Alternative Law Journal
The recent fatal shooting by Victoria Police of a mentally ill man, once again raises questions about police responses to individuals with mental impairment. According to newspaper reports, police were called after a 27-year-old man had a row with his mother, took a knife and went up the street to confront people he thought were taunting him. He broke two windows, and then began to use the knife on himself. After a stand-off lasting about half an hour, three police fired up to eight shots, killing the man. The deceased was mentally immature and suffered mood swings and depression after contracting the brain decease encephalitis. Neighbours of the man were critical of the police for not trying other methods to subdue him, and maintained that ‘we would have talked him round like other times’.
Historically fatal shootings by Victoria Police have outnumbered those by police in other States. Between 1984 and 1995 Victoria Police shot and killed just over twice as many people as all other police forces in Australia. In this 11-year period there were 35 police shooting fatalities in Victoria — including two police officers shot and killed by fellow officers — compared to 34 in other States and Territories. There have been controversial police shootings of individuals with mental impairment outside of Victoria; the fatal shooting of Ron Levi on Sydney’s Bondi beach and that of Joseph Gilewicz by the Tasmanian Special Operations Group — currently the subject of a commission of inquiry — to name just two. The statistics in Victoria, however, tend to suggest a deeper problem. In the five years from 1990 to 1995, Victoria Police shot and killed seven people with histories of mental illness, compared to five such shootings in all other States and Territories combined. 
Two civil actions against members of Victoria Police over shootings of people suffering mental illness, provide further evidence for concern. In 1985 a police officer shot a man with paranoid schizophrenia, rendering him a quadriplegic. The man’s father called the police after the son shut himself in his room and threatened to shoot himself. Two police arrived, and shortly thereafter one opened the door to the room and shot the man, after he allegedly pointed a firearm at him. A jury found the police officer negligent and the man was awarded $116,000 in damages. In the second incident, which took place in 1994, police were called after a 23-year-old man, who suffered from schizophrenia, began stabbing himself at his family home. Shortly after arriving, police shot and killed the man. The man’s parents, who were present when the shooting took place, sued. The claim was ultimately settled out of court for an undisclosed sum.
Public controversy over police shootings of the mentally ill, peaked in September 1994 with the fatal shooting of Colleen Richman, a 42-year-old Aboriginal woman. Ms Richman was shot outside a welfare service, where she attended and was well known — intoxicated and in possession of a hatchet — after missing an appointment with her psychiatrist. A support worker rang the police and ultimately one of the attending police shot her four times, including three times in the back. Ms Richman was the fourth person with a recorded history of mental illness to be shot and killed by Victoria Police in 1994 alone. An Age newspaper editorial, written shortly after her shooting, maintained that:
For too long, most Victorians have given the police the benefit of the doubt about the mounting toll. But enough is enough. The problem clearly lies with the police, with their training (or lack of it), and with what the [then] coroner, Mr Hallenstein, has identified in various reports as the police culture of the gun.
Public anxiety about police shootings was such that the Chief Commissioner and the Minister for Police took the unprecedented step of writing an open letter to the Victorian public. They wrote:
For the Victoria Police the issue of police shootings has led to a massive rethink on the handling of operations … The concerns of the Victorian community about police shootings have been heard by Victoria Police.
Subsequently a number of reviews of fatal shootings and police firearms training were established. The reviews concluded that the firearms training, while teaching police to shoot fast and accurately, failed to emphasise verbal negotiation skills and tactics aimed at avoiding confrontation. One of the reviews, for example, commented that:
There is no doubt that [firearms] trainers are keen in the performance of their job, they are practised at providing shooting instructions, but there was inconsistency amongst those spoken to in respect to training and their capacity to teach less offensive tactics. In fact, but for one, none had received instruction in the art of verbal conflict resolution tactics.
Consistent with these findings, consumers of mental health services maintain that a major ingredient in police shootings is the confrontational attitude of police. One commented about the police that:
The key thing is about them moving in and imposing their force, their will on the situation. They want to control it immediately through the threat of force or through the command of their voice or something. And so when that doesn’t work — and why would it work with someone who is distressed, terrified or angry? That’s where you’ve got the potential for disaster.
Another said that:
The idea I have of police in a confrontation is they match force with force. And I know from psychosis that aggression just brings out more aggression in me. The only way I’ll ‘come down’ is from someone being calm and talking me down. When I’ve been angry, that’s the only way it’s worked. Once I know there’s a fight on hand, I’ll fight tooth and nail. But the whole thing with the police mentality is that it’s not about disarming someone and calming them down, and diffusing the situation. It’s about conquering that person and taking them over.
