Introduction to New Mexico Self Defense Laws
The law of self defense is relatively well established in most jurisdictions and New Mexico is no exception. Although it is not set out in the statute or constitution, the concept is that individuals must have the ability to defend themselves as long as the force used is considered reasonable. Therefore, if a person is attacked, he or she does not have to allow the attack to continue without trying to prevent it. This right to use self defense does not only apply to physical attacks, but also with respect to property and reputation.
New Mexico criminal law recognizes five types of self defense. Each type of self defense is referred to as a justification and must be proven by the defendant as an affirmative defense to the criminal charge against defendant, i.e., if the defendant is charged with murder, and the defendant asserts self defense, then the defendant has the burden of proving why the defendant should not go to jail or prison for the murder. The following is an overview of the five types of self defense in New Mexico criminal law:
- (1) Defense of oneself: Under this general category of self defense, a person may use reasonable force to protect himself or herself from physical harm. See Section 30-13-5, NMSA 1978 .
- (2) Defense of another: An individual is justified in using force against another person to the extent the actor believes the force is immediately necessary to protect the third person against another’s use or imminent use of unlawful force. See Section 30-13-4, NMSA 1978.
- (3) Defense of property: An individual is justified in using force against another person to the extent the actor believes the force is immediately necessary to prevent or terminate the other person’s unlawful entry or trespass on the actor’s property. See Section 30-15-11(B), NMSA 1978.
- (4) Defense of habitation: A person is justified in using force when the person reasonably believes the force is immediately necessary to prevent another person from "unlawfully entering or is entering" one’s property currently occupied. See Section 30-15-11(A), NMSA 1978.
- (5) Use of deadly force: A person is justified in using deadly force only if the person is immediately confronted with or threatened with death or great bodily harm. See Section 30-3-7, NMSA 1978.
These self defense justifications must be proven by the defendant at trial. If the defendant establishes that the defendant was acting in self defense, even if the defendant was the initial aggressor, the State must prove beyond a reasonable doubt that the defendant was not justified in killing or causing serious bodily injury.
Stand Your Ground and Retreat Requirements
Unlike many states, New Mexico has not adopted a Stand Your Ground law. In the absence of such a law, an affirmative defense exists under the circumstances we’ve discussed about lawful self-defense. In short, you must show that the use of force was necessary to prevent imminent death or great bodily harm to yourself or another.
No Duty to Retreat
Most states recognize and allow a person to stand their ground in the face of a threat of assault. In the absence of a statute, the Common Law allows such conduct as an affirmative defense. We have discussed this concept several times, including in the following posts:
Duty to Retreat
Unlike Stand Your Ground laws, Common Law does require a defendant to use any means available to avoid or retreat from the perceived threat posed by another. This is often referred to as the duty to retreat. Under these circumstances you cannot claim self-defense if the opportunity to retreat is known to be available and safe and you do not exercise that option.
Although New Mexico has not formally adopted a Stand Your Ground law, it does allow for standing one’s ground in the face of a threat. This means that you do not have a duty to retreat but can use reasonable force to protect yourself from that threat. Jurisdictions view the law differently in other states, so check to see whether securing your retreat is required.
In Tennessee, for instance, a duty to retreat does exist. You have a duty to retreat no matter how old or physically impaired you may be. If it’s possible to retreat, you are required by law to do so. However, there are a couple of exceptions. First, if you reasonably believe that retreat is not possible and were being attacked in a location where you had a right to be.
A home invasion or if you’ve been threatened with deadly force, use of no force is required. New Mexico law reflects this, though that detail is often missed by judges and juries. We expect the legislature to craft a Stand Your Ground law.
While a duty to retreat can impact your use of force in the face of a perceived threat, there are no circumstances in which you must attempt to retreat before using force. If you perceive a threat and it would be reasonable for anyone found in your situation to expect possible death or great bodily harm as a result, regardless of your circumstances relating to age or otherwise, you are justified in using force.
