REPUBLIC OF THE PHILIPPINES

NATIONAL POLICE COMMISSION

Philippines National Police, Internal Affairs Service
REGIONAL INTERNAL AFFAIRS SERVICE 4A
Camp Vicente Lim, Brgy. Mayapa, Calamba City

In Re: ADMINISTRATIVE ADMIN. CASE NO. SDRIAS4A-

PROCEEDINGS AGAINST MP-ADM-18-026-DB
PO2 Joseph Godspel F. Real
FOR: Grave Misconduct

Violation of Article 249 of RPC

(Homicide)

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POSITION PAPER
I, PO2 Joseph Godspel F Real assigned to the Municipal Police station of
Bay, after having duly sworn to in accordance with law, do hereby depose and
state, that:

A complaint was filed against me for grave misconduct (Homicide) Re: Buy
bust operation resulting the death of a suspected drug pusher identified as JULITO
CAHAGNAAN y Cubelo, “Luloy”, 32 years old, jobless, resident of Purok 7,
Lago Vista Subd., Brgy. Pansol, Calamba City.

That I vehemently deny the said allegation, the truth being that the said
incident is a legitimate police operation as warranted by the hereby appended
documents.

ANTICIDENTAL FACTS

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 Sometime at about 4:30 in the afternoon of October 29, 20161, Bay MPS
received an information from their confidential agent that a certain “Luloy” is
selling illegal drugs at Brgy. Dila, Bay Laguna. After validation of the said illegal
activity, the elements of BAY MPS immediately planned for a drug buy bust
operation. The PNP operatives coordinated with the PDEA and were in fact given
PDEA control Number 1005-102016-1380. At around 2:00 AM, of October 30,
2016, while on board a Mitsubishi pick-up, they proceeded at Brgy. Dila Bay
Laguna, where “Luloy” was alleged to have been selling illegal drugs.

SPO1 Hernandez acted as the poseur-buyer and asked the suspect, “Pre,
meron pa ba? Paiskor naman.”. The suspect then answered, “ madame pa pre,
magkanu ba pre?” The poseur-buyer then asked for Php 500.00.

The poseur-buyer then handed the marked money to the accused (one piece
of five hundred peso bill).

However, the accused, instead of accepting the Five hundred Peso Bill, drew
his firearm and fired upon the poseur-buyer three times.

At that juncture, sensing immediate peril upon his life, the undersigned
immediately fired back to the suspect two times acting upon the impulse of self
preservation.

THE RESPONDENT DID NOT COMMIT ANY

MISCONDUCT;
HIS ACTS OPERATE ON THE PRECEPTS OF
SELF-DEFENSE AND FULFILLMENT OF DUTY OR
EXERCISE OF A RIGHT OR OFFICE.

Article 11 (1) (Justifying Circumstances) of The Revised Penal Code (RPC)

provides for the following elements of Self Defense:
1
Based on the sworn statement of SPO1 Aldin Hernandez.

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 (a) unlawful aggression on the part of the victim; (b) reasonable necessity of
the means employed to prevent or repel it; and (c) lack of sufficient provocation on
the part of the person defending himself.

Article 11 (5) likewise provides that:

“Any person who acts in the fulfilment of a duty or in the lawful exercise of
a right or office”, does not incur criminal liability under the provision on Justifying
Circumstances.

Worthy to note that the respondents, that the respondent was in buy bust
operation. Accordingly, the respondents were in the lawful performance of their
duty. ERGO, when the suspect opened fire at the respondent, placing the life and
limb of the latter in imminent danger, it is but lawful for the respondents to fire
back in self-defence.

Prompted by their natural right to self-preservation on accounts of a clear

and present danger employed upon his life, the respondent had no other recourse
except to retaliate and repel the unlawful aggression employed by the suspect.

It is clear under the existing premises that all the elements enshrined in
Article 11 were present and existing as to constitute Justifying Circumstances.

First. When the suspect opened fire at the respondent, there exists an
imminent danger to his life and limb which is enough to constitute Unlawful
Aggression on the part of the suspect.

