Police Use of Force: Legal Analysis of the LAPD Incident

Self-defense is a justification defense where a person is justified in using force when they reasonably believe it is immediately necessary to protect themselves against unlawful force. Deadly force is justified when reasonably believed immediately necessary to protect against unlawful deadly force. The state must prove beyond a reasonable doubt that the defendant did not act in self-defense. Necessity is a defense when conduct is immediately necessary to avoid imminent harm and the desirability of avoiding the harm outweighs the harm prevented by the law. The burden of proof for these defenses rests on the prosecution. The jury must find beyond a reasonable doubt that the defendant used or exhibited a deadly weapon and intentionally, knowingly, or recklessly caused bodily injury, then consider whether self-defense or necessity applies.

Unlawfulness (antijuridicidade) refers to conduct not permitted by law. A conduct can be factual typical but lawful if justified by legal defenses. State of necessity (estado de necessidade) allows committing factual typical acts to save oneself from actual danger not provoked by one's own will. Self-defense (legítima defesa) allows using necessary means to contain unjustified actual or imminent aggression against one's rights or others' rights. The means used must be moderate and proportionate to the threat. Excessive self-defense becomes a crime rather than a defense. Strict legal compliance (estrito cumprimento do dever legal) and regular exercise of rights (exercício regular de um direito) are also legal defenses. Culpability is divided into three components: imputability (capacity to be held criminally responsible), potential consciousness of unlawfulness (capacity to understand conduct is criminal), and exigibility of different conduct (possibility of requiring different action). Imputability requires being over 18 years old and mentally sound. The principle of legality states that there is no crime without a prior law defining it and no penalty without a prior legal provision. The principle of legal reserve requires that crimes can only be created by ordinary laws. The principle of anteriority states that a crime can only be committed after the law enters into force.

Self-defense is a complete defense available to all crimes including murder, operating as a necessity defense that makes the defendant's actions lawful. The law requires two elements: (1) the use of force must be necessary, judged subjectively from the defendant's perspective based on honestly believed facts, with no duty to retreat and allowing preemptive strikes; (2) the amount of force used must be reasonable, judged objectively but based on circumstances as the defendant believed them to be. The defense can be used even by initial aggressors (unless they deliberately incited violence) and force can be used against innocent third parties. Key cases include Hussein (excessive force), Gladstone Williams (honest mistake), and Martin (disproportionate force).

Justifying circumstances are actions that are in accordance with the law and therefore do not constitute criminal behavior. Self-defense is a justifying circumstance that makes an otherwise criminal act lawful. Self-defense requires two essential elements: unlawful aggression and reasonable necessity. Unlawful aggression refers to an actual, unlawful attack or threat of attack directed against a person. Actual unlawful aggression is a specific type that is real and imminent, as opposed to a hypothetical or imagined threat. Reasonable necessity requires that the defensive action be necessary to prevent the unlawful aggression and that no other reasonable alternative exists. The defensive force used must be proportionate to the threat faced.

This section covers the requirements for state of necessity and self-defense. State of necessity requires: (1) An actual danger (perigo atual); (2) The danger was not provoked by the agent's own will; (3) The agent could not avoid the danger by other means. The agent may act to avoid the danger, but must not harm innocent third parties. Those with a legal duty to face the danger cannot claim state of necessity but may receive a penalty reduction of 1/3 to 2/3. Legítima defesa requires: (1) An unjust aggression; (2) The aggression must be current or imminent; (3) The defense must be necessary and proportional. Self-defense can be exercised to protect oneself or a third party.

The First Amendment protects freedom of the press, which includes the right to gather information and document government activities. Journalists and citizens have the legal right to record police activities in public spaces. Police cannot detain individuals solely for exercising their First Amendment rights. Officers must articulate specific crimes before detaining individuals.

The First Amendment protects freedom of the press and the public's right to record police activities. Journalists and citizens do not need fancy badges or fancy hats to exercise this right - a phone with a camera and a platform to post content is sufficient. There is no expectation of privacy in public spaces, making video evidence crucial for accountability. Keeping cameras rolling when observing police is essential because it is 'your word against theirs' without video evidence.

Filming and acting as a member of the free press are protected First Amendment activities. These activities count as legitimate business and cannot be restricted by facility rules or policies. Citizens have the right to conduct investigative journalism and document matters of public interest in publicly accessible areas. When officers claim that citizens are trespassing or loitering while engaged in constitutionally protected activities, this represents a violation of First Amendment rights.

This video demonstrates that investigative journalists exercising their First Amendment rights to photograph and document police operations in public spaces cannot be lawfully detained or arrested, as such actions would constitute an unconstitutional infringement on protected speech and press freedoms. The video shows a journalist being detained by Metro Drug Unit officers while photographing a Narcotics Unit building, highlighting the tension between law enforcement authority and constitutional protections for public documentation of government activities.

The First Amendment protects the freedom of the press and the right to gather information in public spaces. Police cannot block journalists on public sidewalks under the guise of safety threats or amorphous concerns. The landmark case ACLU v. Alvarez established that the First Amendment protects the open audio and visual recording of law enforcement officers performing their duties in public spaces. This constitutional protection applies to all citizens, not just the press, and extends to recording in public areas such as streets and sidewalks.

The term 'non-lethal' has been legally replaced with 'less lethal' in law enforcement equipment. This distinction arose because technically, nothing is truly non-lethal—everything can be lethal if used incorrectly or in certain ways. Courts ruled that marketing equipment as 'non-lethal' when it can cause death would constitute unlawful death cases. Therefore, all such devices must be rebranded as 'less lethal' to avoid legal liability if someone dies from their use.

The use of force is divided into two parts: lethal force and less lethal force. Lethal force refers to the amount of force used with weapons to cause permanent injuries or even death. When firearms are used, it is always considered lethal force because they are used to cause serious damage to the person, potentially resulting in death. Less lethal force refers to physical resources used to protect the life and physical integrity of persons, including oneself, without prior mandate to prevent, impede, or overcome threats or security disturbances, in accordance with the law and international standards on the use of force and human rights.

The Code of Conduct for Law Enforcement Officials establishes that force may only be used when strictly necessary and proportionate. The UN Basic Principles on the Use of Force and Firearms require that governments establish methods for differentiated use of force and weapons, including less-lethal options. The circular 1832 establishes five levels of resistance corresponding to five levels of permitted force. Use of less-lethal weapons is reserved for levels 4 and 5 of resistance (aggressive behavior and potentially lethal aggression), while lethal force is limited to level 3. Less-lethal weapons should only be aimed at individuals who commit acts of violence, with restrictions on targeting the head, face, or neck to prevent skull fractures, brain injuries, and permanent blindness.

Article 13 of Law 1801 of July 29, 2016 establishes that less lethal weapons, ammunition, elements and devices are all those means, both physical and technical and technological, that allow making differentiated use of force without reaching the deployment of lethal force. This establishes the legal category of less lethal options available to police.

This video explains the critical distinction between 'não letal' (non-lethal) and 'menos que letal' (less than lethal) equipment in law enforcement. Historically, equipment like batons, rubber ammunition, and tear gas were called 'non-lethal,' but this terminology has evolved to 'less than lethal' because these devices can still cause death under certain conditions. Key examples include rubber ammunition (requiring minimum 15-meter distance), tear gas grenades, and flashbangs. The video emphasizes that using less than lethal equipment at improper distances or misidentifying equipment types can result in fatalities, as demonstrated by a Goiânia case where a police officer confused a tear gas grenade with rubber ammunition, causing a protester's death. The terminology shift reflects a more accurate understanding of the risks involved.