GHH Law Primer No. 2

GHH Law Primer No. 2

You may download the primer at: We reproduce the text below.

Debates abound on the criminal liability of a police officer who shot an army veteran in a supposed quarantine checkpoint. Through the discussion below, we provide a legal framework for analyzing legal self-defense scenarios, and invite our readers to form their own conclusions on the topic.This article presupposes that the reader has seen the online video, and is familiar with the official news reports on the shooting.

2. The Elements of Self-Defense

To secure a dismissal, the accused must prove the following:

[a] unlawful aggression on the victim’s part;

[b] reasonable necessity of the means employed to prevent or repel the aggression; and

[c] lack of sufficient provocation on the accused’s part.[1]

The accused must prove all elements of self-defense, to secure an acquittal. Failure to prove all elements may result in mitigation of liability, provided the accused establishes unlawful aggression.[2]

Unlawful Aggression

Unlawful Aggression is an attack from the victim. It is the primordial requirement of self-defense. There are two kinds: [a] an actual attack; or [b] an imminent attack. It must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be “offensive and positively strong.”[3]

Reasonable Necessity of the Means Employed

The law requires “rational equivalence” between the threat, and the means of repelling it. The law does not require perfect equivalence – merely that the accused acted on instinct, with the tools at his disposal. In determining the presence of rational equivalence, our courts examine all surrounding circumstances, including the gravity of the emergency, imminence of the threat, human nature, and general instincts of self-preservation.[4]

Lack of Sufficient Provocation

The accused should not have provoked the victim into committing an unlawful aggression. “Provocation is sufficient when it is proportionate to the aggression, that is, adequate enough to impel one to attack the person claiming self-defense.”[5]

3. Arguments and Counter-Arguments

We present below some of the arguments for the accused, and the prosecution:

  Arguments for the Accused Arguments for the Prosecution
Unlawful Aggression   1. The victim presented an imminent threat when he reached into his bag with a threatening demeanor, while appearing to draw an object. The policeman did not have to wait and see what the object inside the bag was, for then it would have been to late. He did not have the opportunity to confirm. The policeman was operating within split-second timeframes.

2. The policeman knew, through training, that the victim’s stance allowed him to draw and fire a gun quickly.

3. Self-defense must be taken on a case-to-case basis. Jurisrudence does not apply squarely to the policeman’s case.
1. Jurisprudence holds that:  

[a] merely drawing a gun is not unlawful aggression;[6]

[b] failure to confirm and see the object being drawn by the victim defeats a claim of unlawful aggression;[7] and  

[c] the act of putting one’s hand on a hip where a revolver is holstered is not unlawful aggression.[8] 

2. Here, the victim did not draw a gun. The policeman did not even see what was inside the victim’s bag. His actions fell short of the requirements in decided cases.

3. Prior Supreme Court cases bind subsequent cases.
Reasonable Necessity of the Means Employed 1. The victim has already been asked to lie face down on the ground, and was given multiple warnings.

2. The railing and the distance prevented the policeman from using close quarters combat to subdue the victim.

3. The exigencies of the situation, and the speed with which the victim put his hand on the bag, with an aggressive stance, compelled the policeman to use the only weapon at his disposal.
1. The policeman fired two (2) shots. One (1) shot would have sufficed.

2. The policeman did not take advantage of the opportunity to subdue the victim when he turned around and raised his hands.

3. There was an entire team of policemen in the area, against one (1) man. Instead of devising means to secure the safe arrest of the victim, they engaged in a long stand-off.
Lack of Sufficient Provocation 1. The policeman was well-justified in asking for the victim’s submission. He was conducting an arrest, under color of authority.  

2. Resistance and disobedience to persons in authority is a crime, further justifying the arrest.
1. The policeman coaxed and taunted the victim, driving him to anger.

2. The policeman violated arrest protocols. As such, his actions cannot be accorded a presumption of regularity. An arrest in violation of protocols is an invalid arrest, and may be considered as sufficient provocation.[9]

4. Nacnac v. People of the Philippines

Nacnac v. People of the Philippines[10] deviates from usual decided cases. Ordinarily, there is no unlawful aggression if the victim merely draws, but does not point, a gun. In Nacnac, the Supreme Court held that even if the victim did not point the gun at the accused, there is still unlawful aggression on the victim’s part, because of the following circumstances:

[a] the victim was drunk;

[b] the victim was also a police officer who was professionally trained at shooting;

[c] the warning shot fired by petitioner was ignored by the victim;

[d] a lawful order by petitioner was ignored by the victim; and

[e] the victim was known for his combative and drunken behavior.

The Supreme Court held:

A police officer is trained to shoot quickly and accurately. A police officer cannot earn his badge unless he can prove to his trainors that he can shoot out of the holster quickly and accurately x x x. Given this factual backdrop, there is reasonable basis to presume that the appellant indeed felt his life was actually threatened. Facing an armed police officer like himself, who at that time, was standing a mere five meters from the appellant, the [latter] knew that he has to be quick on the draw. It is worth emphasizing that the victim, being a policeman himself, is presumed to be quick in firing.

Hence, it now becomes reasonably certain that in this specific case, it would have been fatal for the appellant to have waited for SPO1 Espejo to point his gun before the appellant fires back.

It remains to be seen whether Nacnac applies. We must consider: [a] the policeman’s knowledge, or lack thereof, of the victim’s military training (which goes into the policeman’s perception of the threat posed by the victim); and [b] the victim’s failure to draw the object from his bag.

5. Other Points for Consideration

What effect does the mishandling of the victim’s bag have on the accused’s self-defense argument?

Is the existence of the victim’s gun relevant to the accused’s claim of self- defense? Had there been no gun inside the bag, would the policeman have been justified in shooting the victim, just the same, due to a reasonable belief that he was in danger? 

Does a violation of police protocols amount to sufficient provocation on the arresting officer’s part?

[1] Velasquez, et al. v. People of the Philippines, G.R. No. 195021, March 15, 2017.

[2] People of the Philippines v. Narag, G.R. No. 171284, June 29, 2015.

[3] Id.

[4] Id. See also Lacson v. Court of Appeals, et al., G.R. No. L-46485, November 21, 1979.

[5] People of the Philippines v. Boholst-Caballero, G.R. No. L-23249, November 25, 1974.

[6] People of the Philippines v. Rubiso, G.R. No. 128871, March 18, 2003; See also People of the Philippines v. Borreros, G.R. No. 125185, May 5, 1999.

[7] People of the Philippines v. De Leon, et al., G.R. No. 197546, March 23, 2015.

[8] People of the Philippines v. Nugas, G.R. No. 172606, November 23, 2011.

[9] No supporting jurisprudence yet.

[10] G.R. No. 191913, March 21, 2012.

Garcia Habacon and Han is a law firm in Quezon City, Metro Manila, Philippines.