The Legislative Yuan has passed an amendment to the Act Governing the Use of Police Weapons (警械使用條例), allowing police officers greater freedom to use firearms. This is a big step forward, but only time will tell whether officers can truly be at ease.
Article 4 of the act states that police may use their firearms under seven circumstances, but the descriptions are mostly abstract. Phrases such as “extreme mishap” or “public order” are hardly applicable to specific occasions, and have been widely criticized.
For this reason, drawing on the principle of proportionality, the amendment stipulates a hierarchy of firearm use in accordance the extent to which a law enforcement officer is threatened. In particular, when police officers are under threat of injury or death, any kind of approved firearms that would prevent danger would be open to use. Under life-threatening circumstances, police officers may use their weapons without first firing a warning shot.
The amendment does not mean police officers would not be held legally accountable. A firearm-related death as a result of the actions of law enforcement still violates the right to life. Thus the problem arises: whether a police officer abides by the law when performing their duties, and whether their actions cause a preventable, yet intentional death. Nevertheless, no matter how definite the circumstances of using firearms could be specified, it is impossible to take into account every likely scenario. In the end, whether a police officer would be indicted depends on a prosecutor’s perception of the incident.
The main purpose of the amendment is to clarify the ambiguous judgement criteria, and make them more specific and objective.
Currently, even if a prosecutor decides that an officer’s use of a gun was in accordance with the principle of proportionality, police officers might have to deal with legal compensation in a civil litigation.
When police use of firearms infringes upon the rights of a person, the government should compensate them, according to the State Compensation Act (國家賠償法). So, a police officer would only be held liable due to intentional acts or gross negligence, and only after the government has already paid compensation.
Yet, in judicial practice, an injured person is entitled to file a compensation claim based on Article 186 of the Civil Code. Consequently, when performing their duties, police officers have to worry about potential lawsuits.
The amendment stipulates that any police firearm-related death is subject to the State Compensation Act. That way, police officers would not have to confront repeated compensation in litigation.
For disputes arising from police firearm-related deaths or serious physical injury, the amendment authorizes the Ministry of the Interior to organize an investigation team that has experts and academics in it. The team would investigate to clarify if the police use of firearms was justifiable.
The investigation result would be an important basis for administrative accountability, and could become material for education and training, as well as references for further legislative revision.
Yet, as seen from the current articles of the act, it is unclear whether the investigation result could be employed as the basis or evidence for prosecution, state compensation or criminal litigation. Concerned with how assured a law enforcement officer can be when performing their duties, this is a critical issue, and it awaits further clarification.
Wu Ching-chin is a law professor at Aletheia University.
Translated by Liu Yi-hung
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