Republic of the Philippines

National Police Commission

PHILIPPINE NATIONAL POLICE
INTERNAL AFFAIRS SERVICE
REGIONAL INTERNAL AFFAIRS SERVICE- 10
Camp 1lt Vicente Lim , Alagar , Lapasan ,
Cagayan de Oro City

PHILIPPINE NATIONAL POLICE

(Complainant )

-versus - Administrative Case No : RIAS10-

MPI1-2020-001

FOR : GRAVE IRREGULARITY IN

THE PERFORMANCE OF DUTY
(Viol. Of Rule 6 (6.3) of POP Revised 2013)

PSSg Edel Charlie Fernandez Paluga

PCpl Niel Bayotas Gamalo
(Respondents)
x- - - - - - - - - - - - - - - - - - - - - - - - -- /

POSITION PAPER

We, PSSg Edel Charlie Fernandez Paluga and PCpl Niel Bayotas

Gamalo, all of legal age, Filipino, all police officers assigned at Jasaan Municipal

Police Station, Misamis Oriental Police Provincial Office, Jasaan, Misamis

Oriental, after being sworn according to law, hereby depose and state;

PREFATORY STATEMENT:

The responsibility of every police officer is to serve the public and protect

life and property and in every police operation, preservation of human life and

full respect to human rights are two primary goals of a police officer and the

excessive use of force during police operation is prohibited. However, the

Revised Philippine National Police Operational Procedures, clearly states that in

the lawful performance of duty, a police officer may use necessary force to
accomplish his mandated tasks of enforcing the law and maintaining peace and

order and during confrontation, only such necessary and reasonable force

should be applied as would be sufficient to overcome the resistance put up by

the offender; subdue the clear and imminent danger posed by him; or to justify

the force/act under the principles of self-defense, defense of relative, or defense

of stranger. The use of firearm is justified if the offender poses imminent danger

of causing death or injury to the police officer or other persons.

Further, the Supreme Court has repeatedly held, that in order to use such

doctrine by the law enforcers as a shield to justify their act of committing an

offense, there are some elements or a condition sine qua- non which must exist

in order to avail the mantra of self defense.

This is a case in point and all the elements or requisites of Self Defense are

clearly present in these case.

THE PARTIES:

The Nominal Complainant in this case is the Provincial Internal Affairs

( PIAS ) MORPIAS, RIAS-10, Cagayan de Oro City who conducted the motu

proprio investigation on the discharged of firearm during the conduct of Police

Operation against alleged Illegal Cockfighting on February 24, 2020, at around

3:00 o’clock in the afternoon at Faustina, Jasaan, Misamis Oriental conducted by

Provincial Headquarters, pursuant to Rule 6, Section 1 of NAPOLCOM

Memorandum Circular ( NMC ) No. 2016-002 in relation to Executive Order No.

226 ( 1995 ), for GRAVE IRREGULARITY IN THE PERFROMANCE OF DUTY

(Viol of Rule 6 (6.3) of POP Revised 2013) against the respondents police officers

PSSg Paluga and PCpl Gamalo, all of legal ages, all assigned at Jasaan Municipal
Police Station, Misamis Oriental Police Provincial Office and with postal address

at Jasaan, Misamis Oriental where they may be respectively served with

summons, notices and other processes of this Honorable Office herein referred

to as respondents.

STATEMENT OF THE CASE

The above entitled case was filed by the nominal complainant against

respondent police officers pursuant to Section 39 of Republic Act 8551, which

states that the Internal Affairs Service shall conduct motu-propio automatic

investigation of the following cases;

a. Incidents where a police personnel discharges a firearm;

These case falls within the provision of paragraph a of the said law.

