Police ordered to pay $45,000 after locking claustrophobic man in cell

Fifty years ago, apprentice panel beater Malcolm King, then just 16, was locked in a car boot and sprayed with a fire extinguisher by his workmates.

They said it was just a prank but the ordeal gave him such severe claustrophobia he gets panic attacks and can’t breathe in small spaces if he can’t get access to free-flowing air.

So when he was locked in police cells multiple times after repeatedly breaching a protection order against his ex-partner, he pleaded with police to at least put him in one with ventilation.

On several occasions police refused and King hyperventilated, banged on the door and even cut himself in an attempt to be let out.

“I wouldn’t wish what happened to me on my worst enemy,” King told NZME.

“I’m a strong person but I’m powerless in a situation like that. I have no defences to stop myself from panicking.”

King said it wasn’t so bad in the cells when the food hatch was left open, as he could at least put his face near it and calm himself.

But that didn’t always happen, despite an electronic alert on King’s police file which noted his disability and advised he “needs to feel the flow of air through any form of open vent”.

Instead, on multiple occasions, King said he’d “be on all fours trying to get some air through the bottom of the door”, or was so anxious he would chew wet toilet paper or attempt to harm himself.

King claimed police discriminated against him on the basis of his disability and took his fight against them to the Human Rights Review Tribunal, which has just released a decision awarding him $45,000 in compensation.

His case was taken on by the director of human rights proceedings, Michael Timmins, who represents members of the public at the country’s top human rights court. However, it took nearly four years from hearing to decision to get a result.

On the first incident in March 2013, King was arrested and put in a holding cell despite telling the arresting officers he was claustrophobic and needed airflow. He was only in the cell for a few minutes before he began banging on the door and police moved him to what’s known as the “dayroom cell”, which has large glass windows.

However, it didn’t have any airflow and King immediately started panicking and struggling to breathe. He took his shirt off and wrapped it around his neck to mime at police staff that he was choking and he was removed from the cell and taken to a changing room where he began to calm down. A doctor was called in, who recommended King be placed in a cell with an open food hatch to help with airflow.

King was held in a police cell similar to the one pictured and pleaded with officers to open the food hatch to limit his claustrophobia. Photo / Dean Purcell

The next day King breached a protection order again and was placed in a police van. He told police about his claustrophobia and staff gave him a window seat at the back of the van. However, King quickly started panicking as there was no airflow.

“Police were aware by this point that Mr King had claustrophobia and he needed special care in custody because of this to ensure his safety and wellbeing,” the tribunal’s decision states.

Once he was out of the van and taken to the Papakura police station, he was locked in a cell where he banged on the door and pleaded with staff to put him in a cell with a vent. He was instead given a paper bag and told to “deal with it”, according to the decision.

On several other occasions that same year, King slashed his wrists to get the attention of police staff so they would take him out of the unventilated cell.

Police submitted to the tribunal that the arresting officers had not had an opportunity to check their electronic records about King, which would have told them about his disability.

“King suffers chronic claustrophobia. If in an enclosed space, he needs to feel the flow of air through any form of open vent. This will assist when dealing with King, who otherwise will become agitated and sweat profusely... King will then remain co-operative and compliant,” the alert in the police system read at the time.

There were another four instances when King was either placed in a police van or in a cell without the food hatch open that he raised before the tribunal. This was despite the alert on his file.

The tribunal found that police discriminated against King on the basis of his disability across nine incidents.

In their submissions to the tribunal, police accepted that discrimination could arise where a disabled person in custody receives less favourable treatment than non-disabled persons but that this failure could occur by omission rather than exclusively through deliberate mistreatment.

Police also said that detaining people in an enclosed space was essential in police work as well as transporting them securely to and from court appearances or to a police station.

Police told the tribunal there were “practical limits” about what they could do to alleviate claustrophobia in custody, based on the design of facilities, security, and staffing resources.

A police spokesperson said that police were currently looking at aspects of the tribunal’s decision in consultation with Crown Law.

“Our current custodial policies and procedures include instructions and guidance for our staff when dealing with people who have disabilities or impairments,” they said.

In its ruling, the tribunal said police were obliged to take special care of King’s physical and mental health needs while he was in their custody.

Malcolm King's claustrophobia started after he was locked in a car boot when he was 16. Photo / Dean Purcell

“In particular, the issue in this case is not about the failure to have in place a policy to ensure disabled people do not receive less favourable treatment in custody. That policy is already in place,” the tribunal said.

“Rather, to the extent that discrimination arises, it arises directly from the failure of police to apply their policy to Mr King.”

The tribunal said police failed to show there was any particular purpose for their failure to take account of King’s claustrophobia needs on nine occasions.

“On each of the nine occasions Mr King was discriminated against he suffered claustrophobia symptoms, including asking for air, hyperventilating, sweating, anxiety and panic... On three subsequent occasions he was so distressed and terrified (including because of the rate of his hyperventilation), he deliberately harmed himself in order to get out of the situation, once by knocking himself out by hitting his head against the cell wall and twice by cutting his wrists.

“On another occasion, his claustrophobia symptoms were so severe he began convulsing and passed out,” the tribunal said.

The tribunal said on another occasion, King resorted to chewing wet toilet paper and sucking air from under the door in an effort to calm himself, which he described as one of the most humiliating events of his life.

King told the tribunal his fear of not having access to air was hard to describe but likened it to being put inside a coffin with the lid on.

“Mr King always acted with respect towards police on each occasion which he was subject to discriminatory treatment. He expressly and repeatedly told police officers that he had claustrophobia,” the tribunal said.

As for the police’s conduct, the tribunal said in most instances as they soon as they became aware of King’s claustrophobia needs, they took steps to mitigate his discomfort. However, this didn’t always occur and in some instances the police response made his situation worse.

In awarding King $45,000 in compensation, the tribunal said King had been subjected to disability discrimination on multiple occasions which constituted serious emotional harm.

“It was more about getting justice than it was about the money… I don’t even know what I’ll do with it,” King told NZME.

“I just didn’t want this to happen to anyone else.”