Is It Legal to Shoot an Intruder in New Mexico?

Posted on by JACK MKHITARIAN

An intruder in New Mexico.Imagine you are asleep late at night when you hear the sound of breaking glass. Realizing that someone has broken into your home, you grab your gun and step into the hallway. At this moment you may wonder, Is it legal to shoot an intruder in New Mexico?

At that point, it will be too late to research New Mexico law to determine how to protect your loved ones and still avoid going to jail or prison.  You need to do that in advance—like right now, for example.

Is It Self-Defense If I Shoot an Intruder?

Pay no attention to what you may think you have learned about self-defense law by watching police dramas. US states generally apply one of three approaches to self-defense: duty to retreat, the Castle Doctrine, and “stand your ground.” It is best to review all of them so that you will understand what you can and cannot do in this emergency situation.

In a “Duty to Retreat” State

In a “duty to retreat” state, you must meet the following qualifications to gain the right to self-defense:

  1. You must not be the aggressor in the encounter.
  2. You must use only the amount of force you need to counter the threat. For instance, if the perpetrator has a gun you can use a gun, but if their only weapon is a tree branch you might want to put your gun away.
  3. You must genuinely believe that force is necessary, and your belief must be reasonable. As long as your belief is reasonable, however, you don’t have to be right.
  4. You must reasonably believe that an attack is imminent. The threat of future harm is not enough to justify the current use of force.
  5. You must retreat before you resort to the use of force if you can do so safely. You are entitled to refuse to retreat if retreating would put someone else in danger (a family member, for example).

Since there is no general duty to retreat in New Mexico, New Mexico is not a “duty to retreat” state. Nevertheless, you might have a duty to retreat under certain circumstances (especially outside of your home).

In a “Castle Doctrine” State

The “Castle Doctrine” is based on the old English saying, “A man’s home is his castle.” The circumstances that must prevail to allow the Castle Doctrine to justify killing an intruder are:

  1. Someone forcefully and unlawfully entered your home;
  2. You reasonably believed that the commission of the violent felony (not necessarily murder) was about to occur;
  3. You reasonably believed that you must kill the intruder to prevent the felony; and
  4. A hypothetical “reasonable person” under the same circumstances would have acted the same way you did.

The prime differences between self-defense in a “duty to retreat” state and a Castle Doctrine state are:

  • There is no duty to retreat; and
  • There is a presumption that deadly force was necessary. Under such a presumption, you are justified in using deadly force unless someone else proves otherwise.

New Mexico

New Mexico applies the Castle Doctrine on a case-by-case basis. This means that even if your case meets all of the foregoing requirements, it is still up to the jury whether to exonerate you based on the Castle Doctrine. For this reason, you should avoid using deadly force unless you have no choice.

In New Mexico, you are also entitled to use force to defend your property. New Mexico UJI 14-5180, related to the defense of one‘s property, states that a person may use force that he deems reasonable and necessary to defend his or her property. The amount of force you use cannot be great enough to pose a substantial risk of greatest bodily harm, and you cannot attempt to kill someone merely to protect your property.

In a “Stand Your Ground” State

New Mexico’s General Jury Instruction on Self-Defense UJI 14-5190 states that “A person who is threatened with an attack need not retreat. In the exercise of his right of self-defense, he may stand his ground and defend himself.”  There is no duty to retreat from room to room inside of your own home, even if it is safe to do so. Nevertheless, this does not make New Mexico a “stand your ground” state.

In a “stand your ground” state, not only is there no duty to retreat before using deadly force, your right to stand your ground extends beyond your home to anywhere that you might be threatened.

What Is an Affirmative Defense?

Outside of your own home, self-defense is an “affirmative defense” under New Mexico law. When you use an affirmative defense, it is not the prosecution’s burden to prove that you did not have the right to act as you did. Instead, the burden of proof is on you to prove that you had the right to act as you did (i.e., in self-defense). If no evidence is provided either way, the prosecution wins the affirmative defense question. The opposite is true if the altercation occurred in your own home.

The standard by which you must prove self-defense, however, is not the same standard that a prosecutor must meet in order to successfully prosecute you. To prosecute you, the prosecutor must prove your guilt “beyond a reasonable doubt.” To walk free based on an affirmative defense, you must only prove your defense by “a preponderance of the evidence.” This means you must prove at least a 51% likelihood that your actions were justified.

It’s Time to Take Action

The attorneys at New Mexico Criminal Law Offices understand that every criminal case involves a different application of the law to a unique set of facts. No two cases are alike, and no two clients are alike. We do not use “cookie-cutter,” or one-size-fits-all defense strategies.

The New Mexico criminal justice system is adversarial to the core, and you deserve an aggressive and relentless defense. Our lawyers have successfully defended thousands of clients against all different types of criminal charges, including homicide charges. Call New Mexico Criminal Law Offices at (505) 200-2982 or contact us online for a free consultation.