The two Charge Sheet stated to quote;

1. The Prosecution Division, Regional Internal Affairs Service 10, Philippine National
Police, represented by the undersigned Prosecutor, hereby charges PSSg Edel Charlie
Fernandez Paluga and PCpl Niel Bayotas Gamalo ( respondent for brevity ) for an
administrative offense of Grave Irregularity in the Performance of Duty, committed as follows;

That on February 16, 2020 at more or less 2:05 o’clock in the afternoon at Sitio, Faustina,
Brgy. Kimaya, Jasaan, Misamis Oriental, while respondents are uniformed members of the
Philippine National Police assigned with Jasaan Municipal Police Station, Misamis
Oriental Police Provincial Office, and within the adjudicatory jurisdiction of this
authority, while conducting an anti- illegal gambling operation against “Tari-tari”
(illegal cockfighting), did then and there, fired warning shots at the suspects/ “tari-tari”
participants who were terrified and scampered to different directions. Said acts
constitute significant violation of Rule 6, paragraph 6.3 of the PNP Operational
Procedures Revised December 2013, thus tantamount to Grave Irregularity in the
Performance of Duty.
 THE FACTS

That first and foremost, the respondents PSSg Charlie Edel Fernandez

Paluga and PCpl Niel Bayotas Gamalos were all members of Jasaan Municipal

Police Station, who served as operatives during the conduct of anti-illegal

gambling operation, on February 16, 2020 at around 2:05 o’clock in the

afternoon at Faustina, Kimaya, Jasaan, Misamis Oriental, that prompted the

respondents to discharge their firearm as a means to stop their unlawful

resistance which is the only option available in the said situation.

That, at the outset, the undersigned clearly states that indeed the above

operation is a legitimate anti-illegal gambling operation, and the said warning

shots is a result of an encounter between the police officers which said to be

under the mantra of self defense and all acts of police officers involved in the

operation were based on Revised PNP Operational Procedures.

That facts and circumstances of the said operation are as follows:

On February 16, 2020 at about 2:05 o’clock in the afternoon, a concerned

citizen called thru the hotline of Jasaan Municipal Police Station and reported an

information that an alleged Illegal Cockfighting transpired at Faustina, Kimaya,

Jasaan, Misamis Oriental. PCMS Sereno, PSSg Paluga and PCpl Gamalo served as

operatives of the said operation, who immediately proceeded to area to verify its

veracity after the directives given by the Deputy Chief of Police PLT Danilo S.

Longjas through the confirmation of their informant.

 Upon approaching to the said area they were able to secure a photograph

from the persons coming from the said area brought with them a dead and live

fighting cocks when they met them using the private vehicle driven by PCMS

Sereno. When they disembarked from the vehicle 100 meters away from the

area, they proceeded immediately to the area, while PCMS Sereno parked the

private vehicle in a safe place.

That when the respondents arrived at the area, they introduced

themselves as Police Officers, however, they scampered immediately and did not

manage to escape but placed themselves in advantageous position on the grassy

portion and began throwing a valley of stones coming from different directions.

The brink of the situation has gotten worst, even if they hide themselves in a

branch of bug stones, it is not enough to cover them or repel multiple huge

stones coming from different direction that hits already the cap of PSSg Paluga,

that concludes that their life were already in peril, that escape is an impossible

way for fear that they might be hit or surrounded already by the suspected

persons.

Since no other option were available they discharge their firearm with just

one shot that was directed to the ground to secure that no civilian nor the

suspected persons will be hit, just to stop their unlawful resistance. At the said

instance they began to stop throwing stones and the respondents continue to

reach the said area and recovered one (1) fighting cock color red. They returned

to the Police Station for proper disposition and were able to identify the persons

behind the illegal activity namely; FRANCASIO MAHINO, RITO BENTAZAR,

CRISPIN MAHINO and DOMINGO JAMIS and the Jasaan Municipal Police Station

filed a case for violation of P.D. 449, Illegal Cockfighting Law and Serious
resistance and Disobedience to an Agent of a Person in authority docketed under

NPS NO. X-05-20-B-00114.

ISSUES

WHETHER OR NOT RESPONDENTS ARE ADMINISTRATIVELY

LIABLE FOR THE SAID WARNING SHOT DURING THE ANTI-ILLEGAL
COCKFIGHTING OPERATION UNDER NAPOLCOM Memorandum
Circular No 2016- 002 Rule 6, Rule 21 Section 1 (paragraph 2) in
Relation to Section 2 (paragraph C-2)for GRAVE IRREGULARITY IN
THE PERFORMANCE OF DUTY ( Violation of Rule 6 ( 6.3 ) POP Revised
2013.

