As atribuições das guardas municipais: Limitações à atuação de caráter policial repressivo

Abstract

In some municipalities, the municipal guards limit their activities to the surveillance of municipal assets, in others, there is an expanded role in mediation and conflict pacification, and there are still municipalities in which the guards act with repressive character, doing ostensible policing, such as city police. It seeks to draw limits to the action of municipal guards in Public Security, according to the jurisprudence of the STF. The hypothetical-deductive method of approach is used, and the following basic hypothesis is established: the municipal guards, although they do public security activities, have their own constitutional attributions which are distinct from those of the police, therefore the municipal guards, when they do ostensible policing, go beyond their constitutional and legal attributions.As procedural methods, the bibliographic and documentary method is used. On the traditional view of the attributions of municipal guards, Silva (2006) and Gasparini (1993) are used. There are also theoretical contributions from Zaffaroni (2019), Zaffaroni et al. (2006), Zaffaroni and Santos (2020), Andrade (2015), Gomes and Gazoto (2020), and others, to explain about media pressure, the electoral use of criminal and police repression and the stereotypes that guide the social representations about youth, race and crime in Brazil. The discussions in the Chamber of Deputies that resulted in the approval of the General Statute of the Municipal Guards were followed, aiming to extract the mens legislatoris, to support the historical/systematic interpretation of the statute. A literature review was also carried out regarding the attributions of the municipal guard. As for the decisions of the STF, were selected only judgments which relate to the activity of the municipal guard in public security, with a time cut on 08/08/2014, the date of publication of the statute of municipal guards. After reading and interpreting the votes of the STF ministers in the selected judgments, it was found that there are differences to the ministers about the attributions applicable to the guards, with a understanding that defends the main role of the guard in the protection of patrimony, services and buildings of the municipalities, and a broader position, which understands that municipal guards already do activities of maintaining public order and fighting crime in general, defending that they act more broadly in public security. As a result of the divergence between the ministers, till now, there is no way to define the attributions that municipalities can grant to their municipal guards based on the jurisprudence of the STF. However, from the historical and systematic interpretation of Law nº 13.022/2014 and art. 144 of the Federal Constitution, it is concluded that the list of competencies described in art. 5 of the general statute of municipal guards cannot be interpreted in a way that conflicts with the attributions of the military police, because municipal guards have their own and distinct identity and attributions. If there are different interpretations about any of the items of art. 5º of Law nº 13.022/2014,must reject that one which leads tomunicipal guards acting as military police, doing ostensible policing and maintenance of public order. Thus, the military and combative image of municipal guards must be rejected and must be focused on their mediating and pacifying vocation of small conflicts and on preventive actions that will positively impact public safety, whether isolated actions or in conjunction with other agencies, whether municipal, state or federal agencies.