Prevarication in the factual impossibility of arrest in the act:

Impossibility of excluding illegality and culpability

Abstract

The Penal Code provides for the crime of malfeasance for anyone who delays or fails to perform an official act in order to satisfy personal interests or feelings. And the Code of Criminal Procedure determines that police authorities and their agents must arrest anyone caught in the act. Thus, a police officer who comes across a situation of a flagrant crime has a legal duty to make an arrest. However, in Brazil, there are currently criminal factions with a high power to confront the State. Thus, situations occur in which the police officer is in fact unable to make an arrest, which could be understood as the practice of the crime of malfeasance. In order to discuss the exclusion of unlawfulness and culpability of malfeasance in these situations, an inductive approach was adopted, with a monographic bibliographic procedure, using primary and secondary sources. Its relevance lies in the legal security of police officers during ostensive policing and city takeovers. Currently, the penal code provides for situations that exclude unlawfulness and guilt, which cannot be alleged, in the event that it is impossible, due to disparity in offensive power, to arrest in flagrante delicto. The state of necessity could be applied if there were legislative improvements. There is a need to improve paragraph 1 of article 24 of the penal code to provide for the use of reasonableness, which is why it is suggested that the phrase “provided that it could be done reasonably” be added.