Castle Doctrine in the State of New Mexico
New Mexico does in fact recognize the "Castle Doctrine" under the statute 30-1-12 which reads in part, as follows: A person entitled to the possession of a dwelling is justified in using reasonable force against another when and to the extent he reasonably believes that such force is necessary to prevent or terminate the other’s unlawful entry into, or unlawful entry onto, or other unlawful act of force against, either his dwelling or his occupied vehicle in which the person is present or to prevent an imminent commission of such a force. Such justification shall not apply if the person against whom the force is used is lawfully in the dwelling or has apparently lawful right to be in the dwelling or in the occupied vehicle and there is no order of protection of any kind in effect in favor of the person using force. According to the New Mexico Supreme Court in State of New Mexico v. Anguiano, 2009-NMCA-033, 145 N.M. 519 (Ct. App. 2008), this particular statute provides greater protection to those who defend their homes, than that provided by the traditional "Stand Your Ground" type self-defense laws, because it provides that the person defending their possession of a dwelling is justified in the use of force "to the extent he reasonably believes that such force is necessary to prevent or terminate the other’s unlawful entry into…his dwelling or his occupied vehicle in which the person is present". However, this statute only applies to homes and occupied vehicles; therefore it is essential for individuals to understand the differences in self-defense law outside of the "castle" or home.
Justified Use of Force According to Law
Using physical force against other people is prohibited by law in New Mexico and can result in jail time or other harsh penalties, such as lengthy terms of supervised probation. There are limited exceptions, however. Self-defense laws in New Mexico allow individuals to legally use force – sometimes even deadly force – under certain circumstances in which they believe that they, their families, or their property are threatened with unlawful bodily injury or harm.
When you pull the trigger or strike another person during a fight, for example, the state will usually try to object to your self-defense claim if any of the following apply: If any of these circumstances exist, it is likely that the court will decide that your use of force was unlawful, and you could be charged and convicted of aggravated assault, aggravated battery, or homicide-related crime.
Self-Defense Laws in New Mexico
Under the law in New Mexico, you can use force if it is necessary to prevent the imminent use of unlawful force by another person. You may use physical nonlethal force if you reasonably believe that the strength of your attacker would likely require that you do so in self-defense. You may also use lethal force, such as using a gun to shoot someone, when you believe your life or that of someone else is in danger, and the danger is very sudden, perilous, and real.
You are justified in using lethal force in New Mexico if: If you were attacked inside your own home, you can only use lethal force in self-defense if you are reasonably afraid that the aggressor would commit a felony, inflict serious injury, or commit kidnapping, sexual assault, or robbery.
Castle Doctrine
Like most states, New Mexico has adopted "castle doctrine" laws that state anyone can use deadly force against an unlawful intruder in their home, regardless of whether they are inside or outside the home.
Use of Guns in Self Defense
Self Defense With Firearms (and Other Arms)
A firearm is a weapon that can be readily concealed, even if there are some exceptions overlooked by the police. When an actor uses a deadly weapon deliberately, the state must prove that the action was not taken in self-defense. New Mexico law provides that a person may use deadly force only when the person believes it is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force. Deadly force is not immediately necessary if the actor knows that with complete confidence the other can , with complete safety, withdraw and discontinue the attack. The law further provides that a person who is not an initial aggressor does not have a duty to retreat or otherwise avoid using deadly force. It is important to note that an alleged victim of a crime has no duty to retreat if it is in his or her own home. However, the alleged victim cannot use deadly force against a person who enters their home unlawfully unless the victim believes that force is required to repel the unlawful intrusion.
Legal Ramifications and Trusted Defense Strategies
If a person is charged with a violent crime, they may still be able to claim self defense in the original incident. A defendant may offer evidence of self defense at trial. A jury will then decide whether the testimony or other evidence supports the self defense claim. This cannot happen, however, until said charges are brought against the person who is claiming self defense.
Because New Mexico takes the act of self defense very seriously, the prosecution "always" charges a suspect who uses deadly force. Even if that person makes a bid of immunity, a prosecution may still move forward before allowing a court to decide on the self defense claim. Killing someone in spite of a claim for self defense is still murder even in the state of New Mexico.
Example: Bernard, who lived in Albuquerque, N.M., pleaded not guilty, but admitted to flashing a pistol at a group of men who had challenged and threatened him. The group demanded Bernard hand over his jacket. Bernard did not do this. Instead, he drew the pistol he kept in his belt and waved it at the "gang" before leaving. The state of New Mexico charged Bernard with aggravated assault. The defense lawyer argued that the client had acted in self-defense. The prosecution claimed otherwise. However, the jury found in favor of Bernard and the case was dismissed.
