Statement of District Attorney Byers on Peace Officer Use of Deadly Force
We (“the people”) all live subject to the rule of law. We authorize Police Officers to enforce the law in our collective name. That authorization includes the use of deadly force, a very complex topic.
What follows is not legal advice or a complete listing of relevant references on the topic. However, it is a very basic, historic, criminal law only perspective on use of deadly force by an agent of government. The same subject may be viewed differently from other legal viewpoints.
New Mexico statues require police to investigate crime and enforce the law. §29-1-1 NMSA 1978. In the 1961 New Mexico Supreme Court case of Alaniz v. Funk, our state’s highest court said: “When the state sends an officer to make an arrest for a felony, he must use his best judgement to make the arrest, peaceably if he can, but forcefully if he must.”
In the 1937 case of State v. Vargas, the New Mexico Supreme Court outlined Officer responsibility and authority years ago, quoting an opinion from the Missouri Supreme Court:
“The officer, when making an arrest, may, of course, defend himself, as may any other person who was assaulted; but the law does not stop there. The officer must of necessity be the aggressor. His mission is not accomplished when he wards off the assault. He must press forward and accomplish his object. He is not bound to put off the arrest until a more favorable time. Because of these duties devolved upon him the law throws around him a special protection. As we said in the recent case of State V. Fuller, 96 MO. 165, 9S. W.583, his duty is to overcome all resistance and bring the party to be arrested under physical restraint and the means he may use must be coextensive with the duty.”
Effectuating a lawful arrest always involves a degree of risk to Officer safety. The New Mexico Court of Appeals stated in State v. Sanchez that “An officer does not need to wait until he sees the glint of steel before he can act to protect his safety.”
Additionally, the United States Supreme Court ruled in Tennessee v. Garner, and Graham v. Conner that police use of deadly force is evaluated from the viewpoint of the reasonable Officer, considering the totality of the circumstances.
The New Mexico statutes provide that a homicide by public officer may be deemed justifiable in circumstances where it is necessarily committed in overcoming actual resistance to the execution of some legal process; retaking felons: arresting felons fleeing from justice, or in order to prevent the escape of a felon. When a public officer…has probable cause to believe he or another is threatened with serious harm or deadly force while performing those lawful duties, such homicide is considered necessarily committed.
Each police-citizen encounter is fact specific, and police training incorporates these and other standards to facilitate the safe application of the law. Sometimes risk to an Officer’s safety develops in much less time than it took to read this sentence. The resultant use of force is analyzed from the viewpoint of a reasonable officer.
No person, police or private citizen, is perfect; but judges and legislators chosen by (“we’) the people have declared the law on government use of deadly force. While this overview is certainly not exhaustive, or completely definitive, it hopefully informs the discussions of many will-meaning people from differing perspectives on police use of deadly force.
-Gerald M. Byers
Third Judicial District Attorney
Doña Ana County District Attorney Gerald Byers’ office serves the communities of Las Cruces, Sunland Park, Anthony, Chaparral, Hatch, Mesilla, and several smaller towns within the Third Judicial District. This office is committed to educating the public about the services we provide and serving those who come in contact with our criminal justice system. The office handles over 5700 cases a year. Our Trial attorneys prosecute in the Third Judicial District Magistrate Court and District Court, including the Veterans Court and DWI specialty court in Doña Ana County. The office employs 60 people to serve anyone who comes in contact with the criminal justice system. Our office is dedicated to keeping our community safe.