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N.M. has Stand Your Ground instruction for certain juries

ALBUQUERQUE, N.M. — The jury reached its verdict. It determined that George Zimmerman was not guilty of murder in the shooting death of Travon Martin.

The verdict applied Florida’s “Stand Your Ground” statute to a nighttime confrontation between a young black man and a neighborhood watch participant that ended with the youth’s gunshot death. Every pundit, politician and personality who has even driven past a law school has commented on this case.

President Barack Obama and Attorney General Eric Holder have urged that repeal of Stand Your Ground laws by the 30-some states that have enacted them is the only way to prevent further violent tragedies.

We have examined Florida’s Stand Your Ground statute here before. These statutes vary from state to state but generally allow one to utilize deadly force in response to a perceived threat. Specifically, Florida’s Statutes Section 776.013 states:

“A person who is not engaged in an unlawful activity and who is attacked in any place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force … to prevent death or great bodily harm.”

In that previous discussion, I indicated that New Mexico is a Stand Your Ground jurisdiction. In the wake of the Zimmerman verdict, and our district attorney’s statement that New Mexico is not a Stand Your Ground state, I received questions from several readers. Who’s right?

It is important to understand that the concept of self defense is a complicated issue which generates considerable debate in the case law and among criminal-law practitioners. With more than 30 different Stand Your Ground statutes in the United States, it is dicey to characterize them except in broad terms, especially in this format. Let’s take another look.

Stand Your Ground laws stem from the common-law Castle Doctrine. That doctrine holds one may use deadly force in response to an attack on their home; it is a derivative of the adage “a man’s home is his castle.” These laws also integrate the concept that one has no duty to retreat from physical threats brought against him or her in their home. The absence of a duty to retreat is a primary characteristic of Stand Your Ground laws; however, these statutes extend the arena from one’s home to any place they find themselves when trouble arises.

New Mexico statutes provide a killing is justified when committed in the necessary defense of one’s life or property, or in response to any unlawful action directed at the defendant or a family member, or to prevent a felony or other great harm to another, or in apprehending a fleeing felon or otherwise “keeping and preserving the peace.” A 1946 decision from the New Mexico Supreme Court clearly adopted the Castle Doctrine. In State v. Couch, the court held that defense of habitation alone, without specific statute, gave a homeowner the right to meet force with force “for a man’s house is his castle.” Further, in any case where self defense is at issue, a judge must instruct the jury: “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.”

Bear in mind that the facts must support a self-defense claim in the first place to warrant Jury Instruction 14-5190, which essentially means you cannot instigate the confrontation, must have a reasonable apprehension of harm before acting, and must utilize reasonable force under the circumstances.

So, is New Mexico a Stand Your Ground jurisdiction? Some versions of Stand Your Ground laws, like Florida’s, are very broad and allow use of deadly force any time an attack is in progress or subjectively believed to be imminent. Other states, like New Mexico, maintain more objective standards when considering this self-defense doctrine but do not require a citizen to retreat before defending. Both are variations of the Stand Your Ground concept.

Should the law allow use of deadly force based largely or even completely upon the subjective beliefs of the actor or should a civilized society impose objective criteria to establish justification for killing another? You can, of course, Judge for Yourself.

Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: Opinions expressed here are solely those of Judge Malott individually and not those of the court.

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