The news of the death of a national policeman in Jaén this weekend, during the intervention with a man who carried a knife and a hammer, concentrated the attention of the members of all the forums of the security forces. The first messages were of condolence. They were followed by those who tried to analyze what happened. And those who reopened a recurring debate among the agents joined: is there fear of using the regulation pistol? A question with many nuances in its response, where key terms such as the use of force or legitimate defense gravitate. A recent judgment of the Supreme Court (TS) addresses the issue with a case led by two individuals and is clarifying on issues such as proportionality based on the weapon used.
The stupor over the death of a colleague has given way to a feeling of insecurity among the agents of the different police forces, who question how they would have acted in a situation similar to that which occurred in the town of Andújar, Jaén.. Because, despite the instruction they received during their training period, they recognize that doubts grip. Not only because of the risk of facing an armed person, and the hardship of being able to end a life, but also because of the legal and professional consequences that they may suffer after a long investigative process..
The police unions, before confirming that the agent Juan José LE. died from a bullet fired by his partner, and which previously went through the assailant with whom he was struggling, have questioned the training given to police officers in situations of this type and the legal protection they subsequently receive. The general secretary of Jupol, Aarón Rivero, requested a review of the National Shooting Plan of the National Police, as well as the Basic Principles of Action, “which date from 1986” and which are “totally obsolete”..
The Spanish Police Confederation (CEP), for its part, insisted on “the need to reinforce the principle of authority in this country, since the police cannot carry out their duties in an increasingly violent scenario.”. While the spokesman for the Unified Police Union (SUP), Jacobo Rodríguez, called for a “continuous training plan that adapts to the reality that police officers live on the street” and requested the General Directorate of Police (DGP) already legislators who “establish clear, assessed protocols on the use of force and its application at all times”. Because this is the great unresolved question.
Organic Law 2/1986, which regulates the functions, basic principles of action and statutes of the Security Forces and Corps, establishes that agents “should only use weapons in situations in which there is a rationally serious risk to their lives, their physical integrity or those of third parties, or in those circumstances that may pose a serious risk to citizen security and in accordance with the principles of consistency, opportunity and proportionality in the use of the means at their disposal..
“If I shoot, what will happen to me?”
The theory seems clear, the agents acknowledge, but, according to their opinion, generated after years of performances on the street, it is incapable of reflecting the various situations they face. This places them in a defenseless position, they complain. Andrés —fictitious name—, a national police officer with almost 30 years in the force, says that “we are afraid to take out the weapon in complex scenarios.”. Because “if I do it, and I shoot, what will happen to me afterwards?”.
Luis, another agent who is also a shooting instructor, and who also prefers to remain anonymous, perceives the fear of his colleagues when it comes to using their regulation pistol, but understands that it is the result of a lack of legal knowledge that is often inculcated by superiors. He talks about three determining factors in an intervention with weapons: “Congruence, proportionality and opportunity”. “Congruence is what I do when a guy comes to attack me, for example, with a machete, I can respond with a brick, a knife that I find on the ground or a firearm”. “Proportionality is how I use it. It is not the same that they try to attack me with a knife and I give the attacker two shots, than that he shoots him 34 times”. “And very important, the opportunity, the exact moment. When my life or that of third parties is in danger. If I have a man in front of me with a katana, telling me he's going to cut me, but he doesn't take a step forward, it's not the right time for him to open fire, just as it's not right when he's leaving.. If I do, they're going to get their hands on me, and rightly so.”.
This policeman remarks that these elements are “a guarantee that assists us as a democracy” and regrets that there are sectors that advocate suppressing or qualifying them.. “It is very rare to find sentences against” if these precepts have been followed, he affirms. Andrés, who has only had to use the weapon once, laments that “in most cases, the first thing they do is take the weapon from you; then, surely, accuse you of a crime and file a file on you”.
“We feel unprotected,” he describes, to then explain that administrative processes “can take more than a year.”. “We are not shooting around like the Americans, because our maxim is the protection of the citizenry, but if we do not have guarantees, the fear of acting will persist and people will be helpless”.
Dionisio, Felicísimo and Óscar
The different sources consulted cling to a recent sentence of the Criminal Chamber of the TS as an element that would increase the protection of the agents because it is explanatory about the use of legitimate defense against an attack with a knife.. The resolution was issued on April 19 and is the response to an appeal filed by the defense of a man convicted in previous instances for a homicide that occurred on March 10, 2020 in the Granada municipality of Alfacar..
The defendant, Dionisio, a man who was 65 years old at the time, was in the company of his friend Felicisimo, who was 77 years old on the date of the proceedings, in a farm owned by the latter that he frequented on certain occasions.. Around 12:00, they went to a stream together, but when they arrived, “Óscar, 47, the owner of a neighboring plot of land with other relatives, appeared on the other shore.”.
