by Lázaro Herculles Henrique Teixeira
Currently, the discussion around the functions and competencies of Municipal Guards in Brazil has gained prominence. With the growing concern about public safety and the need to strengthen the work of the security forces for the good of society, the Municipal Guards have become key players in this scenario. However, one question that remains open is the extent to which these institutions can exercise police functions, especially when it comes to judicial or administrative police activities.
To understand the current debate on the role of the Municipal Guards, it is important to highlight their fundamental purpose. Article 144 of the Federal Constitution states that public security is a duty of the state, as well as a right and responsibility of society as a whole, and must be exercised by public security police bodies. It is worth saying that the Municipal Guard is not part of the list presented in the aforementioned constitutional provision, which is why, until then, it was not considered a public security body.
The Municipal Guards were established with the main objective of protecting municipal public assets, guaranteeing a safe environment for the population. Their work includes inspecting public areas, supporting municipal bodies, preventing crimes and promoting public order. Recently, the Federal Supreme Court (STF) handed down an important decision regarding the Municipal Guards. On August 25, 2023, the STF ruled that these institutions are an integral part of public security bodies.
Justice Alexandre de Moraes ruled that “Municipal guards have among their primary duties the power to prevent, inhibit and restrain, by their presence and vigilance, criminal or administrative infractions and infractions that attack municipal goods, services and facilities. This is a typical public security activity exercised in the protection of property.”
The last to vote was the newest Justice, Cristiano Zanin, who followed Moraes’ opinion to grant the motion for breach of fundamental precept. Thus, by a narrow margin (6 to 5), the Supreme Court decided to include the Municipal Guards in the list of official public security bodies, despite the fact that they are not expressly mentioned in Article 144 of the Constitution.
This decision reinforces the importance of the Municipal Guards in maintaining order and security at a local level, which allows officers to carry out typical police functions, such as approaches, investigating places where there is suspicion of drug trafficking, among others.
However, the STF’s decision goes against what the Superior Court of Justice has been deciding, because this Court understands that the actions of the Municipal Guards must always be directly related to the purpose of the corporation, that is, the actions of the agents must be guided especially by the defense of municipal assets.
With this understanding, the STJ recently granted a writ of habeas corpus to relax the pre-trial detention of a defendant who was arrested carrying drugs and whose personal search was carried out by the Municipal Guard. According to Justice Joel Ilan Paciornik, the officers were carrying out ostensible and investigative duties, which are not part of their constitutionally prescribed attributions, which would characterize a misuse of function. “[…] there was no clear, direct and immediate link between the approach of the guards and the need to protect the integrity of property and facilities or ensure the proper execution of municipal services,” Paciornik emphasized.
On another occasion, the Sixth Panel of the Superior Court of Justice (STJ) reiterated the same interpretation that the municipal guard does not have the typical attributions of the civil and military police. In yet another case in which the evidence derived from the approach and personal search was annulled, it was emphasized that the municipal guard can only carry out such procedures in extremely exceptional situations – which are outside the day-to-day scope of their activity – with emphasis on the fact that such actions must be directly related to their institutional purpose.
This thesis was established in the judgment of an appeal that was successful in overturning the imprisonment of a citizen convicted of drug trafficking. The cause of the acquittal was the annulment of evidence obtained in a personal search procedure, which was conducted by agents of the Municipal Guard.
In this respect, we can see that the STJ acted as a true guardian of legality until the STF could define the issue, but there are still several nuances to be established in order to safeguard society’s fundamental rights.
This is because although the Supreme Court has recognized the role of the Municipal Guards as public security bodies, the question of whether these institutions can exercise judicial or military police functions remains open in the absence of legislation on the subject. Yes, because the Magna Carta clearly establishes the competencies of the judicial and military police, and does not include the Municipal Guards among these categories.
It is crucial to define clear limits for the activities of the Municipal Guards in order to avoid possible conflicts and guarantee the legality of their actions. What we are currently seeing is that this corporation has been presenting a clearly militarized posture and performance, with tactical training of agents and even the creation of special operations teams.
Although these institutions play a fundamental role in municipal public security, it is important to recognize that the Constitution establishes specific standards for the judicial and military police that have fundamental repercussions on criminal prosecution, especially with regard to the fundamental guarantees of the person being investigated and/or the defendant in the process or procedure.
As a result, a number of issues remain unclear that need to be clarified regarding the role of the Municipal Guards, especially with regard to the possibility of the corporation exercising police power in situations that do not involve municipal public property, or even whether this includes preventive or repressive action.
The debate on the functions of Municipal Guards in Brazil continues to evolve, as society seeks more aggressive solutions to public safety issues. The STF’s decision to recognize these institutions as part of the public security agencies is an important but extremely delicate milestone, and it is essential to define clear constitutional limits for their activities. It is imperative to strike a balance between the need to protect municipal public assets and strict observance of the constitutional provisions relating to criminal proceedings as a whole in order to avoid arbitrariness on the part of the state apparatus towards citizens. Therefore, the development of specific regulations and the definition of a list of competencies for the Municipal Guards are crucial steps in this process.
About the author:
Lázaro Herculles Henrique Teixeira is a criminal lawyer. Manager of the Criminal Law department at Vigna Advogados Associados. Postgraduate student in Criminal Sciences at USP/FDRP