Another news story brought to my attention by Luke Dam (where does he get the time to scour all these news articles?) This one from the USA – the gist of the story is:

CHULA VISTA (CBS 8) – A Chula Vista firefighter responding to a rollover accident on I-805 ended up in handcuffs Tuesday night after a dispute with a CHP officer. CBS News 8 cameras were rolling around 9:00 p.m. when the firefighter and CHP officer got in a dispute over where the fire engine should park, while firefighters were responding to the crash that happened north on I-805 between Telegraph Canyon Road and East Orange Avenue. Neither agency would make an official statement on camera.

You can see video of the arrest at Luke says “Whilst I recognise this is America (And surely it could only happen in America!!!), is there a legal perspective for Australian services?”

It’s hard to comprehend that an Australian Highway Patrol officer (in any state) would attempt to arrest a fire fighter at the scene of a rescue and if he did it’s hard to believe he would still be in the Highway Patrol the following week; but let us look at this a bit more authoritatively, and whilst the specific legislation will vary from state to state, I’m sure the outcome would be the same, but I’ll use NSW as the example.

In New South Wales it is the police who are in charge of rescue (State Emergency and Rescue Management Act 1989 (NSW) s 50(1)); and this was a rescue, not a fire, if it was, the fire brigade would be in charge (see s 50(3)). In that case the police are responsible for coordinating rescue and determining priorities which could, I suppose, extend to the priority to be given to opening the road.

There are other issues here too, we’re told, if you watch the video, that the appliance was parked on the ‘centre divide’. If that’s the case one can’t see how it was blocking traffic; perhaps there was a safety issue and everyone has an obligation to ensure the health and safety of others at their work place (Work Health and Safety Act 2011 (NSW)) and this was the workplace of both the firefighter and the police officer; but if the fire appliance was posing a danger, the police would have had other options, such as directing traffic. The police are not the work health and safety inspectorate so certainly could not arrest someone for not taking what they think are reasonable measures to ensure health and safety.

Under the Australian Road Rules drivers are required to obey the reasonable directions of the police officer (Road Rules 2008 (NSW) rule 304) but note the direction has to be ‘reasonable’. Rules with respect to stopping and parking do not apply to the driver of an emergency vehicle in any event (rule 307).

Even assuming that some offence had been committed, arrest, being a deprivation of liberty, is a matter of last resort. Although police can arrest anyone who has committed any offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99) they do have other less intrusive options, such as the issue of a court attendance notice or, in traffic matters, a traffic infringement notice. Police are only to arrest if the officer:

… is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing from a police officer or from the location of the offence,
(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property in the possession of the person that is connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
(Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(1)(b)).

A police officer may also only arrest if they have a reasonable suspicion that an offence has been committed and that they intend to prosecute the person for that offence. If they don’t prosecute, eg if after inquiries they are satisfied that in fact no offence was committed, that’s fine provide that at the time of the arrest they believed that that there was sufficient evidence to warrant a prosecution. In this case the fire fighter was detained for half an hour and then released, and I infer without charge. If that is the case what was the purpose of the arrest? One can only infer it was for the non-existent offence of ‘not show proper respect to police’. That may be a way to get arrested, but it is not an offence and does not make the arrest lawful.

A significant difference, I suspect, between Australia and the US is that, if this occurred in NSW, it would be NSW Police and Fire and Rescue NSW, both agencies of the same government, not a multitude of agencies, or in this case a state agency (the California Highway Patrol) exercising its ‘muscle’ over a local agency. Perhaps they don’t have the opportunity to build cross agency relationships or in their myriad of jurisdictions develop an ‘all agencies approach’ that we would expect here.

Now, as always, we have to concede we don’t know all the facts or what went on between the police officer and the fire fighter, but the fact that he was released without charge or even being taken to the police station for processing does have to raise serious doubts about the bona fides of this arrest.

If there was some issue of how a fire appliance was parked in Australia I would expect:
1. The police would move to make the scene safe given the appliance was there, not seek to move the appliance;
2. A police officer would not move to arrest a fire fighter during a rescue except for a serious an egregious offence (the nature of which I can’t imagine), not for a parking offence;
3. If an arrest was made, I’m sure the two Minister’s would get together to bang everyone’s heads – why did the officer arrest, but why didn’t the firefighter move the appliance if asked to do so or get the senior police officer to talk to the senior fire fighter and sort it out there and then.

Based solely on what I can see on the video, if this situation happened in Australia as it is shown there:
1. I would argue that the arrest was unlawful;
2. I would advise the fire fighter to consider suing the officer for the tort of ‘false imprisonment’; and
3. I would be advise the fire fighter to take the issue up not only with his command to in turn raise it with the police command but also with the ombudsman and the Police Integrity Commission.

As Luke says, only in America.