The arrests of two men who yelled and pulled the middle finger at police officers in Auckland’s CBD have been found to be “unjustified” and “unlawful” by the police watchdog.
The use of force against the men was also found to be unjustified. One officer was charged with assault after the incident.
The men, identified as “Mr Z” and “Mr X” in the report by the Independent Police Conduct Authority, had been drinking on the evening of May 21, 2022.
The pair were walking down Galway St when a police van entered the road as a crime prevention patrol.
As the van passed, Mr Z gestured rudely with both hands to the officers inside and according to police swore at them.
Five officers, identified as “Officers A-E”, got out of the police van and stood in a semi-circle around Mr Z, who was standing up against a wall.
After a couple of minutes, Officer B pushed Mr Z backwards with both palms and then, with other officers, arrested him.
The officer said in the report that he pushed Mr Z as he believed he was intending to headbutt him as he was making “derogatory” comments and “moving his arms and head around in an unpredictable manner”.
However, CCTV footage reviewed by the IPCA showed it was Officer B who got up close to Mr Z and stayed there for about 40 seconds.
While Mr Z was arrested, Mr X began to film on his phone and was told to stand back and walk away or he would be arrested for obstruction.
As the police van drove past Mr X on Galway St, he pulled the finger at the officers, who then arrested him.
Police released the pair 15 minutes later with formal warnings. Mr Z’s warning was for “disorderly behaviour likely to cause violence”, while Mr X’s was for a less serious disorderly behaviour offence.
For arrests to be lawful, police must have “good cause to suspect” both had committed these offences.
Courts have ruled disorderly behaviour should “largely disturb the normal functioning of life” in the immediate vicinity.
The IPCA said police “did not have good cause” to suspect either Mr Z or Mr X had behaved in a disorderly manner.
“That is because swearing and rude gestures directed at police do not constitute a serious disruption to public order and do not significantly disturb or threaten ‘the normal functioning of life’ (in fact, the CCTV footage shows no one else was nearby at the time),” the report read.
“The behaviour was directed solely at police, and therefore did not meet the threshold for disorderly behaviour.”
Both the arrest and the force police used to make the arrests were deemed to be “unlawful” as a result.
Police conducted their own investigation and charged Officer B with common assault for pushing Mr Z.
He was later discharged without conviction after he pleaded guilty and ordered to pay reparations. The officer remains a member of the New Zealand police.
Acting Superintendent Sunny Patel said police agree the men should not have been arrested and therefore not given formal warnings, which he said have been removed from the police database.
“Our officers do make mistakes from time-to-time, given the extremely difficult and at times confrontational environments police officers find themselves in.
“While it was a very low level of force used, the officer should not have pushed the man and their behaviour at that incident was at odds with the high standards we expect of our staff who do an incredibly challenging job.”
