Crime expert: 'Drawing a gun' NOT unlawful aggression


Why should you buy Judge Marlo Campanilla's books on criminal law? Campanilla is an expert in criminal law and a celebrity author and lecturer in the field of crimes and penalties. He has earned enormous respect from law students and law professors because of his impeccable analyses and constructive criticisms of existing principles, theories and decisions. In fact, in his books, he predicted nearly 100% of the 2018 Bar examination on criminal law.

Performance of duty. Judge Marlo Campanilla (April 23, 2020). Is killing of a criminal suspect justified? www.facebook.com/notes/marlo-campanilla/is-killing-of-a-criminal-suspect-justified/3335235209829359.

Performance of duty to arrest a person is a justifying circumstance. In effecting an arrest, no violence or unnecessary force shall be used in making an arrest and the person arrested shall not be subject to any greater restraint than is necessary for his detention. (Section 2, Rule 113, Rules of Court) Shooting an offender who refused to surrender may be justified (People vs. Gayrama, G.R. Nos. 39270-71, October 30, 1934) But a police officer should neither use unnecessary force in effecting arrest nor treat with wanton violence the arrested person nor resort to dangerous means when the arrest could be effected otherwise. (Galang vs. CA and People, G.R. NO. 128536, January 31, 2000)

If the officer employed unreasonable and unnecessary force in making an arrest, he is not entitled to the benefit of justifying circumstances of performance of duty. In the absence of the second requisite, the justification becomes an incomplete one thereby converting it into a privilege mitigating circumstance. In People vs. Belbes, G.R. No. 124670, June 21, 2000.

Judge Marlo Campanilla is a celebrity author, lecturer and expert in criminal law and special penal laws. His books are available in fine bookstores nationwide. https://www.rexestore.com/law-library-essentials/1756-criminal-law-reviewer-volume-i-cloth-bound.html.

Self-defense. Judge Marlo Campanilla (April 23, 2020). Is killing of a criminal suspect justified? www.facebook.com/notes/marlo-campanilla/is-killing-of-a-criminal-suspect-justified/3335235209829359.Summary execution of person to be arrested is prohibited. (People vs. Pinto, Jr. and Buenaflor, Jr., G.R. No. 39519, November 21, 1991) A notorious criminal must not be taken by storm without regard to his right to life, which is not forfeited by such notoriety unless he offers resistance, or does something which places his captors in danger of imminent attack. (People v. Oanis and Galanta, G.R. No. 47722, July 27, 1943)

If the police officer employed reasonably necessary means to repel resistance of person to be arrested, the former may plead two defenses, to wit: performance of duty and self-defense or defense of stranger. (Masipequina and Alampayan vs. CA and People, G.R. No. L-51206, August 25, 1989)

Judge Marlo Campanilla is a celebrity author, lecturer and expert in criminal law and special penal laws. His books are available in fine bookstores nationwide. https://www.rexestore.com/law-library-essentials/1756-criminal-law-reviewer-volume-i-cloth-bound.html.

Unlawful aggression. Judge Marlo Campanilla (April 23, 2020). Is killing of a criminal suspect justified? www.facebook.com/notes/marlo-campanilla/is-killing-of-a-criminal-suspect-justified/3335235209829359.

Unlawful aggression, which is an element of self- defense, is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful aggression. (People v. Del Castillo, G.R. No. 169084, January 18, 2012)

Actual or material unlawful aggression means an attack with physical force or with a weapon, an offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful aggression means an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong. Imminent unlawful aggression must not be a mere threatening attitude of the victim. (People vs. Olarbe, G.R. No. 227421, July 23, 2018)

Thrusting hand into the pocket as if for the purpose of drawing a dagger or a pocket knife (U.S. vs. Carrero, G.R No. L-3956 January 10, 1908) or pulling a kitchen knife (People vs. Escarlos, G.R. No. 148912, September 10, 2003) is not unlawful aggression; hence, the killing of the victim is not justified. However, opening a knife and making a motion as if to attack is an imminent unlawful aggression (People vs. Olarbe, G.R. No. 227421, July 23, 2018), which justified the exercise of self-defense.

The act of pulling “something” (People v. De Leon, G.R. No. 197546, March 23, 2015) or pressing his right hand to his hip where a revolver was holstered (People vs. Olarbe, G.R. No. 227421, July 23, 2018) or pulling a gun but without manifestation of any aggressive act (People vs. Rubiso, G.R. No. 128871, March 18, 2003) is not an unlawful aggression. Hence, killings of the victims are unjustified. But aiming a revolver at another with intent to shoot is an imminent unlawful aggression, within the contemplation of the justifying circumstance of self-defense (People vs. Olarbe, G.R. No. 227421, July 23, 2018)

The act of the victim in drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of the accused. However, if the drawing of gun is accompanied with circumstance of intent to shot, the same may be treated of unlawful aggression.

In Nacnac v. People, G.R. No. 191913, March 21, 2012, the victim here was a trained police officer. He was inebriated and had disobeyed a lawful order in order to settle a score with someone using a police vehicle. A warning shot fired by a fellow police officer, his superior, was left unheeded as he reached for his own firearm and pointed it at accused. Accused was, therefore, justified in defending himself from an inebriated and disobedient colleague. Even if the victim did not point his firearm at accused, there would still be a finding of unlawful aggression on the part of the victim. 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. Given this factual backdrop, there is reasonable basis to presume that the accused 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 accused, 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 accused to have waited for victim to point his gun before the accused fires back.

Judge Marlo Campanilla is a celebrity author, lecturer and expert in criminal law and special penal laws. His books are available in fine bookstores nationwide. https://www.rexestore.com/law-library-essentials/1756-criminal-law-reviewer-volume-i-cloth-bound.html.

Standard to be used in analyzing a case. Judge Marlo Campanilla (April 23, 2020). Is killing of a criminal suspect justified? www.facebook.com/notes/marlo-campanilla/is-killing-of-a-criminal-suspect-justified/3335235209829359.

The reasonableness of the means employed to repel an actual and positive aggression should not be gauged by the standards that the mind of a judge, seated in a swivel chair in a comfortable office, free from care and unperturbed in his security, may coolly and dispassionately set down. The judge must place himself in the position of the object of the aggressionor his defender and consider his feelings, his reactions to the events or circumstances. It is easy for one to state that the object of the aggression or his defender could have taken such action, adopted such remedy, or resorted to other means. But the defendant has no time for cool deliberation, no equanimity of mind to find the most reasonable action, remedy or means to. He must act from impulse, without time for deliberation. The reasonableness of the means employed must be gauged by the defender’s hopes and sincere beliefs, not by the judge’s. (Cano vs. People, G.R. No. 155258, October 7, 2003)

Note: The discussion of performance of duty and self-defense is for the benefit of those, who will take the bar examination. The same should not be used in resolving an issue of an actual case.

Judge Marlo Campanilla is a celebrity author, lecturer and expert in criminal law and special penal laws. His books are available in fine bookstores nationwide. https://www.rexestore.com/law-library-essentials/1756-criminal-law-reviewer-volume-i-cloth-bound.html.
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