Comprehensive Study Guide on the Use of Weapons and Force in the Luxembourgish Police

Introduction to Police Use of Weapons

Being a police officer means serving as part of the state's executive power. The primary mission of this role is to ensure that citizens can live in freedom and security. To achieve this, officers have a spectrum of measures at their disposal. Often, simple police presence is sufficient to provide residents with a sense of security and deter potential lawbreakers from violating the statutes. If presence alone is insufficient, officers may resort to verbal warnings, administrative fines, or legal prosecution. In cases where individuals offer physical resistance, officers are authorized to take necessary measures, which may ultimately include the use of weapons.

Any use of weapons or other compulsory means must take place within the absolute confines of laws and regulations. Police officers are expected to exhibit calm, patience, and humanity even in dangerous situations. The use of force or weaponry must be executed with necessary caution and should never exceed the absolute minimum required to overcome an attack or resistance. It must be clearly understood that the use of a weapon is a final and unavoidable measure.

Psychological Phases of Weapon Deployment

Every officer must be mentally prepared for the possibility of using a firearm to protect themselves or third parties. The psychological impacts of such an event are profound and can be categorized into three distinct phases. The first phase occurs before the use of the weapon and involves the potential inability to shoot at another human or the stress-induced loss of all operational skills. The second phase, during the deployment, is characterized by stress-related imprecise shooting and the overcoming of inhibitions after the first shot, often resulting in a phenomenon known as tunnel vision. The third phase occurs after the deployment and involves trauma, self-reproach, and family tensions stemming from potential legal proceedings and consequences.

The Legal Framework and the Abolition of the Death Penalty

The legality of weapon use in Luxembourg is primarily governed by two texts: Articles $416$ and $417$ of the Criminal Code, which deal with self-defense, and the Law of $28$ July $1973$ regarding the use of weapons and other compulsory means by members of the police. The $1973$ law is largely based on the conditions of self-defense.

On $20$ June $1979$, six years after the publication of the weapon use law, the death penalty was officially abolished in Luxembourg. During constitutional reform debates, the majority of the commission held that society does not have the right to dispose of a person's life. Specifically, they noted that the death penalty is irreparable in cases of judicial error and that the goal of society should be to neutralize rather than eliminate offenders. These considerations must influence an officer's assessment of proportionality when deciding whether to use lethal force.

Principles for the Deployment of Force

Weapons and compulsory means are only permitted as a final, unavoidable measure after all other possibilities to avoid their use have been exhausted. This process is guided by four fundamental principles: preparation of the deployment, verbal contact with the citizen, conflict avoidance through proportional means, and the constant awareness that there is no right to make a mistake. There is no possibility to undo an action once it has occurred; therefore, any arbitrary or unjustified use of force will be punished through both disciplinary and criminal channels. Officers are strictly prohibited from insulting, mistreating, or applying unnecessary violence to others.

Regarding preparation, the deployment should always focus on self-protection and the safety of others. An officer must gather the maximum amount of information possible, either through the radio control center or on-site, to constantly update the situational assessment. Tactic planning involves utilizing the full register of police tactics. The first effort should always be verbal contact to bring a citizen to reason, speaking clearly, politely, and neutrally while avoiding provocation. This verbal contact can have its own progression but must remain proportional to the situation.

Provisions of the Penal Code: Articles 416 and 417

Articles $416$ and $417$ of the Penal Code apply to all persons in Luxembourg, including civilians and police officers. Police officers are covered by these provisions even when they are not in the exercise of their official duties or are not recognizable as officers. However, there are specific scenarios where officers in the line of duty must restrict their use of weapons solely to the bounds of self-defense as defined by the Penal Code. These include missions inside foreign embassies or European institutions in Luxembourg, cross-border observations or pursuits (hot pursuit), and for police candidates in all career paths.

Article $416$ (Self-Defense) acts as a justifying ground ($\text{rechtfertigungsgrund}$), meaning it removes the illegal substance of an act of injury or killing if self-defense is proven. It is defined as the necessary defense to respond appropriately to a violent, unforeseen, current, or immediate and unjustified attack on one's own physical integrity or that of a third person.

