justify the conclusion that the person poses a threat to others. Perpetrators of serious violence Some - isolated instances. Others – regular and repetitive basis. Legislation can identify key categories of perpetrators likely to be involved in repeat serious violence. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Benefits for police if lethal force based on clearly articulated ethical principles If policing itself is not based on valuing and protecting human life this feeds into the overall problem of lack of value for human life in society. Basing the use of deadly force on clear ethical principles also has profound internal benefits for police agencies, providing moral reassurance to police officers who are involved in the use of deadly force, as well as feeding into feelings of pride in the policing profession and esprit de corps. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Proposal: Clarifying the legislation Support clear distinction between use of lethal force for defence (49(2)(a)) and for arrest (49(2)(b)). Use Section 49(2)(b) in Bill as point of departure: Clear statement of dangerousness (protection of life) principle. Separate sub-clause emphasising necessity (no alternative means of securing arrest) Care for and protect innocent bystanders. Test for dangerousness is articulated. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Test for dangerousness – proposal Not exhaustive – eg. Terrorism, deliberate HIV 11111111 Test for dangerousness – proposal For the purpose of section 49(2)(b)(ii) persons may be regarded as likely to inflict serious bodily harm in the future if reasonably believed to have committed: Multiple acts of this kind; or Aggravated robbery with a weapon capable of inflicting serious injury; or Rape involving the infliction or threatened infliction of injury with a weapon capable of inflicting serious injury; or On other reasonable grounds. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Definition of arrestor The definition of arrestor in Section 49(1)(a) of the draft bill should be changed to restrict the use of deadly force for arrest to ‘peace officers’ including police and correctional officials. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

Conclusion ‘The most serious act in which a police officer can engage is the use of deadly force. The power to carry and use firearms in the course of public service is an awesome responsibility’ (Deadly force policy, New York Police Department); Law which clearly articulates a protection of life principle will support professional orientation to the use of lethal force – in so doing will support improved police effectiveness combined with reduction of killings of and by police. Legislation on its own not sufficient – need additional measures to support professional police use of force. Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11

The end Thank you Portfolio committee Section 49 hearings, 24 August 2011 Portfolio committee Section 49 hearings, 24 August 2011 8/29/11