The two neighbors had had “some differences” due to a water intake that Felicísimo made from the river, as well as “incidents or brawls” with hunters, shepherds or other people who approached what Óscar considered to be their land.. This, according to the proven facts, crossed the river bed carrying a large wooden pole, as well as a belt with an ax and a machete..
A discussion began between the three in which Óscar recriminated the two retirees who had “invaded their lands.”. “In split seconds, he faced Felicisimo and gave him a push that made him fall to the ground, where he was stunned”. Dionisio, who was carrying a weapon in his pocket for which he did not have a license, fled, but the attacker began to chase him..
When the investigated had walked about 50 meters, he observed that Óscar “approached him running” and “wielding the wooden stick in an aggressive attitude.”. About 100 meters from the place where the first encounter had taken place, Dionisio stopped on an esplanade where his pursuer caught up with him.. He, “at that moment”, threw the stick, “he must have pulled out the ax at some point” and tried to do the same with the machete he was carrying..
The accused, “fearing for his life or being seriously injured”, and “driven by the need to defend himself from the imminent attack”, took out a pistol that he usually carried with him and fired a shot at Óscar “at a distance of between a meter or meter and a half”. The bullet hit him in the head and killed him.. The body was located three days later in the same place where he was killed.. Next to him, on the ground, the ax and the stick. The machete was still in the belt.
Dionisio was sentenced by a jury to 10 years and six for homicide with incomplete defense of legitimate defense and illegal possession of a weapon, a ruling that was ratified by the Superior Court of Justice of Andalusia (TSJA) by dismissing “entirely” the appeal filed by his defense, and that he decided to appeal to the Supreme. The high court, in a 14-page resolution, agreed to annul the previous rulings to decree the acquittal of the defendant for the crime of homicide, understanding his reaction proportionate due to the imminent risk of losing his life..
The Tueller rule and the formation
The resolution has been valued positively by the members of the different police forces, above all, for the arguments and the rules for the use of weapons with which the five magistrates who sign it defend it..
One of the aspects in which they affect is that the proportionality of a police action cannot be established based on the weapons used.. “It is very true that a bullet impact, in general, can be more damaging than a knife.. And, without a doubt, the offensive range of the firearm is greater. However, it is not necessary to immerse yourself in manuals of combat techniques, or in those that address police interventions, to understand that a stabbing weapon, at a short distance from the victim – even when he has a firearm, already loaded and ready to shoot-, involves a situation of serious risk to life if the person who carries it is determined to use it in the attack, ”says the TS.
In the sentence, it is highlighted that “the recommendation that we will find in both types of studies, far from advising to face the aggressor with the firearm, involves trying to impose a sufficient safety distance”. To then wield the so-called Tueller rule, in memory of the American sergeant who enunciated it, or the 21 feet -6.4 meters-. This establishes the minimum space to have effective defensive possibilities with a pistol, holstered and ready to fire, against an attack with a knife..
“The assessment regarding the rationality of the means used for the defense cannot consist of a simple comparison between the potential harmfulness of the means used in the attack and the one that the defender uses to prevent or repel it”, remark the magistrates, who make their judges ugly colleagues who do not explain what “other alternatives” the retiree had to “protect his life”.
Regarding the proportionality of Dionisio's reaction to Óscar's attack, which the previous courts denied, considering that “it falls outside of all logic, no longer legal, but of human reactive action”, the high court exposes the existing nuances when it affirms that “An attack directed against assets, focused on one or several assets of small value, will require the defender to carefully select the means used to protect them”. “Another very different thing happens when the legal right that is defended turns out to be life itself,” he stresses, to emphasize that “the rational necessity of the means used constitutes the Gordian knot”.
This sentence, however, does not hide a repeated complaint between the agents and the union organizations consulted: the “terrible” shooting training of the agents to face risk situations. “Most of the protocols that are taught in the different bodies are based on a dispatch shot,” criticizes the instructor, who does not understand that police officers are not properly prepared to use the weapon in different scenarios.
“We practice four times a year, which is what the National Shooting Plan requires.. On each occasion, we fire 25 cartridges. It's enough? No not at all. We would have to practice once a month, at least those of us who are in operational services”, explains Andrés, who agrees with Luis in affirming that the exercises are not increased “due to lack of money”..
“It is true that 99% of police interventions are to mediate, denounce, control, inspect or prevent, but there is a 1% in which, from zero to 100, they go on to fight. And that is not learned in two hours of class. That has to be worked on”, stresses one of the agents, who hopes that what happened in Andújar will serve to review and update the protocols.