The conditions for self-defense include an unlawful/violent attack that must be a physical action against health or life; verbal insults or threats are insufficient. Because self-defense is a defense against an unlawful act, there is no right of self-defense against a lawful police action (e.g., a criminal resisting a lawful arrest). The counter-defense must be necessary and address a current, immediate danger; it cannot be a reaction to a completed attack or a preventive measure for a future threat. Finally, the response must be proportional; an officer should not shoot an unarmed attacker. Proportionality also applies to the method of use; for example, if an officer strikes vital zones like the head or neck with a Tonfa to fend off an unarmed attacker, it may be deemed disproportionate.

Article $417$ addresses the protection of property. It allows an individual to defend their property and permits police to assist. Section $1$ covers nighttime burglaries in private dwellings or dependencies involving violent entry or climbing over barriers. The person claiming self-defense in this case must assume the burglary aims for a direct attack on health/life or that such an attack will follow the defense of the property. Section $2$ allows defense against authors of theft or robbery involving violence.

The Law of 1973 on Weapons and Compulsory Means

Unlike the Penal Code, the Law of $1973$ applies only to members of the public power, which includes the police and the army, but excludes customs. There is a supplementary instruction from the General Prosecutor's Office ($N^{\circ} Fo.a.a.$) dated $13$ September $1974$. Any use of a weapon under this law must be evaluated based on legality and opportunity. For legality, the use must comply with Articles $1$, $2$, $3$, or $6$ and the officer must be clearly recognizable as such. If their police status is not clear, they must act under the provisions of the Penal Code (Articles $416$ and $417$).

The Law of $1973$ covers firearms provided by the administration (e.g., Pistols, $MP5$), bladed weapons or batons (e.g., $TONFA$), and other means like pepper spray, water cannons, cables, spikes ($\text{herses/hérissons}$), and barriers designed to stop vehicles. Any other object used as a weapon (e.g., a Maglite or a dog) is considered an "arme par destination" and is not regulated by this law, meaning its use is restricted to self-defense situations under the Penal Code.

The fundamental basis of the $1973$ law is absolute necessity. Weapon use is justified only if no other possibility exists to guarantee public safety or protect life. Officers must ask if harmless means are possible (if so, there is no absolute necessity) or if other means are insufficient (if so, absolute necessity exists).

Legal and Opportunistic Use of Weapons

Proportionality remains a core expectation, requiring that officers choose and use their means (communication, self-defense, spray, Tonfa, pistol) appropriately to restore order or deliver offenders to justice. Officers must consider what goal they aim to achieve, what damage they might cause, and if the goal justifies that damage. Opportunity ($\text{Opportunität}$) requires the use to be adapted to the specific situation. For example, shooting at a vehicle in a crowded shopping street is considered negligent and not opportunistic due to background danger. The use of weapons should always remain the last resort for solving a police problem.

Regarding background danger, it is vital to avoid hit-risks to bystanders. This applies particularly to shooting at moving vehicles, which entails risks of the vehicle crashing into others, injuring innocent passengers, or causing ricochets and stray bullets from the metal components of the car. Stopping a fast vehicle with standard-issue service pistol ammunition is considered extremely unlikely.

The Concept of Warning Shots

The Law of $1973$ does not recognize the "warning shot" ($\text{Warnschuss}$) as a legal term. Legally, the act of firing a shot must be justified under the same conditions as a targeted shot. Therefore, a warning shot can only occur in cases where the law would also have permitted a targeted shot. While it might seem tactically useful to force a fleeing person to surrender, the negative aspects generally outweigh the benefits.

From a legal perspective, absolute necessity must justify the shot in the context of the police mission. From a tactical perspective, warning shots in urban areas are strongly discouraged due to background hazards. A bullet fired into the air returns to earth with enough speed to seriously injure or kill. Furthermore, the first shot lowers the officer's psychological threshold for firing again and can create "tunnel vision." There is also the danger that other patrols, seeing or hearing the shot without full information, may assume the suspect is armed, leading to potentially fatal misunderstandings. Consequently, warning shots are generally discouraged.

Weapon Use Without Prior Warning

Weapon use without stop requests ($\text{Halteaufforderungen}$) is permitted to avert immediate danger or if officers were directly attacked and the perpetrators are fleeing. The legality is assessed based on the facts known to the officer at the time of the incident.

