On the night of August 16, 2017, an 11-man team from the Caloocan Police

Community Precinct 7 conducted an anti-illegal drugs operation at Block 7,

Riverside, Barangay 160, Caloocan City. Seventeen-year-old Kian Delos Santos was
killed over the course of this drug raid.

A complaint for murder, violation of Domicile under Article 128 of the Revised Penal
Code and Section 29 of the Comprehensive Dangerous Drugs Act or planting of
evidence have been filed against Chief Inspector Amor Cerillo, Police Officer 3 Arnel
Oares, PO1 Jeremias Tolete Pereda and Jerwin Roque.

The NBI said contrary to the claim of the police officers that Kian fought it out with
the police, evidence showed that Kian was shot to the head — behind the left ear
and inside the left ear when he was in a fetal position.

“Police protocol mandates that any police officer making an arrest should
immediately search the arrested individual for any dangerous weapons or
prohibited items and afterwards bring the arrested individual at the police station
for proper filing of the case,” the NBI said.

However, on Kian’s case, the NBI said “PO3 Arnel Oares and his cohorts accosted
victim and afterwards dragged him towards Tullahan River and shot him without
mercy.”

The NBI said Kian was killed in the area opposite the police station “which proves
that they [police] have no intention in bringing victim to their police office.”

Ballistic examination conducted by the Philippine National Police (PNP) Crime

Laboratory showed that a 9mm that was found in the crime scene has the same
characteristic as that of the 9mm pistol issued to Oares. The NBI noted that the
same firearm also yielded positive for gun powder nitrate residue.
“Given the circumstances, gathered evidence proved that it was PO3 Arnel Oares
who shot the victim,” the NBI stated in its complaint.

Paraffin examination, the NBI added, showed that Kian was negative on both is
hands negating “the allegations that victim fired shots at them upon sensing their
arrival so they have no other option than to fire back at victim, hitting him in the
head causing his instantaneous death.”

The police argued that Kian has a .45 caliber pistol and two sachets of shabu.

But the NBI pointed out that Kian was only wearing boxer shorts making it easier
for the police to spot the firearm when they accosted him.

The complaint was signed by NBI Director Dante Gierran.

A criminal complaint is already pending before the DOJ also for murder and torture
were filed by Kian’s parents against the same police officers.

Police officers still claim that their actions were justified for they were acting to
defend themselves. They also claim that they were in performance of their duty and
were under order.

Art. 11. Justifying circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural, or adopted brothers or sisters, or of his
relatives by affinity in the same degrees, and those by consanguinity with in the
fourth civil degree, provided that the first and second requisites prescribed in the
next preceding circumstance are present, and the further requisite, in case the
provocation was given by the person attacked, that the one making defense had no
part therein.

3. Anyone who acts in defense of the person or rights of a stranger, provided that
the first and second requisites mentioned in the first circumstance of this article are
present and that the person defending be not induced by revenge, resentment or
other evil motive.

4. Any person who, in order to avoid an evil or injury, does an act which causes
damage to another, provided that the following requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it.
Third. That there be no other practical and less harmful means of preventing it.

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office.

6. Any person who acts in obedience to an order issued by a superior for some
lawful purpose.

Paragraph 1 (Self Defense)

The defense claims justification for their acts, for they were acting on self-defense
against the unlawful aggression from the victim. By firing shots against the police
officers, their lives were put into imminent danger, hence, they had to act in order
to defend themselves, which led to the death of the suspect.
However, evidence of the prosecution suggests that Kian did not fire a pistol
against the police officers. According to the witnesses, the police officers were able
to subdue Kian and put him under their control, thus, he is no longer a threat to
anyone. This only proves that it is impossible for Kian to shoot at them. Kian cannot
be an unlawful aggressor under this circumstance.

Unlawful aggression being absent, self-defense cannot be invoked by the defense

as a justifying circumstance to acquit the police officers from criminal liability.

Paragraph 4 (Avoidance of greater evil)

For this justifying circumstance to be considered, the following requisites shall be

present:
1. That the evil sought to be avoided actually exists;
2. That the injury feared be greater than that done to avoid it; and
3. That there be no other practical and less harmful means of preventing it.

In the claim for avoidance of greater evil, the police officers claims that since the
deceased, Kian Delos Santos, drew his pistol and fired at them, the police in order
to avoid their injury or death, they acted in accordance to the imminent danger of
losing their lives therefore they acted within their instinct of self-preservation.

In connection with the three requisites of paragraph four, the prosecution disagrees
with the defense’ version since there is no unlawful aggression on the part of the
deceased. According to evidence of NBI and testimonies of NBI and the testimonies
of the witnesses, as discussed above there was no actual evil sought to be
prevented. With the absence of the first requisite the second and third requisites
cannot arise.

Paragraph 5 (In fulfillment of duty)

In order for this justifying circumstance to be considered, the following requisites
must be present:
1. That the accused 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 be the necessary
consequence of the due performance of duty or the lawful exercise of such
right or office.
The defense stated that they were acting in their official duty as police officers
assigned to the drug raid. But they did not follow the standard operating
procedures in making sure that the person being arrested is unarmed and poses no
threat. Considering the fact that the police officers assigned in this drug raid they
should have considered this hostile situation.

On the other hand, the prosecution recognizes the presence of the first requisite;
the accused is indeed acting in the performance of their duty. But the injury caused
to the deceased, who had already been apprehended, was neither warranted nor
necessary. Being that the first requisite is present, and the second is absent, the
defense is only entitled to an incomplete justifying circumstance to mitigate their
sentence.

Paragraph 6 (In obedience to an order)

For this justifying circumstance to be considered, the following requisites shall be

present:
1. That an order has been issued by a superior;
2. That such order must be for some lawful purpose; and
3. That the means used by the subordinate to carry out said order is lawful.

In the abovementioned case, the three Caloocan police officers, of whom are part of
the Oplan Galugad, are Police Officer 3 Arnel Oares and Police Officers 1 Jeremias
Pereda and Jerwin Cruz. Police claimed that they were conducting drug raid during
the shootout which led to the death of the victim. Duterte reiterated that his order
to the police was to “neutralize” criminals who would resist but if the findings of the
investigation will prove that there is “rub out,” those who violated the law will put
behind bars.

Assuming, arguendo, that there is an order to kill from an immediate superior to

shoot criminals who unlawfully aggressed with their arrest, the means used to carry
out the said order must be lawful. Based on the testimonies of several witnesses,
the police had beaten up the boy, gave him a gun and forced him to run before
shooting him. Thus, the means used by the police will not fall within the ambit of
the lawfulness of the means employed. Further, lawfulness from the orders of an
immediate superior should always be taken into consideration. If proven unlawful,
the consequences, liabilities, and obligations of such acts may be passed to the
subordinates committing such acts.