II

WHETHER OR NOT THE DOCTRINE OF SELF DEFENSE UNDER

ARTICLE 11 OF THE REVISED PENAL CODE IS PRESENT ON THIS
PARTICULAR CASE?

III

WHETHER OR NOT THE DOCTRINE OF LAWFUL

PERFORMANCE OF A DUTY OR IN THE LAWFUL EXERCISE OF A
RIGHT OR OFFICE UNDER ARTICLE 11 OF THE REVISED PENAL CODE IS
PRESENT ON THIS PARTICULAR CASE?

ARGUMENTS AND DISCUSSION

WHETHER OR NOT RESPONDENTS ARE ADMINISTRATIVELY LIABLE FOR

THE SAID WARNING SHOT DURING THE ANTI-ILLEGAL COCKFIGHTING
OPERATION UNDER NAPOLCOM Memorandum Circular No 2016- 002 Rule
6, Rule 21 Section 1 (paragraph 2) in Relation to Section 2 (paragraph C-
2)for GRAVE IRREGULARITY IN THE PERFORMANCE OF DUTY ( Violation of
Rule 6 ( 6.3 ) POP Revised 2013.

There is no merit on the Administrative Charge that we violated POP Rule

6 (6.3) Revised 2013

The operation against illegal cockfighting was legitimate after a concerned

citizen called thru the hotline of Jasaan MPS, it was entered into a blotter,

confirmed by an informant and they received proper directives from their

Deputy COP to arrest those violators who conducted illegal activity. However,

those violators disobeyed them by way of preventing them from rendering their

duty despite that they introduced themselves as Police Officers and seriously

resisted them by way of throwing massive number of stones, in which instance

they face a very real threat in their life not merely imaginary but is actual and

imminent that can cause serious injury on their part.

The Supreme Court ruled in “Cabanlig vs Sandiganbayan” that facing

imminent danger the policemen had to act swiftly. Time was of the essence. The

issuance of a warning before a law enforcer could use force would prevent

unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ

force only as a last resort.

Here, a humble tongue cannot stop an aggressive hand. Despite so many

warnings that they ordered to stop their unlawful act but still they did not follow

their order and continue to threw a lot of stones. Even if they hide themselves in

a branch of stones, it was not enough to cover themselves, it even hits the cap of

PSSg Paluga because a lot of stones were coming from different directions. They
cannot also even move their body, for fear that they will be hit by those stones

that will result into serious injury or worst.

It is very clear that the threat of their lives were already imminent and

there is no other option but to decide swiftly and carefully, their last resort is to

discharge their firearm to the ground so that no one will be hit and to serve also

as a warning to stop their unlawful resistance. There is no other available means,

their lives were in peril and it was the best way as a last resort in their discretion

to repel them.

Under Rule 7 of POP Revised 2013, “a police officer, however, is not

required to afford offender/s attacking him the opportunity for a fair or equal

struggle. The reasonableness of the force employed will depend upon the

number of aggressors, nature and characteristic of the weapon used, physical

condition, size and other circumstances to include the place and occasion of the

assault. The police officer is given the sound discretion to consider these factors

in employing reasonable force”.

It is very clear, the number of suspected persons were great compared to

the police, the place was in there advantage and the force that they employed

were reasonable even if the characteristic of the weapon used was not so fatal

which is a stone but to the extent that it presents a danger also to the life and

limb of the Police Officers which would cause serious injury or worst. The

struggle that they are facing were very difficult and trying and the factors in

their situation were observed under Police Operational Procedure and is

considered substantial.
The Supreme Court ruled in U.S. vs Mojica, 42 Phil 784 that “ a police officer, in

the performance of his duty, must stand his ground and cannot, like a private

individual, take refuge in flight, his duty requires him to overcome his opponent.

The force which he may exert therefore differ somewhat from that which may

ordinarily be offered in self-defense. A police officer is not required to afford a

person attacking him the opportunity for a fair and equal struggle.”