An experienced self defense attorney may have the ability to challenge the prosecution’s ability to meet its legal burden.
Examples of Relevant Cases and Rulings
Various high-profile cases have involved a claim of self defense, including the following:
State v. Garcia: In an early recorded New Mexico opinion, the New Mexico Supreme Court held that a defendant claiming self defense had to offer some evidence that he or she was under threat of unlawful bodily injury. The court held that even though the defendant had fired 18 shots at law officers, there was sufficient evidence for the jury to have found that he shot in self defense. The jury was entitled to determine whether the 18 shots were fired in fear of death or great bodily harm and, therefore, the defendant’s conviction was reversed and remanded.
State v. Archibeque: Again, the New Mexico Supreme Court held that in order to prove that his use of deadly force was justified, the defendant must prove that the force used against him was unlawful. The case also involved evidentiary issues. The court held that a victim’s impeachable prior criminal conviction can be injected into evidence if it is a "necessary element of the defense" and "essential to a fair trial." Importantly, the court noted that this rule did not require the trial court to find that the victim provoked or initiated a violent attack upon the defendant before the defendant’s evidence of self defense becomes admissible.
State v. Hall: The defendant charged with armed robbery claimed self defense after he shot and killed the man who was allegedly trying to steal his pickup truck. Defendant had already testified that he shot the victim only after he saw the victim reach inside his coat for something shiny, which defendant testified that he thought was a gun. The defendant objected to the admission of the victim’s eight prior convictions because he felt that they were remoten in time and could not serve to impeach the victim and that the prejudicial effect resulted in a denial of due process. The defense attorney admitted that she never asked for a jury instruction for self defense. The court found that defendant sufficiently raised the issue of self defense and that its abrogation denied him due process.
State v. Regino: A defendant can impeach the victim’s account by getting into evidence the nature of the victim’s convictions. This will refresh the memory of the witness, and the witness may give a different answer once he recalls the conviction.
Commonly Asked Questions about Self Defense in New Mexico
When are you allowed to use physical force in self-defense?
In general, you may use physical force if you reasonably believe immediate physical force is being, will be, or has recently been used against you, and you believe no other means of preventing the harm is readily available. This includes situations where you have a reasonable fear that a stranger will physically harm you.
But New Mexico Gun Laws also state that a citizen may use deadly force if they reasonably believe they or another person face imminent danger of death or serious bodily harm. No confrontations are necessary for you to claim self-defense if you believe you or someone else will become a victim of attempted murder or aggravated assault.
It’s important to note that deadly force is only permissible when the imminent danger is to human life. With the exception of protection against rape, robbery, false imprisonment, or kidnapping, deadly force is not permitted for protecting property.
What is the "Castle Doctrine" and how does it apply to the laws on self-defense?
The so-called "Castle Doctrine" is a legal concept that allows people to defend themselves without the threat of arrest and prosecution when they believe the aggressor has entered their residence unlawfully. The way most people think of the "Castle Doctrine" is an expansion of the right to self-defense and permits the use of deadly force to protect one’s self or others like family members or roommates, from anyone trying to break into their home to cause them bodily harm.
However , the "Castle Doctrine" does not entitle you to use deadly force if the aggressor enters your home without intent to harm. For example, if you have an acquaintance over for coffee and they mistakenly enter the wrong apartment, you cannot claim you feared for your life and used deadly force to prevent them from entering your home.
Is there a "Stand Your Ground" law in New Mexico?
New Mexico’s self-defense statute applies if the defender has reason to believe they or someone else will be seriously injured by another person if they wait for the police to arrive. If this person has a gun, the intended victim may defend themselves accordingly. Citizens may use deadly force to protect themselves from unauthorized intruders entering their property with the intent to kill or cause serious bodily harm.
But unlike some other states in the country, there is no "Stand Your Ground" law in New Mexico, which means you have a duty to retreat from the presence of the aggressor before you can legally use deadly force.
Do I have to give my aggressor a chance to leave?
Similar to "Stand Your Ground," New Mexico does not have a "duty to retreat" law. Therefore, if you’re prevented from leaving the situation, you can use as much force as necessary to defend yourself without any further attempts to leave. For example, you do not need to run away from a violent person if your only alternate path is through a door that is blocked.
You are not required to retreat, but meeting deadly force with deadly force is only permitted when you have no other means of self-defense available.