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Imagine you are at home on the weekend and you hear what appears to be chanting coming from down the street. The chanting becomes louder and you look outside your window only to see an angry mob of protesters marching toward your home.

This was recently a reality for a couple in St. Louis in an incident that was widely covered by news media outlets. The couple exited their home brandishing firearms, at times pointing them directly at people with their fingers on the trigger. The way they handled the situation has sparked debate and controversy throughout the country. As a New Mexico Independent Program Attorney for U.S. LawShield, I’d like to use this event which gained national attention as a teaching moment for our members.

What is Deadly Force?

Deadly force has been defined by New Mexico courts as a violent action known to create a substantial risk of causing death or serious bodily harm. State v. Cardenas, 380 P.3d 866, 871 (N.M. Ct. App. 2016). In order to legally use deadly force, your actions must be justified by law. Deadly force is not legally justified when used to stop or prevent the criminal acts of trespassing or damaging your property alone. See N.M. UJI 14-5171, 14-5180 (“The New Mexico courts have consistently held, not always referring to the statute, that one cannot defend his property, from a mere trespass to the extent of killing the aggressor. State v. Couch, 1946-NMSC-047, ¶ 30, 52 N.M. 127, 193 P.2d 405.”)

No matter whether protesters are on the sidewalk in front of your home or on your lawn three feet from your door yelling obscenities at you, you are not legally justified to use deadly force against these actions alone. If this situation were to arise in New Mexico, you would be better served to call law enforcement officers and let them handle the situation. You can only draw your weapon if you feel that your life or the lives of those in your home are under threat of severe physical injury or death.

Be careful, because in New Mexico, pointing a firearm at another human being could constitute negligent use of a firearm, assault, or even aggravated assault unless justified. See N.M. Stat. Ann. §§ 30-7-4, 30-3-1, 2.

Always keep in mind that there is a critical legal difference between making it apparent that you are armed versus pointing a gun at a person. The key difference hinges upon if the act is perceived to be menacing and causes another person to reasonably believe they are in danger. In these cases, unless justified, the actions may rise to the level of criminal conduct. N.M. Stat. Ann. § 30-3-1(B) (“Assault consists of… any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery.”)

Castle Doctrine in New Mexico

Often the Castle Doctrine is invoked when situations such as that in St. Louis occur. The Castle Doctrine in New Mexico justifies the use of deadly force only if:

  1. The place where the killing occurred was being used as the defendant’s dwelling;
  2. It appeared to the defendant that the commission of the violent felony was immediately at hand and that it was necessary to kill the intruder to prevent the commission of the violent felony; and
  3. A reasonable person in the same circumstances as the defendant would have acted the same way the defendant did. NM UJI 14-5170.

Note that all of the aforementioned conditions must exist to have this legal defense work in court. Even then, it is a question for the jury to decide at trial—which has its obvious risks.

People often ask about N.M. Stat. Ann. § 30-2-7(c), which appears to authorize deadly force to suppress a riot among other reasons. Unfortunately, the courts’ treatment of N.M. Stat. Ann. § 30-2-7(c) in applicable cases has virtually eliminated any chance of a Defendant finding relief under this statute.

Protecting your family with illegal force could land you behind bars. You cannot protect your family from a jail cell.

The use of deadly force is never justified to prevent trespassing alone or as a means to protect property unless by destroying the property the perpetrator is putting your life or the life of your family in danger. See N.M. UJI 14-5171, 14-5180 supra.

If you have any questions about self-defense or defense when there are trespassers on your property, contact U.S. LawShield and ask to speak with your Independent Program Attorney.

The preceding should not be construed as legal advice nor the creation of an attorney-client relationship. This is not an endorsement or solicitation for any service. Your situation may be different, so please contact your attorney regarding your specific circumstances. Because the laws, judges, juries, and prosecutors vary from location to location, similar or even identical facts and circumstances to those described in this presentation may result in significantly different legal outcomes. This presentation is by no means a guarantee or promise of any particular legal outcome, positive, negative, or otherwise.