That it is very clear that being an enforcer of the law, the respondents are

authorize and justified in using of necessary force considering the strong

resistance, threat and danger posed by the suspected individuals and the

respondents action was an immediate and spontaneous reaction to imminent

danger. They discharge their firearm, even if they knew that they are bound by

rule but for the choice that it is the best way to repel imminent danger in their

life. It is a necessary consequence for the fulfilment of their duty even if an

offense be committed to repel an unlawful act. Since it was also directed to the

ground for purposes not to injure any civilian nor the suspected persons

Further, under Rule 8.1 of 2013 Revised Police Operational Procedure

clearly states that the use of firearm is justified only if the offender poses

imminent danger of causing death or injury to the police officer or other

persons.

The use of firearm is also justified under the doctrine of self defense,

defense of a relative and defense of a stranger. However one who resorts self
defense must face a real threat on his life and the peril sought to be avoided

must be actual, imminent and real. Unlawful aggression should be present for

self defense to be considered as a justifying circumstance.

That based on the above premise, it is crystal clear that the afore

mentioned operation against illegal cockfighting does not constitute Violation

of Rule 21 Section 1 paragraph 2 in relation to Section 2 paragraph C-2 of

NAPOLCOM MEMORANDUM CIRCULAR 2016-002 (Grave Irregularity in the

Performance of duty), the police officers only did what is incumbent upon

them to protect their life while in imminent danger in performing their duty.

The act of the respondents police officers is within the ambit of the law,

one is under the doctrine of self defense which is based on the principle of self-

preservation from mortal harm and since the suspected individuals successively

threw a massive number of stones directed to the respondents clearly shows an

actual, imminent and real danger in the life of the law enforcer, and an indication

of Unlawful aggression on the part of the suspected individuals.

 II

WHETHER OR NOT THE DOCTRINE OF SELF DEFENSE UNDER

ARTICLE 11 OF THE REVISED PENAL CODE IS PRESENT ON THESE
PARTICULAR CASE?

Under Rule 7.5 of 2013 Revised Police Operational Procedure clearly state

that during confrontation with an offender, only such necessary and reasonable

force should be applied as would be sufficient to overcome the resistance put up

by the offender; subdue the clear and imminent danger posed by him; or to

justify the force/act under the principles of self-defense, defense of relative, or

defense of stranger.

The force applied by the respondents against the suspected individual

were necessary and reasonable in-order to eliminate the imminent danger

posed by the suspected individuals and the discharge of their firearm especially

that it was directed to the ground to secure no civilian will be hit nor the

suspected individuals was justifiable by virtue of the Doctrines of Self-Defense.

It is very clear that when there is imminent danger to any human life,

policemen will be empowered to use necessary force available in order to stop the

unlawful resistance which would produce imminent danger to the Police Officers.

The imminent danger to human life is called a “justifying circumstance” (of

self- Defense, or defense of a stranger) that makes the act lawful.

The law on self-defense embodied in any penal system in the civilized

world finds justification in man’s natural instinct to protect, repel and save his

person or rights from impending danger or peril; it is based on that impulse of

self -preservation born to man and part of his nature as human being.

(Castanares vs Court of Appeals, Nos. L-41269-70, Aug. 6, 1979,92 SCRA 567 )

All the elements of Self defense are totally present on this instant case.

The following are the elements of self-defense to wit;

Anyone who acts in defense of his person or rights provided the following
circumstances concur:

First. Unlawful aggression;

In People vs Rogelio Dolorido, the Supreme Court ruled that Unlawful

Aggression is an actual physical assault, or at least a threat to inflict

real imminent injury, upon a person. In case of threat, it must be

offensive and strong, positively showing the wrongful intent to cause

injury. It “presupposes actual, sudden, unexpected or imminent danger

– not merely threatening and intimidating action.” It is present “only

when the one attacked faces real and immediate threat to one’s life.”

Further, in People vs. Del Castillo, G.R. No. 169084, the Supreme Court

also ruled that unlawful aggression on the part of the victim is the primordial

element of the justifying circumstance of self-defense. Without unlawful

aggression, there can be no justified killing in defense of oneself.  The test for the

presence of unlawful aggression under the circumstances is whether the

aggression from the victim put in real peril the life or personal safety of the

person defending himself; the peril must not be an imagined or imaginary threat.

