Polishing policing

By Atty. Eduardo T. Reyes III

In the wake of the death by asphyxiation of George Floyd on the knee of a police officer in Minnesota, USA, not only that the civil rights movement against racial discrimination had resurged, but the call for a more circumspect policing had reverberated around the world. Flaunting possible infection from covid-19 in disregard of social distancing guidelines, protesters took to the streets to decry strong-arm methods of arrest by policemen of persons merely suspected of having committed a crime.

The vociferous protests ratcheted up the pressure on the prosecutors to charge police officer Derek Chauvin initially for third-degree murder, then upgraded it to second-degree. His fellow police officers were likewise indicted for their complicity in that tragic arrest. What this proves from a smaller standpoint is that the government is not immune to meaningful protest; and from a larger one, that democracy is robust when the people are not de-sensitized to police misconduct.

Perhaps much of the Philippines is enmeshed in its own local human rights issues that its citizens can only marshal a shrill cry in social media that: “Black Lives Matter”. But what really emerges from the recent global events is the issue of proper policing.

When the entire country was on lockdown and not only police officers but also the military marched to the streets, several reports of controversial arrests crowded the news. There was the elaborate video footage of a foreign national being thrown and wrestled to the ground in his own driveway in an attempt by a policeman to arrest him because his housemaid was not wearing a face mask. In a scene made for the movies, a group of police officers were shown on CCTV footage encircling a man who allegedly breached quarantine protocols, then aiming, firing and killing him. Ironically, he turned out to be a former soldier who figured in a local war in defense of his government during the siege of Marawi- thus a local hero. There were also cases which did not end as dreadfully but are no less disturbing. Simple folks like the fisherman who went out fishing in breach of protocol and the septuagenarian jeepney driver who protested with a group of fellow drivers because their jeepneys were grounded, also landed in jail.

In the Philippines where extended families pride themselves that one of their kin wears a badge, we cannot deny that law enforcement officers put their lives on the line to maintain peace and order. Neither can it be ignored that there are criminals that lurk on the streets and when caught would even turn cantankerous and resist arrest. They, beyond doubt, have to be taken into custody which will place the lives of the police officers in danger in the process. To stave off this continual risk, police or arresting officers are authorized by par. 5. Article II, Chapter II of Act 3815 or the Revised Penal Code, to maim or even kill the person to be arrested if the police officer “acts in the fulfillment of a duty or in the lawful exercise of a right or office”.

But this is not a blanket license to maim or kill nor cuff and choke a suspect to death.

Jurisprudence teaches that such exercise of “fulfillment of a duty” only envisages instances when there is “unlawful aggression” on the part of the suspect and the police officer employs “reasonable means to prevent or repel the attack”. In other words, the injury inflicted on the suspect must be “the necessary consequence of the due performance of such duty or lawful exercise of a right”. Therefore, when the arrested person is already handcuffed and restrained of his movements, there is no more justifiable reason to employ force, let alone to kill the suspect. (ELISEO V. AGUILAR v. DEPARTMENT OF JUSTICE, G.R. No. 197522               September 11, 2013).

Not only that. The validity of the arrest hinges on the requirement under the 2000 Rules on Criminal Procedure that the commission of the offense or crime must have been “in the presence of” the arresting officer or at least must have been done within “close proximity of the arrest”- meaning the arrest takes place immediately after the commission of the crime. If considerable time had intervened from the perpetration of the offense, the police officer would have to file the proper case and secure an arrest warrant before apprehension is made. In simple terms, a warrantless arrest is only the exception as the general rule is: “no warrant, no arrest”.

There are also petty offenses that under the law are only punishable by a fine with no prescribed jail time. For instance, local ordinances that penalize the non-wearing or improper wearing of face masks and breach of social distancing guidelines had imposed a penalty of a mere “fine”.  Minor car mishaps that result only in damage to property -usually the car itself- without more, ought to be punished only by a fine under the Revised Penal Code. In these situations, it would be arbitrary for the police to place the violator under arrest and put him/ her behind bars because after the full spectrum of a trial, in the end, the only imposable penalty is a fine and yet the citizen was already incarcerated.

Civil rights especially the right to liberty -or to be let alone- are priceless commodities in a democratic society such that law enforcement officers cannot just “shoot from the hip” in regard to these rights. In the hands of the police lie a great responsibility. On the one hand, they should be firm in enforcing the law; and yet on the other, they should temper it with mindfulness of human rights.  They should be cognizant that when the suspect is handcuffed and is on the ground, the knee has to be taken off of him. That to press on further means to constrict his airways, place the vital organs under arrest, and snuff out the last faint shriek of liberty in him.

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).