Since the killing of two brave police officers in Tainan last week, many Taiwanese have been questioning the limits on police conduct stipulated in the Act Governing the Use of Police Weapons (警械使用條例), as well as regulations pertaining to the death penalty and open prisons.
Article 4, Paragraph 1 of the act states that officers are allowed to use their firearms, and articles 6 and 9 define under which circumstances they can do so.
Article 6 states that “police shall properly use police weapons in case of emergency, and shall not exceed the necessary degree of force.”
The term “necessary degree of force” usually refers to the “least intrusive means,” which might be the main reason that officers are hesitant to use their firearms.
Similar to the “right of self-defense” defined in the Criminal Code, the use of force by police is considered legitimate as long as their actions pass the “necessity test.”
Some Criminal Code academics have proposed a three-step test to assess whether the use of force in self defense is legitimate in any given situation.
First, the victim of an attack should attempt to dodge the attack. If this does not resolve the situation, they can block the attack, and if that is not enough, they may hit back.
In practice, it is difficult to asses whether a person acting in self-defense is following the appropriate procedure.
Article 9 states that “police should avoid using lethal force unless the situation is so imminent that the lives of officers or bystanders are being threatened.”
The act is often cited by plaintiffs who claim compensation after officers use force against them.
As the saying goes, there is “no name on the bullet.”
When officers are in imminent danger, it is extremely difficult for them to ensure that they cause as little harm as possible to the attacker.
Some suggest that the act be amended by adding that police are only criminally and civilly liable if they cause death or injury to a suspect due to “willful intent” or “gross negligence.”
However, “gross negligence” is an ambiguous legal concept. Although judges can appoint expert witnesses to assist them in clarifying whether an act of negligence was “gross,” rulings are still based on judges’ free evaluation of evidence, and in practice, judges tend to hold officers who have caused the death of a suspect accountable.
The judicial recognition of “gross negligence” might be unfavorable to police officers.
Chao Hsuey-wen is an assistant professor.
Translated by Eddy Chang
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