Second. The respondent was fired upon using short firearm and retaliated
with an equally commensurate weapon using their service short firearm in order
for them to prevent or repel such unlawful aggression.

Third. There was no sufficient provocation on the part of the respondents as

the firing upon them occurred at an instance and at an unexpected time.

In sum, the respondent is lawfully cloaked with authority when the armed
confrontation occurred and coupled with his natural right to life and the provisions

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of Article 11 RPC, it is but incumbent upon him to overcome the aggression he
was facing at that moment.

In self-defense, unlawful aggression is a primordial element, a

condition sine qua non. If no unlawful aggression attributed to the victim is
established, self-defense is unavailing, because there would be nothing to
repel. The character of the element of unlawful aggression has been aptly described
in People v. Nugas, as follows:

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. Accordingly, the
accused must establish the concurrence of three elements of unlawful
aggression, 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.

Unlawful aggression is of two kinds: (a) actual or material

unlawful aggression; and (b) imminent unlawful aggression. 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 (like aiming a revolver at another with intent to shoot or
opening a knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening attitude of the
victim, such as pressing his right hand to his hip where a revolver
was holstered, accompanied by an angry countenance, or like aiming
to throw a pot.

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 Following the above cited jurisprudence, it is clear that upon the instance
when the respondent was fired upon, an ACTUAL OR MATERIAL
AGGRESSION was existing and to protect one’s life is a natural and inherent
right which the respondents merely exercised in relation to their fulfillment of
their duty. Had it not been for their employed repulsion, injury or even death upon
him is highly probable.

In GR 148431, Cabanlig v. Sandiganbayan, the Court elucidates the

principles of Self-Defense and Fulfillment of Duty

Self-defense and fulfillment of duty operate on different principles. Self-

defense is based on the principle of self-preservation from mortal harm, while
fulfillment of duty is premised on the due performance of duty. The difference
between the two justifying circumstances is clear, as the requisites of self-defense
and fulfillment of duty are different.
 
The elements of self-defense are as follows:
 
a)      Unlawful Aggression;
b)      Reasonable necessity of the means employed to prevent or repel it;
c)      Lack of sufficient provocation on the part of the person defending
himself.
 
 
On the other hand, the requisites of fulfillment of duty are:
 
1.      The accused acted in the performance of a duty or in the
lawful exercise of a right or office;
 
2.      The injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise
of such right or office.
 
 
 
A policeman in the performance of duty is justified in using such force as is
reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily
harm.  In case injury or death results from the policeman’s exercise of such force,
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the policeman could be justified in inflicting the injury or causing the death of the
offender if the policeman had used necessary force. Since a policeman’s duty
requires him to overcome the offender, the force exerted by the policeman may
therefore differ from that which ordinarily may be offered in self-
defense. However, a policeman is never justified in using unnecessary force or in
treating the offender with wanton violence, or in resorting to dangerous means
when the arrest could be affected otherwise.

Under this existing jurisprudence, it is but imperative upon the herein

respondent to effect the arrest as the respondent was mandated by the Courts to do
so. In the course thereof, the law clothes him with lawful means to overcome the
resistance in order that the arrest be effected. In other words, as police officers,
they are not without any recourse especially so when it is their own lives that it at
stake.
The very PNP Operational Procedure additionally provides police officers in the
use of their service firearm as their last resort when all other lawful means in order
to effect arrest is unavailing. This, the respondents did. When it appeared that
suspect engaged the respondents in a gunfight, the respondents therefore are not
expected to take refuge in flight. As police officer who is mandated to serve and
protect, it is but imperative upon him to effect the arrest notwithstanding the
existing danger on his life. After all, the Right to Life is bestowed by the
Constitution to every citizen, and that citizenry includes police officers.

Moreover, the actions employed by the respondent is buttressed upon the

“Stand On Your Ground” principle, where unlike an ordinary individual, a police
officer cannot be expected to take refuge in flight. In the performance of his
official duty, it is imperative upon him to overcome the resistance or the
aggression employed by his opponent.

In the leading case of U.S. v. Mojica, 42 Phil. 784 (1922), where a

policeman trying to quell a disturbance shot with his revolver and fatally wounded
a man who attacked him with a knife, the Court laid down the following rule:

“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
differs somewhat from that which may ordinarily be offered in self-defense.”