A ‘survivor’ of psychiatric services, wryly commenting on the shootings and under-supply of psychiatric beds, observed that:
The way it works … is that you have to be in a crisis but you have not to be violent. And if you’re in a crisis, all the CAT [Crisis Assessment Team] will do is say, ‘calm down’, take two pills, goodbye’. And if you are violent or even just resisting the pills, then they call the police to kill you. So either way it seems to resolve the scarcity of beds issue: if you’re not violent you can’t get into hospital, but if you are violent you’re likely not to make it alive.
In late 1994 Project Beacon was established to implement the recommendations of the reviews. It developed a number of safety principles and designed and delivered a five-day training package to thousands of operational police. The training aimed to balance communication, conflict resolution and incident planning with firearms and defensive tactics training.
The retraining appeared to have a positive impact. By early 1995 Victoria Police were claiming that changes to training and policy had allowed critical incidents, some involving people with a history of mental illness, and in one case described as ‘a police shooting waiting to happen’, to be resolved without resort to firearms. In 1995 there were three fatal shootings by Victoria Police, compared to nine the previous year. The downturn in the number of police shootings and the above comment suggest that it is the behaviour and attitude of the police that largely determines the level of police shootings. The move by Victoria Police away from confrontation and towards negotiation, was clearly an overdue step in the right direction, and one that appears related to a reduction in the number of shootings of people suffering mental illness. However, at the same time as these positive changes to police firearms training were implemented, two further developments were put in train which have the clear potential to undermine the reforms and see confrontation re-emerge as the major police response to people in psychiatric crisis.
The first development involved the broadening of the Special Operations Group [SOG] deployment criteria. The SOG is a paramilitary group based on the military’s commando unit, the Special Air Services [SAS]. It was originally set up as a counter-terrorist group and is trained and equipped to use the type of extremely high levels of force more usually associated with the military than a civilian police force. The SOG regularly trains with the SAS and includes former army members. Unlike ordinary police the SOG wear black uniforms designed to create an ‘imposing appearance’ which is said to have the ‘effect of deterring violent resistance’.
Task Force Victor, the only publicly released review of Victoria Police firearms tactics, noted that the SOG were responsible for 20–25% of fatal shootings, and that critics suggested that military training led SOG members to take a military rather than a civilian approach to operations. A 1995 Victoria Police review of the group’s operations, commented that senior police had expressed concern about the group’s potential to use excessive force, and a 1993 Commonwealth review of Australia’s counter-terrorist arrangements noted the potential negative effect of the military links on such groups and ‘on the police philosophy of maximum preservation of life’. While Task Force Victor made no specific criticism of the SOG, it nevertheless recommended that reliance on it be reduced by setting up armed response groups capable of undertaking ‘all but the most demanding operations’. These new armed response groups were to exclude former members of the SOG and former members of the armed services and reservists.
Despite the Task Force recommendation to restrict the use of the SOG, its role was expanded in 1995 to include use where ‘there is a prior history of significant violence including prior history of mental disorder manifesting in violent behaviour’. Consumers of psychiatric services maintain that a history of violent behaviour will be interpreted to include ‘at a minimum everyone who’s ever refused to go to hospital’. Subsequently the group’s role was further expanded to include preventing suicide and self-harm.
It is clear the changes mean that a growing number of people suffering mental illness, or with a history of mental illness, who do not present a threat to the lives of others, are likely to come into contact with the SOG. Paramilitary policing, based on confrontation and high levels of force, is not an appropriate or humane response to people in psychiatric crisis, particularly when they do not pose a high risk to other people (a situation covered by the SOG’s previous more restrictive guidelines). It is possible that the involvement of the SOG will escalate conflict by increasing fear and tension. The mere appearance of paramilitary police may have an adverse impact on people suffering mental illness, leading to resistance based in fear.
The second factor that is likely to de-emphasise negotiation and conflict resolution in favour of confrontation, is the introduction of capsicum spray as an additional weapon for all operational police. Capsicum spray is a chemical weapon which is designed to incapacitate people by causing pain, temporary blindness and restricted breathing. After a trial in 1995, capsicum spray was made standard equipment for all Victorian operational police in 1998. Other State and Territory police in Australia have also subsequently begun using the spray. The spray is relevant to the policing of mentally ill people because senior police maintain the spray is particularly useful for dealing with people engaging in or threatening self-mutilation or suicide. 
