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STF authorizes preventive community patrol by municipal guards

The understanding of the rapporteur, Minister Luiz Fux, prevailed. Ministers Cristiano Zanin and Edson Fachin were defeated.

From the Editors

 

Thursday, February 20, 2025

This Thursday, the 20th, the STF decided, by majority, that municipal civil guards have the authority to carry out preventive and community patrols.

 

The understanding of the rapporteur, Minister Luiz Fux, prevailed, who voted in favor of the guards' actions in this regard. His position was followed by Ministers Dias Toffoli, Flávio Dino , André Mendonça, Nunes Marques, Alexandre de Moraes, Gilmar Mendes and Luís Roberto Barroso.

 

On the other hand, Minister Cristiano Zanin defended a more restrictive interpretation, removing the authority of the guards for investigations and limiting personal searches to specific situations. His vote was supported by Minister Edson Fachin.

 

Minister Cármen Lúcia was absent from the session for a justified reason.

 

In the end, the following thesis was established:

 

I. The exercise of urban security actions by municipal guards, including community policing, is constitutional within the municipalities, respecting the attributions of other public security bodies, provided for in art. 144 of the Federal Constitution, excluding any judicial police activity, being subject to external control of police activity by the Public Prosecutor's Office, under the terms of art. 129, VII, of the Federal Constitution.

 

II. According to art . 144, §8º of the Federal Constitution, municipal laws must observe the general rules established by the National Congress.

 

Case

 

The City Council of São Paulo appealed to the Supreme Federal Court contesting a decision by the Court of Justice of São Paulo that declared unconstitutional a provision of municipal law 13.866/04 that established among the duties of the Metropolitan Civil Guard that of "preventive and community policing aimed at protecting municipal assets, services and facilities, as well as arrest in flagrante delicto for any crime". For the Court of Justice of São Paulo, by dealing with public safety, the law invaded the jurisdiction of the State. 

 

Rapporteur's vote

 

Minister Luiz Fux, rapporteur of the action, recognized the competence of municipal guards to carry out preventive policing, validating the prerogative of municipalities to legislate on the subject.

 

According to His Excellency, the law of São Paulo is in compliance with the Federal Constitution, as it respects the division of powers.

 

Initially, Fux proposed the following:

 

It is constitutional to assign municipal guards the responsibility for exercising preventive and community policing duties, in the face of conduct that is potentially harmful to the assets, services and facilities of the municipal entity, in cooperation with other public security bodies, within the scope of their respective powers.

 

II. According to art . 144, §8º of the Federal Constitution, municipal laws must observe the general rules established by the National Congress.

 

Enlargement

 

Minister Flávio Dino supported the vote and defended a broader interpretation of the role of the guards, emphasizing that their role should not be restricted to property protection.

 

For His Excellency, the Federal Constitution does not limit the actions of the guards to public buildings, but places them within the general context of public safety, covering places such as squares, markets and schools.

 

Dino also stated that, when protecting these spaces, municipal guards can and should act in cases of flagrant crime.

 

Restriction

 

Minister Cristiano Zanin adopted a more restrictive interpretation, emphasizing the constitutional and legal limits of municipal guards.

 

For His Excellency, the action must be restricted to the protection of municipal assets, services and facilities, without including investigative or overt policing functions.

 

Zanin highlighted that the guards do not have unrestricted policing powers, like the Military and Civil Police, and that, despite being part of the Unified Public Security System, this does not make them equal to other police forces.

 

Furthermore, he highlighted that the external control exercised by the MP over the police does not apply, as a rule, to municipal guards.

 

His Excellency proposed the following thesis:

 

The municipal laws that deal with the actions of municipal guards in the area of ​​public security are restricted to the set of powers conferred on these bodies by the Constitution of the Republic and by law, in the following terms:

 

I. Municipal guards have sui generis police powers, which allow them to carry out preventive patrolling, only in relation to the protection of municipal assets, services and facilities (art. 144, § 8º of the CF and art. 4º of law 13.022/14);

 

II. Municipal guards may exceptionally carry out personal searches, pursuant to art. 244 of the CPP, provided that they are linked to the immediate prevention of contemporary crimes against municipal public property and in the presence of concrete elements indicating possession of the body of the crime;

 

III. Municipal guards may carry out arrests in flagrante delicto, as may any member of the public, in situations where the perpetrator of the act is effectively committing the criminal offense, has just committed it or is being pursued immediately after committing it.

 

IV. Municipal guards are not authorized to assess the well-founded suspicion of possession of the body of crime (art. 244 of the CPP and art. 302, IV of the CPP) in crimes other than those that protect public property, and therefore cannot, in these cases, carry out personal or home searches for investigation purposes. 

 

The local law that grants municipal guards the power to carry out preventive policing is constitutional, as long as it is linked to the protection of municipal assets, services and facilities .

 

Aid against crime

 

When voting, Minister Alexandre de Moraes emphasized that, since the 1988 Constitution, there has been an excessively restrictive interpretation of the guards' activities.  Since 1988, we have all started to interpret the Civil Guard as much more about goods and facilities than services. It is repeated over and over again that the Civil Guard, and sometimes it is confused, is, in quotation marks, a property guard for the City Hall , he stated.

 

The minister stressed that this mistaken view limits the work of municipal guards, when in fact they can help combat crime.  We end up confusing the Metropolitan Civil Guard, the Municipal Guard, with a municipal security guard. Look, it is not a security guard. In most municipalities, especially the large ones, security guards are outsourced, they are hired,  he highlighted.

 

See the excerpt:

 

 

 

According to Moraes, the distinction between the security guard and the Municipal Guard needs to be clear, especially in relation to police powers.  Security guards are one thing, security guards do not have police powers, and administrative police powers are also often confused with police powers , he explained.

 

The minister criticized the thesis that municipal guards are not qualified to act in public safety.  From this it was constructed, or attempted to be constructed, that the Metropolitan Guard ends up not serving for public safety, ends up not serving to help in the fight against crime. This is a mistake, president, it is a mistake, it is a mistake that we cannot condone , he stated.

 

Finally, Moraes countered arguments about the lack of preparation of some municipal guards.  Well, then, let's train the Guard ,he concluded.

 

The minister, following the rapporteur, proposed the following thesis:

 

The exercise of urban security actions by municipal guards, including ostensive and community policing, is constitutional within the municipalities, respecting the attributions of other public security bodies, provided for in art. 144 of the CF, and excluding any judicial police activity, being subject to external control of police activity by the Public Prosecutor's Office under the terms of art. 129, VII of the Constitution. 

 

Moraes also stated that the Military Police suffers from historical prejudice due to the association between state repression and police activity during the military dictatorship.

 

Read more

STF: Moraes says that the Military Police have suffered prejudice and abandonment since the end of the dictatorship

 

His Excellency highlighted that this prejudice contributed to the weakening of public safety in Brazil and criticized the Federal Government's stance of transferring responsibility for security to the States. Public Safety is a problem for the Union, States and Municipalities,he stated.

 

 

He also criticized outdated models of ostensive policing, comparing them to the character  from the cartoon Manda-Chuva .

 

He highlighted that public safety requires dynamic and preventive strategies, instead of fixed agents waiting to be activated.

 

 link: https://www.migalhas.com.br/quentes/425061/stf-autoriza-patrulha-preventiva-comunitaria-por-guardas-municipais