HOUSE BILL 228

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Candy Spence Ezzell

AN ACT

RELATING TO CRIMINAL LAW; PROVIDING FOR JUSTIFIED USE OF FORCE BY AN INDIVIDUAL; PROVIDING FOR THE AWARD OF ATTORNEY FEES; PRECLUDING CRIMINAL PROSECUTION FOR CERTAIN DEFENSIVE ACTIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 30-2-7 NMSA 1978 (being Laws 1963, Chapter 303, Section 2-8) is amended to read:

     "30-2-7. [JUSTIFIABLE HOMICIDE BY CITIZEN] JUSTIFIED USE OF FORCE BY AN INDIVIDUAL.--[Homicide is justifiable when committed by any person in any of the following cases:

          A. when committed in the necessary defense of his life, his family or his property or in necessarily defending against any unlawful action directed against himself, his wife or family];

          B. when committed in the lawful defense of himself or of another and when there is a reasonable ground to believe a design exists to commit a felony or to do some great personal injury against such person or another, and there is imminent danger that the design will be accomplished; or

          C. when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed in his presence or in lawfully suppressing any riot or in necessarily and lawfully keeping and preserving the peace.]

          A. A person is justified in using force against another person when and to the extent the person reasonably believes that such force is necessary to defend the person or a third person against another person's imminent or actual use of unlawful force or trespass upon the person's or third person's property.

          B. Subject to Subsections C, D and E of this section, a person is justified in using deadly force against another person only if the person reasonably believes that such force is necessary to defend the person or a third person against another person's imminent or actual use of unlawful deadly force or imminent or actual commission of a felony that involves the use of force or a deadly weapon.

          C. A person who uses any level of defensive force, including deadly force, against another person shall be presumed reasonably to believe such force is necessary to defend the person or a third person against another person's imminent use of unlawful deadly force or imminent commission of a felony that involves the use of force or a deadly weapon when:

                (1) the person against whom the defensive force is used, at the time such force is used:

                     (a) is unlawfully or forcefully entering, or has unlawfully or forcefully entered and is present within, the dwelling, place of work or occupied vehicle of the person using defensive force; or

                     (b) has removed or is attempting to remove another person against such other person's will from the dwelling, place of work or occupied vehicle of the person using defensive force; and

                (2) the person using defensive force knows or has reason to believe that any of the conditions set forth in Paragraph (1) of this subsection exists. 

          D. The presumption set forth in Subsection C of this section does not apply if:

                (1) the person against whom defensive force is used has a right to be in or is a lawful resident or owner of the dwelling, place of work or occupied vehicle;

                (2) the person using defensive force is engaged in criminal activity; or

                (3) the person against whom defensive force is used is a law enforcement officer engaged in the lawful performance of official duties.

          E. A person who is not the initial aggressor and is not engaged in criminal activity shall have no duty to retreat before using defensive force pursuant to this section if the person is in a place where the person has a right to be. No finder of fact shall be permitted to consider the person's failure to retreat as evidence that the person's use of force was unnecessary, excessive or unreasonable.

          F. As used in this section:

                (1) "deadly force" means force as described in Paragraph (2) of this subsection that poses a threat of likely death or serious physical injury to a person; and

                (2) "force" means any or all of the following actions directed at or upon another person or thing:

                     (a) words or actions that reasonably convey the threat of imminent force;

                     (b) the presentation or display of the means of force; or

                     (c) the application of physical force, including by a weapon or through the actions of another."

     SECTION 2. Section 31-23-1 NMSA 1978 (being Laws 1985, Chapter 152, Section 1) is amended to read:

     "31-23-1. CIVIL ACTION--CRIME--DAMAGES--IMMUNITY.--

          A. No person shall be liable to a plaintiff in any civil action for damages if by a preponderance of the evidence the damages were incurred as a consequence of:

                [A.] (1) the commission, attempted commission or flight subsequent to the commission of a crime by the plaintiff; and

                [B.] (2) the use of force or deadly force by the defendant [which] that is justified pursuant to common law or the law of the state.

          B. The court shall award reasonable attorney fees, court costs, compensation for loss of income and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is not liable as provided in Subsection A of this section."

     SECTION 3. A new section of Chapter 31 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] NO PROSECUTION FOR DEFENSIVE ACTION.--No person shall be placed in legal jeopardy of any kind for protecting that person or that person's family or personal property or for coming to the aid of another person in imminent peril, pursuant to the provisions of Section 30-2-7 NMSA 1978."

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