Several examples of police overreach this lockdown illustrate the potential problem with giving law enforcers such broad powers to combat the virus threat, writes law professor Andrew Geddis.

Back in those hazy, hard-to-recall days of March 2020 as we first entered into lockdown level four limbo, I wrote a Spinoff piece discussing the police’s (necessary and important) role in enforcing our collective Covid response. However, I concluded that piece with a caution:

“History also is replete with examples of turning to authority for security, only to find that the cost of doing so is much higher than expected. And the people who will wield that power are, after all, people. Subject to the same sort of impulses that cause a person to think that they are going to need 60 rolls of toilet paper in their house; or that Asian people somehow are more susceptible to carrying the virus.”

Now that we’re trudging our way through Lockdown Level Four ep 2: Delta Strikes Back, there’s some evidence that this note of warning was warranted. In particular, over the weekend footage emerged of police officers first demanding the name of, and then ordering away, former Green Party candidate and climate change activist Luke Wijohn who was filming them carrying out a rather physical arrest.

That feels wrong. It looks like police overreach. I don’t think the police should have been able to do what they did. However, the individual officers very well may have had the legal power to do so. The following contains a bit of lawyerly discussion for which I crave your forgiveness in advance, but it does kind of come with the territory.

Let’s begin with the normal position. Filming the police engaged in policing activities in a public place is not, generally speaking, unlawful. Had this particular footage been taken outside of lockdown, the police would have had no grounds to order the person doing it to stop or demand the filmer’s personal details.

Of course, we’re not in normal times and level four lockdown rules apply. How does that change things? Well, being in a level four lockdown doesn’t of itself make it unlawful to film the police engaged in policing activities. Had Wijohn done so from, say, his front garden then the police would have had no grounds to order him to stop or demand his personal details. What level four does require, however, is that people stay in their homes, only leave their homes for certain limited purposes, and then return to their homes afterwards. 

Taking Wijohn at his word, he had good legal reasons for leaving his home under the current order establishing level four lockdown. He was both “undertaking exercise” under paragraph (e); and also assisting a fellow resident (his girlfriend) carry out essential personal movement (travelling home from work at an essential business) under paragraph (s). So, the legality of his leaving home to walk on the street is not in question. What is less clear is whether having a lawful reason for walking on the street under level four lockdown then allows you to engage in other incidental activities not specifically permitted under the current order. Does the current order permit you, having left your home for a legally permitted purpose, to sit and admire a view, or rest in the sun doom-scrolling Twitter, or stand and film a potential case of police brutality?

This issue has taxed greater minds than mine. But in a practical sense, it might not actually matter for the present case. Because, under the Covid-19 Public Health Response Act 2020, parliament has said this:

An enforcement officer who has reasonable grounds to believe that a person is contravening or likely to contravene a Covid-19 order may—

(a) direct that person to stop any activity that is contravening or likely to contravene the order:

(b) direct that person to take any action to prevent or limit the extent of the person’s non-compliance.

In other words, if the police reasonably believe that your actions are not permitted under the relevant level four rules, they can tell you to stop them and do something else instead. Failing to comply with such a direction is an offence for which you can be arrested, charged, and (if convicted) sentenced to up to six months’ imprisonment or a fine of up to $4,000.

Furthermore, when exercising the power to issue a direction, parliament has empowered the police to do this:

[A]n enforcement officer may direct a person to give the person’s full name, full address, date of birth, occupation, and telephone number, or any of those particulars that the enforcement officer may specify.

Again, failing to do so is an offence for which you can be arrested, charged, and (if convicted) sentenced to up to six months imprisonment or a fine of up to $4,000. 

As such, the uncertainty as to whether the current Covid order permits you to stop and film the police while out on the street for an otherwise legally permitted purpose means that a police officer could claim to reasonably believe it is not allowed. And on the basis of that belief, they can direct you to stop doing it and provide them with your details. And if you don’t comply with these directions, they can arrest you and put you through the criminal justice process. Maybe at the end of that process you are acquitted; a court may very well find that, in fact, the Covid-19 order does permit you to stop and film and so the officer had no legally-relevant reason to believe you were contravening the level four lockdown rules. But that will happen months later, by which time you’ve lost hours of your time, experienced extensive stress, and spent a lot of money on lawyers. 

Now, did the police in question really believe that Wijohn was acting in contravention of level four lockdown restrictions, or did they see this as a convenient way to stop him doing something that must be really annoying for officers who are “just trying to do their job”? The answer to that lies only in the mind of the individual officers at the scene; if they themselves even know, given our subjective tendency to interpret events and motivations in ways that put us in the best light. But it sure looks somewhat suspicious; do we really think the police would seek to move Wijohn on and take his details were he, say, stopped on Oriental Parade filming the subtle play of the city lights on the rippling surface of the sea? And that illustrates the potential problem with giving the police such broad powers to combat the virus threat. They are both necessary, but also fraught with the potential for self-serving mission creep.

Nor is this the only example of the police stretching, or even outright misapplying, their legal Covid-combatting powers. As National MP Chris Bishop spotted, the police sent out a Facebook warning that driving somewhere for the purpose of exercising is forbidden under level four. However, the level four rules specifically permit outdoor exercise and recreation in a place “that is readily accessible (including by using [a person’s] vehicle) from [a person’s] home or place of residence”. To the police’s credit, the post was amended once the error was noted – but you might think that more care would be taken in making sure the already massive limits on our freedoms weren’t accidentally extended even further by way of social media statement.

And the ODT reported this about police investigating reports of a street party in North Dunedin, but finding only groups of flatmates keeping to their own bubbles: “Residents were given advice to keep music turned down and to move indoors to prevent perceptions of partying.” Sure, this was only “advice” as opposed to a legally mandatory direction, but I’m not sure your average Leith St breatha is going to be fully au fait with the distinction. Also, “perceptions of partying” is my new favourite band name.

I accept that it may appear churlish to question the police’s lockdown enforcement actions when we’re balancing on the edge of a delta disaster that could see our freedoms radically restricted for weeks, or even months. Especially when the police are having to deal with people seemingly determined to ignore the lockdown rules – Covidiots demanding the right for others to die; mountain bikers believing they are bulletproof; supermarket shoppers who can’t abide a mask – on top of their regular law enforcement duties. Surely, if ever there was a time to cut them some slack, it is now?

Well, maybe. However, the other side to that coin is that it is precisely when power is being exercised in emergency situations that we need to be most alive to its potential overreach. Because, “we’re doing this for everyone’s good” can be a very seductive rationale. And behaviour in emergency times can become a template for practices when life returns to normal. Which means we need to trust the police to ensure that our lockdown rules are collectively followed, but also not be afraid to point out when they appear to be doing otherwise.