A police officer profiled a man with face tattoos before unnecessary force was used during an arrest in Hamilton, the Independent Police Conduct Authority (IPCA) has found.
The officer was conducting traffic checks in an unmarked patrol car on 10 June 2022, when he says he saw the man and his partner parked near Massey Street.
When the officer first saw the pair in their Holden Rodeo, he noted no driving concerns but did notice that the man had "gang-related facial tattoos".
At the time, there was a "nationwide operation to time try and combat crime," so the officer searched the licence plate to see if there were any warrants to arrest. The search did not return any results, so he continued driving.
A short time later the officer says he saw the vehicle again but this time it was alleged the driver, a female, wasn't wearing a seatbelt.
The female turned down a side street, leading to the police officer telling the communications centre "a gold rodeo just slipped me on Massey" and that "the front passenger has some come tip me out tats".
The IPCA notes a "tip out" is a police colloquialism for a vehicle stop.
While the vehicle wasn't pursued, the officer eventually caught up with them in a shopping centre car park, where the pair had gone to pick up laundry from a laundromat.
The officer called for back-up before approaching the car in the car park. He says his intention was to talk to the driver about not wearing their seatbelt, however, it resulted in the arrest of male and female, as well as a store owner who had come out to film the altercation.
The officer, and subsequent back-up officers, claimed the man was obstructing them from completing a vehicle check. After a back-and-forth between the man and the officers, force was used in his arrest and he was sprayed with pepper spray.
Before his arrest, the man was unhappy because he did not think his partner's car should be searched without reason.
No one was charged over the incident.
The IPCA found the initial vehicle stop was unlawful, due to it not being for a "genuine purpose" under the Land Transport Act 1998.
It also found the arrest of the man, his partner and the shop owner were unlawful and the use of force on the man was unjustified.
CCTV supports the IPCA's finding that the man did not impede officers from carrying out basic vehicle checks.
Despite the female being the driver and owner of the car and the one allegedly not wearing a seatbelt, CCTV obtained during the investigation shows that throughout the entire incident, officers paid very little attention to her.
The officer's initial comment to the man - "you're a new face in town" - and his prior radio communication that the man had "come tip me out tats" - appears to demonstrate that the officer's real interest was the man.
Officer A has expressed remorse about his comment over the radio.
The IPCA concluded that the car was not stopped because the driver didn't have a seatbelt on but because the passenger had been profiled based on his facial tattoos.
FORCE USED DURING THE ARREST
The Independent Police Conduct Authority detailed what happened during the arrest of the man with facial tattoos.
The three officers were joined by an off-duty officer in trying to arrest the man. Although the three on-duty officers did not initially realise the fourth man was also an officer.
CCTV and cellphone footage shows an officer placing his arm around the man's neck to take him to the ground. The man recalled telling officers that he cannot put his hands behind his back and that he "generally gets handcuffed at the front due to his size".
Once on the ground, the man was initially lying on his front, officers then rolled him onto his back with one suggesting that they should use pepper spray.
An officer warned his colleagues that he was about to spray, and the off-duty officer held the man's head back – he says he did this to avoid spray going into his own eyes and to control the man's head. The man was sprayed at close range.
The man was seen being a doctor due to injuries received during the arrest.
The IPCA was satisfied appropriate aftercare was performed for the man after being sprayed.
The man's arrest was unjustified due to the nature in which the car had been stopped.
The IPCA says even if the traffic stop was lawful, the level of force used in the arrest would have still been excessive.
SUBSEQUENT ARRESTS
The man's partner and a store owner who had come out to film the altercation were also arrested.
The woman was arrested for "obstructing police" after kicking the tyre of a police car. She told officers she did this out of frustration.
CCTV footage found no evidence that when kicking the tyre she did not obstruct police from doing their duties.
The store owner was also arrested for "obstructing police". This was due to filming the incident on his cellphone.
In the cellphone footage, police can be heard warning the man and telling him that police need space to do their job. The officer said he was "happy for [him] to film".
CCTV footage showed the store owner gave police more space, but the officers say they arrested him due to him getting closer and closer.
Both were released with a verbal warning at the scene.
POLICE RESPONSE
Superintendent Bruce Bird, Waikato District Commander, has acknowledged the report and admitted that the officer did stop the car based on the visible tattoos of the passenger.
Supt Bird also acknowledged that both the traffic stop and subsequent arrests were unlawful.
"The staff involved in this matter have shown genuine remorse for their actions and have reflected on the impact of their decision-making on that day," Supt Bird said, "particularly the initial officer who made the decision to stop the vehicle."
He was subject to an employment process of which the outcome is confidential.
Three officers have undergone a training programme led by NZ Police Iwi and Communities to strengthen their cultural competency and further tactical communication training.
"We know we don't always get it right, but we are committing to ensuring that we learn from our mistakes and improve our practice," Supt Bird said.
All the officers involved remain employed by the New Zealand Police.
