Murder not a function of law enforcement, says judge in Kian slay case

Homicide and murder have never been a function of law enforcement, said the judge who found three policemen guilty of murdering Kian delos Santos, even as he acknowledged the risks officers face in the line of duty.

In an anticipated decision promulgated Thursday, Caloocan Judge Rodolfo Azucena Jr. asserted that the use of "unnecessary force or wanton violence" is not justified when law enforcers can fulfill their duty otherwise.

"The court commiserates with our policemen who regularly thrust their lives in zones of danger in order to maintain peace and order and acknowledges the apprehension faced by their families whenever they go on duty," Azucena wrote.

But, he added: "A shoot first, think later attitude can never be countenanced in a civilized society. Never has homicide or murder been a function of law enforcement. The public peace is never predicated on the cost of human life."

His 35-page ruling unraveled the details of the killing of Delos Santos, 17, largely through witness accounts from the evening of August 16, 2017, when two officers allegedly shot a boy -- sitting or kneeling, covering his head with his hands, and pleading "Sir. huwag po" -- while another cop stood guard.

The teenager's death prompted his OFW mother to come home earlier than her contract could finish, a brother to quit his job out of fear, and a sister to stop studying, according to his father, Saldy, a prosecution witness.

Police Officer 3 Arnel Oares and Police Officers 1 Jeremias Pereda, and Jerwin Cruz were sentenced to reclusion perpetua and ordered to pay the minor's family P345,000 in damages.

The judge decided that physical evidence countered Oares' claim that the incident was a shootout. Oares said he shot in retaliation to a gunman from five or six meters away. A medico-legal officer found the two shots to Delos Santos' head were fired from two feet away.

Delos Santos' hands tested negative for the presence of gunpowder nitrates, too, the judge wrote, "which means that he did not fire any firearm."

Oares' claim of a shootout implies what the judge called the justifying circumstance of fulfillment of duty. But the judge said that while the condition of acting in performance of duty was present, the other -- that the injury resulting from the offense is a necessary consequence of due performance of duty -- was not.

"Accused Pereda dragged him to a pigpen which was very dirty and had a pungent smell. Accused Pereda and Oares shot Kian while Cruz, a fellow police officer, stood guard without any provocation from Kian and making it impossible for him to retaliate," Azucena held.

"The time and place, and manner of attack were deliberately chosen and the accused was immediately cloaked with impunity to ensure its successful execution."

As to Pereda and Cruz, Azucena decided their alibi and denial failed when compared against the positive identification by prosecution witnesses.

The allegations against the police officers included the planting of a .45 colt in the hands and two sachets of white crystalline substances -- shabu -- in the boxer shorts of the boy they killed.

But the judge ruled that the prosecution failed to show evidence that the policemen planted the gun and the drugs. The three were cleared of charges for planting of evidence.

The cases against the policemen's asset, Renato Perez Loveras, were ordered archived pending his arrest.

Justice Secretary Menardo Guevarra said the conviction should remind law enforcers to observe the rule of law and due process in the implementation of the administration's campaign against illegal drugs.

President Rodrigo Duterte's so-called widely criticized war on drugs has been linked to thousands of extrajudicial killings, the basis of charges against him and several senior officials before the International Criminal Court.

The constitutionality of Duterte's deadly crackdown against drugs is also being challenged before the Supreme Court. —NB, GMA News