Ombudsman’s report reveals Police lack of understanding of the law

BY Lagi Keresoma

APIA, SAMOA: THURSDAY 21 APRIL 2016: The Ombudsman’s 46 page report on the armed arrest of a man at the Fugalei Produce market, has revealed the Police Commissioners lack of understanding of the law, and the police officers  failure in conducting a proper investigation before the unlawful arrest of Suitupe in August last year.

Suitupe was arrested at gunpoint at the Fugalei market 18th August 2015, and Suitupe later lodged a complaint with the Ombudsman office, who conducted a long investigation into the incident.

The report was sent out to the media this week for publication as it showed public interest on the events that led to the arrest.

The report stated that the incident at Fugalei was a “watershed moment in the history of Samoa – it was the day police used firearms in a public place to carry out a pre-planned arrest of an individual for the very first time.

“In a scene described as ‘something you only see in Hollywood movies’ Mr Suitupe Misa (shall be referred hereinafter as Suitupe) was arrested at gunpoint by a contingent of armed plain clothed officers in front of a shocked and distressed Fugalei marketplace.”

After investigation, the Ombudsman office concluded  that the “arrested man had committed no crime and the arrest was carried out based on insubstantial and second-hand evidence, raising serious questions over the actions of the Commissioner of Police.”

The report concluded that this “sorry affair has highlighted a dangerous trend towards greater use of firearms by the Police, a tendency towards an American style of policing (America has its own set of circumstances) and a disregard for the law within our law enforcement agency.”

Poliuce Commissioner Fuiavailili Egon Keil favurs Amercian style

The Police Commissioner Fuiavailili Egon Keil

“However, it is now up to the relevant people to ensure that this type of incident does not occur again. It is also up to each and every one of us to work towards greater community engagement with our Police officers.

“Without trust and support, law enforcement becomes reliant on use of force rather than communication. Guns, rather than words. There will be times when fear makes it tempting to call for greater use of firearms by the Police but let us draw strength from the fa’asamoa and from examples around the world such as New Zealand and the United Kingdom and be resolute in our commitment to peaceful and respectful law enforcement.”

The report also stated the authority given to the Minister to approve police to be armed, should be revoked, and that certain provisions of the Police Powers Act should be reviewed.

Ombudsman’s Report recommendations:
• The Ministerial Approval be immediately revoked and reissued with the scope confined to large scale narcotics and firearms raids where a warrant exists and clearly specified special duties.
• Section 13 of the Police Powers Act to be reviewed by the Ministry of Police, in consultation with the Office of the Attorney General, to prescribe a clearer process and parameters for issuing authorizations for the use of firearms, and the inclusion of a provision and guidelines for use of firearms in urgent situations without prior Ministerial approval. Such provision should include a clear accounting process for justification after each use of firearms by police.
• What Suitupe endured on Tuesday 18 August 2015 was unlawful as this Report clearly shows. Members of the public are sometimes adversely affected by wrongful actions of the Police. This is unfortunate but these things do happen from time to time. Suitupe deserves an apology from the Police but an apology is only meaningful if it is genuine and sincere. At any rate I make no recommendation concerning Suitupe. It is not much but at least something that this Report vindicates him and his unhappiness with the Police.
•  Furthermore, the Office of the Ombudsman will be referring two Police officers who provided evidence to the Director of Public Prosecutions (DPP) on a charge of perjury. The DPP will decide whether there is a case to answer and if it is in the public interest to pursue the charge. The
• Ombudsman would like to make it clear that anyone providing sworn evidence before his Office is expected to tell the truth, the whole truth and nothing but the truth. Those who do not can expect similar consequences.

The Ombudsman Maiava Iulai Toma

The Ombudsman Maiava Iulai Toma

These recommendations are based on various findings of the Ombudsman’s investigative team that  include:
• The Ministerial approval granted is too broad in scope for the purposes of the Police Act 2007;
• The Commissioner of Police failed  to meet basic investigation principles and placed undue consideration  on second hand  evidence, leading directly to the wrongful  and unlawful arrest of Suitupe;
• The Commissioners decision to arm and allow the use of firearms by his officers contravene the Use of Force Policy, was irresponsible, and could negatively impact the overall safety and security within Samoa;
• The Commissioner failed to take appropriate steps to identify the actions of his officers as being part of a police operation, leading to widespread distress and in one case  serious health  issues;
• The actions of the Officers X and Y in drawing their weapons was contrary to the Use of Force Policy and their failure to inform the complainant of his legal rights or reason for arrest contrary to the Police Powers Act 2007;
• The lack of a proper briefing by the Commissioner led to confusion and misunderstanding by his officers about the operation, endangering the safety of the public. No clear guidance was provided on whether they were to detain or arrest Suitupe with the only  clear instructions being to arm themselves;
• The Commissioner does not have an understanding of te basic laws regarding arrest and detention in Samoa;
• The arrest of Suitupe was unlawful and improperly undertaken and therefore violated his fundamental human right to liberty;
• Under the orders of the Commissioner, the actions taken by the officers were contrary to established procedures and Samoan methods of policing and did not meet the requirement of ‘minimum necessary use of force’;
• The Commissioner was not in control of his own (unlawful) operation or his officers. Without this control the officers acted wildly and improperly and the rights of the complainant and the public were violated;
• The decision not to formally interview Witness A or take any further action by the Commissioner raises serious concerns about the process and motivations for this operation;
• The Commissioner of Police believes an American style approach to policing and use of firearms leads to greater safety and public security and that the overall record of the police in the U.S in this respect is very good despite overwhelming evidence to the contrary.

The report also recommended that 2 of the witnesses in the investigation be referred to the Public Prosecution team to be charged with perjury. According to the report, these 2 witnesses have lied in their testimonial and it is up to the public prosecution team whether to charged them or not.

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