In NSW, law enforcement officers are entrusted with the responsibility of maintaining public safety. In accordance with their powers, police officers can use lethal force and shoot to kill in limited circumstances.
Since record keeping began in 1989, there have been 176 shootings in police custody. The largest proportion of deaths in police custody have been due to gunshot wounds, representing 32% of all deaths. From 2018 to 2020, there was a 78% increase in fatal police shootings, which is the highest number of shooting deaths since 1989.
Given this increasing use of firearms from police offices, it is crucial to understand when police officers can employ such lethal force under the law and police guidelines.
What type of force can police officers use?
The level of force police officers are permitted to use is governed by Part 18 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).
Section 230 of LEPRA covers the use of force generally by police officers, stating that “It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.”
In relation to making an arrest, section 231 of LEPRA states: “A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”
What is reasonable?
Numerous factors are relevant in a determination of what is considered ‘reasonably necessary’ regarding the force used by police officers, including the suspect’s age, gender, size, and if they are resisting police, or if they pose a threat to police officers or the community should they possess of a weapon or other device.
Rick Sarre, a professor of law and criminal justice at the University of South Australia, asserts that “An officer can use lethal force against another person when there’s a reasonable threat of death or serious injury to the officer, another officer or a member of the public”.
However, officers are trained to only use firearms as a last resort. As such, numerous defence equipment or tactical options are available to police outside of using firearms, such as batons, capsicum spray, or a taser.
Furthermore, if using a firearm is considered necessary, officers cannot do so in a way that is likely to cause death or serious injury, unless it is believed that they must in order to save their own lives or the lives of others.
What are the consequences for using lethal force?
When a police officer discharges their weapon, an investigation is generally conducted to examine the circumstances. In NSW, this is known as a ‘Critical Incident’ investigation. A Critical Incident pursuant to sections 110 and 11 of the Law Enforcement Conduct Commission Act 2016 (NSW) provides:
- it is an incident involving a police officer or other member of the NSW Police Force that results in the death of, or serious injury to, a person (including another police officer), and
- death or serious injury—
- arises from a discharge of a firearm by the member involved, or
- arises from the use or operation of defensive equipment by the member involved, or
- arises from the application of physical force by the member involved while exercising any function as a police officer, or
- arises from the use of a police vehicle by the member involved (including its use as a passenger), or
- arises while the person is in custody or while escaping or attempting to escape from custody, or
- appears to be likely to have resulted from any police operation.
During this investigation, the NSW Police Force will consider:
- The lawfulness and reasonableness of the officer’s actions;
- The extent to which they complied with relevant legislation, policies, practices, and procedures of the NSW Police Force;
- Any complaint about their conduct that has been referred to the senior critical incident investigator; and/or
- Any evidence of officer misconduct.
If the level of force is deemed to be ‘excessive’, an officer’s conduct may be found to be unlawful, and they may be liable to criminal and civil charges in relation to their use of excessive force.
The Terrorism Exception
In NSW, section 24B(1) of the Terrorism (Police Powers) Act 2002 (NSW)authorises the use of lethal force against suspected terrorists. Specifically, it states:
- “The police action that is authorised by this section when police officers respond to any incident that is declared to be a terrorist act to which this Part applies is authorising, directing or using force (including lethal force) that is reasonably necessary, in the circumstances as the police officer perceives them, to defend any persons threatened by the terrorist act or to prevent or terminate their unlawful deprivation of liberty.”
By permitting the use of firearms to prevent or terminate an unlawful deprivation of liberty of any persons, it thus becomes possible for officers to execute lethal force in circumstances that do not pose an imminent threat of death or serious injury. Additionally, police officers are afforded immunity from prosecution for taking any police action in response to this terrorist act, so long as they are acting in good faith.
Ultimately, police can shoot to kill in limited circumstances, where the guiding principle for engaging in such lethal force is ensuring the protection of the police officers and community alike.
Don’t hesitate to contact our experienced legal team at Jackson John Defence Lawyers. We will help you navigate this complicated area of law and ensure you receive the best result.