Unlawful aggression has three elements namely:

(a) There must be a physical or material attack or assault;

 (b) The attack or assault must be actual, or, at least, imminent; and

(c) The attack or assault must be unlawful.

It is clear that all the three elements are present on this case wherein the

suspected individuals materially assaulted them by way of throwing a massive

number of stones, it was totally actual and poses an imminent threat and danger

to the life and limb of the Police Officers which is also unlawful considering that

the respondents were clothed with authority and in the performance of his

official duty as enforcer of the law.

In Nacnac vs People of the Philippines, “It is necessary that the intent be

ostensibly revealed by an act of aggression or by some external acts showing the

commencement of actual and material unlawful aggression”.

Here, the actual throwing of a valley of stones clearly shows their

intentions to put the life of the Police Officers in real peril which already

constitutes unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel

it;

The requirement of reasonable necessity of the means used to defend

one’s self from an unlawful aggression entails the use of reasonable means of

self- defense that is commensurate to the nature and the extent of the attack

sought to be averted (People of the Philippines vs. Escarlos, G.R. No. 148912,

September 10, 2003). And whether the means employed is reasonable depends

on the nature and quality of the weapon used by the aggressor, his physical
condition, character, size and other circumstances, and those of the person

defending himself, and also the place and the occasion of the assault. The Revised

Penal Code, 2008 ed., p. 180). This means that the determination of

reasonableness of the means employed for self-defense relies on the

appreciation of the facts surrounding that incident that required the use of self-

defense.

In the case of U.S. vs. Batungbacal, 37 Phil. 382, the Supreme Court,

stated that: “The law protects not only the person who repels an aggression

( meaning actual ), but even the person who tries to prevent an aggression that

is expected ( meaning imminent ). “

Since the suspected individuals used the stones as a weapon despite so

many verbal warning which put the life of the respondents already into

imminent danger, the police without any other option discharge their firearm to

serve as a warning which is much reasonable in order to stop their resistance

that can cause serious injury since there is no other means to repel them despite

so many verbal warnings. The fact that the place is very known and familiar to

the aggressor, they are more advantageous to the police officers. There number

were great compared to police officer, which really outnumbered the

respondents that puts them into jeopardy. The time, number of aggressors and

place of the attack are one factor to be considered in invoking the second

element of self-defense.

In emergencies where the person or life of another is imperiled, human

nature does not act upon processes of formal reason but in obedience to the

instinct of self-preservation. The reasonableness of the necessity of the means

employed depends upon the circumstances of the case.

 The respondents who were thrown by the suspected individuals is not

duty-bound to expose themselves to be wounded or killed and while the danger

to their person or life subsists, the respondents has a perfect and indisputable

right to repel such danger by discharging their firearm so that they may not

continue their assault.

Also in People vs. Catbagan, the Supreme Court also ruled that, “the

means employed by the person invoking self-defense is reasonable if equivalent

to the means of attack used by the original aggressor.  Whether or not the means

of self-defense is reasonable depends upon the nature or quality of the weapon,

the physical condition, the character, the size and other circumstances of the

aggressor; as well as those of the person who invokes self-defense; and also the

place and the occasion of the assault.”;

The police officer, in the performance of his duty, represents the law

which he must uphold. While law on self-defense allows a private individual to

prevent or repel an aggression, the duty of a police officer requires him to

overcome his opponent.

Third. Lack of sufficient provocation on the part of the person defending

himself.”

As to the third requisite that the provocation must be sufficient, it should

be proportionate to the aggression and adequate to stir the aggressor to its

commission.  To be entitled to self-defense, however, the one defending himself

must not have given cause for the aggression by his unjust conduct or by inciting

or provoking the aggressor.

 It is absolutely clear that the provocation came from the suspected

individuals and not with the police officers since the suspects were the first one

who threw a valley stones, not just once but many times despite the verbal

warnings ordered by the police officers.