Specific Articles allowing use without warning include:

• Article $1.1$: Describes self-defense scenarios similar to Art. $416$ of the Penal Code but explicitly includes threats by armed persons and unarmed attacks.
• Article $1.2$: Involves assistance to third parties and the protection of their property.
• Article $1.3$: Specific police missions like object protection or person protection. Unlike the army, police do not need to give warnings if protected buildings/installations are attacked.
• Article $2.3$ al. $2$: Roadblocks established for hunting criminals (e.g., after a bank robbery). If a vehicle tries to break through the block, it justifies the suspicion that perpetrators are fleeing. This is no longer self-defense, as the threat to the officer has passed once the car breaks through.
• Article $2.4$: When a crime or misdemeanor is about to be committed using weapons or explosives.
• Article $3$ al. $2$: Prisoner transport. Deployment is justified if a perpetrator attempts to grab an escort member's weapon or flees after injuring an escort member.
• Article $6$: Police-escorted transports of high value (money). Fire can be opened without warning if an attack has begun, even if perpetrators are fleeing with the loot, though necessity still applies.

Weapon Use With Mandatory Warnings

When prescribed by law, stop requests cannot be ignored. They must be shouted loudly in a language the person understands (Luxembourgish, French, or German) to identify the speaker as police and give the fleeing person a chance to surrender. In self-defense or cases of immediate life protection, these are generally not required.

Specific Articles requiring warning include:

• Article $1.4$: The classic fleeing felon. Used when a person has committed a crime (e.g., a non-escorted money transport robbery) and there is no other way to stop them. Requirements: $2\times$ loud shouts of "Halte Police," serious suspicion of crime, public pursuit, or a valid warrant/escape from conviction.
• Article $2.1$: Concerns the phase after an immediate attack has ended. If a driver attempted to run over an officer, that immediate self-defense phase (Art. $1.1$) requires no warning. Once the driver is fleeing, this article applies. A "Halte Police" shout is required for those who attacked with a weapon, but not required for a driver who used a vehicle as a weapon (legally categorized as "rébellion armée" rather than attempted homicide).
• Article $2.2$: Missions like delivering evidence or prisoners where elements try to prevent the mission. If they persist after verbal warnings, weapons may be used if absolutely necessary.
• Article $2.3$ al. $1$: Use against vehicles (land, sea, air) transporting suspected criminals. Warnings can be given via whistle or public address systems.
• Article $3$ al. $1$: Prisoner transport. In case of rebellion or escape, the head of the escort must shout "Halte ou je fais feu." If ignored, weapon use is legitimate but still subject to proportionality.

Military, Special Means, and Administrative Provisions

Members of the army follow the same weapon use rules when requisitioned by the police (Article $4$). Article $5$ specifically regulates weapon use by the army for guarding military installations. Article $10$ emphasizes that orders from superiors must be followed unless they are clearly illegal. The executing officer is only responsible if they were aware of the order's illegality.

Special compulsory means like tear gas, water cannons, and vehicle stopping devices (cables, spikes, nets) are regulated under Articles $7$ and $8$. These can be used during control and search operations, either by the officer's own authority, by order of superiors, or by requisition of judicial authorities. Service dogs do not fall under the $1973$ law, but their deployment must still adhere to the overarching principles of absolute necessity and proportionality.

Modern Statutes and Cross-Border Operations

The Police Law of $18$ July $2018$ includes provisions for the requisition of civil authority in the context of maintaining public order (Article $30$). For cross-border operations under the Schengen agreements, such as cross-border pursuit or observation, the use of weapons is strictly limited to self-defense as defined by Article $416$ of the Penal Code. This concept of self-defense is consistent across neighboring countries.

Questions & Discussion

Question regarding Article 2.1: Why is the stop request not necessary for a driver who attempted to endanger the life of a police officer through a vehicle maneuver? Response: According to the instructions of the General Prosecutor's Office, such an act is recorded as "armed rebellion" rather than an "attempted homicide." Article $2.1$ distinguishes between an attack with a weapon (requiring a shout during flight) and the maneuver of a vehicle (not requiring the shout during flight).

Question regarding warning shots: Are there any legal specifics mentioned for warning shots? Response: The law does not recognize "warning shots" as a legal term. Any shot fired is simply considered