GUARDA MUNICIPAL, SEGURANÇA PÚBLICA E PODER DE POLÍCIA: exercício do poder de polícia e a jurisprudência dos Tribunais Superiores à luz da ADPF 995

Abstract

The Municipal Guard, with attributions defined in the General Statute of Law No. 13,022/2018 and provided for in article 144, paragraph 8 of the Federal Constitution, which provides for the protection of goods, services, municipal public places and facilities of the Municipality. However, it is noteworthy that historically, the Municipal Guard was continuously instigated and reinforced to expand its performance to act in an ostensive and preventive way, similar to the Military Police, through continuous investments by the Municipal Executive Powers, a fact that is easily found in several inland cities in Brazil, that the Municipal Guard is instituted to help in the lack of public security not supplied by the Military Police of the municipality. Since 2023, this institution was not considered an integral body of the Public Security System, given the exhaustiveness of its limited performance and optional creation by the Municipal Mayor, a text expressly provided for in the previous article cited in the Major Law that did not cover typical activities of ostensible or investigative policing. In this way, this exhaustive view of the performance of this institution resulted for years in the annulment and illegality of several arrests, including in flagrante delicto, of criminal actions carried out by the Municipal Guards outside their attribution. Therefore, the usurpation of the functions of ostensive and investigative police, caused criminal nullities, generating serious legal instability in the Public Security System, and dissatisfaction of the Municipal Guard agents. However, recent decisions of the Federal Supreme Court (STF) such as ADPF 995, ADI 5780 and Complaint 61.542, have expanded the understanding of the role of the Municipal Guards. However, recent decisions of the Federal Supreme Court (STF) such as ADPF 995, ADI 5780 and Complaint 61.542, have expanded the understanding of the role of the Municipal Guards. In August 2023, the Federal Supreme Court with ADF 995 recognized that municipal guards are part of the Public Security System, enabling its members to carry out tasks such as street patrols and arrests in flagrante delicto, among others, that is, it equated the Municipal Guard with other police forces. This change in jurisprudence demonstrates progress in the understanding of the responsibilities of the Municipal Guards, identifying them as active elements in the promotion of public security, in addition to their original functions of defending property. The research was developed from a bibliographic review and doctrinal and legislative analysis, aiming to provide a critical reflection on the applicability of this interpretative change.