Police have promoted the spray as an alternative to firearms and a means of reducing fatal shootings. Capsicum spray does have the potential to reduce fatalities and save lives if used as an alternative to firearms. However, the evidence overwhelmingly suggests that capsicum spray will not generally be used as an alternative to firearms, but will instead be used as an additional weapon in circumstances where firearms would never have been used. Capsicum spray may actually add to the possibility that police will shoot people armed with knives or edged weapons. This is a particular risk factor for people suffering mental illness: four of the seven people with a history of mental illness fatally shot by Victoria Police up to 1995 were armed with a knife or edged weapon.
Capsicum spray has an effective range of approximately three metres. Police are taught that the ‘danger zone’ for edged weapons is approximately six metres. Although details of police training are not available it seems highly likely, given that police are sometimes using the spray against people with edged weapons, that they are trained they should only use the spray in these circumstances if a second officer covers the person being sprayed with a firearm, so that in the event that the spray fails to incapacitate, the second officer can shoot the person. In July 1997, a man allegedly wielding a knife was shot and killed by Victoria Police after being sprayed. The spray apparently failed to incapacitate the deceased because he used his shirt to deflect it. According to newspaper reports, in June this year a man allegedly attacked a New South Wales police officer with broken glass, despite efforts by the officer to subdue him with capsicum spray. A second officer then shot and killed the man.
It is generally acknowledged that the spray is not always effective, and some studies suggest that it is less likely to be effective on people in psychiatric crisis. For example, a review of 26 deaths associated with the spray, carried out by the American Civil Liberties Union in 1995 concluded that ‘[t]here is clear evidence that pepper spray [as it is called in the United States] is unlikely to work on people who are high on drugs and in psychiatric crisis’. If this is the case, then people in psychiatric crisis who confront police with edged weapons may be more likely than other people to be shot after being sprayed because they are less likely to be subdued by the spray. Police may also face added risks. If the spray fails to subdue an offender, the police officer who has gone in close to use the spray is at risk of being stabbed, even where a second officer is in a position to use their firearm. Safety principles encourage police, where possible, to create and maintain a distance or put a barrier between themselves and someone posing a threat. Using the spray against someone with a knife or edged weapon directly contradicts these safety principles by encouraging police to get in close in order to use the spray. In addition, the availability of the spray militates against negotiation and conflict resolution tactics by providing the promise or temptation of a technological quick fix.
Capsicum spray also poses health risks for certain vulnerable groups, including those on psychiatric medication. Doctor John Coleridge, an emergency care specialist with extensive experience in the experimental use of capsicum, maintains:
The spray can cause death in people who may already have health problems or who may be under the influence of certain drugs. ‘It is well reported in the medical literature over the past 40 years that capsicum will cause collapse of the circulatory system. This effect has not been acknowledged by the Victoria Police reports. In addition to that, the use of the spray may be an adequate co-factor to cause death … If you have someone who is on speed or cocaine or is perhaps under the influence of a psychiatric drug, then if you throw this on top it may be what finally causes the death of a person.
In the United States, where the spray has been used for more than a decade, approximately 90 people have died after being sprayed with capsicum spray by police. Australia, where the spray has only recently come into use, has recorded one such death. In June this year, a 27-year-old man died in custody in South Australia after being sprayed. According to news reports he was sprayed and handcuffed after allegedly assaulting a woman with a knife. He had also apparently taken a number of tablets and cut his wrists; an inquiry has been established into the death. The risks associated with the spray are acceptable if capsicum spray is only or even mainly used as an alternative to firearms, which are of course undeniably and reliably lethal, in a way capsicum spray is not. However, the spray is often used in situations where firearms would never be justified. Police in both New South Wales and South Australia have used the spray against environmental protesters and the New South Wales Ombudsman has already been moved to warn police not to use the spray ‘as a convenient first option’ [my emphasis].
Finally, the use of capsicum spray by police may have a psychologically adverse impact on those in poor mental health, ultimately increasing the risk of suicide and self-harm. Vice-President of the (Australian) National Association of Practising Psychiatrists, Doctor Shirley Prager argues that:
for an authority figure to respond to self mutilation with a terrifying and temporarily disabling chemical such as capsicum spray is likely to lead to further psychiatric harm. This type of punitive response may increase the likelihood of eventual suicide in a susceptible person. Patients who self mutilate may eventually suicide if not treated adequately … Further Australian research is urgently required to determine the nature and extent of psychiatric sequelae due to having been sprayed with capsicum spray.
Fatal shootings by Victoria Police, particularly of the mentally ill, alarmed the public and earned the force an infamous reputation. Retraining and a change in approach in the mid-1990s has had a positive impact and reduced the shooting toll. This turnaround was brought about by an emphasis on conflict resolution and verbal negotiation as alternatives to confrontation. The positive results of this shift in style are in danger of being undermined by the increased resort to the paramilitary Special Operations Group and the use of capsicum spray against people in psychiatric crisis.
