C.16b - Trigger Case
notice "On 3 December 2000, at around 1.54 a.m., the Guardia Civil headquarters informed patrols in the area of the sighting of a boat suspected of illegal transport of immigrants and/or drugs that was heading towards the area known as "el tolmo" in the municipality of Tarifa (Cádiz). A total of twenty undocumented immigrants of Moroccan origin were on board. The immigrants, once they had disembarked on the coast of Tarifa, began to walk away from the coast, unaware that they were heading towards an area where several civil guards had immediately arrived after receiving the notice from the headquarters. Among these officers was the accused, the civil guard D. Gregorio, of legal age and without a criminal record. Once the officers, with the help of a night vision device, were able to see the arrival of a large group of people, group , the officers dispersed. After hearing the shout of "stop the Civil Guard", a chase began in the course of which one of the immigrants, Romeo, in his solitary flight, was pursued by the accused, Gregorio, who at the time was carrying a torch. In the course of this pursuit, as Romeo continued to run without heeding the officer's stop orders, Gregorio took out his service weapon and fired an intimidating shot into the air, which brought the immigrant to a halt in front of an embankment. At that precise moment, Gregorio approached from behind with the gun in one hand and his finger on the trigger, without having set the safety catch on any subject and the gun being in a fit condition to fire, and a torch in the other, and grabbed Romeo by one of his arms. Romeo turned at that moment and Gregorio lost his balance as a result of the slippery and wet ground and the slope of the site. During his fall to the ground, Gregorio reflexively pulled the trigger and the gun went off. As a result of this shot, a bullet hit Romeo in the posterior axillary area, at the height of the 5th rib, after grazing his left arm. This caused a hypovolemic-hemorrhagic shock, as a result of which he died". (STS 26 October 2009; pte. Jorge Barreiro; RJ 2009, 5755).
I. Two phases can be distinguished in the events. First, the chase phase until Gregorio shoots into the air, which causes Romeo to stop in front of the embankment. And second, the one that occurs once Gregorio has fired and approaches Romeo, whom he grabs by the arm, slips, falls and the shot is fired. We will focus on this second phase.
II. We are told that Gregory, "with his finger on the trigger, without having engaged the safety catch of any subject and the gun being in a fit condition to fire, and a torch in the other", "held Romeo by one of the arms", who "turned at that moment"; "Gregory lost his balance as a result of the slippery and wet ground and the slope of the place. During his fall to the ground, Gregorio pulled the trigger in a reflex movement, firing the gun". The fact that the essay of the facts mentions that "he pulled the trigger in a reflex movement" does not spare us the burden of argument and substantiation. On such a factual basis, and without modifying them, the following can be said about Gregorio's criminal responsibility.
II.1. The first question is whether Gregorio has carried out human conduct. The essay of proven facts uses a series of verbs that clearly require the intervention of a subject who is in control of his actions. Thus, in particular: "holding his finger on the trigger", "carrying ... a torch", and "held Romeo". In all of them we can affirm that Gregory exercises a minimum of volition, as he has to choose, opt, select means... And all of this supports the affirmation that he acts with self-control. However, two events are mentioned ("he lost his balance" and "he pressed ... firing the gun") which cast doubt on his self-control at that precise moment. Indeed, losing one's balance is a way of saying that one falls, moved by gravity, without being able to avoid it, so it seems to us that volition is excluded, the minimum to be able to speak of self-control. As for the trigger being pulled by the hand as the product of a quick reaction to the fall, it raises the question of whether there is volition at that moment. Rather, it seems that the fall when he slips makes Gregorio carry out a reactive manoeuvre of resistance - ineffective, however - in order not to lose his balance. This is what anyone would do if they were pushed or perceived they were falling: we move to catch ourselves, not to lose our balance, to resist... As it seems to me that this is a status in which anyone would proceed in the same way, I am inclined to think that it is not a question of choice or volition, but something carried out as a reflex movement. It does not seem to me to be a matter of unconsciousness status . One could also see irresistible force: he certainly falls moved by gravity when he loses his balance, but we are focusing on the movement of the finger on the trigger, so we are back to the possible reflex movement we were talking about. As I said, there is sufficient reason to affirm that he reacts instinctively and not avoidably, therefore, there would be no self-control in that sequence of the second phase, which is when the shot that triggers Romeo's death is fired. As this process in which he is immersed cannot be imputed as human conduct (rather, it would be an act of man), it is not possible to establish criminal liability.
II.2. However, the fact that there is no human conduct on his part at that precise moment does not detract from the fact that there may be responsibility at an earlier stage. Indeed, if in the previous phase, by carrying the weapon, mounting it and having his hands full (he has a gun with his finger on the trigger and a torch, and he also grabbed his arm), we could affirm that he decided to disregard precautionary measures and precautions regarding the use of the weapon against a person who could react in an unpredictable manner, in a dark place... There is self-control in that previous moment, sufficient for what comes next. Thus, by investigating whether there is self-control in the previous phase, Gregorio could be made manager of what triggers it. I am inclined to affirm that there is self-control in this initial sequence of the second phase, when choosing the means (gun, in readiness to shoot, torch, grabbing him), there is volition or self-control, because he has options. This is what the structure of the actio libera in causa is for. It is another matter whether we can establish a connection between this conduct in the previous phase and what happened afterwards, by analysing whether there is a relationship of objective imputation (creation of a typically relevant risk) and subjective imputation (malice or recklessness), which remains for further lessons in the subject.
III. At final, Gregorio has not engaged in human conduct in the final phase of the case, so that his liability is not arguable. But he is liable on the basis of the previous phase, in which there is self-control, and which requires a closer analysis of the objective and subjective imputation.