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F I S C A L I M P A C T R E P O R T
SPONSOR Heaton
ORIGINAL DATE
LAST UPDATED
1/23/2007
HB 163
SHORT TITLE Justifiable Use of Defensive Force
SB
ANALYST Schuss
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY07
FY08
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates Senate Bill 39, Relates to Senate Bill 152
SOURCES OF INFORMATION
LFC Files
Responses Received From
Public Defender Department (PDD)
Administrative Office of the Courts (AOC)
Department of Public Safety (DPS)
Attorney General’s Office (AG)
No Response Received
Administrative Office of the District Attorney
SUMMARY
Synopsis of Bill
House Bill 163 amends Section 30-2-7, Section 30-2-8, and Section 31-23-1 NMSA 1978. The
amendment to Section 30-2-7 NMSA 1978 is to expand upon the type of justifiable force
allowable under prescribed circumstances to include the use of force, including deadly force.
The bill provides that the person who uses defensive force, including deadly force, shall be
presumed to have reasonably feared imminent death or great bodily harm, or the commission of a
felony upon the person or another or upon the person’s dwelling or immediate premises, or
against a vehicle that the person was occupying. The bill requires that the person against whom
defensive force was used:
•
be in the process of unlawfully and forcibly entering; or
pg_0002
House Bill 163 – Page
2
•
had unlawfully and forcibly entered the dwelling or immediate premises or occupied
vehicle; or
•
had unlawfully removed or was attempting to unlawfully remove another against that
person’s will from that dwelling or immediate premises or occupied vehicle; and
•
the person who used defensive force knew or had reason to believe that the forcible
entry or unlawful and forcible act was occurring or had occurred.
Under the bill, the presumption shall not apply in the following circumstances:
•
if the person against whom defensive force is used has a right to be in or is a lawful
resident or owner of the dwelling or immediate premises or vehicle;
•
the person using defensive force is engaged in criminal activity; or
•
the person against whom defensive force is used is a law enforcement officer engaged
in the performance of official duties.
Section 30-2-8 NMSA 1978 is amended to include the use of force, including deadly force as
grounds for acquittal of the defendant when proven to be excusable or justifiable.
Section 31-23-1 NMSA 1978 is amended to provide for the awarding of reasonable attorney
fees, costs, compensation for loss of income and all expenses incurred by the defendant in
defense of any civil action brought by a plaintiff, when the court finds the defendant not liable as
provided in the amended Section 30-2-7 NMSA 1978.
FISCAL IMPLICATIONS
The Administrative Office of the Courts believes that there will be a minimal administrative cost
for statewide update, distribution and documentation of statutory changes. Any additional fiscal
impact on the judiciary would be proportional to challenges to verdicts and awards, based on
claims of self-defense or defense of others. New laws, amendments to existing laws and new
hearings have the potential to increase caseloads in the courts, thus requiring additional resources
to handle the increase.
The Public Defender Department states that passage of this bill might actually reduce their
workload infinitesimally.
SIGNIFICANT ISSUES
The Attorney General’s Office notes that as to criminal prosecutions, this bill actually seems to
codify existing case law on the subject of defense of self, family and habitation. Also, please
note, that the use of deadly force is not permitted in preventing an ordinary theft or in attempting
to recover stolen property. State v. Johnson, 1998 -NMCA- 019, 124 N.M. 647, 954 P.2d 79,
adopting Tennessee v. Garner, 471 U.S. 1 (1984); and any use of deadly force must still be
reasonable. Downs v. Garay, 106 N.M. 321, 742 P.2d 533 (Ct. App. 1987) Justification or
excuse are already defenses to any civil action resulting from the use of force in self-defense,
defense of others, or defense of habitation. The new feature here is the award of fees and costs
to successful defendants in civil cases.
The Public Defender Department adds that this bill seems eminently sensible. New Mexico is a
large state whose wide-open spaces often result in unavoidably long police response times.
pg_0003
House Bill 163 – Page
3
Carjackers and home invaders are generally violent. A person whose home is invaded or who is
carjacked may not have any alternative but to use force to defend himself.
PERFORMANCE IMPLICATIONS
The Administrative Office of the Courts notes that the courts are participating in performance-
based budgeting. As a result of challenges to verdicts and awards, this bill may have an impact
on the measures of the district courts in the following areas:
•
Cases disposed of as a percent of cases filed
•
Percent change in case filings by case type
•
Clearance Rate
CONFLICT, DUPLICATION, RELATIONSHIP
Duplicates Senate Bill 39, Relates to Senate Bill 152
TECHNICAL ISSUES
The Attorney General’s Office states that
in
a sense, the new language to be added to 30-2-7
could be viewed as containing a rule of procedure, a rule of evidence and provisions that would
require a particular jury instruction in any prosecution for the use of deadly force under the
circumstances detailed here. The legislature should be mindful of the supreme court’s decisions
in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), and
Albuquerque Rape Crisis Center v. Blackmer, 2005 -NMSC- 032, 138 N.M. 398, 120 P.3d 820,
which articulate the general rule that the legislature is precluded from enacting statutes that bear
on the procedures used in the courts. Generally, rule-making authority, including promulgating
the rules of evidence and jury instructions, is, reserved to the supreme court. The Blackmer
decision, however, recognizes exceptions to that general rule. They also note that these new
provisions will specifically apply to prosecutions for aggravated battery, aggravated assault or
kindred offenses.
BS/csd