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Bearing this in mind, we do not think that the appellant in using his revolver
against the deceased can be said to have employed unnecessary force. The
deceased attacked him with a deadly weapon; he might, perhaps, have saved
himself by running away, but this his duty forbade. Was he to allow himself to be
stabbed before using his arms? It may, perhaps, be argued that the appellant
might have used his club, but a policeman's club is not a very effective weapon as
against a drawn knife and a police officer is not required to afford a person
attacking him the opportunity for a fair and equal struggle. (State vs. Phillips, 119
Iowa, 652; 67 L.R.A. 292; North Carolina vs. Gosnell, 74 Fed., 734; Boykin vs.
People, 22 Colo., 496; 45 Pac., 419; Adams vs. State, 72 Ga., 85.) And if it was
necessary for the appellant to use his revolver, he could hardly, under the
circumstances, be expected to take deliberate and careful aim so as to strike a
point less vulnerable than the body of his adversary. (U.S. vs. Mack 8 Phil., 701;
U.S. v. Domen 37 Phil., 57.) [Id., p. 787].

Tested by this standard, the means employed by herein respondents in

repelling the attack were, under the circumstances, both reasonable and necessary.
They merely tried to defend themselves from an imminent danger which otherwise
may cause them to lose their lives or suffer from a serious injury. During that
instance when they were fired upon, there was no other reasonable means except to
retaliate and prevent the aggression posed upon them in the hope that such would
save them from any injury or death.

Relatively, the respondents contend that their acts do not fall within the
purview of “Grave Misconduct”. In Ganzon v. Arlos GR 174321, October 22,
2013, the Court had the opportunity to define the offense of “Grave Misconduct”,
thus:

“Misconduct is intentional wrongdoing or deliberate violation of a

rule of law or standard of behavior. To constitute an administrative offense,
misconduct should relate to or be connected with the performance of the official
functions and duties of a public officer. In grave misconduct, as distinguished from
simple misconduct, the elements of corruption, clear intent to violate the law, or
flagrant disregard of an established rule must be manifest”.

It is clear on the above cited jurisprudential definition that to constitute

Grave Misconduct, the elements of corruption, clear intent to violate the law or
flagrant disregard of an established rule must be manifested. However, in the case
at bar, the above mentioned requisites are clearly absent as the respondents merely

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acted on an impulse of self-preservation in the course of a fulfilment of their duty.
Hence, this administrative case therefore is without any legal legs to stand on.

Further, respondents, in the absence of any showing of irregularity enjoys

the Presumption of Regularity in the Performance of Duty. It is but clear that their
actions were all in accord with the applicable rules elucidated in the PNP
Operational Procedure. Nowhere in the records appear that the respondents used
excessive force, and the allegation to such effect were overwhelmingly overcame
and defeated when the respondents has proven that their actions were justified as
the same were anchored on the principles of Self-preservation and Fulfillment of
Duty or Office.

Respondent further sayeth naught.

PRAYER

The respondent respectfully prays before the Honorable Summary

Hearing Officer the following:

a. That this administrative case be dismissed for utter lack of merit;

b. Other reliefs and remedies that are just and equitable are likewise prayed
for.

Republic of the Philippines)

Province of ____________) Ss.
_____________________ )

VERIFICATION

I, PO2 Joseph Godspel F Real assigned to the Municipal Police station of

Bay, after having duly sworn to in accordance with law, do hereby depose and
state, that::

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 1. I am the respondent in the above-entitled administrative case;

2. I caused the preparation of the foregoing Position Paper including this page
where the Verification was written;

3. I have read and fully understood it; and

4. The defenses contained herein are true and correct of my own knowledge or
based on authentic documents.

The Respondent:

PO2 Joseph Godspel F Real

SUBSCRIBED AND SWORN to before me this _____ day of

_____________ at ___________. Affiants exhibited to me their government issued
ID as above indicated under their names as competent evidence of their identities.

Doc No. _______________

Page No. ______________
Book No.______________
Series of _____.

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