The Special Operations Group was established, and train regularly, to use very high levels of force in response to terrorist threats. Increased use of the group in incidents involving individuals with mental impairment may escalate tension and lead to greater confrontation and ultimately use of firearms. Capsicum spray, despite its promotion by police as a harmless weapon, poses a threat to the mental and physical health of those it is used against. It may also contribute to fatal shootings by encouraging police to get in close, instead of standing back and negotiating. Victoria police achieved a decrease in fatal shootings because retraining emphasised the need to talk to people in order to resolve conflict and crisis. If this lesson is forgotten, fatal shootings, particularly of those with histories of mental illness, are likely to re-emerge as a serious problem.
[*] Jude McCulloch lectures in police studies at Deakin University. Her book Blue Army: Paramilitary Policing in Victoria will be published by Melbourne University Press in 2001.
 Australian, 14 April 2000; Age, 14 April 2000.
 Harding, R., ‘Changing Patterns of the Use of Lethal Force by Police in Australia’, (1975) 8(2) Australian and New Zealand Journal of Criminology 125-36.
 Age, 15 November 1995.
 Australian Institute of Criminology, ‘Statistics: Fatal Police Shootings’, AIC 1995.
 Zalewski v Turcarolo  VicRp 76; (1994) Aust Torts Rep 81-280.
 Age, 3 November 1998, p.4; County Court of Victoria writ nos. 9501969 and 9704608.
 West, I., Inquest into the Death of Colleen Richman, Coroner’s Court, South Melbourne, 1996.
 Task Force Victor, Police Shootings: a Question of Balance, Report to the Victorian Parliament, Victorian Government Printer, 1994, p.69.
 Age, 27 September 1994, p.15.
 Age, 6 October 1994, p.12.
 Task Force Victor, review conducted by the Australian Institute of Criminology; reviews by the National Police Research Unit, the Royal Canadian Mounted Police, and the United States Federal Bureau of Investigation; and two internal reviews by Victoria Police.
 Leatherdale and Hamdorf, ‘Victoria Police Firearms Policy Review’, unpublished review, 1994.
 Melbourne Consumer Consultant’s Group, ‘Do you Mind? The Ultimate Exit Survey: Survivors of Psychiatric Services Speak Out’, Melbourne Consumer Consultant’s Group, 1997, p.100.
 Melbourne Consumer Consultant’s Group, above, p.99.
 Melbourne Consumer Consultant’s Group, above, p.100.
 Shuey, R., ‘Overview of Progress’, Victoria Police Project Beacon, 1995, p.5.
 Shuey, R., above, p.4.
 Age, 9 January 1995, pp.1 and 6.
 Victoria Police, SOG Review Project, Final Report, 1995, p.47.
 Task Force Victor, 1994, p.130.
 Victoria Police, 1995, ref 19 above, p.i; quoted p.13 Victoria Police (1995).
 Task Force Victor, 1994, pp.130-1.
 Victoria Police, Victoria Police Gazette, ‘Deployment of Special Operations Group (SOG), 1996.
 Melbourne Consumer Consultant’s Group, above, p.95.
 Partanti, R., ‘Special Operations Group Less Lethal Responses’, (2000) Victoria Police Bulletin 1.
 See, for example, Age, 30 August 1995, p.8.
 McCulloch, J., ‘Capsicum Spray: Safe Alternative or Dangerous Chemical Weapon?’ (2000) 7 Journal of Law and Medicine 311.
 McCulloch, J., above, pp.317-9; see also Bailey, W., ‘Less-than Lethal Weapons and Police-Citizen Killings in US Urban Areas’, (1996) Crime and Delinquency, October; National Institute of Justice, Evaluation of Pepper Spray, (1997) United States Department of Justice, March 1997 p.5.
 McCulloch, J., above, p.319.
 Herald Sun, 19 July 1997; Age, 19 July 1997, pp.1, 2.
 Sydney Morning Herald, 6 June 2000.
 American Civil Liberties Union of Southern California, ‘Pepper Spray Update: More Fatalities More Questions’, 1995, p.iii.
 Age, 10 December 1996, p.3; personal communication, Doctor John Coleridge, 10 December 1996.
 Amnesty International, International Secretariat, news release, 17 May 2000.
 ABC News, 29 June 2000.
 New South Wales Ombudsman, 1998/99 Annual Report, p.31.
 Prager, S., Witness Statement provided to the Administrative Appeals Tribunal in Western Suburbs Legal Service v Victoria Police 1997, No 003976, 1998.