The respondent were not the source of the provocation or aggression as

he was in the performance of his duty to arrest the suspects for conducting

illegal activity and in the lawful exercise of his right being a police officer.

To summarize, to be able to successfully invoke self-defense, the police

officer must have been the subject of a real and imminent threat, which

represents the unlawful aggression made upon him. There must also be

reasonableness in his use of a firearm or any other weapon as his means to

defend himself. And finally, there should be no provocation on his part that

caused his aggressor to harm him.

III

WHETHER OR NOT THE DOCTRINE OF LAWFUL PERFORMANCE OF A

DUTY OR IN THE LAWFUL EXERCISE OF A RIGHT OR OFFICE UNDER
ARTICLE 11 OF THE REVISED PENAL CODE IS PRESENT ON THIS
PARTICULAR CASE?

Under Article 11 (Justifying Circumstances) of the Revised Penal Code

(RPC), it provides that a person who acts in the fulfillment of a duty or in the

lawful exercise of a right or office does not incur any criminal liability, provided

that the following requisites must concur:

1) That the accused must have acted in the performance of a duty or in

the lawful exercise of a right or office; and

 2) That the injury caused or the offense committed should have been

the necessary consequence of such lawful exercise.

It can be shown from the facts, that the above mentioned requisites are

present and a violation of the said Police Operation Procedure was a necessary

consequence of the performance of their duty as police officers since they are

conducting a legitimate anti-gambling operation.

The act of the suspected individual in throwing a valley of stones

successively towards the police officers which cause the police officers to

retaliate as a result to stop their unlawful resistance. The discharge of firearm

are committed and is necessary in due and lawful exercise performance of police

officers duty.

Thus, in one case, the Court acquitted the accused police officers even if

their acts constituted the crimes of discharge of firearm, inflicted upon persons

facing criminal charges who were trying to resist arrest, because the accused

officers were in the performance of their official duties [U.S. v. Resaba, 1 Phil.

311 (1902)].

Here, the acts of the respondents by discharging their firearm is a

reasonable and necessary means to repel the unlawful resistance of the

suspected individuals because the Police Officers were in the performance of

their official duties which is duty bound to overcome the force manifested by the

suspected individuals.

When there is imminent danger to any human life, policemen will be

empowered to use deadly force even to the extent of committing an offense. The
imminent danger to human life is called a “JUSTIFYING CIRCUMSTANCE” (of

self-defense, or defense of a stranger) that makes the act lawful.

PRAYER

In the light of the foregoing, it is most respectfully prayed of this

Honourable Office that the above-entitled case (administrative case) be

DISMISSED for utter lack of merit.

Other relief and remedies just and equitable under the premises are

likewise prayed for.

AFFIANT FURTHER SAYETH NAUGHT.

September 5, 2019, Cagayan de Oro City

RESPECTFULLY SUBMITTED:
__________________________________ __________________________________
PSSg Charlie Edel Fernandez Paluga PCpl Niel Bayotas Gamalo
Respondent Respondent

SUBSCRIBED AND SWORN to before me this ____th day of September 2019

in Cagayan de Oro City.

CERTIFICATION

I hereby certify that I have personally examined the Affiants and I am

convinced that they voluntarily executed and understood the contents of their
Verified Position Paper.
 VERIFICATION
WE, PSSg Charlie Edel Fernandez Paluga and PCpl Niel Bayotas Gamalo, all
of legal age, Filipino and with postal address Tagoloan Municipal Police Station,
Tagoloan, Misamis Oriental, after having been duly sworn according to law
hereby depose and say: THAT

1. We are the Respondents in the above-entitled case.

2. We read and understood the contents of the foregoing Position Paper.

3. The same are true and correct of our personal knowledge and based on
records available;

IN WITNESS WHEREOF, We have hereunto affixed our signature this

___th day of September 2019

__________________________________ __________________________________
PSSg Charlie Edel Fernandez Paluga PCpl Niel Bayotas Gamalo
Respondent Respondent

SUBSCRIBED AND SWORN, to before me this ___th day of September

2019 at Cagayan de Oro City.